In re Brown

Filed 8/14/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

B245677

In re JAMALL BROWN,

(Los Angeles County

Super. Ct. No. TA117056)

on Habeas Corpus.

Petition for writ of habeas corpus; relief granted. Arthur Lew, Judge.

Linda L. Gordon, under appointment by the Court of Appeal, for Petitioner.

Kamala D. Harris, Attorney General; Dane R. Gillette, Chief Assistant Attorney

General; Lance E. Winters, Senior Assistant Attorney General; James William

Bilderback II, Supervising Deputy Attorney General; Kathy S. Pomerantz, Deputy

Attorney General, for Respondent.

__________________________

INTRODUCTION

Defendant Jamall Brown was charged with assault with a deadly weapon and

vandalism. The information contained a prior strike allegation asserting that Brown had

previously suffered a juvenile adjudication for robbery in violation of Penal Code, section

211. After the jury convicted Brown of vandalism, he discussed the strike allegation with

his attorney and agreed to admit the strike. As a result of the admission, the trial court

doubled Brown‟s prison term.

Following his conviction, Brown‟s appellate counsel obtained the record of the

juvenile proceedings and discovered that the defendant‟s sustained adjudication did not

qualify as a strike. Brown filed a petition for a writ of habeas corpus arguing that his trial

counsel rendered ineffective assistance by failing to investigate the validity of the prior

strike allegation. We previously issued an order to show cause and now grant the

petition.

FACTUAL AND PROCEDURAL BACKGROUND

A. Trial Court Proceedings

On June 7, 2011, the District Attorney for the County of Los Angeles filed an

information charging Jamall Brown with one count of assault with a deadly weapon

(Penal Code, § 245, subd. (a)(1)1) and one count of vandalism resulting in damage over

$400 (§ 594, subd. (a).) The information further alleged that, in March of 2006, Brown

had sustained a juvenile adjudication for robbery (§ 211), which qualified as a “serious”

or “violent” felony under California‟s Three Strike law (see §§ 667, subds. (b)-(i),

1170.12, subds. (a)-(d).) 2 Brown pleaded not guilty to the charges and denied the prior

strike allegation.

1 All further statutory citations are to the Penal Code unless otherwise indicated.

2 The information also charged Brown with one count of assault by means likely to

cause great bodily harm, which the prosecutor dismissed before trial, and further alleged

2

On November 9, 2011, the jury acquitted Brown of assault with a deadly weapon

and found him guilty of vandalism. After discussing the prior strike allegation with his

client, defense counsel informed the court that Brown intended to admit the strike. The

prosecutor proceeded to take the admission, stating: “You have one prior conviction for a

robbery. It‟s a sustained adjudication, for robbery in the meaning of 1170.12 (a) through

(d) and 667(b) through (i), in case number JJ13722 for robbery on or about March 24th,

2006 . . . , do you admit?” Brown admitted the allegation and his counsel joined the

admission.3

Prior to sentencing, Brown filed a “Romero motion” to dismiss the prior juvenile

adjudication strike. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)

The court denied the motion and sentenced Brown to two years in prison for vandalism,

which it doubled to four years based on the strike admission. Brown filed a timely

appeal.

B. Post-Conviction Investigation and Petition for Habeas Corpus

Following the entry of judgment, Brown‟s appellate counsel, Linda Gordon, began

researching the juvenile adjudication underlying the strike allegation. Gordon contacted

Brown‟s trial counsel and asked him whether the prosecution had provided any

documents to prove the strike. Trial counsel stated that the district attorney had shown

him a document, but he could not recall its contents. Gordon reviewed the superior court

record and was unable to locate any document pertaining to the juvenile adjudication.

Two weeks later, Gordon obtained the case file of the juvenile proceeding, which

contained a copy of the original petition and two minute orders. The original petition,

dated February 6, 2006, alleged a single count against Brown for robbery (§ 211).

However, a minute order dated March 13, 2006 amended the petition to add a count for

that he had suffered two other prior convictions that rendered him ineligible for

probation. (§ 1203, subd. (e)(4).)

3 Defense counsel initially requested “a hearing regarding the juvenile strike and

whether it applies,” but subsequently withdrew the request and joined in the admission.

3

grand theft (§ 487, subd. (c) [theft from a person].) A second minute order, dated

March 24, 2006, was the disposition showing that the juvenile court had sustained the

grand theft charge pursuant to Brown‟s admission and dismissed the remaining count for

robbery.

Gordon attempted to obtain a transcript of the March 13 and March 26 hearings to

confirm that the sustained adjudication had been for grand theft only. After receiving an

affidavit stating there were no notes available to transcribe for either of the hearing dates,

Gordon filed an application in this court requesting permission to seek a settled statement

regarding the juvenile court adjudication. We granted the request and directed the

superior court to hold a hearing for the purpose of settling the juvenile record. During

that hearing, the district attorney conceded that the March 26, 2006 minute order showed

Brown had admitted to grand theft in violation of section 487, subdivision (c), and that

the robbery charge was dismissed. The trial court ordered the clerk to prepare a

supplemental clerk‟s transcript for this case containing copies of the two juvenile court

minute orders and a transcript of the settlement hearing.

Gordon thereafter sent Brown‟s trial counsel correspondence requesting that he:

(1) summarize his investigation of the prior strike allegation; and (2) explain why he had

advised his client to admit the prior strike allegation. Based on trial counsel‟s responses

to her inquiry, Gordon drafted a declaration and asked counsel to review and sign the

document. After further discussions with trial counsel, Gordon revised the declaration

and again requested that he review and sign it. Trial counsel, however, declined to sign

either of the draft declarations and provided a letter stating the following: “Rather than

making changes to the proposed statements you mailed to me, I think it makes better

sense to write my own, so that you have an accurate understanding of my position with

regard to the handling of the alleged prior in Jamall Brown‟s case. I reviewed the portion

of the hearing transcript for the date [on which Brown admitted the prior strike] . . . and

believe it accurately reflects the fact that I spent quite some time discussing the issue of

the alleged juvenile prior with Jamall Brown, along with his rights pertaining to the

alleged prior, after he was acquitted by the jury of Assault with a Deadly Weapon and

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found guilty of Vandalism. It was after that lengthy discussion, which took place

between Jamall Brown and I in court, that Jamall Brown decided to admit the juvenile

prior alleged. I do not recall the contents of the juvenile packet the prosecutor had, as the

trial was quite some time ago, and I have tried many cases since, and I was not provided

with a copy of it.”

On December 13, 2012, Brown filed a petition for habeas corpus arguing that his

trial counsel provided ineffective assistance by failing to conduct an adequate

investigation of the prior strike allegation and advising him to admit a strike he did not

suffer. The petition requested, among other things, that this Court strike the sentence

enhancement predicated on the erroneous strike admission.

In support of the petition, Brown provided a declaration stating that, in March of

2006, he was charged with robbery and had agreed to admit an allegation in the juvenile

court upon the advice of his public defender. Brown‟s declaration further stated that, at

the time he admitted the prior strike allegation in this matter, he was unaware of the true

nature of his juvenile adjudication. He agreed, however, to follow trial counsel‟s

recommendation to admit that the sustained juvenile petition was for robbery. According

to Brown, he would not have made the admission if he had known his juvenile

adjudication did not qualify as a prior strike conviction.

The habeas petition was also accompanied by a declaration from Linda Gordon

summarizing her investigation of the prior juvenile adjudication. The declaration was

accompanied by several exhibits, which included her correspondence with Brown‟s trial

counsel and the draft declarations trial counsel had elected not to sign. On March 15,

2013, we issued an order to show cause.4

4 Brown filed the opening brief in his direct appeal (Case No. B238376) on the

same day he filed his habeas petition. The appeal raises the same claim for ineffective

assistance of counsel set forth in the petition. Because our Supreme Court has directed

that such a claim should generally be made in a petition for writ habeas corpus, rather

than on direct appeal (see People v. Cunningham (2001) 25 Cal.4th 926, 1031), we

address Brown‟s habeas petition and dismiss his direct appeal as moot by a separate

order.

5

DISCUSSION

“Under both the Sixth Amendment to the United States Constitution and article I,

section 15, of the California Constitution, a criminal defendant has the right to the

assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215 (Ledesma).) To

establish constitutionally inadequate representation, a defendant must demonstrate two

components: “First, he must show that counsel‟s performance was deficient; specifically,

he must establish that counsel‟s representation fell below an objective standard of

reasonableness under prevailing professional norms. Second, he must establish

prejudice. He must show that there is a reasonable probability that, but for counsel‟s

unprofessional errors, the result would have been different. . . . Defendant has the burden

of proving an ineffective assistance claim by a preponderance of the evidence.

[Citation.]” (People v. Plager (1987) 196 Cal.App.3d 1537, 1542-1543 (Plager).)

Generally, a reviewing court will reverse a conviction “on the ground of inadequate

counsel only if the record . . . affirmatively discloses that counsel had no rational tactical

purpose for his act or omission.‟ [Citation.]” (Ibid.)

Brown argues that his trial counsel provided ineffective assistance by failing to

adequately investigate the validity of the strike allegation and allowing him to admit a

strike he did not suffer. The Attorney General concedes that Brown‟s juvenile

adjudication was for grand theft (§ 487, subd. (c)), not robbery, and therefore did not

constitute a “serious” or “violent” felony conviction within the meaning of the Three

Strikes law.5 She also does not dispute that Brown, whose sentence was doubled as a

5 Section 667, subdivision (d)(3) describes the circumstances under which a prior

juvenile adjudication constitutes a strike. The subdivision requires the prosecution to

prove, among other things, that: (1) the juvenile adjudication was for an offense listed in

either Welfare and Institutions Code section 707, subdivision (b), Penal Code section

667.5, subdivision (c) or Penal Code section 1192.7; and (2) during the same juvenile

proceeding, the juvenile was found to have committed at least one offense listed in

Welfare and Institutions Code section 707, subdivision (b). Thus, where, as here, the

juvenile adjudication involved a single offense, the offense must appear in Welfare and

Institutions Code section 707, subdivision (b) to qualify as a prior strike. Robbery is

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result of the erroneous admission, was prejudiced by his trial counsel‟s conduct. (See

Plager, supra, 196 Cal.App.3d at pp. 1543-1544 [defendant suffered clear prejudice by

counsel‟s failure to inform him district attorney could not prove prior strike allegation].)

The Attorney General contends, however, that we should nonetheless deny Brown‟s

petition for habeas relief because his counsel‟s investigation into the nature of the

juvenile adjudication was objectively reasonable under prevailing professional norms.

A. Defense Counsel’s Duty to Investigate Prior Conviction Allegations

“Criminal defense counsel has the duty to investigate carefully all defenses of fact

and of law that may be available to the defendant.” (In re Hill (2011) 198 Cal.App.4th

1008, 1016; see also Ledesma, supra, 43 Cal.3d at p. 222 [“[c]ounsel‟s first duty is to

investigate the facts of his client‟s case and to research the law applicable to those

facts”].) “Before entering his plea, [a defendant is] „entitled to rely upon his counsel to

make an independent examination of the facts, circumstances, pleadings and laws

involved and then to offer his informed opinion as to what plea should be entered.‟

[Citation.] The attorney‟s role in investigating the facts and researching the applicable

law prior to advising the petitioner to plead becomes particularly important because of

the serious consequences of a guilty plea[,which] . . . is itself a conviction.” (In re

Williams (1969) 1 Cal.3d 168, 175.) “If counsel‟s „failure [] to undertake such careful

inquiries and investigations [] results in withdrawing a crucial defense from the case, the

defendant has not had the assistance to which he is entitled.‟ [Citation.]” (In re Saunders

(1970) 2 Cal.3d 1033, 1042; People v. Pope (1979) 23 Cal.3d 412, 422.) The adequacy

of a counsel‟s investigation is “assessed for reasonableness in all the circumstances,

applying a heavy measure of deference to counsel‟s judgments.” (Strickland v.

Washington (1984) 466 U.S. 668, 691; In re Thomas (2006) 37 Cal.4th 1249, 1257-

1258.)

listed in section 707, subdivision (b), but grand theft is not. Although the Attorney

General asserts that there are circumstances under which a conviction for grand theft

might qualify as a prior strike, it expressly concedes that no such circumstances are

present here and that Brown‟s prior adjudication therefore does not qualify as a strike.

7

Defense counsel‟s duty to investigate extends to prior conviction allegations that,

if proven, may increase the defendant‟s sentence. Thus, “[w]henever a sentence is

enhanced . . . due to a prior conviction, it is counsel‟s obligation to examine the validity

of the prior or underlying conviction.” (See People v. Cotton (1991) 230 Cal.App.3d

1072, 1084.) In Plager, supra, 196 Cal.App.3d 1537, the court applied these principles

in holding that defense counsel provided ineffective assistance by failing to advise his

client that the prosecution would be unable to establish two prior strike allegations for

“residential burglary.” The defendant had agreed to admit both strike allegations after

“consulting with his attorney” (id. at p. 1542), which resulted in a 10-year sentence

enhancement. The records of the prior convictions, however, demonstrated that both

offenses were actually for “second degree burglary,” which did not qualify as a strike. At

the time the attorney advised the defendant to admit the strike allegations, the law was

clear that a conviction for second degree burglary was insufficient to prove residential

burglary (which would qualify as a strike) “even if the pleadings included superfluous

allegations to that effect.” (Ibid.)

After summarizing defense counsel‟s duty to investigate, the court found that the

attorney‟s conduct constituted ineffective assistance: “Inasmuch as [defendant‟s]

admissions were not part of a sentence understanding, or part of a plea bargain, . . .

[t]here could have been no valid reason, tactical or otherwise, for trial counsel to have

advised defendant to admit the prior felony allegations which would and did subject him

to 10 additional years of imprisonment. If, knowing the law, he advised or even

permitted defendant to admit the truth of the allegations, there can be no satisfactory

explanation for his conduct; if he was unaware of the applicable law . . . he breached his

duty to investigate all defenses of fact and law available to his client.” (Plager, supra,

196 Cal.App.3d at p. 1543.) The court further concluded that the defendant had

established prejudice, explaining “it cannot be reasonably argued that had defendant been

aware the People could not prove the allegations, he would have voluntarily accepted the

10-year enhancement.” (Ibid.)

8

Federal courts applying the Sixth Amendment right to counsel have found

ineffective assistance under analogous circumstances. In Lewis v. Lane (7th Cir. 1987)

832 F.2d 1446, the defendant filed a petition for habeas corpus arguing that his trial

counsel had provided ineffective assistance during the sentencing phase of a capital

proceeding. The applicable state law required the jury to consider whether any mitigating

factors precluded the imposition of the death penalty, which included the absence of any

“significant history of prior criminal activity.” (Id. at p. 1454, fn 3.) Prior to the hearing

on mitigating circumstances, the prosecutor asked defense counsel if he would “stipulate

to the existence of four prior felony convictions on the basis of information contained in

an „FBI rap sheet.‟” (Id. at p. 1455.) The rap sheet listed convictions for attempted

felonious assault with a knife, felonious assault with a tire iron, second degree bank

robbery and bank robbery. Defense counsel “showed the „rap sheet‟ [to the defendant]

and asked him if it were accurate.” (Ibid.) The defendant told his counsel “he thought

the information was correct. . . . On the basis of [this] response, [counsel] agreed to

stipulate to the existence of the . . . convictions despite the fact that the State did not have

certified records of the [prior] convictions and could not have proved their existence had

they been requested or required to do so.” (Ibid.) Based on the parties‟ stipulation, the

trial court permitted the prosecutor to inform the jury of the four prior convictions, which

the prosecutor emphasized during closing arguments. Defendant was sentenced to death.

The appellate court held that defense counsel had provided ineffective assistance,

characterizing his representation as “„shockingly inferior.‟” (Lewis, supra, 832 F.2d at

p. 1458.) The court explained that rather than insisting on “actual proof of those

convictions in the form of certified copies,” defense counsel had improperly “relied on

[defendant‟s] uninformed representation that he thought the information contained in the

„FBI rap sheet‟ was accurate, without explaining to [defendant] the importance of that

information and the critical distinctions between arrest and conviction and between

felony and misdemeanor.” (Ibid.) The court further concluded that the defendant “was

actually prejudiced by the [counsel‟s] regrettable representation with respect to the

erroneous . . . convictions,” adding that “„counsel‟s conduct [had] so undermined the

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proper functioning of the adversarial process that the [capital sentencing proceeding]

[could not] be relied on as having produced a just result.” (Ibid. [citing Strickland, supra,

466 U.S. at p. 696 [in applying two-part test applicable to claims for ineffective

assistance, court‟s “ultimate focus of inquiry must be . . . whether, despite the strong

presumption of reliability, the result of the particular proceeding is unreliable because of

a breakdown in the adversarial process that our system counts on to produce”].)

Similarly, in Banyard v. Duncan (C.D. Cal. 2004) 342 F.Supp.2d 865 (Banyard),

an information contained a prior strike allegation asserting that the defendant had

previously pleaded guilty to assault with a firearm in violation of Penal Code section 245,

subdivision (a)(2). On the advice of his counsel, the defendant admitted the strike and his

sentence was enhanced accordingly. The defendant‟s prior record of conviction,

however, demonstrated he had previously pleaded guilty to section 245, subdivision

(a)(1): assault with a deadly weapon or assault with intent to cause great bodily injury.

Under the controlling case law, to establish that such an offense qualified as a strike, the

district attorney would have had to show the defendant actually inflicted great bodily

injury or used a firearm or other dangerous weapon. Defendant‟s record of conviction

contained no evidence demonstrating either of those factors, which would have precluded

the prosecution from establishing the strike allegation absent defendant‟s erroneous

admission.

The district court concluded that, under such circumstances, defense counsel had

provided ineffective assistance by “fail[ing] to investigate whether [defendant‟s] prior

felonies constituted strikes and to advise [defendant], without having conducted such an

investigation, to admit to those prior strikes.” (Banyard, supra, 342 F.Supp.2d at p. 886.)

B. Trial Counsel Failed to Conduct a Proper Investigation of Brown’s

Prior Conviction

In this case, trial counsel provided a letter explaining that he permitted Brown to

admit the prior strike allegation based on: (1) a packet of materials the prosecution had

provided to him at trial, and (2) information that Brown provided to him during their

10

discussion of the juvenile adjudication. Under the circumstances of this case, counsel‟s

reliance on these two forms of evidence did not constitute an adequate or reasonable

investigation into the validity of the prior strike allegation.

First, neither trial counsel nor the Attorney General has identified what documents

the prosecutor intended to rely on in proving the strike allegation. In fact, no party has

produced or alleged the existence of any document that would have established (or been

admissible to establish) Brown‟s prior juvenile adjudication was for robbery, rather than

grand theft. Generally, the truth of a prior conviction allegation may be established only

by documents within the record of the prior conviction that reliably reflect the facts of the

prior offense. (People v. Trujillo (2006) 40 Cal.4th 165, 177-180 (Trujillo); People v.

Roberts (2011) 195 Cal.App.4th 1106, 1126.) The only relevant documents within

Brown‟s prior juvenile adjudication consist of: (1) the original petition, which charged

Brown with a single count of robbery;6 (2) a minute order amending the original juvenile

petition to add a single count of grand theft in violation of section 487, subdivision (c);

and (3) a minute order sustaining the grand theft count and dismissing the robbery count.

As the district attorney acknowledged at the settled statement hearing in the trial court,

not only do these documents fail to prove that the juvenile petition was sustained against

Brown for robbery or any other offense that would qualify as a strike, they conclusively

demonstrate that the prior adjudication did not qualify as a prior strike offense.

The Attorney General, however, contends that Brown‟s defense counsel might

have reasonably relied on two other documents in concluding that the prior adjudication

was for robbery: the information filed against Brown in this case and his pre-conviction

probation report, each of which contain an erroneous allegation that Brown‟s juvenile

adjudication was for robbery. We fail to see how defense counsel could have reasonably

6 The record in this case does not contain a copy of this original petition and

Brown‟s trial counsel has never asserted that he saw the original petition. The petition,

however, is referenced in a declaration from Linda Gordon and an unsigned declaration

she prepared for trial counsel. Moreover, both parties reference the original petition in

their briefs. Therefore, for the purposes of this habeas petition, we will assume that the

original petition was within the record of the prior conviction.

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relied on either of these documents in concluding that the strike allegation was valid. The

information merely contains allegations regarding the nature of Brown‟s juvenile

adjudication. Defense counsel has a duty to investigate allegations made against his

client, not merely assume their truth. The probation report, on the other hand, contains

multiple layers of hearsay and was not a part of the “record of conviction” in the juvenile

proceeding. As a result, it could not have been admitted to prove the prior conviction.

(See Trujillo, supra, 40 Cal.4th at p. 176 [“in determining the truth of a prior conviction

allegation, the trier of fact may „look . . . to the entire record of the conviction‟ [citation]

„but no further‟ [citation]”].) In sum, neither the record in this case nor the record of the

prior conviction contain any document that trial counsel could have reasonably relied

upon in concluding that his client‟s juvenile adjudication qualified as a strike.

The only remaining information available to trial counsel regarding the nature of

the prior conviction was Brown‟s “acknowledgment that he had a juvenile sustained

petition for robbery.”7 The Attorney General contends that defense counsel was entitled

to rely on this information in advising his client to admit the prior strike allegation. In

support, she cites the general proposition that “„[t]he reasonableness of counsel‟s actions

may be determined or substantially influenced by . . . . information supplied by the

defendant. . . . [W]hat investigation decisions are reasonable depends critically on such

information.‟ [Citation.] Thus, a defendant can hinder counsel‟s investigation not only

through affirmative statements, but also by remaining silent or failing to disclose

pertinent information to counsel.” (In re Crew (2011) 52 Cal.4th 126, 148 (Crew).)

Courts have generally utilized these principles to deny ineffective assistance claims

predicated on inadequate investigation in cases where defendants have affirmatively

misrepresented or failed to disclose facts that they would reasonably be expected to

know. (See People v. Burnett (2003) 110 Cal.App.4th 868, 884 [“It is not defense

7 Although the parties have presented no evidence establishing that Brown actually

told his trial counsel that the juvenile adjudication was for robbery, rather than grand

theft, both parties appear to assume the truth of this assertion. We will therefore do the

same.

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counsel‟s fault that defendant lied to him” regarding the manner in which the victim was

injured]; Crew, supra, 52 Cal.4th at pp. 148-149 [failure to investigate childhood sexual

abuse did not constitute ineffective assistance where defendant repeatedly informed

counsel that his childhood had been normal and that he had not experienced any

problems].)

Our Supreme Court has clarified that “[w]hether a defendant‟s statements actually

hindered trial counsel‟s investigation depends upon the circumstances of each case.

[Citation.]” (Crew, supra, 52 Cal.4th at p. 148.) Under the circumstances here, we

conclude defense counsel could not reasonably rely solely on Brown‟s characterization of

his juvenile adjudication in investigating the prior strike allegation. There are several

reasons for our conclusion.

First, given the complexities of the Penal Code and the Three Strikes law, it was

not reasonable for trial counsel to assume that his non-lawyer client had the specialized

knowledge to understand the specific crime or section of the Penal Code in his prior

adjudication as a juvenile.8 Nor was it reasonable for trial counsel to assume his client

could accurately recall exactly what offense or section of the Penal Code was sustained

against him in a proceeding that occurred five years prior, when the defendant was only

16-years old.

Second, even if trial counsel had a reasonable basis for believing Brown could

accurately recall the specific offense underlying his prior adjudication, counsel had a duty

to ensure that the prosecution possessed evidence that would be sufficient to prove the

prior strike allegation. In this case, defense counsel could have fulfilled this duty by

simply asking the prosecution to provide documentation establishing the truth of the prior

8 Brown allegedly informed his counsel that his prior adjudication was for

“robbery,” when in fact he was convicted of grand theft. Robbery is “„“a species of

aggravated [theft]”‟” that “„“includes the additional element of force or fear.” [Citation.]‟

[Citation.]” (People v. Ortega (1998) 19 Cal.4th 686, 694 [overruled on another point in

People v. Reed (2006) 38 Cal.4th 1224].) It is not reasonable to assume that a non-

lawyer, even an adult, would appreciate the nuanced differences between these offenses

or know that they are treated differently under the Three Strikes law.

13

strike allegation. As explained above, no party has identified or alleged that any such

evidence existed. Had trial counsel requested a copy of Brown‟s record of conviction–as

Brown‟s appellate counsel did–he would have determined that his client did not suffer a

prior strike conviction.

Finally, as in Plager, it is apparent from the record that Brown‟s erroneous

admission was not part of a plea bargain or other sentencing agreement that might have

benefitted Brown; instead the admission served only to double his prison term. Thus,

there could have been no possible valid reason, tactical or otherwise, for trial counsel to

permit his client to admit a strike he did not suffer. If trial counsel was actually shown

the record from the juvenile proceeding–which demonstrates that Brown‟s prior

adjudication was for grand theft–there can be no satisfactory explanation as to why

counsel would have advised or permitted Brown to admit that he was previously

convicted of robbery. If, as the record suggests, counsel relied solely on uncorroborated

statements in documents that would have been inadmissible to prove the prior conviction

and Brown‟s own description of the offense, he breached his duty to investigate all

defenses of fact and law available to his client.

The Attorney General has not identified any authority suggesting that, in the

absence of documentary proof establishing a prior strike allegation, defense counsel may

properly advise his client to admit the strike based solely on the client‟s own recollections

as to what occurred at the prior proceeding. We reject that argument. Indeed, we agree

with the Seventh Circuit‟s holding in Lewis, which involved essentially identical facts,

that such conduct “„so undermined the proper functioning of the adversarial process that

the [proceeding] cannot be relied on as having produced a just result.‟” (Lewis, supra,

832 F.2d at p. 1458.) We therefore strike defendant‟s erroneous admission of the prior

strike allegation and remand the matter to the trial court for a new sentencing hearing.

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DISPOSITION

The petition for writ of habeas corpus is granted. The trial court is directed to

strike petitioner‟s admission of the prior strike allegation, and to proceed to resentence

petitioner. The clerk of this court is to forward a copy of this opinion to the State Bar of

California. (Bus. & Prof. Code, § 6086.7, subd. (a)(3).)

ZELON, J.

We concur:

PERLUSS, P. J.

SEGAL, J.



Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant

to article VI, section 6 of the California Constitution.

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