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C.A. Says Man Accused of Trafficking Minors Is Entitled to Withdraw Plea in Two Cases
Opinion Says Counsel’s Error in Informing Accused That He Would Be Eligible for Release in Half-Time Was Prejudicial Even if Court Warned He Was to Serve ‘Whatever Law Allows’
By Kimber Cooley, associate editor
The Fifth District Court of Appeal held yesterday that a defendant accused of trafficking minors for sex, among other charges, was entitled to withdraw his plea of no contest for ineffective assistance of counsel due to his lawyer wrongly advising him that he would be eligible to be released from prison after serving only half of his 24-year sentence.
In an unpublished memorandum decision, authored by Justice Jennifer R.S. Detjen and joined in by Acting Presiding Justice Bert Levy and Fresno Superior Court Judge Gregory T. Fain, sitting by assignment, the court said that faulty advice prejudiced the defendant even though the court warned him that any custody credits he might receive was not “part of the plea” deal.
Challenging his conviction was Myron Johnson, who pled no contest in 2019 to four sex trafficking counts and, in a separate case, to one charge alleging that he illegally possessed a firearm. He admitted to having a prior strike conviction and was sentenced to 24 years in state prison on both cases.
Multiple times during the change-of-plea hearing, Johnson asked for confirmation that he was “being sentenced to half time.” At one point, Tulare Superior Court Judge Juliet Boccone expressed concern over whether or not he would be eligible for half-time credit due to his prior strike.
His attorney, who is identified in Superior Court records as Vonya K. Quarles, responded:
“So he might not get milestone time. That’s up to [California Department of Corrections and Rehabilitation], but because what he pled to isn’t violent, then it is eligible for half time.”
After Quarles acknowledged that the prosecutor “made no promises” that he would be getting half-time on his sentence, Boccone remarked:
“That wasn’t part of the plea. Whatever the law allows, that’s what’s going to happen.”
Johnson later learned that he did not qualify for half-time credits under Penal Code §1170.12(a)(5), which governs sentences imposed for defendants with prior strikes and provides:
“The total amount of credits awarded…shall not exceed one-fifth of the total term of imprisonment imposed and shall not accrue until the defendant is physically placed in the state prison.”
Motion to Withdraw
In February 2021, while being assisted by new counsel, Johnson filed a motion to withdraw his pleas, arguing that his prior attorney was ineffective for misadvising him about the practical effects of his sentence. Tulare Superior Court Judge Melinda Reed denied the motion, and the decision was upheld on appeal.
Johnson then filed a petition for habeas corpus, asserting that he was prejudiced by the erroneous advice and would not have entered a guilty plea if he knew how much time he would be serving.
In yesterday’s opinion, the court found that Johnson was entitled to relief.
Detjen acknowledged “a lack of assurances from the court or prosecutor that he was eligible to earn credits at that rate” and that, absent the deal with the prosecutor, he was facing a “maximum potential sentence of 120 or 127 years to life.” However, she declared:
“The issue of petitioner’s eligibility to earn half-time credits was significant enough for petitioner to raise it with counsel and the court on the record….[I]t is reasonably probable petitioner would not have entered the plea if he was properly advised he would be limited to earning good conduct credits at a [reduced rate] for a portion of his incarceration. We therefore conclude petitioner was prejudiced by counsel’s misadvisement.
Ineffective Assistance
Detjen noted that a petitioner asserting ineffective assistance of counsel must show that the lawyer’s performance was deficient and that the defendant was prejudiced. The prosecution does not dispute the first factor.
As to prejudice, the jurist pointed out that courts consider whether “the misadvisement made the plea bargain more attractive” and “the likely outcome if petitioner had gone to trial.” Applying this analysis, she said:
“Neither party has presented argument regarding petitioner’s likelihood of success at trial. However, it appears that…petitioner understood he was facing a maximum potential sentence of 120 or 127 years to life. While petitioner’s potential exposure was great, the record nonetheless reflects that his ability to earn half-time credits was of paramount importance in his decision to enter the plea.”
She continued:
“The court’s colloquy with petitioner and defense counsel following sentencing…confirms petitioner continued to rely on defense counsel’s erroneous advice regarding his eligibility to earn half-time credits while in…custody, despite a lack of assurances from the court or prosecutor that he was eligible to earn credits at that rate….
“The issue of petitioner’s eligibility to earn half-time credits was significant enough for petitioner to raise it with counsel and the court on the record.”
Proposed Remedy
The Office of the Attorney General proposed that instead of vacating his conviction, the court should remedy any prejudice by awarding him additional custody credit.
Rejecting this suggestion, Detjen wrote:
“To remedy the prejudice from counsel’s misadvisement, we would be required to award petitioner 244.5 days of additional custody credit….[W]e agree with petitioner that this remedy is not legally permissible….[G]ood conduct credits are not part of the court’s sentence or judgment. Rather, it is the responsibility of [California Department of Corrections and Rehabilitation] to ‘calculate and apply any custody credits that have accrued’ following imposition of the sentence….The People do not provide any legal authority nor procedural process that would allow us to award petitioner additional good conduct credits that are contrary to the applicable regulations. Indeed, there is no legal mechanism for negotiating or approving a plea agreement mandating specific accruals of custody credits, let alone accruals that are contrary to law.”
Under these circumstances, she declared:
“[W]e conclude the only remedy is to vacate the judgment and permit petitioner to withdraw his no contest plea.”
In a footnote, the jurist commented:
“[W]e are required to report our vacation of the judgment for ineffective assistance of counsel to the State Bar for investigation of the appropriateness of initiating disciplinary action against defense counsel. We shall do so upon issuance of the remittitur in this case.”
The cases are In re Johnson, F086400 and F086404.
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