Filed 6/16/22 In re McCurdy CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
| In re DONALD McCURDY
on Habeas Corpus. | E076722
(Super.Ct.No. BAF2000015)
OPINION
|
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus from an order of the Superior Court of Riverside County. Timothy J. Hollenhorst, Judge. Petition granted.
Robert L. Hernandez, under appointment by the Court of Appeal, for Petitioner.
Rob Bonta, Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Lise Jackobson and Christopher P. Beesley, Deputy Attorneys General, for Respondent.
Donald McCurdy petitions this court for a writ of habeas corpus challenging his confinement to prison on the ground he was denied effective assistance of counsel during his probation violation hearing because the Riverside County Public Defender’s office failed to investigate his factual defenses.
The Riverside County District Attorney’s office alleged McCurdy violated the terms of his probation by leaving Riverside County purportedly to attend a family court hearing in San Diego County and by sending a Mother’s Day card to the mother of his children, who was also his victim in a serious domestic violence incident. Despite trying to reach the public defender’s office by phone for weeks, he first spoke with an attorney about half an hour before his hearing. He informed the attorney she could verify his presence at the court hearing by checking the court website and also told her he believed a social worker who supervised his visits with his son had delivered the card. His attorney didn’t investigate before the hearing and failed for that reason to establish his defenses.
The trial judge, Riverside County Superior Court Judge Timothy J. Hollenhorst, found McCurdy violated the terms of his probation, specifically noted evidence of a court date would have been compelling evidence in his defense, and revoked McCurdy’s probation and imposed the original five-year sentence.
McCurdy now submits the evidence his attorneys failed to discover and asks us to direct the trial judge to vacate the finding he violated his probation. We grant the petition.
I
FACTS
In October 2018, McCurdy pled guilty in San Diego County to first degree burglary and inflicting corporal injury on his spouse.[1] (Pen Code, §§ 459, 273.5.) The trial judge sentenced him to five years but suspended execution of the sentence and placed him on probation. The judge also issued a criminal protective order prohibiting McCurdy from contacting the victim directly or through a third party. In 2019, McCurdy successfully transferred his probation to Riverside County. In 2020, McCurdy and his victim were involved in a family law matter in San Diego County involving the custody of their two children.
In August 2020, the district attorney alleged McCurdy had violated the terms of his probation. Relevant here, they alleged he had failed to follow reasonable directives of the probation officer by (1) leaving Riverside County in April 2020 without permission from his probation officer and (2) sending a Mother’s Day card to his domestic violence victim in May 2020. Both the probation officer and McCurdy testified at the hearing.
The probation officer testified that on April 6, 2020, McCurdy asked permission to leave the county to handle a family law matter in San Diego involving the custody of his children. She said, “He was told no unless he had a scheduled court date, which I had reviewed and told him you do not have a scheduled court date. He was also advised that he could file paperwork online.”
McCurdy confirmed the probation officer told him on April 6 that he couldn’t go to San Diego County unless he had a court date. However, he testified that two weeks later, on April 20, his niece had filed a request on his behalf for an ex parte hearing, and the court had set a hearing for 1:40 p.m. on April 21. He said he attempted to contact his probation officer before the hearing by emailing her and leaving two voice mail messages. He then went to San Diego and attended the hearing in person. When he returned, he contacted the officer and told her he had gone to San Diego for the hearing. The probation officer confirmed McCurdy called and told her he had gone to San Diego for his family law case. However, she said she called the family court in San Diego and they told her they didn’t have any scheduled court hearings on April 21.
During closing argument, the trial judge asked defense counsel if she had any proof that McCurdy attended the court hearing on April 21, 2020. She said she did not have any documentation. “Sorry, your Honor. I don’t have any court documentation as well in regards to any actual scheduled court dates. I know that we’re going off of what [the probation officer] had indicated. I know that she spoke to someone saying there were no court hearings at the time.” She said she was unfamiliar with how San Diego County was handling matters during the early days of the COVID-19 pandemic, but she knew Riverside County courts were hearing emergency matters, though often by video or telephonically, and she assumed it was the same throughout the state. She emphasized that McCurdy understood he had a court hearing and went “based on probation officer’s statement that he could go as long as he had a court date.”
The probation officer also testified that on May 6, 2020, McCurdy had emailed her and asked if he could send a Mother’s Day card to his former spouse and domestic violence victim. She said she told him he could not, but on May 27, 2020 McCurdy told Hewitt he had done so anyway. She admitted she didn’t know how McCurdy had delivered the card—by mail, through another person, or by leaving it behind—only that “he said he gave her the card.”
McCurdy testified he helped his four-year-old son make the card—really a two foot by three foot poster—during a supervised visit at his house. He admitted he asked the probation officer if he could send the card to his son’s mother, and she told him no. Instead, he said they put the card up in the boy’s bedroom at his house, and he posted a picture of it on social media. He said the social worker who supervised visits later told him she had contact with the boy’s mother who had seen the card online and said she wanted it. McCurdy said he never told the probation officer that he sent the card. His attorney asked, “So to your knowledge, the card was left at the house with your son?” He responded, “Yes. To a point. I mean, I can’t . . . There was a point it went . . . .” But at that point his counsel told him to stop testifying and ended her examination.
The trial judge found McCurdy had violated the term of his probation requiring him to follow reasonable directives of the probation officer. “It’s clear to this Court, by preponderance of the evidence, that on April 6th and May 6th of 2020, he was given reasonable directives not to leave Riverside County without permission and not to send a Mother’s Day card to the victim. It’s clear to this Court he violated both those conditions based on testimony of [the probation officer] as well as the defendant’s own admission in this court today.” The trial judge emphasized that “[t]here was no proof that there was a court hearing on April 21st of 2020. That would be compelling evidence in Mr. McCurdy’s defense.” The judge imposed the five-year sentence which had previously been stayed.
McCurdy appealed, and his appellate counsel filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 saying they were unable to identify any errors. McCurdy filed a personal supplemental brief arguing the trial judge erred by relying on unproven allegations in sentencing him, prevented him from presenting evidence in his defense, and that his attorney provided ineffective assistance of counsel by failing to obtain exonerating evidence or allowing him to present such evidence. We affirmed, but noted the record was silent as to the missing evidence or his attorney’s reasons for allowing him to testify as freely as he wished. (People v. McCurdy, 2021 WL 1526534, case No. E076031.)
The record is no longer silent with the filing of McCurdy’s petition for a writ of habeas corpus. His petition includes declarations from trial counsel, McCurdy himself, the social worker who supervised visits with his son, and appellate counsel. He also attached a copy of the online docket from his family law case in San Diego to his appellate counsel’s declaration. As he testified at his probation hearing, the docket shows an ex parte application for a family law order was filed on April 20, 2020. It also shows the San Diego family court held an ex parte hearing in McCurdy’s family law case at 1:40 p.m. on April 21, 2020, and that McCurdy and his former spouse were both present.
McCurdy’s declaration says he met his counsel at the probation violation hearing for the first time about half an hour before the hearing started. He said he told counsel he had personally attended the family court hearing in San Diego, which would be reflected in the court’s online records. He also said he told counsel he had not given his victim the Mother’s Day card. He told her the social worker who supervised visits probably gave her the card, and he gave counsel the name of the social worker.
The social worker’s declaration says she supervised multiple visits between McCurdy and his two children. She said McCurdy and his son made a Mother’s Day card for the child’s mother during a visit on May 3, 2020. She said she texted photos of the card to the mother and asked whether it was okay for the child to bring the card home when he was finished. Mother expressed reservations, and the social worker promised to send pictures when it was finished, which she did on May 10. A week later, during another supervised visit, mother asked the social worker to tell McCurdy the card was beautiful and asked to have it sent home to her. At the end of that visit, the social worker took the card out to the car where the older daughter was waiting. She said McCurdy did not ask her to contact mother about the card, and he wasn’t the one who delivered it.
McCurdy’s counsel at the probation violation hearing also filed a declaration. She reported she met with McCurdy before the hearing. He told her he didn’t believe he needed permission to travel outside the county for the family law hearing, but he had called the probation officer afterwards out of an abundance of caution. He said he didn’t know how his spouse received the Mother’s Day card. He said he figured the social worker had given it to her. Counsel reported that in the chambers conference before the hearing she raised the need for a continuance due to the need for investigation. The judge said he would not grant a continuance.
Counsel said she discussed the chambers conference with McCurdy, and he said he wanted to proceed with the hearing without any further time waiver because he believed “if he just told the court what happened, he would prevail.”
II
ANALYSIS
McCurdy argues his counsel provided ineffective assistance of counsel by (1) failing to investigate the factual basis of charges, (2) failing to investigate potentially exonerating information, (3) not allowing McCurdy to fully tell his story when he testified in his defense, and (4) failing to present a meaningful defense on his behalf. We agree the Riverside Public Defender’s office provided ineffective assistance of counsel by failing to investigate McCurdy’s factual defenses.
McCurdy was unable to establish at his probation revocation hearing that he left Riverside County to attend a court hearing or that it was the social worker who gave mother the Mother’s Day card at mother’s own request. However, he does establish those facts in his petition for habeas corpus.
He now argues he received ineffective assistance of counsel because the Riverside County Public Defender’s office did not conduct an adequate investigation into the facts underlying the allegations of probation violations. McCurdy, while in custody and without a cell phone, says he called the public defender’s office before his hearing, but didn’t get a response and first met an attorney from the office, Deputy Public Defender Sharon Nelson, only half an hour before his hearing. Attorney Nelson admits she didn’t consult the San Diego family court website to see if there had been a hearing on April 21, 2020. She also concedes she didn’t investigate how mother received the Mother’s Day card.
The question we face is whether McCurdy’s attorneys with the public defender’s office acted within the realm of professional competence. We conclude McCurdy has shown deficient performance. Defense counsel has a duty “to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” (Strickland v. Washington (1984) 466 U.S. 668, 691.) Counsel has an obligation to investigate all possible defenses and should not select a defense strategy without first carrying out an adequate investigation. (In re Gay (1998) 19 Cal.4th 771, 790.) Here, the defenses required very simple factual inquiries. Indeed one critical piece would have required only an online search.
However, we don’t focus narrowly on attorney Nelson and her conduct in the 30 minutes prior to the probation revocation hearing. The public defender’s office represented McCurdy and together were his law firm. (In re Edward S. (2009) 173 Cal.App.4th 387, 413 [“nder the California Rules of Professional Conduct (see rule 1‐100(B)(1)(d)), a public defender’s office ‘is considered to be the equivalent of a law firm’ and ‘responsibility for handling [a] case[] ... falls upon [the] office as [a] whole’”].) As the People themselves point out, the office sent several attorneys to represent McCurdy after the district attorney’s office filed the allegations of a probation violation. On August 28, Deputy Public Defender Rebeca De La Cerra appeared to represent him at his arraignment, where the trial judge issued a bench warrant for his arrest. Deputy Public Defender Wendy Seto represented McCurdy at a hearing on September 14. On October 2, McCurdy was in custody and appeared by video as Deputy Public Defender Jeff Hurwitz represented him for arraignment. On October 15, the jail failed to clear McCurdy for transportation to the court. Deputy Public Defender Robert Rancourt appeared on his behalf and the judge continued the hearing to October 21. Finally, on October 21, McCurdy was transported to court for the probation violation hearing, where Deputy Public Defender Sharon Nelson represented him. Thus, the public defender’s office acted as the law firm representing McCurdy and assigned several different individual attorneys to take on case responsibilities.
We understand the public defender’s office has limited resources. However, that doesn’t justify the failure to investigate. They simply did not commit enough resources in this case to provide McCurdy with adequate representation. (In re Edward S., supra, 173 Cal.App.4th at p. 414 [“a conflict of interest is inevitably created when a public defender is compelled by his or her excessive caseload to choose between the rights of the various indigent defendants he or she is representing”].) McCurdy was in custody for nearly three weeks leading up to his probation revocation hearing and he tried multiple times to reach an attorney at the public defender’s office without success. He left messages but never received a response. As a result, his first chance to talk to a lawyer was at a meeting with attorney Nelson half an hour before his probation revocation hearing on October 21. That left inadequate time to investigate the factuality of the allegations against him, even though it would have been relatively quick and easy to establish the allegations were not supported. If the office had returned just one of his calls and spoken with McCurdy, it’s clear the attorney who ultimately appeared at the probation revocation hearing could have presented the evidence McCurdy was instead forced to present in support of his habeas petition.
Concerning the allegation that McCurdy left Riverside County without permission, the declaration of appellate counsel shows anyone can perform an online search of a publicly available database to confirm McCurdy attended a court hearing on the date he left the county. That was the critical question at the probation hearing, but his counsel was unable to establish that readily accessible fact. It’s ineffective assistance for counsel not to check the database, even though she had very little time before the hearing and may not have had personal knowledge of the San Diego court website. It bears noting that McCurdy’s declaration says he told counsel there were online records that would confirm his attendance. In any event, it was incumbent on the public defender’s office as the law firm representing McCurdy to allocate more time to investigate the facts. Even a brief meeting or telephone call before the hearing would have given counsel enough time to come to court with this critical factual information established—information the trial judge himself commented “would be compelling evidence in Mr. McCurdy’s defense.”
Similarly unsupported was the allegation McCurdy gave his spouse a Mother’s Day card made by their son. The social worker who supervised the meeting between McCurdy and his son testified she was the one who gave the card to mother. She says she sent the mother pictures of the card from the supervised visit and asked whether it would be okay for the son to bring the card home. She said mother expressed reservations but changed her mind later and asked for it. The social worker said she took the card to McCurdy’s daughter, who was picking up the son at a visit, and she gave the daughter the card. All the public defender’s office would have had to do to establish these facts is call the social worker after McCurdy told her he didn’t give mother the card and he suspected the social worker did. While we understand that 30 minutes is a small window to conduct such an investigation, the attorney made no effort to do so, even though McCurdy said he told counsel the social worker’s name. Nor, critically, did any other attorney assigned to represent McCurdy attempt to establish the factuality of the allegations against him during the weeks he was in custody awaiting his hearing. Effective representation requires counsel take time to make such inquiries. Again, the situation could have been avoided had the public defender’s office responded to McCurdy when he called their office.
The People lay responsibility for the omissions at McCurdy’s feet. They emphasize McCurdy told attorney Nelson he didn’t want to waive time and wanted to move forward with the hearing because “he was confident that he could explain what happened and thereby exonerate himself.” However, attorney Nelson also says she told the trial judge at a conference that she would need a continuance, but the trial judge said he would deny such a request. Thus, McCurdy pushing for a continuance wouldn’t have made a difference. What would have made a difference is the public defender’s office responding to McCurdy’s calls, which would have allowed him to raise these factual defenses with enough time for his counsel to investigate. After all, it’s now apparent that a simple online docket search would establish he attended a court hearing and a phone conversation with the social worker would establish that she, not McCurdy, delivered the Mother’s Day card, and did so at mother’s request. And while McCurdy may have been confident his own explanations would carry the day, we expect attorneys to understand the importance of evidentiary support and for that reason to conduct adequate investigations.
The bottom line is McCurdy didn’t do anything wrong. He told the truth about what happened to his lawyer and to the court, and it wouldn’t have taken much time (though likely more than 30 minutes) to confirm the details of his account. Under these circumstances, it’s clear the public defender’s office provided ineffective assistance of counsel.
The People argue the lack of investigation didn’t matter—that McCurdy suffered no prejudice for a variety of reasons. They argue the fact that he did have a court date was irrelevant because (i) he didn’t establish in-person attendance was required, (ii) his request for relief didn’t warrant a hearing, and (iii) he failed to obtain express prior permission to attend the hearing. However, as the People acknowledge, the probation officer testified “that McCurdy could, in fact, go to San Diego if he had a scheduled court hearing.” This seems to us to end the matter. McCurdy has established he had a hearing and that he was permitted by the terms of his probation to attend it.
Accordingly, we will grant the petition for habeas corpus.
III
DISPOSITION
We grant the writ of habeas corpus. Let a writ of habeas corpus issue directing the Superior Court of Riverside County to vacate the order finding petitioner violated the terms of his probation and placing petitioner in custody and enter a new order finding petitioner did not violate the terms of his probation and reinstating probation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
[u]SLOUGH
J.
We concur:
MILLER
Acting P. J.
RAPHAEL
J.
[1] We grant McCurdy’s unopposed motion requesting we take judicial notice of the appellate record in his direct appeal (case No. E076031) and the online docket in his San Diego family law case (San Diego County Superior Court case No. 18FL008206E). (Evid. Code, §§ 452 & 459, subd. (d)(1).)
