# In Re Alvernaz

> California Supreme Court · June 22, 1992 · 2 Cal. 4th 924

URL: https://www.frixlaw.com/law-library/cases/9543528

## Case

- **Full name:** In Re JOHN P. ALVERNAZ on Habeas Corpus
- **Court:** California Supreme Court
- **Decided:** June 22, 1992
- **Citations:** 2 Cal. 4th 924; 8 Cal. Rptr. 2d 713; 92 Daily Journal DAR 8517; 830 P.2d 747; 92 Cal. Daily Op. Serv. 5390; 1992 Cal. LEXIS 2896
- **Precedential status:** Published
- **Opinion:** Dissent by Mosk
- **Judges:** George
- **Cited by:** 358 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9543528

## How later opinions describe it (automated extraction)

- holding that prosecutor must either submit previously offered plea bargain to the trial court for approval or must elect, within 30 days, to retry defendant and resume plea negotiation process; trial court not required to approve plea agreement if submitted
- stating that a plea proffered under People v. West is a plea of nolo contendere that does not admit a factual basis for the plea

## Opinion text

*947 MOSK, J.
I dissent.
I agree generally with the rules of law that the majority announce in parts II through V of their opinion. 1 I cannot agree, however, with the majority’s actual holding in this case (pt. VI), i.e., that the present petitioner has not met his burden of showing it is reasonably probable he would have accepted the prosecution’s plea bargain offer if he had been competently represented by counsel. In my view petitioner has made a sufficient showing to warrant, under our settled practice in such cases, an evidentiary hearing to determine the truth of this and a second disputed material issue of fact joined by the pleadings.
I
A brief review of certain principles governing habeas corpus proceedings in an appellate court will be helpful. A petition for habeas corpus must allege, of course, the specific facts on which the petitioner bases his claim for relief. (In re Swain (1949) 34 Cal.2d 300, 304 [ 209 P.2d 793 ].) If the appellate court determines that the petition alleges facts which, if true, entitle the petitioner to relief, it will issue an order to show cause. (In re Hochberg (1970) 2 Cal.3d 870, 874, fn. 2 [ 87 Cal.Rptr. 681 , 471 P.2d 1 ]; accord, In re Lewallen (1979) 23 Cal.3d 274, 278, fn. 2 [ 152 Cal.Rptr. 528 , 590 P.2d 383 , 100 A.L.R.3d 823 ].) The return of the order to show cause must, in its turn, “allege facts tending to establish the legality of the petitioner’s detention; it is thus analogous to the complaint in civil actions.” (In re Lewallen, supra, 23 Cal.3d at p. 277 , and cases cited.) It is not sufficient for the return merely to make general denials of the allegations of the petition; rather, “the respondent should recite the facts upon which the denial of petitioner’s allegations is based, and, where appropriate, should provide such documentary evidence, affidavits, or other materials as will enable the court to determine which issues are truly disputed.” (Id. at p. 278, fn. 2.)
Next, “The traverse, which may incorporate the allegations of the petition, must deny or controvert each material fact or matter alleged in the return or such fact or matter will be deemed admitted; it is therefore analogous to the answer in civil actions.” (In re Lewallen, supra, 23 Cal.3d at p. 277, accord, In re Sixto (1989) 48 Cal.3d 1247, 1252 [ 259 Cal.Rptr. 491 , 774 P.2d 164 ].) “When the return effectively admits the material factual allegations of the petition and traverse by not disputing them, we may resolve the issue without ordering an evidentiary hearing.” (In re Sixto, supra, 48 Cal.3d at p. *948 1252 , and cases cited.) But when, after all the pleadings are filed, there remain factual questions relating to matters outside the trial record that are both disputed and material—i.e., whose resolution is necessary to the decision whether to grant relief—it is our practice to order an evidentiary hearing on such questions. (See, e.g., In re Marquez (1992) 1 Cal.4th 584 [ 3 Cal.Rptr.2d 727 , 822 P.2d 435 ]; In re Cordero (1988) 46 Cal.3d 161 [ 249 Cal.Rptr. 342 , 756 P.2d 1370 ]; In re Martin (1987) 44 Cal.3d 1 [ 241 Cal.Rptr. 263 , 744 P.2d 374 ]; People v. Ledesma (1987) 43 Cal.3d 171 [ 233 Cal.Rptr. 404 , 729 P.2d 839 ]; In re Hall (1981) 30 Cal.3d 408 [ 179 Cal.Rptr. 223 , 637 P.2d 690 ].)
I apply these principles to the pleadings in the case at bar. In his petition for habeas corpus filed in the Court of Appeal, petitioner made the following factual allegations in support of his claim of ineffective assistance of counsel: that the district attorney offered to accept a plea to one count of robbery with a maximum sentencing exposure of five years; that petitioner’s counsel informed him such a sentence would result in at least two and one-half years’ actual imprisonment; and that counsel further informed him that even if he were convicted of the most serious charge against him (count 5, kidnapping for the purpose of robbery) he would face a maximum sentence of eight years, which after deduction of credits could result in only four years’ actual imprisonment. Petitioner further alleged that if counsel had competently researched the law he would have informed petitioner that his true sentencing exposure on count 5 was a life sentence, that he would not even be eligible for parole until he had served at least seven years, and that under California Board of Prison Terms regulations it was unlikely that he would be released until he had served at least sixteen years and seven and one-half months in prison. Finally, petitioner alleged that “Had counsel rendered effective assistance to petitioner by competently advising him of the length of time in prison faced by petitioner, petitioner would have accepted the settlement of the District Attorney.” To the petition for habeas corpus were appended two declarations by petitioner (set forth below as appens. A & B) and one declaration each by petitioner’s father, mother, wife, trial counsel, and eight practicing criminal defense attorneys in San Diego County.
On the basis of these allegations petitioner contended that his imprisonment was unlawful because he had been denied his right to the effective assistance of counsel, and prayed that the judgment of conviction be vacated on that ground. The Court of Appeal issued an order directing respondent to show cause why the relief prayed for should not be granted.
Respondent thereafter filed a return urging that the petition be denied. Insofar as relevant here, the return generally denied “each and every material *949 allegation of the petition.” The return did not, however, allege new facts to support that general denial. Instead, it appended the same declarations of petitioner, his father, mother, wife, and counsel that petitioner had himself presented, and in effect relied on them to support its assertion that petitioner “has failed to establish that he was given incorrect advice, that he would have pled guilty if he had been correctly advised, that the trial court would have accepted the plea bargain and that his present calculation of a parole date is correct and reliable.”
In response, petitioner filed a traverse (here entitled “Denial”) in which he incorporated and realleged the facts set out in his petition and declarations, and specifically alleged (1) that his counsel did give him incorrect advice, (2) that he would have accepted the prosecution’s plea bargain offer if he had been competently advised, (3) that the trial court would have approved that bargain, and (4) that his calculation of his likely parole date is correct and reliable.
It follows that the second and third of these issues—i.e., whether petitioner would have accepted the plea offer if he had been competently advised and whether the trial court would have approved the bargain—are disputed questions of fact. 2 They are also material: as the majority state, to establish ineffective assistance of counsel a defendant must prove that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and that counsel’s deficient performance subjected the defendant to prejudice; and “To establish prejudice, a defendant must prove there is a reasonable probability that, but for counsel’s deficient performance, [1] the defendant would have accepted the proffered plea bargain and that in turn [2] it would have been approved by the trial court.” (Maj. opn., ante, p. 937.) Under the authority cited at the outset, we should therefore order an evidentiary hearing to resolve these two disputed and material issues of fact.
II
The majority conclude otherwise, primarily because they impose an additional requirement on those who seek habeas corpus relief on the ground of incompetent representation at the plea bargaining stage. To reduce the risk of fabricated claims, the majority declare that “In this context, a defendant’s self-serving statement—after trial, conviction, and sentence—that with competent advice he or she would have accepted a proffered plea bargain, is insufficient in and of itself to sustain the defendant’s burden of proof as to prejudice, and must be corroborated independently by objective evidence.” *950 (Maj. opn., ante, p. 938.) I do not object to this requirement in the abstract; I object to the stringent manner in which the majority apply it in the case at bar, a manner that goes far towards nullifying the very constitutional right that the majority now recognize.
Both in his petition and in his second declaration (appen. B) petitioner explicitly alleges that he would have accepted the prosecution’s plea bargain offer if his counsel had correctly advised him of his true sentencing exposure. Under the majority’s analysis that allegation would be sufficient to raise a disputed and material issue of fact if it were corroborated by independent and objective evidence. The majority concede, as they must, that the “substantial disparity” between petitioner’s true sentencing exposure and the term represented to him by counsel constitutes at least “some” corroborating evidence of this type. (Maj. opn., ante, p. 945.) But the majority find that evidence to be outweighed by an inference that the majority draw from the declarations of petitioner and his counsel, to wit, that petitioner’s primary motivation for rejecting the plea offer was his “persistent, strong, and informed hope” of acquittal at trial. (Id. at p. 945.) The record simply does not support this inference.
The majority first assert that petitioner “suggests” in his initial declaration that a factor motivating him to reject the prosecution’s offer was his perception that the preliminary hearing magistrate had concerns about the strength of the People’s case. On the contrary, petitioner does not “suggest” that the magistrate’s concerns were any part of his motivation. A fair reading of the declaration shows that its brief reference to the magistrate’s reservations (appen. A, par. 3) is merely part of its statement of the factual background of the case, rather than an explanation of what motivated petitioner to do what he did. That motivation—petitioner’s misunderstanding of his true sentencing exposure, induced by his counsel’s incompetence—is set forth in detail in the ensuing eight paragraphs of the declaration.
The majority next assert that in his declarations petitioner admits he was encouraged by his counsel’s opinion that he had a 70 to 80 percent chance of being acquitted. Again, a fair reading of the declarations undermines this inference. Petitioner does not deny that he was encouraged by counsel’s opinion of the chance of an acquittal. But what petitioner really says (see appen. A, pars. 7, 8, & 9; appen. B, pars. 1 & 2) is that as long as he was laboring under the mistaken belief, induced by counsel’s incompetence, that the difference between the offered plea (two and one-half years’ actual time) and his presumed sentencing exposure (four years’ actual time) was small, that 70 to 80 percent chance of acquittal was high enough to justify the risk of standing trial; but if counsel had advised him of his true sentencing *951 exposure (life sentence with the likelihood of serving at least sixteen and two-thirds years), the difference between the plea and the exposure would have been so large that the same chance of acquittal would not have been high enough to take the risk of trial. A moment’s reflection will show this to be a completely rational way of thinking: a chance of success that is high enough to warrant our taking a modest risk may well not be high enough to warrant our taking a much greater risk; personal investment decisions, for example, are made on this reasoning every day. It follows that the true motivation for petitioner’s decision to decline the offer was not counsel’s estimate of the chance of acquittal but counsel’s incompetence in informing petitioner that his sentencing exposure was four years’ actual time instead of more than sixteen. 3
Next the majority rely on the declaration of petitioner’s counsel, in which he states that his client “adamantly” maintained his innocence before trial; 4 the majority also stress the fact that petitioner took the stand and testified he was not guilty of the crimes charged. But there is less here than meets the eye. The majority seem to reason that because petitioner told his lawyer and the jury that he was innocent, we should not believe his present declaration that he would have accepted the prosecution’s plea offer if he had been competently advised. The short answer, of course, is that a claim of innocence is not necessarily inconsistent with a plea of guilty. (North Carolina v. Alford (1970) 400 U.S. 25 [ 27 L.Ed.2d 162 , 91 S.Ct. 160 ]; People v. Watts (1977) 67 Cal.App.3d 173, 180 [ 136 Cal.Rptr. 496 ] [a defendant “may, in fact, enter a plea of guilty even though he protests his innocence”].) 5
More important, the majority’s reasoning undermines the principles of law they announce earlier in the opinion. After a persuasive analysis in parts II and III of the opinion, the majority correctly conclude that “the rendering of ineffective assistance by counsel, resulting in a defendant’s decision to reject *952 an offered plea bargain and proceed to trial, constitutes a constitutional violation which is not remedied by a fair trial.” (Maj. opn., ante p. 936.) But what the majority give with one hand they take away with the other: under the majority’s reasoning in part VI of the opinion, if such a defendant does “proceed to trial” and has the temerity to plead not guilty or, worse yet, to testify he did not commit the crime—and later learns he was incompetently represented at the plea bargaining stage—he will ipso facto have made it difficult if not impossible for him to show he is a victim of such a “constitutional violation which is not remedied by a fair trial.” Only a defendant who remains mute or, better yet, confesses in open court, will be able to complain of this constitutional violation. In short, under the majority’s reasoning defendants will be forced to give up one constitutional right—the right to put on a defense—in order to vindicate another—the right to competent counsel at the plea bargaining stage. A constitutional right cannot be held hostage in this fashion.
Again the majority draw the wrong inference from the record—here, from the fact that petitioner testified he did not commit the crimes. Yet the superior court judge who heard the petition for habeas corpus filed by petitioner below correctly understood petitioner’s true motivation: although recognizing it might be speculation, the judge observed that “were I similarly situated and had I known the true facts, notwithstanding the fact that I protested my innocence, I might have not decided to roll the dice looking at roughly 16 and two-thirds years in state prison if I lose, and I may have been willing to do my two-and-a-half years notwithstanding that I claimed I was not guilty.” I cannot put it any better.
Finally, the majority emphasize petitioner’s statement in his first declaration (appen. A, par. 9) that if he had known of his true sentencing exposure he “would have attempted to negotiate a ‘no contest’ plea to the District Attorney’s one-count offer.” The majority assert, ‘there is no evidence substantiating that he was prepared to make such a counteroffer or any other counteroffer, or otherwise engage in the plea bargaining process.” (Maj. opn., ante, p. 946.)
To begin with, in the circumstances of this case a no-contest plea would not have been a “counteroffer” but an acceptance. The Penal Code itself declares that a no-contest plea, which the code denominates a plea of nolo contendere, is the exact equivalent of a guilty plea when, as here, the charge is a felony: “The legal effect of such a [nolo] plea, to a crime punishable as a felony, shall be the same as that of a plea of guilty for all purposes.” (Pen. Code, § 1016, subd. 3, italics added.) Thus petitioner’s statement that he would have attempted to negotiate a nolo plea “to the District Attorney’s *953 one-count offer,” i.e., to one count of robbery, a felony, is the functional equivalent of saying he would have entered a guilty plea to that count. The district attorney presumably knew what the above quoted code section so clearly provides, and would therefore have taken petitioner’s proposed nolo plea to his robbery offer as an acceptance of that offer. 6
Moreover, the majority are disingenuous in complaining there is no “evidence” substantiating that petitioner would have engaged in the plea bargaining process if he had known his true sentencing exposure. Petitioner has presented sworn declarations in which he states he would have accepted the offer, a statement that the superior court judge found to be perfectly plausible in the circumstances. If the majority mean that petitioner must do more—that he must somehow produce testimonial or documentary “evidence” to prove that he would have accepted the offer—then I would oppose such a requirement for several reasons. First, it would be inconsistent with the majority’s earlier—and correct—statement of law in part IV of the opinion listing pertinent factors to consider in determining whether a properly counseled defendant would have accepted a plea offer: the fourth of those factors is, “whether the defendant indicated he or she was amenable to negotiating a plea bargain.” (Maj. opn., ante, p. 938.) There is a world of difference between simply asking whether ‘the defendant indicated” he or she was amenable to negotiating a plea bargain—which this petitioner certainly did in his petition and his two declarations—and demanding independent “evidence” to prove that fact. Second, the majority fail to cite any authority imposing such a requirement. Third, this lack of authority is not surprising because in most cases, as here, such a requirement would be impossible to meet. 7
III
In my view, the record shows credible independent evidence to corroborate petitioner’s declarations that he would have accepted the plea offer if he had been competently represented. I shall apply the majority’s own test: “In determining whether a defendant, with effective assistance, would have accepted the offer, pertinent factors to be considered include: [1] whether counsel actually and accurately communicated the offer to the defendant; [2] *954 the advice, if any, given by counsel; [3] the disparity between the terms of the proposed plea bargain and the probable consequences of proceeding to trial, as viewed at the time of the offer; and [4] whether the defendant indicated he or she was amenable to negotiating a plea bargain.” (Maj. opn., ante, p. 938.) This is not a case in which the first factor is implicated: petitioner does not contend his counsel failed to communicate the prosecution’s offer to him. (See, e.g., Lloyd v. State (1988) 258 Ga. 645 [ 373 S.E.2d 1 ].) But it is a case in which the other three factors are each present and support petitioner’s position.
First, “the advice. . . given by counsel” was manifestly erroneous. As the majority note, “The Attorney General does not dispute . . . that under the [California Code of Regulations], petitioner faces the possibility he will serve 16 years and IVi months of prison confinement under his life sentence.” (Maj. opn., ante, p. 929, fn. 3.) Instead of so advising petitioner, however, his counsel told him that the maximum penalty he faced was eight years and after credits were allowed the net sentence would be only four years. Petitioner’s true sentencing exposure was therefore more than four times greater than his counsel informed him.
Second, “the disparity between the terms of the proposed plea bargain and the probable consequences of proceeding to trial, as viewed at the time of the offer” was greater still. Under the proposed plea bargain petitioner faced a - maximum sentence of five years and actual prison time of two and one-half years; by contrast, the probable consequence of proceeding to trial was a life sentence with the likelihood of serving at least sixteen years, seven and one-half months—a sentence over six and one-halftimes more severe. As the superior court judge wisely noted, “it’s pretty clear to me that given the choice as we now know it of five years as being the offer from the prosecution, alternatively going to trial, losing and having to spend 16 and two-thirds years in prison, it seems to me, although I’m not a hundred percent sure, but most people would probably take it.” 8
Third, petitioner clearly “indicated he . . . was amenable to negotiating a plea bargain.” Why this is so is explained at length above.
*955 I conclude that under the majority’s own standards petitioner has made a sufficient showing to warrant an evidentiary hearing on the disputed and material issue of whether he would have accepted the plea offer if he had been competently represented.
IV
Because of their holding to the contrary, the majority decline to reach the two remaining matters that petitioner must prove to be entitled to relief. Under my view, of course, these matters need to be addressed, and I now do so.
First, it seems plain that petitioner has sustained his burden of proving that counsel’s representation at the plea bargaining stage fell below an objective standard of reasonableness under prevailing norms of practice. We need not order an evidentiary hearing on this issue: it is a mixed question of law and fact, and its factual component is essentially undisputed. It is true that in the return respondent alleges generally that “petitioner failed to establish he was given incorrect advice,” while in the traverse petitioner alleges he did establish this element of his claim. But these are primarily conclusions; the crux of the matter is, what did counsel tell petitioner would be the sentence he would face if he were convicted of the most serious charge against him. On that question, the record shows no real disagreement.
In his first declaration petitioner states that counsel told him the maximum sentence he faced was eight years, and with credits that sentence would be reduced to four years’ actual time served. 9 Petitioner’s declaration is corroborated by the declaration of his father, who participated in a pretrial discussion of the matter with petitioner and his counsel; the declarant states that *956 counsel said the maximum sentence petitioner would receive was eight years, which could be reduced to four years with credits, and that counsel did not say petitioner faced the prospect of a sentence of sixteen years to life.
More important, in his own declaration petitioner’s counsel does not dispute these statements; in particular, he does not state that he informed petitioner that his true sentencing exposure would be at least 16% years in custody. Instead, he asserts that “I do not recall informing Mr. Alvarnez [sic] of the consequences of a sentence under Penal Code § 209. Mr. Alvarnez [sic] was informed that a conviction could lead to a life top sentence, and that a life top sentence translated to terms of actual time of approximately seven (7) years. I cannot, at this time, recall informing Mr. Alvarnez [sic] that Penal Code § 209 could bring about a confinement of 16 to 17 years and that he would not be in front of a Parole Board until at least seven years of his sentence had been completed.” Indeed, counsel candidly concedes in effect that he did not give petitioner correct information on this crucial question: he states that the complexity of the defense case and petitioner’s denial of guilt “perhaps led me to overlook a proper charge with respect to informing Mr. Alvarnez [sz'c] of the potential consequences of a sentence should he be convicted on all counts.”
In the return, respondent neither disputes these allegations nor presents any evidence controverting petitioner’s declarations on the point. Indeed, as noted above respondent’s return takes the unusual step of adopting as its own the declarations submitted by petitioner. By so doing, respondent in effect concedes the truth of the allegations therein that defense counsel did not inform petitioner of his true sentencing exposure. Because of this implied admission, we need not order an evidentiary hearing on the issue but may resolve the matter on the record before us. (In re Sixto, supra, 48 Cal.3d 1247, 1252 .)
Nor need we order such a hearing to determine the relevant standards of practice. As the majority correctly observe, the American Bar Association’s Standards for Criminal Justice declare that defense counsel must accurately “inform the defendant of the consequences of rejecting [any plea bargain offer by the prosecution], including the maximum and minimum sentences which may be imposed in the event of a conviction.” (Maj. opn., ante, p. 937.) To be accurate, of course, that information must take into account not simply California statutory law but also any implementing regulations of the board: as the majority correctly note, in appropriate cases defense counsel should therefore “share with the defendant accurate information as to (1) the *957 rules and regulations affecting the determination of the minimum and maximum periods of confinement applicable to a particular indeterminate sentence . . . (Id. at p. 937, fn. 6.)
In the case at bar it is undisputed that petitioner’s counsel did none of the above. Because the representation provided by counsel at the plea bargaining stage did not meet the foregoing standards, it fell below the objective level of reasonableness required under prevailing professional norms. (People v. Ledesma, supra, 43 Cal.3d 171, 216 .) As the superior court judge succinctly put it, referring to petitioner, “it seems clear to me that this young man got some bad advice.”
The second unresolved issue is purely factual, i.e., whether it is reasonably probable that the proffered plea bargain would have been approved by the trial court. Because it is a component of the required showing of prejudice (People v. Ledesma, supra, 43 Cal.3d at p. 216 ), this is undeniably a material issue. It is arguably also a factually disputed issue. In the return, respondent alleges on various grounds that the plea bargain in this case would not have been approved by the trial court. In the traverse petitioner controverts that allegation, asserting that the trial court would have given its approval as a matter of common practice. But petitioner does more: as will appear, he makes a strong showing that such practice would have been followed in the case at bar.
Petitioner relies on People v. West (1970) 3 Cal.3d 595 [ 91 Cal.Rptr. 385 , 477 P.2d 409 ], a leading case in which this court confirmed the legality of plea bargains in general, and particularly bargains accepting a plea of nolo contendere to the charged offense or to any lesser offense reasonably related thereto. The present case was prosecuted in the San Diego Superior Court. To his petition for habeas corpus petitioner appends declarations by eight attorneys who regularly defend criminal cases in that court. Each avers that he or she has negotiated many felony plea bargains with the San Diego District Attorney, and “When the District Attorney has made an offer on any such case which was acceptable to my client, I have never had the District Attorney or the Court reject the plea merely because it was proffered under People v. West,” i.e., because it was a plea of nolo contendere rather than guilty. The experience of these eight declarants was amply confirmed, moreover, by the equally experienced superior court judge who heard the petition below. 10 The judge stated, “I think that the People v. West plea is commonly taken in this county. And I think the declarations filed by various *958 defense attorneys and my history in the criminal business for over 25 years indicates to me that since West they are almost routinely taken in a trial department or readiness department.”
On this record the Court of Appeal held that petitioner has met his burden of showing it is reasonably probable that the trial court would have approved the plea bargain herein: the Court of Appeal reasoned, “We take notice . . . of the well-known practice in superior court of acceptance of reasonable plea bargains, as the plea bargain in this case certainly was . . . .” I am inclined to agree. Nevertheless, out of an excess of caution I would also refer this issue—like the issue whether petitioner would have accepted the plea offer—to the scrutiny of an evidentiary hearing.
If this petitioner’s allegations do not entitle him to at least such a hearing, it is difficult to imagine what allegations would be sufficient. In that event the majority’s stirring declaration of a constitutional right—a right so fundamental that its denial, say the majority, cannot be remedied by a fair trial—rings hollow indeed. To declare a right that is virtually impossible for anyone to vindicate is at best a sterile intellectual exercise and at worst a cruel hoax. The superior court judge called this case a “tragedy” for petitioner; we should not make it a miscarriage of justice as well.
Kennard, J., concurred.
*959 Appendix A
Declaration of John Alvernaz
I, John Alvernaz, declare:
1. I was the defendant in the case of People v. Alvernaz (Superior Court No. CR 87143).
2. I secured the services of attorney William Milloy to defend me. Prior to the preliminary hearing, the charges I faced were three counts of robbery.
3. Prior to the preliminary hearing I do not recall that there was any plea bargaining. Mr. Milloy put on a defense at the preliminary hearing. At the conclusion of the hearing, the judge, although he found the matter to be “very difficult,” bound me over on all of the charges. The court had stated that it had serious reservations about the prosecution’s proof, but believed that the People had shown enough to hold me to answer to the Superior Court. However, the court continued my bail at O.R. despite the prosecutor stating that the district attorney would probably add a kidnap for purposes of robbery charge under Penal Code § 209 which carried a “life top.”
4. I did not understand at that time nor any other time during the course of the prosecution against me just what a “life top” meant. In fact, I was given misinformation what it meant by my attorney. My attorney told me that if lost on the most serious of counts, the most time I would get would be four years out of eight.
5. When the case proceeded to Superior Court there was a bargaining session held on September 10, 1987. As I was given to understand it by Mr. Milloy, the prosecution offered a plea to one robbery count with a four or five year maximum. The offer was rejected and we proceeded to trial.
6. Shortly after the September 10, 1987 hearing, my father, my attorney (Mr. Milloy) and I held a joint discussion concerning the bargain, the status of the case and what I was facing. As it was explained to me by Mr. Milloy, the prosecution offer of one count with a four or five-year maximum sentence amounted to a “net” sentence of 2 to 2 1/2 years custody (after credits for work-time were applied against the maximum and assuming I received a maximum sentence). I asked Mr. Milloy at this same meeting if he thought I should take this offer. Mr. Milloy then said that if he didn’t think he could win, he would advise me like a great Irish uncle to take the plea bargain. After this meeting, I asked my father, who attended the. meeting, what he thought I should do. He told me to do as the lawyer advised.
*960 7. When I asked what I would face if I lost the case at trial, I was told that the maximum penalty would be about eight years and with work-time credits deducted, this would amount to a net of about four years.
8. Although at all times I protested my innocence of these charges, given the choice of a plea bargain which amounted to a five-year maximum compared to an eight year maximum after going to trial and losing, the decision was easy for me to make in rejecting such an offer under those terms.
9. I was further encouraged in this decision by my attorney’s optimistic projections that there would be a 70-80% chance of winning the case should we go to trial. Had I been aware that losing this case would have meant a statutory minimum nine years to life, and an actual “real time” sentence of at least 16 years in prison prior to parole, I would have attempted to negotiate a “no contest” plea to the District Attorney’s one-count offer. I would not have risked losing to prison the bulk of my adult life with a jury trial after having been bound over by the judge at the preliminary hearing.
10. I was not given accurate information about the serious consequences of going to trial and losing by Mr. Milloy or Mr. Lee Haugen, the attorney who joined the defense just prior to trial and after negotiations had concluded. I went to trial believing the worst that would happen to me if I was convicted of all counts would be about four years of actual time on an eight year sentence.
11. I believe that had my family been aware of the extremely serious consequences following a conviction after a jury trial, they would have encouraged and supported me in accepting the prosecution’s offer made at Department 8 on September 10, 1987.
I swear under penalty of perjury that the above statement is true an [szc] correct to the best of my knowledge. Dated this 5 day of March, 1990 in San Diego County.
/s/
John P. Alvernaz
*961 Appendix B
Affidavit of John P. Alvernaz
I, John P. Alvernaz, swear to the truth of the following:
When my attorney, Mr. Milloy, informed me of the prosecution offer of a plea to one count with a maximum possible sentence of four or five years, he was also informing me of his optimistic projection of winning the case which he said to be 70-80%.
Had Mr. Milloy informed me of the meaning of a life sentence which I now understand to have as a minimum seven years and as a realistic time in custody of fifteen to sixteen years, I would have accepted the bargain. Anyone, I believe, given proper information would have taken the plea bargain given the risks of going to trial and losing the prosecution offer. In this matter, “anyone” includes me.
The reason I hired Mr. Milloy as my defense attorney was because I grew up with his sons and knew him. I was completely dependant [sic] upon him for his professional advice throughout the entire matter and I trusted him and paid him to give me complete and accurate information. I had no independent information at the time I rejected the plea bargain of what I was facing, except as Mr. Milloy informed me.
I swear the above is true and correct to the best of my knowledge and make this declaration under penalty of perjury. Dated this 15 day of August 1990 at San Diego County.
/s/
John P. Alvernaz
My only reservation is, for the reasons stated below, that I would give far less weight than the majority to the fact that a petitioner seeking relief on the ground here recognized had denied his guilt at trial.
As will appear, on this record the first and fourth issues raise no factual disputes.
The majority twice quote (maj. opn., ante, pp. 946, 930) defendant’s statement that his counsel told him that if he did not think he could win the case he would advise defendant “like a great Irish uncle” to accept the plea offer. Whatever the meaning of this cryptic simile, it does not become clearer by repetition and adds nothing of substance to the majority’s argument.
My confidence in the accuracy of defense counsel’s declaration is somewhat impaired by the fact that in that declaration counsel misspells his own client’s name no less than 12 times.
It is true that in California a statute requires each court taking a guilty plea to “cause an inquiry to be made of the defendant” in order to “satisfy itself . . . that there is a factual basis for such plea.” (Pen. Code, § 1192.5.) But a recent decision—cited by the majority—has construed the statute to mean that the court need not make any “inquiry ... of the defendant” personally, and may find the requisite “factual basis” not from the defendant’s answers to such an inquiry but simply from his counsel’s remark, “So stipulated.” (People v. McGuire (1991) 1 Cal.App.4th 281 [ 1 Cal.Rptr.2d 846 ].) After that construction, the statute does precious little to “ensured that the defendant actually committed a crime at least as serious as the one to which he is willing to plead.” (People v. Watts, supra, 67 Cal.App.3d 173, 178 .)
That petitioner intended an acceptance is also shown by his statement a few lines later in the same declaration (appen. A, par. 11) that if his family had known of his true sentencing exposure they would have “supported me in accepting the prosecution’s offer . . . .”
Such “evidence" will not be generated, moreover, by the majority’s suggested “memorialization” procedure (maj. opn., ante, p. 938, fn. 7). Even in cases in which that procedure is followed, it will record only the fact that the prosecution made a plea bargain offer, that defendant was advised of its terms and his sentencing exposure if he accepted or rejected it, and his response thereto. None of these facts is in dispute in the case at bar.
Indeed, petitioner could well be imprisoned even longer than 162A years. After seven years (Pen. Code, § 3046) he will merely become “eligible” for parole; prior to that event the Board of Prison Terms (board) will hold a hearing (1) to determine whether he is actually “suitable” for parole, and if so, (2) to set a parole release date. (Pen. Code, § 3041, subd. (a).) If the board finds petitioner parole-suitable at that hearing, it will likely set a release date resulting, on the facts of this case, in a minimum incarceration period of 162A years. (Cal. Code Regs., tit. 15, § 2280 et seq.)
The board may find a prisoner unsuitable for parole, however, on a variety of grounds, including the gravity and circumstances of the crime, the personal history and character of the offender, and the offender’s record in prison. (Cal. Code Regs., tit. 15, § 2281; see also Pen. Code, § 3041, subd. (b).) In recent years the board has consistently found the vast majority of life prisoners to be unsuitable for parole. (See Bd. of Prison Terms, Ann. Rep. on Life *955 Prisoners, July 1, 1989 Through June 30, 1990 (1991) p. 6, hereafter Ann. Rep. [showing parole denial rates of over 80 percent since 1980].) For example, between July 1, 1989, and June 30, 1990—the latest year for which statistics are available—the board conducted 138 suitability hearings for prisoners convicted, like petitioner, of kidnapping for robbery or ransom; of that total the board found 129—or 93.5 percent—to be unsuitable for parole. (Id. at p. 16.) Indeed, of the 682 prisoners serving life sentences with possibility of parole for kidnapping for robbery or ransom as of June 30, 1990, only 12—or 1.7 percent—had parole dates. (Id. at pp. 14, 46.) Even discounting prisoners who are not yet parole-eligible, the figure is startling.
If the board finds petitioner unsuitable for parole at his initial hearing, he will be entitled to a new suitability hearing at least every two years thereafter. (Pen. Code, § 3041.5.) There is, of course, no assurance that petitioner will ever be found suitable for parole.
Petitioner also states that at the preliminary hearing the prosecutor said he would probably add a charge of kidnapping for the purpose of robbery, “which carried a ‘life top.’ ” Respondent seizes on this statement as evidence that petitioner knew his true sentencing exposure. It is not. Petitioner alleges he did not understand what “life top” meant; and, as wifi appear, petitioner’s counsel states in his own declaration that he informed his client that “life top” meant he must serve seven years before parole (see Pen. Code, § 3046)—not the *956 minimum of sixteen and two-thirds years he will likely be required to serve under board regulations.
Prior to his appointment to the bench in 1987, that judge, the Hon. Bernard E. Revak, had served for 22 years as a local prosecutor, including 2 decades as a San Diego deputy district attorney.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9543528. Public record. Not legal advice.