Filed 8/22/14 P. v. Ford-Howard CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A139287
v.
DESHAWN GIOVANNI                                                     (Contra Costa County
FORD-HOWARD,                                                         Super. Ct. No. 051301233)
         Defendant and Appellant.
                                                                     A141336
In re DESHAWN GIOVANNI
FORD-HOWARD,                                                         (Contra Costa County
                                                                     Super. Ct. No. 51301233)
         on Habeas Corpus.

                                                INTRODUCTION
         After a brief jury trial, Deshawn Giovanni Ford-Howard was found guilty of
first degree residential burglary; he was sentenced to four years in state prison. He has
filed an appeal and a petition for writ of habeas corpus, claiming that his trial counsel
rendered ineffective assistance, among other claims. We previously issued an order to
show cause, and have ordered the petition consolidated with the appeal.
         Prior to trial, Ford-Howard, hereafter petitioner, received a plea offer from the
prosecutor. He tried to accept the offer at the trial call, but learned that the offer had
expired several days earlier. Petitioner maintains that his trial counsel’s error in failing to
discover the plea offer’s expiration date caused him to proceed to trial rather than to
accept the favorable offer. We need not address petitioner’s other claims because


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counsel’s ineffectiveness in representing him in pretrial proceedings amounts to the
ineffective assistance of counsel prohibited by the Sixth Amendment.
       Accordingly, we will vacate the judgment of conviction. In the absence of any
statement by the Attorney General regarding appropriate relief, we will order that
petitioner be given the opportunity to accept the original plea offer and remand the matter
for further proceedings consistent with the views expressed herein. We further order that
petitioner be credited for time served. The appeal is dismissed as moot.
                 FACTUAL AND PROCEDURAL BACKGROUND
A.     The Charged Offense.
       The victim of the burglary in this case, Varun Kalra, lived on Anchor Drive in Bay
Point, Contra Costa County. Deborah Forman lived across the street. On June 27, 2012,
Forman was in her kitchen, doing some dishes while in front of her kitchen window.
While looking out that window and up the street to the left, around 12:30 p.m., Forman
saw two young Black men, both wearing white shirts and dark pants, knocking
aggressively on Kalra’s front door, looking over their shoulders as they did so. The men
then turned around to face the street and kicked the door behind them. They knocked
again and then kicked the door a second time. By that time, Forman was on the phone to
the Contra Costa Sheriff’s Department, advising them of what she was seeing. The call
came in at 12:35 p.m.; the transcript of the call was introduced into evidence and
provided to the jury. She saw them break the door and enter the house. Moments later,
the men went running from the house with nothing in their hands, and drove away in a
metallic green car. Forman stayed on the phone with the sheriff’s department, describing
the car’s movements as it drove around slowly in the area.
       At 12:37 p.m., Deputy Sheriff Leah Stabio received a radio message reporting this
incident. Within a very short time, she saw a metallic green car carrying three Black
males a half a block away from the Kalra house. She pulled the car over and reported
being “on scene” at 12:39 p.m. Appellant was in the driver’s seat, sweating and acting
nervously. He was wearing a white t-shirt and jeans. After other officers arrived and



                                             2
detained the three men, Deputy Stabio went back to the Kalra house, where she found the
front door open and its frame shattered.
       Deputy Stabio also located neighbor and witness Forman, and asked her to view
an in-field lineup. Forman promptly identified appellant and another man named
Goodwin as the two men she had seen battering the door of the Kalra home.
       On July 11, 2012, the Contra Costa County District Attorney filed a felony
complaint charging appellant with first degree residential burglary in violation of Penal
Code sections 459 and 460, subdivision (a). After a two-day jury trial, appellant was
convicted of those offenses. On May 24, 2013, the trial court sentenced him to four years
in state prison.
       On July 22, 2013, appellant filed a timely notice of appeal.
B.     The Habeas Corpus Petition.1
       After filing the opening brief in his appeal, petitioner also filed a petition for writ
of habeas corpus. We issued an order to show cause; the Attorney General filed a return
on behalf of the Director of the California Department of Corrections and Rehabilitation
(respondent); and petitioner filed a traverse. By a previous order, we consolidated the
petition with the appeal for argument and decision.
The Petition
       The petition states that Amy Babbits was appointed as petitioner’s defense counsel
and first appeared in court for him in November 2012.
       In support of the petition, Ford-Howard submitted his own declaration stating that,
at the pretrial conference on March 26, he was offered a plea bargain which included
probation and no more than one year in county jail. He attended the preliminary hearing,
heard the eyewitness testify, and realized that his chance of prevailing at trial was “very
slim.” When his attorney informed him of the offer, she did not state that the offer would
expire at the readiness conference and did not inform him that if he did not accept the


       1
         In their briefing of the habeas petition, both parties refer to the appellate record
as well as to evidence submitted in the habeas proceeding. We will do the same.


                                               3
offer at the readiness conference he would have to go to trial and, if convicted, would
likely face a midterm sentence of four years in prison. He would have accepted the plea
offer at the readiness conference if he had known that that was the deadline. At trial call
on April 22, 2013, his counsel advised the deputy district attorney that he wanted to
accept the plea offer. The deputy district attorney informed her that the offer had expired
12 days earlier at the readiness conference and petitioner’s only choice was to plead as
charged or go to trial. Petitioner “strongly urged her to tell the judge she had made a
mistake by not telling me that the offer would expire at the readiness conference and that
I would have accepted the offer at the time had I known the readiness conference was the
deadline for accepting the offer. She responded that nothing could be done and said
nothing to the judge. At the sentencing hearing, she did not mention the circumstances of
the offer being taken off the table.”
       In the posttrial defense sentencing brief, Babbits stated: “At the trial call Deshawn
Ford-Howard expressed a desire to plead guilty to the crime and accept the offer from the
District Attorney that was presented at the pre trial conference. The trial was continued
for two days and I spoke to the Assistant District Attorney who informed me that the
offer was withdrawn after the readiness conference (a fact unknown to me) and the offer
was now plead as charged. Having essentially no offer Deshawn Ford-Howard
proceeded with trial. I did not communicate to Deshawn Ford-Howard that the offer
expired after the readiness conference because this was a fact unknown to me until two
days before trial.”
       The probation officer’s report to the trial court contains the following statement:
“[D]efense counsel Amy Babbits . . . explained that the defendant had planned to accept
the district attorney’s plea deal of probation; however, she did not know that offer was
rescinded at the readiness conference.”
       Petitioner also submitted the declaration of Daniel Cook, a deputy public defender
in the Contra Costa County Public Defender’s Officer from 1986 to 2007, and in private
criminal law practice in the county since 2007. Cook stated that it was the common
practice and policy of the Contra Costa County District Attorney’s office that offers to


                                             4
plead guilty in exchange for a lesser term of incarceration expired at the readiness
conference, when the parties confirm their readiness to proceed with trial. At that time,
all unaccepted offers are deemed rejected. Cook also stated that, in March and April
2013, “I was aware, as I believe almost every defense attorney practicing in the criminal
courts of Contra Costa County would have been aware, that offers to plead made at . . .
any time prior to the Readiness Conference expired if not accepted at the Readiness
Conference in the absence of an explicit agreement between defense counsel and the
prosecutor to the contrary.”
The Return
       The return is supported by the declaration of Deputy Attorney General Na’Shaun
Neal, which contains statements made to him by Scott Prosser and Steven Bolen, the
Contra Costa County Deputy District Attorneys who handled the pretrial and trial
proceedings, respectively, in this matter. The Neal declaration also represents that
Messrs. Prosser and Bolen “will submit declarations confirming these statements.”
       Respondent admitted that the deputy district attorney presented a plea offer of
formal felony probation for three years and 180 days in county jail in exchange for
petitioner’s plea of guilty to first degree residential burglary. Respondent also admitted
the allegation that “the Contra Costa County District Attorney has a common practice and
policy that all plea offers made to the defendant to plead guilty in return for a lesser term
of incarceration expire[] at the readiness conference,” although respondent denied that
“ ‘almost all defense counsel practicing in Contra Costa County criminal court were
aware or should have been aware of that practice’ because this is an unwritten policy.”
       Respondent denied petitioner’s allegation that he was prepared to accept the plea
offer. Respondent asserted there were plea negotiations back and forth, petitioner did not
want to serve any jail time, and petitioner did not want to plead guilty to burglary because
he would lose his job.
       Respondent admitted (1) defense counsel stated in her sentencing brief that she did
not know the expiration date of the plea offer; (2) she tried to accept the plea offer at trial
call on April 22, 2013, but was informed by the deputy district attorney that the offer had


                                               5
expired; and (3) the deputy district attorney advised her that petitioner’s only option was
to plead guilty and await sentencing. In addition, respondent admitted the statements by
defense counsel in her sentencing brief and that the probation officer’s report contained
statements by counsel that were consistent with the statements in the sentencing brief.
The Traverse
       The traverse includes a supplemental declaration by Daniel Cook regarding
common practices as to plea negotiations, including that those negotiations commonly go
back and forth, the prosecutor’s last offer typically will be available to a defendant until
the conclusion of the readiness conference, and offers rejected or otherwise not accepted
by the time of the readiness conference are withdrawn with no implied agreement that
those offers will later be re-offered.
       Also in the traverse, petitioner objects to the Neal declaration as support for the
return on the grounds that (1) the statements of Prosser and Bolen are inadmissible
hearsay and (2) any declarations by Prosser and Bolen would be untimely, having been
filed after the deadline set by this court for the filing of the return. The traverse is
supported by appellate counsel’s declaration stating that, on the morning of the due date
for the filing of the traverse, he had not received any additional declarations supporting
the return, nor did the docket page of the court’s website indicate any such filing.2
                                         DISCUSSION
A.     Legal Principles.
       A criminal defendant’s Sixth Amendment right to counsel includes the effective
assistance of counsel during plea-bargaining. (Lafler v. Cooper (2012) __ U.S. __,
132 S.Ct. 1376, 1385 (Lafler); Missouri v. Frye (2012) __ U.S. __, 132 S.Ct. 1399,
1406-1407 (Frye); In re Alvernaz (1992) 2 Cal.4th 924, 933 (Alvernaz).)


       2
         The declarations of Prosser and Bolen in support of the return were not served or
lodged with the court until the day after petitioner’s traverse was due and filed, and are,
therefore, untimely. The Attorney General provided no justification for the delay.
However, in the interests of judicial economy, we will exercise our discretion to consider
the declarations in support of the return.


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       “[P]lea bargains have become so central to the administration of the criminal
justice system that defense counsel have responsibilities in the plea bargain process,
responsibilities that must be met to render the adequate assistance of counsel that the
Sixth Amendment requires in the criminal process at critical stages. Because ours ‘is for
the most part a system of pleas, not a system of trials’ (Lafler, [supra, 132 S.Ct. at
p. 1388]), it is insufficient simply to point to the guarantee of a fair trial as a backstop that
inoculates any errors in the pretrial process. ‘To a large extent . . . horse trading [between
prosecutor and defense counsel] determines who goes to jail and for how long. That is
what plea bargaining is. It is not some adjunct to the criminal justice system; it is the
criminal justice system.’ [Citations.] In today’s criminal justice system, therefore, the
negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the
critical point for a defendant.” (Frye, supra, 132 S.Ct. at p. 1407.)
       Claims of ineffective assistance of counsel arising in the plea bargaining context
are governed by the two-part test set forth in Strickland v. Washington (1984) 466 U.S.
668 (Strickland). (Lafler, supra, 132 S.Ct. at p. 1384; Frye, supra, 132 S.Ct. at p. 1405;
Alvernaz, supra, 2 Cal.4th at pp. 936-937.) Under Strickland, a defendant must show
both deficient performance, i.e., that counsel’s representation fell below an objective
standard of reasonableness, and prejudice, i.e., a reasonable probability that he would
have obtained a more favorable result in the absence of counsel’s unprofessional errors.
(Strickland, supra, 466 U.S. at pp. 688, 694; Alvernaz, supra, 2 Cal.4th at pp. 936-937.)
“A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” (Strickland, supra, 466 U.S. at p. 694.)
       In the context of plea bargaining, “a defendant must show the outcome of the plea
process would have been different with competent advice.” (Lafler, supra, 132 S.Ct. at
p. 1384, citations omitted.) “If a plea bargain has been offered, a defendant has the right
to effective assistance of counsel in considering whether to accept it. If that right is
denied, prejudice can be shown if loss of the plea opportunity led to a trial resulting in a
conviction on more serious charges or the imposition of a more severe sentence.”
(Lafler, supra, at p. 1387.)


                                               7
B.     Analysis.
       Petitioner contends that his trial counsel was required to inform him that the plea
offer would expire at the readiness conference and that her failure to do so caused him to
miss his opportunity to accept it. He argues that her deficient performance constituted
ineffective assistance of counsel in violation of his state and federal rights to counsel, and
that his conviction must be reversed.
       1.     Deficient Performance.
       Under the Strickland test, we have no difficulty in concluding that counsel’s
unawareness of, and failure to determine, the expiration date of the plea offer fell below
an objective standard of reasonableness. (Strickland, supra, 466 U.S. at pp. 688, 694.) It
is well established that plea offers may have deadlines for their acceptance. (See
People v. Cobb (1983) 139 Cal.App.3d 578.) Petitioner alleges, and respondent admits,
the policy and practice of the Contra Costa County District Attorney’s office that all
unaccepted plea offers expire and are deemed rejected after the readiness conference.
The Cook declaration provides additional support for the conclusion that defense
counsel’s failure to discover this policy and practice and to communicate the expiration
date of the plea offer to petitioner in time for him to take action on that offer constituted
deficient performance.
       Respondent raises two arguments that petitioner did not receive ineffective
assistance of counsel when the plea offer lapsed. Neither argument is persuasive. First,
respondent contends that counsel’s performance was not deficient because the lapsed
offer merely reflected the district attorney’s prerogative to revoke the offer at any time.
We disagree. Although the district attorney may have such authority, the salient point is
that the evidence here shows no such revocation. Rather, the Bolen declaration states that
“[p]rior to the readiness conference, [defense counsel] informed me that [petitioner] did
not want to accept the plea offer because if he pleaded to burglary, he would lose his job.
I understood this as a rejection of our initial plea offer.” Notably, Bolen, who attended
pretrial proceedings including the readiness conference, did not state that the offer was
revoked or indicate any intention on the part of the district attorney’s office to revoke it.


                                              8
       Second, respondent argues counsel’s ignorance of the district attorney’s policy and
practice was not unreasonable because the policy was unwritten. However, respondent
cites no authority for the proposition that familiarity with unwritten policies that bear on a
criminal defendant’s constitutional rights to adequate representation is optional. On the
contrary, respondent acknowledges that counsel has a “duty to investigate carefully all
defenses of fact and of law that may be available to the defendant, and if his failure to do
so results in withdrawing a crucial defense from the case, the defendant has not had the
assistance to which he was entitled.” (In re Williams (1969) 1 Cal.3d 168, 175.)
Counsel’s “duty to investigate carefully” necessarily includes the duty to ascertain all
pertinent facts regarding a plea offer, among them any deadline for its acceptance.
       2.     Prejudice.
       Petitioner argues that he was prejudiced by his trial counsel’s ineffective
assistance because, due to counsel’s mistake, he was not able to accept the plea offer
which limited his confinement to a maximum of one year in county jail, and instead had
to proceed to trial, following which he was sentenced to four years in state prison. But
for counsel’s error, he contends, he would have received a far lesser sentence.
       To establish prejudice in the context of the plea bargaining process, “a defendant
must show that but for the ineffective advice of counsel there is a reasonable probability
that the plea offer would have been presented to the court (i.e., that the defendant would
have accepted the plea and the prosecution would not have withdrawn it in light of
intervening circumstances), that the court would have accepted its terms, and that the
conviction or sentence, or both, under the offer’s terms would have been less severe than
under the judgment and sentence that in fact were imposed.” (Lafler, supra, at p. 1385.)
       Petitioner has made a sufficient showing that the offer would have been presented
to the court. First, he has shown that he would have accepted the plea offer. Petitioner
stated in his declaration that he wanted to accept the offer and his counsel attempted to do
so on his behalf. His counsel’s statement to that effect in the defense sentencing brief
and Deputy District Attorney Prosser’s declaration that defense counsel stated on the



                                              9
record at the trial call that her client wished to take the plea offer corroborate petitioner’s
statement.
       Respondent challenges petitioner’s assertion that he would have taken the plea,
citing to the Prosser and Bolen declarations regarding plea negotiations and defense
counsel’s representations that petitioner wanted to plead to a lesser charge and to avoid
any jail time. We reject the contention, for two reasons. First, plea bargaining is
frequently a back-and-forth process of negotiation. Second, and more importantly,
petitioner’s attempt to take the offer at the trial call demonstrated his determination to
accept the deal that was offered.
       Petitioner has also made a sufficient showing that the district attorney’s office
would not have withdrawn the offer. Respondent makes no argument in this regard, and
the record reflects no changes in circumstances and no intervening events that could have
led to withdrawal of the offer. (See Frye, supra, 132 S.Ct. at p. 1411 [defendant failed to
establish prejudice from lost opportunity to accept plea due to his re-arrest for another
offense prior to the preliminary hearing].) Thus, petitioner has adequately established
that, but for counsel’s error, the offer would have been presented to the court.
       Next, petitioner must establish a reasonable probability that the court would have
accepted the plea bargain. (Frye, supra, 132 S.Ct. at p. 1409; Lafler, supra, 132 S.Ct. at
p. 1385; Alvernaz, supra, 2 Cal.4th at pp. 940-941.) Respondent argues that petitioner
has failed to make this showing and that the court would have rejected the plea pursuant
to Penal Code sections 1192.7 and 1203, subdivision (k), which limit plea bargaining in
cases charging a serious felony and restrict eligibility for probation.3 According to


       3
         Penal Code section 1192.7, subdivision (a)(2), provides: “Plea bargaining in any
case in which the indictment or information charges any serious felony . . . is prohibited,
unless there is insufficient evidence to prove the people’s case, or testimony of a material
witness cannot be obtained, or a reduction or dismissal would not result in a substantial
change in sentence.” Subdivision (c)(18) of section 1192.7 provides that “serious felony”
includes “any burglary of the first degree.” Section 1203, subdivision (k), provides:
“Probation shall not be granted to, nor shall the execution of, or imposition of sentence be
suspended for, any person who is convicted of . . . a serious felony, as defined in

                                              10
respondent, the record contains no indication that the trial court was willing to approve a
plea bargain under these circumstances.
        We find respondent’s argument troubling, for it suggests that the Contra Costa
District Attorney’s office would extend a plea offer to a criminal defendant with no
expectation that the court would approve it. In turn, petitioner urges that we “must
assume” that the offer was extended in good faith and that the prosecution would have
made appropriate representations to the court to facilitate acceptance of the bargain.
Regarding the charged offense, as petitioner points out, nothing was taken from the home
and no one was harmed. Petitioner also relies on the declaration of Cook, who stated,
based on his years of experience in the Contra Costa Superior Court, that “plea
agreements between the prosecution and defense pursuant to California Penal Code
section 1192.5 are routinely the basis for settlement of criminal cases. The terms and
conditions of such agreements are, on occasion, but rarely, rejected by the Court.”
        Although “we may not simply presume . . . that the trial court automatically would
have approved a plea bargain negotiated by the prosecutor and the defense” (Alvernaz,
supra, 2 Cal.4th at p. 941), we conclude on this record that petitioner has shown a
reasonable probability that the proffered plea bargain would have been approved by the
trial court.
        Finally, here it is undisputed that petitioner’s sentence under the terms of the offer
would have been less severe than under the judgment and sentence that were in fact
imposed. (Lafler, supra, at p. 1385.)
                                       DISPOSITION
        The judgment of conviction is vacated, and the cause is remanded for further
proceedings consistent with this opinion. Petitioner is to be credited with time served,
including applicable credits for time served in state prison, and applicable credits for time
served in county jail prior to his placement in state prison. We further order that


subdivision (c) of Section 1192.7, and who was on probation for a felony offense at the
time of the commission of the new felony offense.”


                                              11
petitioner be given the opportunity to accept the plea offer made at the pretrial conference
in March 2013 and the parties present the plea bargain to the superior court. The appeal
from the judgment is dismissed as moot. The clerk of this court is directed to give the
required notice to the State Bar of California and to trial counsel. (Bus. & Prof. Code,
§ 6086.7; Cal. Rules of Court, rule 10.1017.)

                                                 _________________________
                                                 Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Brick, J.*




       *
        Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.


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