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Name: In re Vargas
Case #: B137582
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 09/29/2000
Subsequent History: Review denied 12/13/00
Summary

In this case, in which the petition for writ of habeas corpus alleged that petitioner was threatened by an unprepared trial counsel to enter a plea of no contest or he would receive only a “sham trial” with no visible defense, the contention was supported by 1) facts showing the unpreparedness and that petitioner knew of that unpreparedness; and 2) corroboration in the reporter’s transcript as to petitioner’s account as to confusion of what offers had been made. Finally, the court noted that the trial attorney’s declaration contained inconsistencies and could be rejected in its entirety. In this case, in which the petition for writ of habeas corpus alleged that petitioner was threatened by an unprepared trial counsel to enter a plea of no contest or he would receive only a “sham trial” with no visible defense, the contention was supported by 1) facts showing the unpreparedness and that petitioner knew of that unpreparedness; and 2) corroboration in the reporter’s transcript as to petitioner’s account as to confusion of what offers had been made. Finally, the court noted that the trial attorney’s declaration contained inconsistencies and could be rejected in its entirety. The appellate court granted a writ of habeas corpus directing the trial court to conduct a full evidentiary hearing on the allegations made in the petition. The petitioner, who had previously denied wrongdoing, entered a plea of no contest to three counts of violating Penal Code section 288, subdivision (b) (forcible lewd and lascivious acts upon a child), and was sentenced to 24 years in prison. The petition, heard with the appeal, alleged that his attorney had not adequately investigated his case, and also misadvised him as to his options at the time of his plea. The petitioner also alleged that the plea was involuntary due to his attorney’s unpreparedness for trial and refusal to present a defense. In this case, the declarations on behalf of petitioner, and the declaration of the trial attorney submitted by the respondent in opposition, revealed a contested issue of fact. The declarations of the witnesses who claimed not to have been contacted were hardly contradicted at all by the trial attorney, and the file consisted of little more than the discovery provided by the prosecution. As to petitioner’s statements that his trial attorney had not fully advised him of the strengths and weaknesses of the case, the court also found a contested issue of fact. The appellate court also found that petitioner’s offer of other incidents of ineffective assistance of counsel might be relevant under Evidence Code sections 353 and 1105 and Bonin v. Calderon (9th Cir. 1995) 59 F.3d 815, to show a pattern of failure to investigate or give correct advice. The record established credible evidence that petitioner would not have entered the plea had he received effective assistance of counsel. His prior protestations of innocence and the statements of the parties on the record at the time of the plea corroborate the petitioner to the extent required by In re Alvernaz (1992) 2 Cal.4th 924.