Filed 8/7/13 P. v. Durrand CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H038105
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. Nos. SS101453, SS102122 )

         v.

ROBERT TANYO DURRAND,

         Defendant and Appellant.


In re ROBERT TANYO DURRAND,                                          H038984

         on Habeas Corpus.


         Defendant Robert Tanyo Durrand appeals from a judgment entered after his guilty
pleas to several felonies and misdemeanors. His sole argument on appeal is that his trial
counsel was ineffective for failing to object to the imposition of restitution fines imposed
by the trial court pursuant to Penal Code section 1202.4, subdivision (b),1 and the
matching parole revocation fine imposed under section 1202.45. In a separate petition
for writ of habeas corpus, which we ordered considered with this appeal, defendant
additionally argues that his trial counsel was ineffective for failing to investigate and
properly advise him of potential defenses to his alleged prior strike conviction stemming
from a Florida burglary offense, which he admitted as part of his plea agreement.


         1
             Further unspecified statutory references are to the Penal Code.
       For the reasons set forth below, we find no merit in defendant’s contention that his
trial counsel rendered ineffective assistance of counsel for failing to object to the
imposition of the restitution fine and the matching parole revocation fine. However, we
find that defendant has stated a prima facie case for relief in his accompanying petition
for writ of habeas corpus, and therefore issue an order to show cause returnable to the
superior court.
                       FACTUAL AND PROCEDURAL BACKGROUND
       The factual circumstances of defendant’s underlying offenses are not relevant to
the issues raised on appeal. It is therefore sufficient to say that defendant was charged by
information in November 2010 with several counts including, as count 2, assault by
means likely to produce great bodily injury (§ 245, subd. (a)(1)), with a special allegation
that he personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). The
information further alleged that defendant had suffered a previous strike conviction
within the meaning of section 1170.12, subdivision (c)(1), and had a prior prison
commitment within the meaning of section 667.5, subdivision (b). Defendant pleaded no
contest to count 2 and admitted the prior strike conviction pursuant to section 1170.12,
subdivision (c)(1).
       Defendant was sentenced in March 2012 to a total of nine years in prison.2 The
trial court ordered defendant to pay a restitution fine of $2,160, and a matching parole
revocation fine in the amount of $2,160. Defendant appealed.



       2
         Defendant was also sentenced to 438 days in prison, to be served concurrently
with the felony case discussed here, after he violated probation in a separate
misdemeanor case where he pleaded guilty to charges of making criminal threats,
resisting and threatening an executive officer, and obstruction of a public officer.
Probation in the misdemeanor case was revoked, and defendant filed a notice of appeal
from this revocation in May 2012.

                                              2
                                         DISCUSSION
       Principles of Review for Ineffective Assistance of Counsel Claims
       In order to succeed on a claim of ineffective assistance of counsel, defendant must
show both that counsel failed to act in a manner to be expected of a reasonably competent
attorney acting as a diligent advocate and that defendant was prejudiced thereby. (People
v. Ledesma (1987) 43 Cal.3d 171, 216-217; Strickland v. Washington (1984) 466 U.S.
668, 684 [discussing federal constitutional rights]; People v. Pope (1979) 23 Cal.3d 412,
422 [discussing both state and federal constitutional rights].)
       We “ ‘need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged deficiencies .
. . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, . . . that course should be followed.’ ” (In re Jackson (1992) 3 Cal.4th 578,
604, quoting Strickland v. Washington, supra, 466 U.S. at p. 697.) A defendant
establishes prejudice by demonstrating that without the deficient performance there is a
reasonable probability the result would have been more favorable. In other words, even
if counsel’s actions fall below the threshold of reasonableness, a defendant must still
show that counsel’s actions were prejudicial. (People v. Ledesma, supra, 43 Cal.3d at p.
218.) A defendant must prove prejudice that is a “ ‘demonstrable reality,’ not simply
speculation.” (People v. Williams (1988) 44 Cal.3d 883, 937; People v. Fairbank (1997)
16 Cal.4th 1223, 1241.)
       Ineffective Assistance of Counsel: Failure to Object to Fine
       First, defendant makes the argument that his trial counsel was ineffective for his
failure to object to the trial court’s imposition of the $2,160 restitution fine and the
matching $2,160 parole revocation fine. The $2,160 restitution fine was imposed
pursuant to section 1202.4, and the matching parole revocation fine was imposed under
section 1202.45.

                                               3
       At the time defendant committed the offenses in question in 2010, section 1202.4,
subdivision (b) provided that a trial court shall impose a restitution fine in every case
where a person is convicted of a crime, unless it finds a compelling reason not to do so
and states these reasons on the record. (Stats. 2009, ch. 454, § 1 [former § 1202.4].)
Former section 1202.4, subdivision (b)(2), further provided a statutory formula, stating
that “[i]n setting a felony restitution fine, the court may determine the amount of the fine
as the product of two hundred dollars ($200) multiplied by the number of years of
imprisonment the defendant is ordered to serve, multiplied by the number of felony
counts of which the defendant is convicted.” (Stats. 2009, ch. 454, § 1 [former § 1202.4,
subd. (b)(2)].) Former section 1202.4, subdivision (b)(1) specified that the restitution
fine “shall not be less than two hundred dollars ($200), and not more than ten thousand
dollars ($10,000), if the person is convicted of a felony . . . .” (Stats. 2009, ch. 454, § 1
[former § 1202.4, subd. (b)(1)].)
       The version of section 1202.4 in effect at the time of defendant’s sentencing,
however, provided for a higher minimum fine.3 This version of section 1202.4,
subdivision (b)(1) provided that restitution shall be set “at the discretion of the court and
commensurate with the seriousness of the offense, but shall not be less than two hundred
forty dollars ($240) starting on January 1, 2012 . . . and not more than ten thousand
dollars ($10,000) if the person is convicted of a felony . . . .” (Stats. 2011, ch. 358, § 1.)
This version of section 1202.4, subdivision (b)(2) similarly provided for a formula,
specifying that a court “may determine the amount of fine as the product of the minimum
fine pursuant to paragraph (1) multiplied by the number of years of imprisonment the

       3
         The version of section 1202.4 in effect at the time of defendant’s sentencing is
different than the current version of section 1202.4, which was amended again, effective
January 1, 2013. (Stats. 2012, ch. 873, § 1.5.) The current version of section 1202.4
similarly provides for the same minimum and maximum restitution fine as the version in
effect at the time of defendant’s sentencing. (§ 1202.4, subd. (b)(2).)

                                               4
defendant is ordered to serve, multiplied by the number of felony counts of which the
defendant is convicted.” (Stats. 2011, ch. 358, § 1.)
       During defendant’s sentencing hearing, the trial court stated that it was imposing a
“$240 restitution fine times the number of years . . . for a total of $2,160.” The trial court
further stated that “[i]n addition, $2,160 will be imposed but suspended pending your
successful completion of parole.” At no time during the sentencing hearing did the trial
court indicate that it intended to set a minimum fine, or that it intended to utilize the
formula pursuant to section 1202.4, subdivision (b). Nonetheless, defendant argues that
the trial court erroneously applied the version of section 1202.4 in effect at the time of his
sentencing, which provided for the discretionary formula of $240 multiplied by the
number of years of imprisonment, instead of the discretionary formula provided for in the
version of section 1202.4 in effect at the time he committed his crimes. Defendant claims
that his trial counsel rendered ineffective assistance as his counsel made no objection to
the restitution fine imposed by the trial court, and that had his counsel objected it was
reasonably probable that the amount of the fines would have been reduced.
       Defendant’s argument that the trial court must have intended to impose the
statutory formula under the version of section 1202.4, subdivision (b)(2), is merely
speculative. During the sentencing hearing, the trial court stated that it was imposing the
fine by calculating it as $240 multiplied by nine, which is the length in years of
defendant’s prison sentence. Nonetheless, the trial court never mentioned in the
sentencing hearing that it was intending to sentence defendant per the discretionary
statutory formula provided in section 1202.4, subdivision (b)(2). We note the minute
order indicates that the fine was imposed pursuant to section 1202.4, subdivision (b)(2),
but the trial court did not reference this statute during its oral pronouncement of
judgment, which controls. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.)
Furthermore, as discussed ante, section 1202.4, subdivision (b)(2) itself states that use of

                                               5
the formula is not mandatory, and does not specify that the trial court must utilize the
formula by multiplying the minimum fine by the years of the prison term.4 Absent a
more explicit showing that the trial court intended to calculate the amount of the
restitution fine by specifically applying the proscribed minimum formula, we cannot
presume that the trial court failed to follow the applicable law. In fact, the opposite is
true. “ ‘A judgment or order of the lower court is presumed correct. All intendments and
presumptions are indulged to support it on matters as to which the record is silent, and
error must be affirmatively shown.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557,
564.)
        We have held in previous cases that if it is clear from the record that the trial court
intends to impose a restitution fine using the statutory formula laid out in section 1202.4,
subdivision (b)(2), trial counsel may be found ineffective for their failure to object if the
trial court erroneously relied on a prior felony conviction that had been stricken. (People
v. Le (2006) 136 Cal.App.4th 925, 935-936 (Le).) Le is not instructive, as the record
there indicated that the trial court explicitly relied upon the formula set forth under
section 1202.4, subdivision (b)(2). (Le, supra, at pp. 935-936.) Here, the record is not so
clear that we are able to determine that the court misunderstood the correct formulation
under the relevant version of section 1202.4, subdivision (b)(2). The trial court did not
unequivocally state its intention to impose the minimum statutory formula laid out in
section 1202.4, subdivision (b)(2). If it had pronounced its intention to impose the


        4
         In fact, the probation report for defendant’s offenses for making criminal threats,
resisting and threatening an executive officer, and obstruction of a public officer, dated
September 1, 2010, recommended that defendant be required to pay a restitution fine of
$500 multiplied by the number of years of imprisonment, pursuant to section 1202.4,
subdivision (b)(2). The $500 multiplicand recommended by the probation officer for this
offense is clearly not the statutorily proscribed minimum, but provides for a fine that is
well within the allowed range for fines pursuant to section 1202.4.

                                               6
minimum formulation set forth under the statute, we would be more convinced that error
exists.
          Furthermore, defendant’s claim that the failure to object is ineffective assistance of
counsel because the imposition of the fine violates the ex post facto clause is unavailing.
Imposition of an unlawful restitution fine runs afoul of the prohibition against the
prohibition against ex post facto laws. (People v. Valenzuela (2009) 172 Cal.App.4th
1246, 1248.) However, the trial court could have lawfully imposed the $2,160 restitution
fine under the version of section 1202.4 in effect at the time defendant committed his
crimes. That version of section 1202.4 provided for a minimum fine of $200 and a
maximum fine of $10,000. (Stats. 2009, ch. 454, § 1 [former § 1202.4, subd. (b)(1)].)
The imposition of the $2,160 restitution fine was therefore not an unauthorized sentence
under the applicable statutes.
          Accordingly, we determine that defendant has not shown that there was prejudice
stemming from his counsel’s failure to object to the restitution fine imposed under
section 1202.4, subdivision (b). Defendant’s claim of ineffective assistance of counsel on
this point fails.
          Ineffective Assistance of Counsel: Defenses to Prior Strikes
          Next, defendant argues in his separate petition for writ of habeas corpus that his
trial counsel rendered ineffective assistance because the Florida statutes for burglary are
broader than the corresponding California statutes, and that based upon his record of
conviction for the Florida burglary, the prosecution could not prove that the Florida
conviction was a prior serious felony or prior strike conviction pursuant to section
1170.12. Defendant argues that if his trial counsel had investigated his Florida burglary
conviction and properly advised him he had a viable defense against the prior strike, he
would not have pleaded guilty and would have insisted on going to trial. By letter dated



                                                7
June 11, 2013, this court requested that the People file an informal opposition to the
petition for habeas corpus.
       Defendant admitted that the burglary was a serious or violent prior felony
conviction pursuant to section 1170.12, subdivision (c)(1) as part of his plea agreement
with regard to the felony currently on appeal. Section 1170.12, subdivision (c)(1)
provides that “[i]f a defendant has one prior serious and/or violent felony conviction as
defined in subdivision (b) [of section 1170.12] that has been pled and proved, the
determinate term or minimum term for an indeterminate term shall be twice the term
otherwise provided as punishment for the current felony conviction.” Section 1170.12,
subdivision (b)(1) defines a serious felony as “[a]ny offense defined in subdivision (c) of
Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section
1192.7 as a serious felony in this state.” Section 1192.7, subdivision (c) lists a multitude
of felonies that are considered “serious,” including “any burglary in the first degree,” (id.,
subd. (c)(18)) and “any felony in which the defendant personally used a dangerous or
deadly firearm.” (Id., subd. (c)(23).)
       In his Florida burglary conviction, defendant pleaded guilty to the crime of armed
burglary, in violation of Florida Statutes sections 810.02 and 777.011. The version of
Florida Statutes section 810.02 in effect at the time defendant entered his plea in 2001
defined burglary as “entering or remaining in a dwelling, a structure, or a conveyance
with the intent to commit an offense therein, unless the premises are at the time open to
the public or the defendant is licensed or invited to enter or remain.” (Fla. Stats. Ann. §
810.02(1)(a), italics added.) The statute further specified that “[b]urglary is a felony of
the first degree, punishable by imprisonment for a term of years not exceeding life
imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of
committing the offense, the offender: . . . [¶] . . . [¶] (b) Is or becomes armed within the
dwelling, structure, or conveyance, with explosives or a dangerous weapon.” (Fla. Stats.

                                              8
Ann. § 810.02(2)(b).) “Dwelling,” as defined under Florida law, is “a building or
conveyance of any kind, including any attached porch, whether such building or
conveyance is temporary or permanent, mobile or immobile, which has a roof over it and
is designed to be occupied by people lodging therein at night, together with the curtilage
thereof.” (Fla. Stats. Ann. § 810.011(2).)
       Florida Statutes section 777.011, to which defendant also pleaded guilty to,
provides that “[w]hoever commits any criminal offense against the state, whether felony
or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be
committed, and such offense is committed or is attempted to be committed, is a principal
in the first degree and may be charged, convicted, and punished as such, whether he or
she is or is not actually or constructively present at the commission of such offense.”
       In contrast to the Florida statutes, first degree burglary in California is defined as
entry into a structure currently used as a dwelling and with intent to commit a theft or a
felony. (§§ 459, 460; People v. Anderson (2009) 47 Cal.4th 92, 101.) There are several
differences between first degree burglary in Florida and first degree burglary in
California. In Florida, first degree burglary can occur even if the building is not currently
used as a dwelling, so long as it is designed to be occupied by people during the night,
and in Florida a burglary can occur if a defendant enters a building without the intent to
commit a felony, remains in the building, and then later forms the intent to commit a
felony. In California, the intent to commit a felony must exist prior to entry into the
dwelling.
       Due to the discrepancy between Florida and California law, we must consider
defendant’s record of conviction in order to determine whether defendant’s Florida
burglary conviction includes all of the elements of a defined “serious” felony under
California law. (People v. Guerrero (1988) 44 Cal.3d 343, 355 (Guerrero); People v.
Myers (1993) 5 Cal.4th 1193, 1201.) What constitutes a record of conviction is not

                                              9
entirely established, though in cases where defendants pleaded guilty to the charges,
courts have interpreted the facts alleged in the information to be part of the record of
conviction and therefore true. (People v. Lewis (1996) 44 Cal.App.4th 845, 855; People
v. Winslow (1995) 40 Cal.App.4th 680, 689.)
       Here, the record of defendant’s Florida conviction for robbery, attached as exhibits
to defendant’s petition for writ of habeas corpus, includes a report filed by the arresting
officer, an information alleging defendant committed armed robbery, a change of plea
form indicating defendant withdrew his plea of not guilty to the armed robbery charge
and entered a plea of guilty, and the judgment entered against defendant. There are no
transcripts or other documents asserting that petitioner agreed to a particular factual basis
for his plea.
       The information charging defendant with armed burglary states that “[defendant],
in the County of Pinellas and State of Florida, on the 13th day of May, in the year of our
Lord, two thousand one, in the County and State aforesaid, unlawfully and without
invitation or license did enter or remain in that certain structure, the dwelling of Bernard
Carlvin, located at 69 First Street, SE, in the City of Largo, in the County and State
aforesaid, the property of Bernard Carlvin, with the intent to commit an offense therein,
and during the course thereof and within said structure was armed or did become armed
with a dangerous weapon, to-wit: a gun, the said structure at the time not open to the
public; contrary to Chapter 810.02(2)(b)/777.011, Florida Statutes, and against the peace
and dignity of the State of Florida.”
       The written report filed by the arresting officer stated that defendant assisted a
codefendant in committing the crime by kicking a door down and “taking a pair of green
shorts and a Motorola pager” from the occupants. The report further specified that
defendant’s “co-defendant used a weapon during [the] crime.” The People, in their
informal opposition, argue that this complaint/arrest affidavit should be included in

                                             10
defendant’s record of conviction, and accordingly the record of conviction reflects that
defendant committed burglary of an occupied dwelling. We do not find that the
complaint/arrest affidavit can be properly considered as part of defendant’s record of
conviction.
       “[A]n arrest warrant is merely the instrumentality which authorizes taking the
accused into custody in order that he may be required to respond to the accusations made
against him in [a] pleading.” (People v. Rivera (1986) 186 Cal.App.3d 251, 254.)
Despite the People’s contentions, the information contained in the arrest/complaint
affidavit is not reliable and cannot be used to determine whether defendant’s Florida
burglary constituted a strike.5 As the People acknowledge in their informal opposition,
we do not have a transcript of a plea hearing or any other documentation asserting that
defendant agreed to a factual basis for his plea. However, the People argue that the
complaint/arrest affidavit was likely included in the packet of information regarding
defendant’s prior Florida conviction either because it was a part of the factual basis of the
plea or because it was intended to guide petitioner’s rehabilitation program while on
probation. We agree that it is possible that this information was used as a factual basis
for defendant’s plea, as the People assert. Nonetheless, there is no evidence as to what
actually constituted the factual basis of defendant’s plea. As such, we decline to make




       5
         In their informal opposition, the People argue that the record of conviction
includes the complaint/arrest affidavit because under California and Florida case law,
police reports bear “indicia of reliability” in civil commitment proceedings, such as those
proceedings involving sexually violent predators. (Jenkins v. State (2001) 803 So.2d 783,
785; People v. Otto (2001) 26 Cal.4th 200, 211.) We find this argument to be without
merit, as the issue here is whether an arrest report may properly be considered as part of
the record of conviction, not whether the information may be used in a civil commitment
proceeding.

                                             11
the logical leap to conclude that the complaint/arrest affidavit is a part of defendant’s
record of conviction.6
       The People also assert that defendant’s probation and revocation documents are
part of his record of conviction because defendant was sentenced as a youthful offender
under Florida Statutes, section 958.04, which withheld adjudication of guilt pending
completion of probation. This meant defendant was not “adjudged guilty” of the offense
of armed burglary of a dwelling until he violated his probation in 2003, despite the fact
that he entered his plea in 2001. Preliminarily, we note that our review of the exhibits
attached to the petition do not indicate that any of the probation revocation documents or
probation documents shed light on the circumstances of defendant’s offense.
Furthermore, we find that the Supreme Court’s decision in People v. Trujillo (2006) 40
Cal.4th 165 (Trujillo) forecloses the People’s argument on this point.
       In Trujillo, our Supreme Court held that “a defendant’s statements, made after a
defendant’s plea of guilty has been accepted, that appear in a probation officer’s report
prepared after the guilty plea has been accepted are not part of the record of the prior
conviction, because such statements do not ‘reflect[] the facts of the offense for which the
defendant was convicted.’ [Citation.] We recognized in People v. McGee (2006) 38
Cal.4th 682, 691, that in determining whether a prior conviction is for a serious felony ‘
“the nature of the conviction is at issue.” ’ We explained that ‘the relevant inquiry in
deciding whether a particular prior conviction qualifies as a serious felony for California
sentencing purposes is limited to an examination of the record of the prior criminal
proceeding to determine the nature or basis of the crime of which the defendant was

       6
         Furthermore, even if the complaint/arrest affidavit is properly considered part of
defendant’s record of conviction for the Florida burglary, the statements made by the
officer in the report would be inadmissible hearsay. Accordingly, the statements could
not be introduced to prove defendant’s prior strike. (People v. Reed (1996) 13 Cal.4th
217, 230.)

                                             12
convicted.’ (Ibid., italics added.) [¶] A statement by the defendant recounted in a
postconviction probation officer’s report does not necessarily reflect the nature of the
crime of which the defendant was convicted.” (Trujillo, supra, 40 Cal.4th at p. 179.)
       As articulated in Trujillo, the relevant inquiry before us is whether the crime for
which defendant was convicted, to which he pleaded guilty, is a serious felony under
California law that would qualify as a prior strike. If we were to consider information or
documents filed after defendant entered his plea and the court accepted his plea, our
focus would be incorrectly placed on circumstances of defendant’s offenses of which he
did not admit as part of his plea. It makes no difference that defendant was not “adjudged
guilty” until his probation was revoked in 2003, as he entered his plea and the court
accepted his plea in 2001. We therefore find that statements defendant made after his
plea was accepted are not properly part of a record of conviction. (People v. Roberts
(2011) 195 Cal.App.4th 1106, 1128.)
       Our review of defendant’s information, the only viable component of defendant’s
record of conviction, shows that no other information was provided regarding whether
defendant was personally armed with a weapon, or if he was charged with armed
burglary only because his codefendant was armed pursuant to Florida Statutes section
777.011. There is also nothing in the information that clarifies whether the dwelling
defendant admitted to burglarizing was currently occupied, or whether there was anybody
present during the burglary besides defendant and his accomplice. The information states
that defendant burglarized the “dwelling of Bernard Carlvin,” and that the structure was
the “property of Bernard Carlvin,” but considering the Florida statute’s broader definition
of “dwelling” we cannot say with certainty that the dwelling was currently inhabited, as it
may be that Bernard Carlvin simply owned the property. We may infer habitation, but
such an inference would not be based on the record of conviction.



                                             13
       As the People note in their informal opposition, the Fourth Appellate District
considered a similar issue in People v. Sample (2011) 200 Cal.App.4th 1253. The
defendant in Sample argued there was insufficient evidence that his past Florida burglary
conviction constituted a prior strike conviction under California law as there was
insufficient evidence that the structure he burglarized was a residence, or that he entered
the structure with the intent to commit theft. (Id. at p. 1261.) The appellate court in
Sample similarly explained that the relevant Florida burglary statutes of which Sample
was convicted of violating are “broader than California’s first degree burglary statute and
could encompass both conduct considered first degree burglary in California as well as
lesser conduct.” (Ibid.) The court then considered Sample’s record of conviction, which
included the prosecutor’s comments immediately before the court accepted defendant’s
guilty plea. (Ibid.) The factual basis supplied by the Florida prosecutor in Sample’s case
indicated that Sample entered a person’s home and took the person’s wallet. (Id. at p.
1262.) Here, unlike the situation contemplated in Sample, we have no factual basis that
establishes the “dwelling” defendant entered was in fact someone’s home, or that it was
currently inhabited at the time of the burglary.
       We therefore find that it cannot be established based upon the record of conviction
before us that defendant committed a first degree burglary under California law, or that
he personally used a firearm, which is also defined as a serious felony under section
1192.7, subdivision (c)(8). The information alleged only that he was armed with a
firearm, and there is no information indicating whether defendant himself used the gun
during the admitted burglary. As our Supreme Court has determined, “when the record
does not disclose any of the facts of the offense actually committed, the court will
presume that the prior conviction was for the least offense punishable under the foreign
law.” (Guerrero, supra, 44 Cal.3d at p. 352.) We therefore must presume that



                                             14
defendant’s prior burglary conviction was for the least offense punishable under Florida
law.
       Attached to defendant’s petition for writ of habeas corpus is a signed declaration
by defendant’s trial attorney. In this declaration, defendant’s trial attorney states that he
“did not believe there was a defense to the alleged prior strike conviction,” and that he
“did not advise [defendant] that he had a defense to the prior strike conviction.”
Furthermore, defendant’s trial counsel declared that defendant “expressed a desire to take
his case to trial,” but that he informed defendant that the maximum possible sentence for
his charges was 20 years in prison, and it would have increased to 25 years since the
district attorney’s office “wanted to amend the information to add a prior serious felony
conviction.” Defendant’s counsel further stated that with an amendment to the
information to add a prior serious conviction, the minimum possible sentence would be
nine years if defendant was convicted and the allegations proven, unless the trial court
were to strike a prior strike pursuant to People v. Superior Court (Romero) (1996) 13
Cal.4th 497, which defendant’s trial counsel “believed to be unlikely.”
       Defendant’s signed declaration, also attached to his petition for writ of habeas
corpus, corroborates his trial counsel’s declaration. In his declaration, defendant says
that he did not know there was a defense to the allegation of a prior strike or serious
felony conviction, and that had he known that the prosecution could not prove the offense
he would not have entered a plea of no contest to the felony charge.
       The People argue that a defense attorney’s obligation to advise defendants on
issues in the plea context is bound within a multitude of uncertainties, including what
constitutes a “record of conviction,” whether the prosecutor is able to augment available
records to support allegations of prior convictions, and the possibility that the prosecutor
may withdraw the plea bargain if a defendant challenges some aspects of the record, to
the detriment of the defendant. We agree with this assessment, and note that in many

                                              15
cases, “strategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable; and strategic choices made after less than
complete investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation. In other words, counsel has a duty to
make reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary. In any ineffectiveness case, a particular decision not to
investigate must be directly assessed for reasonableness in all the circumstances, applying
a heavy measure of deference to counsel’s judgments.” (Strickland v. Washington, supra,
466 U.S. at pp. 690-691.) However, a court will not give deference to an attorney’s
strategic decision where “the failure of counsel to avail himself of information relevant to
the defense removed all rational support from that decision.” (In re Saunders (1970) 2
Cal.3d 1033, 1049.)
       Defendant’s petition for writ of habeas corpus sufficiently supports his argument
that his trial counsel failed to adequately investigate his prior conviction, as it seems
reasonably possible that there may have been a defense. The documents that defendant’s
trial counsel received regarding his Florida burglary conviction did not support the
allegation that he suffered a prior serious conviction as defined in section 1170.12,
subdivision (c)(1). “An appellate court receiving [a petition for a writ of habeas corpus]
evaluates it by asking whether, assuming the petition’s factual allegations are true, the
petitioner would be entitled to relief. [Citations.] If no prima facie case for relief is
stated, the court will summarily deny the petition. If, however, the court finds the factual
allegations, taken as true, establish a prima facie case for relief, the court will issue an
[order to show cause (OSC)]. [Citations.] . . . Issuance of an OSC, therefore, indicates
the issuing court’s preliminary assessment that the petitioner would be entitled to relief if
his factual allegations are proved.” (People v. Duvall (1995) 9 Cal.4th 464, 474-475.)



                                              16
       We find that defendant has met his burden of alleging a prima facie case for
ineffective assistance of counsel and supporting his contention that his counsel’s deficient
advice and lack of investigation resulted in defendant admitting a prior conviction
allegation to which it is reasonably probable that defendant had a defense. Accordingly,
we find an order to show cause must issue on this claim.
                                       DISPOSITION
       The judgment is affirmed. With respect to defendant’s habeas corpus petition, let
an order to show cause issue returnable before the Monterey County Superior Court.




                                                              Premo, J.



       WE CONCUR:




              Rushing, P.J.




              Elia, J.




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