Silva v. Neotti

Filing 20

ORDER Conditionally Granting Petition for Writ of Habeas Corpus, ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 2/27/2013. (hlkS, COURT STAFF) (Filed on 2/27/2013) (Additional attachment(s) added on 2/27/2013: # 1 Certificate/Proof of Service) (nah, COURT STAFF).

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

GILBERTO SILVA,

8

Petitioner,

9

v.
DANIEL PARAMO, Warden,

11
For the Northern District of California

10

United States District Court

No. C 09-5656 PJH
ORDER CONDITIONALLY GRANTING
PETITION FOR WRIT OF HABEAS
CORPUS

Respondent.
_______________________________/

12
13

Petitioner Gilberto Silva, a Cailfornia state prisoner, filed a pro se petition for writ of

14

habeas corpus. The court issued an order to show cause, and respondent filed an answer.

15

The court subsequently appointed counsel on Silva’s motion, and petitioner filed a traverse,

16

request to expand the record, and request for evidentiary hearing. The court determines

17

that the matter is suitable for decision without oral argument. Having reviewed the parties’

18

papers and the record, and having carefully considered the relevant legal authorities, the

19

court CONDITIONALLY GRANTS the petition.

20

I.

BACKGROUND

21

A.

Procedural History

22

On June 3, 2005, Silva was charged with second-degree robbery, along with a gang

23

enhancement, in a felony complaint filed in Santa Clara County Superior Court. Answer,

24

Ex. 1 at 2 (Complaint). The complaint also alleged that Silva sustained two 1996 robbery

25

convictions (No. 3952-D and 3953-D), under Texas Penal Code § 29.02, that qualified as

26

strikes under California Penal Code §§ 667 and 1170.12. The complaint further alleged

27

that one of these priors (No. 3953-D) also qualified as a “serious felony” under California

28

Penal Code § 667(a).

1

On February 20, 2008, before the preliminary hearing, Silva pled to the offenses as

2

charged in the complaint. Ex. 2 (Change of Plea) at 3, 7. During the plea colloquy, the trial

3

court told Silva that he faced a maximum sentence of 25 years to life, consecutive to 15

4

years. Id. at 7. The court also noted that if it dismissed one of the strikes, his sentence

5

would be between nine and 25 years. Id. After being advised of his rights and the

6

consequences of his plea and admissions, Silva pled nolo contendere to the

7

second-degree robbery charge. Id. at 9. He also admitted the two separate strikes and the

8

prior serious felony based on the Texas robbery convictions. Id. at 9-10. Trial counsel

9

stipulated that there was a factual basis for the plea and admissions. Id. at 10.
On April 24, 2008, Silva filed a motion pursuant to People v. Superior Court

11
For the Northern District of California

United States District Court

10

(Romero), 13 Cal. 4th 497 (1996), seeking dismissal of both strikes in the interest of justice.

12

The prosecution opposed the motion. The probation report recommended a sentence of 25

13

years to life consecutive to 15 years, but indicated that if Silva were not statutorily ineligible

14

for probation, “a lesser prison term would have been considered recognizing, he was not

15

armed during the incident, his otherwise minimal recent criminal history, and his expressed

16

willingness to have his tattoos removed and live a productive life.” Ex. 1 at 38-39.

17

On May 13, 2008, the sentencing court held the Romero hearing, at which the

18

defense submitted a letter, and Silva’s mother, his mother’s friend, and a pastor testified on

19

his behalf. Ex. 2 at 15-18. The prosecutor pointed out that Silva told the probation officer

20

that he did not commit this crime, and also said that he would not have pled guilty to the

21

two prior felony convictions if he had not been young with an inexperienced attorney. Ex. 1

22

at 34-35, 37. The court observed that Silva’s statements to the probation department were

23

“unfortunate,” but stated, “as I think I indicated during our discussions, I’m still inclined to go

24

ahead and strike one of the two strikes based on the age of the strike, your age at the time

25

you committed it and your early acknowledgment at least by way of a plea.” Ex. 2 at 22-23.

26

The court imposed a sentence of 19 years, comprising the low term of two years for the

27

conviction offense of second degree robbery, doubled to four years based on one strike

28

prior conviction, plus 10 years for the gang enhancement and five years for a serious felony
2

1

prior conviction. Id. at 23-24. The court stated, “Probation, by the way, so you know, Mr.

2

Silva, recommended 25 to life consecutive to 15, which means you would have served 80

3

percent of 15 years and then started your 25-year sentence. So, you know, I am giving you

4

a considerable assist here by giving you a fixed term even though it’s a long term, and it will

5

be up to you upon your release to decide whether you’re going to continue to do life on the

6

installment plan or whether you’re going to turn things around.” Ex. 2 at 24.

7

Silva filed an appeal on August 27, 2008, seeking independent review of the entire

8

record pursuant to People v. Wende, 25 Cal. 3d 436 (1979). Ex. 3. The California Court of

9

Appeal, finding no arguable issue on appeal, affirmed the judgment of conviction on
December 16, 2008. Ex. 4.

11
For the Northern District of California

United States District Court

10

Silva also filed a petition for writ of habeas corpus in the court of appeal on

12

September 25, 2008, seeking relief on the ground of ineffective assistance of trial counsel

13

by failing to contest, and permitting and/or counseling Silva to admit, the prior strike

14

allegations. Ex. 5. The court of appeal issued a summary denial of the habeas petition on

15

May 27, 2009. Ex. 8.

16
17
18

Silva filed a petition for review of the denial of his habeas petition. The California
Supreme Court denied review on July 29, 2009. Ex. 10.
Silva filed his federal habeas petition in this action on April 5, 2010. The original

19

petition referred to, but did not include, an attachment and the petition was dismissed with

20

leave to amend. Silva then refiled the same petition, with the word “amended” handwritten

21

in the caption, but again failed to provide the attachment. The court again dismissed with

22

leave to amend. Silva then filed the appropriate attachment, and the court issued an order

23

to show cause on April 19, 2011. Respondent filed an answer on June 15, 2011. Silva

24

thereafter filed a motion to appoint counsel, which the court granted by order entered

25

December 13, 2011. After requesting, and being granted, three extensions of time, Silva

26

filed the traverse, a request to expand the record, and a request for evidentiary hearing.

27
28
3

1

B.

2

The following factual summary of Silva’s conviction offense is taken directly from the

3
4

Conviction Offense

opinion of the court of appeal, as derived from the probation report. Ex. 4.
At approximately 8:15 p.m. on May 31, 2005, Silva and another individual, William

Street in San Jose. Smith asked the victim if he was a Sureño; the victim denied it and told

7

Silva and Smith that they might have mistaken him for a member of the Sureño gang

8

because of the blue Los Angeles Lakers cap he was wearing. The victim removed the cap

9

and Smith attempted to grab it out of his hand. A struggle ensued, and Silva ran up to the

10

victim and pushed him to the ground, resulting in an abrasion to the left side of the victim’s

11
For the Northern District of California

Smith, approached the 17-year-old male victim while he was walking home on East Taylor

6

United States District Court

5

face. The victim was then kicked by Silva or Smith. The kicks caused the victim a great

12

deal of pain and he was fearful for his life. He was able to get up and run home,

13

whereupon his brother called the police.

14

Shortly after they spoke with the victim, San Jose police officers on bicycle patrol

15

observed five males (including Silva) in the front yard of a residence near the scene of the

16

robbery. Silva’s clothing matched the description given by the victim; Silva was holding the

17

victim’s cap. It was marked with Noreño graffiti. The cap had written on it in black ink,

18

“‘X4', ‘SACRAS’, ‘I love scrapes” and ‘Texas.’” Silva told the police that he had been

19

standing in the front yard when he observed his two friends arguing with an unknown male.

20

Silva approached because he believed that his friends were in trouble. As he did so, the

21

unknown male took off his cap and one of Silva’s friends took it; the unknown male then ran

22

off without any physical confrontation.

23

The probation officer reported that “although he has numerous facial tattoos

24

depicting gang affiliation, the defendant said that he has never been jumped in. He said, ‘I

25

was a follower’ and he got the gang related tattoos while intoxicated. He said there are no

26

such things as Norteño and Sureño gangs in Texas but once he came to California he

27

began associating with Norteño gang members.”

28
4

1

C.

2

The following factual summary of Silva’s two prior convictions is taken from the

3

Prior Convictions

prosecution’s brief in opposition to Silva’s Romero motion. Ex. 1 at 21-22.

4

1.

January 25, 1996 Robbery

5

Strike Prior #1: Taylor County, Texas 1996, docket 3935D [sic];1 Texas Penal Code 29.02

6

(Robbery), 5 yrs. Texas State Prison.

7

Shortly after midnight on January 25, 1996 defendant Gilberto Silva entered the

18-pack cases of Budweiser beer and walked out of the store without paying. The store

10

clerk, James Earl Jones, pursued him outside of the store. The store clerk yelled, “Stop!”

11
For the Northern District of California

Circle K convenience store located at 3401 Ambler Avenue, in Abilene, Texas and took two

9

United States District Court

8

The defendant stopped, turned around, put the beer on the ground, bent over slightly and

12

put his hands behind his back. Defendant then said to the clerk, “Come on man and I’ll pop

13

you.” The clerk thought defendant had a gun and broke off the pursuit. Defendant Silva

14

then ran away with the beer. The victim did not see a gun actually displayed by defendant

15

Silva.

16

2.

January 31, 1996 Robbery

17

Strike Prior #2: Taylor County, Texas 1996, docket 3935D [sic];2 Texas Penal Code 29.02

18

(Robbery), 5 yrs. Texas State Prison (concurrent).

19

On January 31, 1996 defendant Gilberto Silva entered the Wylie Shamrock

20

convenience store located at 799 Arnold Boulevard, Abilene, Texas and selected two 12-

21

packs of Budweiser beer and headed out the door without paying. The store clerk, Virginia

22

Bush, followed him outside and confronted him, taking the two 12-packs back. Defendant

23

Silva raised up his right hand with a closed fist.

24
25
26
27
28

1

The correct docket number for the January 25, 1996 offense, as stated on the
judgment entered by the Taylor County court, is No. 3953-D. Ex. 5 (state habeas petition, Ex.
B).
2

The correct docket number for the January 31, 1996 offense, as stated on the
judgment, is No. 3952-D. Ex. 5 (state habeas petition, Ex. B).
5

1

A gas customer, Bradley Williams, then came around the corner and told the

2

defendant Silva, “No you’re not!” The store clerk, Ms. Bush, then walked back into the

3

store followed by the defendant. As defendant Silva followed the store clerk, Mr. Williams

4

saw him lift up his shirt, exposing a handgun. The defendant put his hand on the gun but

5

then lowered his shirt once he was back in the store. The defendant never pulled out the

6

gun or pointed it at the clerk. Ms. Bush informed defendant Silva that she was going to call

7

“911.” Defendant Silva told her to, “Go ahead.” Defendant Silva then picked up three

8

packs of cigarettes and walked out of the store without paying. The defendant was

9

subsequently apprehended and identified.
II.

ISSUE PRESENTED

11
For the Northern District of California

United States District Court

10

Silva raises a claim for habeas relief based on ineffective assistance of counsel for

12

failing to investigate and challenge the prior strike allegations and for advising or allowing

13

Silva to admit them.

14

III.

15

STANDARD OF REVIEW
A district court may not grant a petition challenging a state conviction or sentence on

16

the basis of a claim that was reviewed on the merits in state court unless the state court’s

17

adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an

18

unreasonable application of, clearly established Federal law, as determined by the

19

Supreme Court of the United States; or (2) resulted in a decision that was based on an

20

unreasonable determination of the facts in light of the evidence presented in the State court

21

proceeding.” 28 U.S.C. § 2254(d). The first prong applies both to questions of law and to

22

mixed questions of law and fact, Williams (Terry) v. Taylor, 529 U.S. 362, 407–09, (2000),

23

while the second prong applies to decisions based on factual determinations, Miller–El v.

24

Cockrell, 537 U.S. 322, 340 (2003).

25

A state court decision is “contrary to” Supreme Court authority, that is, falls under

26

the first clause of § 2254(d)(1), only if “the state court arrives at a conclusion opposite to

27

that reached by [the Supreme] Court on a question of law or if the state court decides a

28

case differently than [the Supreme] Court has on a set of materially indistinguishable facts.”
6

1

Williams (Terry), 529 U.S. at 412–13. A state court decision is an “unreasonable

2

application of” Supreme Court authority, falling under the second clause of § 2254(d)(1), if it

3

correctly identifies the governing legal principle from the Supreme Court’s decisions but

4

“unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413. The

5

federal court on habeas review may not issue the writ “simply because that court concludes

6

in its independent judgment that the relevant state-court decision applied clearly

7

established federal law erroneously or incorrectly.” Id. at 411. Rather, the application must

8

be “objectively unreasonable” to support granting the writ. Id. at 409.

9

A state court’s determination that a claim lacks merit precludes federal habeas relief
so long as “fairminded jurists could disagree” on the correctness of the state court’s

11
For the Northern District of California

United States District Court

10

decision. Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011) (citing Yarborough v.

12

Alvarado, 541 U.S. 652, 664 (2004)). “[E]valuating whether a rule application [i]s

13

unreasonable requires considering the rule’s specificity. The more general the rule, the

14

more leeway courts have in reaching outcomes in case-by-case determinations.” Id. “As a

15

condition for obtaining habeas corpus [relief] from a federal court, a state prisoner must

16

show that the state court’s ruling on the claim being presented in federal court was so

17

lacking in justification that there was an error well understood and comprehended in

18

existing law beyond any possibility for fairminded disagreement.” Id.

19

Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual

20

determination will not be overturned on factual grounds unless objectively unreasonable in

21

light of the evidence presented in the state-court proceeding.” Miller–El, 537 U.S. at 340.

22

Review under § 2254(d)(1) is limited to the record that was before the state court that

23

adjudicated the claim on the merits. Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).

24

IV.

DISCUSSION

25

A.

26

Criminal defendants have a Sixth Amendment right to counsel, a right that extends

27

to the plea-bargaining process. Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012) (citations

28

omitted). “During plea negotiations defendants are entitled to the effective assistance of

Legal Standard

7

1

competent counsel.” Id. (citation and internal quotation marks omitted). The two-part

2

Strickland v. Washington test applies to challenges to guilty pleas based on ineffective

3

assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985) (citing Strickland v.

4

Washington, 466 U.S. 668 (1984)). To establish the performance prong of Strickland, a

5

habeas petitioner must show “‘that counsel's representation fell below an objective

6

standard of reasonableness.’” Hill, 474 U.S. at 57 (quoting Strickland, 466 U.S. at 688). To

7

establish prejudice under the second Strickland prong, a habeas petitioner must “‘show that

8

there is a reasonable probability that, but for counsel's unprofessional errors, the result of

9

the proceeding would have been different.’” Cooper, 132 S. Ct. at 1384 (quoting Strickland,
466 U.S. at 694). “In the context of pleas a defendant must show the outcome of the plea

11
For the Northern District of California

United States District Court

10

process would have been different with competent advice.” Id. When evaluating a

12

petitioner’s claim that ineffective assistance led to the improvident acceptance of a guilty

13

plea, the petitioner must show “‘that there is a reasonable probability that, but for counsel's

14

errors, [the petitioner] would not have pleaded guilty and would have insisted on going to

15

trial.’” Id. at 1384-85 (quoting Hill, 474 U.S. at 59).

16

B.

17

As an initial matter, respondent contends that petitioner’s claim is not cognizable

Claim Is Not Barred by Entry of Guilty Plea

18

because it involves a claim of error that arose prior to the entry of the guilty plea. Ans. at 6

19

(citing Tollett v. Henderson, 411 U.S. 258 (1973)). Respondent did not bring a motion to

20

dismiss, but now seeks dismissal of the ineffective assistance claim on the ground that it is

21

precluded by entry of the guilty plea. Id. at 7. Even if the court were to overlook

22

respondent’s procedural misstep and consider the merits of his request to dismiss, Silva’s

23

ineffective assistance claim is not precluded by entry of the plea. As the Supreme Court

24

held in Tollett, in a passage quoted by respondent, a habeas petitioner “may only attack the

25

voluntary and intelligent character of the guilty plea by showing that the advice he received

26

from counsel was not within the standards set forth in McMann [v. Richardson, 397 U.S.

27

759 (1970)].” Tollett, 411 U.S. at 267. In Cooper, 132 S. Ct. at 1384, the Supreme Court

28

recently reaffirmed that a claim for ineffective assistance in advising the defendant on a
8

1

plea offer is cognizable in federal habeas review. In light of this clearly established

2

Supreme Court authority, respondent’s contention that Silva’s claim was waived upon

3

entering his guilty plea is simply incorrect.

4

C.

5

Silva contends that his trial counsel was ineffective in failing to challenge allegations

6

that Silva had suffered out-of-state prior convictions, and in counseling Silva to admit them,

7

when the out-of-state priors did not meet California’s standards for a “strike.”

8
9

Ineffective Assistance of Counsel

1.

Performance

In Hill, the Supreme Court held, “In the context of guilty pleas, the first half of the
Strickland v. Washington test is nothing more than a restatement of the standard of

11
For the Northern District of California

United States District Court

10

attorney competence already set forth in Tollett v. Henderson, [411 U.S. 258 (1973)], and

12

McMann v. Richardson, [397 U.S. 759 (1970)].” Hill, 474 U.S. at 58-59. As articulated in

13

Hill, the McMann court held that where “a defendant is represented by counsel during the

14

plea process and enters his plea upon the advice of counsel, the voluntariness of the plea

15

depends on whether counsel’s advice ‘was within the range of competence demanded of

16

attorneys in criminal cases.’” Id. (quoting McMann, 397 U.S. at 771). Tollett, in turn, held

17

that “a defendant who pleads guilty upon the advice of counsel ‘may only attack the

18

voluntary and intelligent character of the guilty plea by showing that the advice he received

19

from counsel was not within the standards set forth in McMann.’” Hill, 474 U.S. at 58

20

(quoting Tollett, 411 U.S. at 267).

21

Here, Silva has demonstrated that his trial counsel’s performance fell below an

22

objective standard of reasonableness by advising or allowing Silva to admit the allegations

23

of prior strike convictions where the elements of robbery in Texas were not sufficient to

24

meet the elements of robbery in California. Robbery under California law requires the

25

element of taking, which is not required under Texas law. People v. Rodriguez, 122 Cal.

26

App. 4th 121, 129-30 (2004). The court of appeal in Rodriguez distinguished the elements

27

of the offense of robbery under Texas law from the requirements for robbery under

28

California law to qualify as a strike:
9

1
2
3
4
5
6
7
8
9

In California, robbery is a serious felony that qualifies as a prior strike
and requires a five year sentencing enhancement. (§§ 1192.7, subd.
(c)(19), 667, subd. (a)(1), (4).) That offense is defined as follows:
“Robbery is the felonious taking of personal property in the
possession of another, from his person or immediate presence, and
against his will, accomplished by means of force or fear.” (§ 211,
italics added.) “Taking” is an element of the crime of robbery (People
v. Nguyen (2000) 24 Cal.4th 756, 761; see also 2 Witkin & Epstein,
Cal. Criminal Law (3d ed. 2000) Crimes Against Property, § 90, p.
119), and consists of “two necessary elements, gaining possession
of the victim’s property and asporting or carrying away the loot.”
(People v. Cooper (1991) 53 Cal.3d 1158, 1165.) Asportation is thus
an element of robbery in California.
122 Cal. App. 4th at 129-30.
In Rodriguez, the appellant challenged the sufficiency of the evidence to prove that
his prior robbery conviction in Texas qualified as a serious felony under California law to

11
For the Northern District of California

United States District Court

10

sustain the prior strike sentencing enhancement. The Rodriguez court determined that

12

under Texas Penal Code section 29.02, “asportation has not been an element of robbery[,]

13

nor has there been any requirement for robbery that property be taken from the person or

14

immediate presence of one in possession of that property.” Id. at 130 (citations omitted).

15

California law, however, requires both elements of asportation and the taking of property

16

from the person or his or her immediate presence, to establish a taking for the crime of

17

robbery. Id. at 131. The Rodriguez court held that because the record concerning the

18

appellant’s Texas robbery conviction did not disclose the facts of that offense, “there is no

19

evidence that appellant’s robbery involved either asportation or taking property from the

20

person or his or her immediate presence, [and] the trial court’s finding that appellant’s

21

Texas robbery conviction satisfied all of the elements of robbery under California law is not

22

supported by substantial evidence.” Id.

23

Silva was convicted under the same Texas statute that was analyzed in Rodriguez,

24

which was decided nearly four years before Silva entered his plea. To determine the

25

substance of the prior convictions under California law, “the court may look to the entire

26

record of the [prior] conviction . . . ; but when the record does not disclose any of the facts

27

of the offense actually committed, the court will presume that the prior conviction was for

28

the least offense punishable under the foreign law.” People v. Guerrero, 44 Cal. 3d 343,
10

1

352 (1988). The Guerrero court held that “in determining the truth of a prior-conviction

2

allegation, the trier of fact may look to the entire record of the conviction,” and is not limited

3

to matters established by the judgment of conviction. 44 Cal. 3d at 355. Here, as in

4

Rodriguez, the record of Silva’s prior robbery convictions in Texas does not include facts

5

sufficient to support the elements of asporting, or carrying away, and taking of property

6

from the person or his/her immediate presence, as required for robbery under California

7

law.

8
9

The record contains an abstract of Silva’s criminal history in Texas, the indictments
on the robbery charges, the written plea admonishments in both cases, stipulations of
evidence, and the judgments entered on the guilty pleas entered in both cases. Ex. 1 at

11
For the Northern District of California

United States District Court

10

53-54; Ex. 5. The extent of the evidence of the prior offenses is limited to Silva’s admission

12

of facts stated in the Stipulation of Evidence filed in each case:

13

[No. 3952D:] I judicially confess to the following facts and agree and
stipulate that these facts are true and correct and constitute the
evidence in this case:

14
15

That on or about the 31st day of January, 1996, in Taylor
County, Texas, I GILBERTO SILVA while in the course of committing
theft of property and with intent to obtain and maintain control of said
property, did then and there intentionally and knowingly threaten and
place VIRGINIA BUSH in fear of imminent bodily injury and
death. . . .

16
17
18
19
20
21

and
[No. 3953D:] I judicially confess to the following facts and agree and
stipulate that these facts are true and correct and constitute the
evidence in this case:

23

That on or about the 25th day of January, 1996, in Taylor
County, Texas, I GILBERTO SILVA while in the course of committing
theft of property and with intent to obtain and maintain control of said
property, did then and there intentionally and knowingly threaten and
place JAMES JONES in fear of imminent bodily injury and death. . . .

24

Ex. 5 (state habeas petition, ex. C). These records of the Texas convictions do not

25

disclose the facts or circumstances of the robberies, other than the date of the offense and

26

the name of the victim. Under applicable California law, the court is required to presume

27

that the prior convictions were “for the least offense punishable under Texas law.”

28

Rodriguez, 122 Cal. App. 4th at 131 (citing Guerrero, 44 Cal. 3d at 354-55).

22

11

1

The record also includes summaries of the prior strike convictions provided by the

2

prosecution in opposition to Silva’s motion to dismiss the prior strikes, Ex. 1 at 21-22, and

3

by the probation officer in her report to the sentencing court, id. at 36. Although these

4

summaries of the prior Texas convictions supply factual details that could show that each

5

prior offense involved taking possession of property from a person or in his/her immediate

6

presence and carrying away the property, the summaries of the prior offenses are attorney

7

argument or inadmissible hearsay, and the source of the facts upon which the summaries

8

are based is not in the record.3 The record therefore lacks sufficient evidence to support a

9

finding that either of the Texas robbery convictions qualified as a strike under California
law. See Rodriguez, 122 Cal. App. 4th at 131 (finding that judgment and sentence issued

11
For the Northern District of California

United States District Court

10

by Texas court were insufficient to satisfy all the elements of robbery under California law).

12

Addressing the performance prong under Strickland, respondent argues that Silva’s

13

trial counsel made a strategic decision to seek a favorable sentence by having Silva admit

14

the charges early on and focus on the Romero motion to dismiss the strikes. Ans. at 7.

15

Respondent contends that this strategy was successful, as demonstrated by the trial

16

court’s decision to dismiss one of the strikes based in part on Silva’s “early

17

acknowledgement” of guilt “at least by way of a plea.” Ex. 2 at 23. Although plea bargains

18

generally involve “careful strategic choices in balancing opportunities and risks,” Premo v.

19

Moore, 131 S. Ct. 733, 741 (2011), the record here indicates that trial counsel failed to

20

advise Silva that his prior out-of-state convictions would not qualify as strikes under

21

California law, as articulated in Rodriguez and Guerrero. See Padilla v. Kentucky, 559 U.S.

22

356 (2010) (recognizing the “critical obligation of counsel to advise the client of ‘the

23

advantages and disadvantages of a plea agreement’”) (quoting Libretti v. United States,

24
25
26
27
28

3

In Silva’s state habeas petition, filed in the court of appeal, habeas counsel noted
that the probation officer’s strike prior summary was obtained from Abilene Police Department
reports, and that those police reports were not part of the record on appeal and were not
provided to trial counsel during discovery. Ex. 5 (state habeas petition at 18). The state
conceded that the appellate record did not include the documentary evidence concerning the
Texas priors that the prosecutor possessed. Ex. 6 (informal opposition to habeas petition at
5). Because the police reports are not in the record, the court does not reach the question
whether those reports would be inadmissible hearsay.
12

1

516 U.S. 29, 50–51 (1995)). Upon review of the transcripts of the trial court proceedings

2

that are in the record, there is no indication, during either the change of plea or the

3

sentencing, that Silva’s attorney inquired into the requisite elements of robbery under

4

California law to qualify the prior Texas convictions as strikes. See Riggs v. Fairman, 178

5

F. Supp. 2d 1141, 1148 (C.D. Cal. 2001) (“In the present case, however, there existed no

6

strategic or tactical reason to have forgone virtually all significant inquiry into Petitioner’s

7

criminal history.”), aff’d, 399 F.3d 1179 (9th Cir.), reh’g en banc granted, 430 F.3d 1222

8

(9th Cir. 2005), appeal dismissed, 2006 WL 6903784 (9th Cir. 2006).

9

Applying the Strickland standard, no competent attorney would have advised or
allowed Silva to admit the strike allegations where the prior convictions did not qualify as

11
For the Northern District of California

United States District Court

10

strikes under state law. Because the state court failed “to consider, or even acknowledge,”

12

the highly probative evidence in the record to support a finding of deficient performance,

13

the state court decision was “based on an unreasonable determination of the facts.” Taylor

14

v. Maddox, 366 F.3d 992, 1005 (9th Cir. 2004).

15
16

2.

Prejudice

With respect to the required showing of prejudice, a habeas petitioner must

17

demonstrate “‘a reasonable probability that, but for counsel’s errors, he would not have

18

pleaded guilty and would have insisted on going to trial.’” Premo, 131 S. Ct. at 743

19

(quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Silva argues that trial counsel’s failure to

20

research and advise him about the adequacy of the prior robbery convictions led him to

21

admit the prior strike allegations, which subjected him to a greatly increased sentence.

22

Had trial counsel sought dismissal of the strike allegations based on the insufficiency of the

23

evidence in the prior conviction records, and been successful, Silva contends that he would

24

not have been subject to the maximum sentence of 25 years to life under the habitual

25

criminal sentencing provisions, Cal. Penal Code §§ 667 and 1170.12. Reply at 23-24 and

26

n.21. Silva further contends that if he had not admitted the prior strikes, his maximum

27

possible sentence would have been 12 years: two years for the current offense plus 10

28

years for the gang enhancement. Reply at 23 (citing Cal. Penal Code § 18(a) (setting
13

1

sentence for felony, unless otherwise prescribed, as “16 months, or two or three years in

2

the state prison”) and § 186.22(b)(1)(C) (setting 10-year gang enhancement for violent

3

felony). Because he admitted the strike allegations, however, Silva’s maximum sentence

4

was increased to life with the possibility of parole after 25 years, consecutive to 15 years,

5

because of the 10-year gang enhancement and five-year serious prior felony enhancement.

6

Reply at 24 (citing Ex. 1 at 38).

7

Even after dismissing one of the admitted prior strikes, the trial court sentenced Silva

8

to 19 years imprisonment, resulting in an additional seven years of prison time above the

9

sentence for the conviction offense and gang enhancement alone: two extra years for the
doubling of the robbery sentence under former Penal Code section 667(e)(1) (“If a

11
For the Northern District of California

United States District Court

10

defendant has one prior felony conviction that has been pled and proved, the determinate

12

term or minimum term for an indeterminate term shall be twice the term otherwise provided

13

as punishment for the current felony conviction”), plus five extra years for the serious prior

14

felony enhancement under Penal Code section 667(a) (“in addition to the sentence

15

imposed by the court for the present offense, a five-year enhancement for each such prior

16

conviction on charges brought and tried separately”). Silva has demonstrated that if he had

17

gone to trial and been convicted of second-degree robbery, his sentence would have likely

18

been 12 years, but no more than a maximum prison term of 13 years if he had been

19

sentenced to the highest three-year term, plus 10 years for gang enhancement. This six-

20

or seven-year increase in Silva’s sentence demonstrates actual prejudice resulting from

21

trial counsel’s errors.

22

Respondent contends that Silva has not demonstrated that he was prejudiced by

23

counsel’s deficient performance because he was sentenced to a fixed term rather than an

24

indeterminate sentence. Ans. at 8. However, the reason why Silva faced an indeterminate

25

sentence, rather than a fixed term, was that his attorney improperly allowed or counseled

26

Silva to admit the prior strike allegations.

27
28

Respondent also argues that Silva fails to show that he would have gone to trial but
for counsel’s deficient performance, citing trial counsel’s statement that Silva had “been
14

1

very afraid throughout all the proceedings,” Ex. 2 at 19, and the probation officer’s report

2

that Silva did not want to go to trial because of the visible gang tattoos on his face and

3

neck, Ex. 1 at 34. Silva has shown, however, that but for his counsel’s deficient

4

performance, there is a “reasonable probability” that he would not have accepted a plea

5

offer that included an admission of the prior strike allegations, exposing him to an

6

indeterminate sentence of 25 years to life, plus 15 years, rather than a fixed term if he had

7

gone to trial on the robbery charge. See Cooper, 132 S. Ct. at 1391. Silva has also

8

demonstrated that he could have admitted the charged offense to avoid trial, and still

9

challenge the sufficiency of the evidence of his prior convictions to support the strike
allegations. Reply at 26 (citing Cal. Penal Code § 1025(b) (“the question of whether or not

11
For the Northern District of California

United States District Court

10

the defendant has suffered the prior conviction shall be tried by the jury that tries the issue

12

upon the plea of not guilty, or in the case of a plea of guilty or nolo contendere, by a jury

13

impaneled for that purpose, or by the court if a jury is waived”)).

14

Silva has demonstrated that his trial counsel provided ineffective assistance during

15

plea negotiation, plea acceptance and at sentencing. The state court’s denial of his habeas

16

claim involved an unreasonable application of clearly established Supreme Court precedent

17

under Strickland and its progeny. Silva’s claim for habeas relief is therefore GRANTED.

18
19

Because the court grants the petition, Silva’s request for expansion of the record or
for an evidentiary hearing is denied.

20

D.

21

Silva has not requested a particular remedy for the violation of his right to effective

22

assistance of counsel. Remedies for Sixth Amendment deprivations generally “should be

23

tailored to the injury suffered from the constitutional violation and should not unnecessarily

24

infringe on competing interests.” United States v. Morrison, 449 U.S. 361, 364 (1981). In

25

fashioning a habeas remedy for ineffective assistance of counsel, the petitioner must be put

26

back in the position he would have been in had he received effective assistance of counsel.

27

Nunes v. Mueller, 350 F.3d 1045, 1056 (9th Cir. 2003).

Remedy for Ineffective Assistance

28
15

1

In Johnson v. Uribe, 682 F.3d 1238, 1245-46 (9th Cir.), opinion amended and

2

superseded on denial of reh’g, 700 F.3d 413 (9th Cir. 2012), pet. for certiorari filed Feb. 4,

3

2013, the court of appeals affirmed the district court’s grant of the habeas petition for

4

ineffective assistance during plea negotiations, but vacated the district court’s remedy of

5

granting the petition subject to lawful resentencing. There, Johnson was charged with

6

three theft-related felonies and enhancements for prior criminal history, including prior

7

prison terms which, as later conceded, did not fall within the meaning of California Penal

8

Code § 667.5(b) and should not have served as additional enhancements of Johnson’s

9

sentence. The district court held, after an evidentiary hearing, that Johnson had received
ineffective assistance of counsel due to his attorney’s failure to advise him that he was

11
For the Northern District of California

United States District Court

10

pleading guilty to an unlawful sentence that was greater than the sentence authorized by

12

California law and greater than the sentence that he could have received if he went to trial

13

and was found guilty of all charges and the alleged enhancements were proven. Johnson,

14

682 F.3d at 1241. The district court ordered that Johnson be released within 120 days

15

unless the state court resentenced him to a lawful sentence.

16

On appeal, Johnson argued that the district court’s remedy of granting the petition

17

subject to the state court resentencing Johnson under the same plea agreement, while

18

simply adjusting the term to reflect the removal of the three invalid enhancements, was

19

insufficient to cure the ineffective assistance of counsel received throughout the pre-plea

20

stage of the proceedings. Id. at 1243-44. The court of appeals agreed with Johnson, and

21

held that “[t]he Sixth Amendment violation here caused the entire plea negotiation process

22

between Johnson and the prosecution to be conducted based on an erroneous sentencing

23

calculation, weighted against Johnson. As a result, he is entitled to be returned to that

24

pre-plea stage and proceed under the correctly-calculated sentencing range.” Id. at 1245.

25

Citing authority for the principle that “‘in some situations it may be that resentencing alone

26

will not be full redress for the constitutional injury,’” the Ninth Circuit panel held that it was

27

“impossible for us to know how the earlier stages of the plea negotiation process might

28

have progressed had [the trial attorney] rendered effective counsel from the outset by
16

1

correctly evaluating the charges against Johnson.” Johnson, 682 F.3d at 1245-46 (quoting

2

Cooper, 132 S.Ct. at 1389). The court in Johnson reasoned, “Had Johnson’s assistance of

3

counsel been constitutionally adequate, his attorney would have duly objected to the

4

erroneous calculation of three additional enhancements at the outset, and the government

5

would have been negotiating from a ‘weaker,’ and certainly different, prospective

6

sentencing position. A correct calculation, therefore, could have resulted in more favorable

7

plea offers for Johnson . . . .” Id. at 1245. The Ninth Circuit panel ordered that the district

8

court grant a conditional writ of habeas corpus, subject to the state court vacating

9

Johnson’s conviction and granting him a new trial. Id. at 1246.
In fashioning a remedy, the court notes that Silva concedes that a sentence of 12

11
For the Northern District of California

United States District Court

10

years imprisonment, comprising two years for the conviction offense and 10 years for the

12

gang enhancement, would be lawful. Reply at 23. However, conditional issuance of a writ

13

of habeas corpus, subject to the condition that the state court resentence Silva to a lawful

14

sentence, is not a sufficient remedy under Johnson.4 Pursuant to the holding of Johnson,

15

the court therefore grants a conditional writ of habeas corpus and orders respondent to

16

release Silva from custody unless, within 120 days of the date of entry of judgment on this

17

order on the clerk’s docket, the state commences proceedings to retry Silva.

18

V.

CONCLUSION

19

For the reasons set forth above, the court CONDITIONALLY GRANTS the petition

20

for a writ of habeas corpus. Accordingly, Silva’s judgment and conviction are VACATED,

21

and respondent shall release Silva from custody unless the state commences proceedings

22
23
24
25
26
27
28

4

The appropriate remedy for violation of a defendant’s constitutional right to
effective assistance of counsel during plea negotiations and sentencing is not a fully settled
issue. In Johnson, the petition for rehearing en banc was denied over forceful dissenting
opinions authored by Chief Judge Kozinski and Judge Bea. Johnson is currently before the
United States Supreme Court on a petition for a writ of certiorari filed by the Attorney General
on behalf of the warden. Uribe v. Johnson, No. 12-968 (U.S. Feb. 4, 2013) (petition for writ
of certiorari). Notably, the Supreme Court recently granted certiorari to review a habeas
decision by the Sixth Circuit which presents the question of an appropriate remedy under Lafler
v. Cooper where a defendant shows a reasonable probability that she would have accepted
a plea offer but for ineffective assistance of counsel. See Burt v. Titlow, No. 12-414 (U.S., Feb.
25, 2013) (order granting petition for a writ of certiorari).
17

1

to retry him within 120 days of the date of entry of judgment on this order. This order fully

2

adjudicates the petition and terminates all pending motions. The clerk shall close the file.

3

The clerk is directed to send an informational copy of this order to the district

4

attorney of Santa Clara County, in addition to the usual service on counsel of record via e-

5

filing.

6

IT IS SO ORDERED.

7
8

Dated: February 27, 2013

9

______________________________
PHYLLIS J. HAMILTON
United States District Judge

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
18