P. v. Suma

Filed 10/22/07 P. v. Suma CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Jimi Axus Suma was placed on felony probation after pleading guilty to one count of offering to manufacture hashish. (Health & Saf. Code,[1]  11379.6, subd. (c).) On appeal and in a related petition for a writ of habeas corpus, Suma contends he received ineffective assistance of counsel because his trial counsel failed to preserve for appeal the issue of whether his processing of marijuana into hashish was an activity protected by the Compassionate Use Act of 1996 ( 11362.5). We affirm the judgment and summarily deny the writ petition.

Factual and Procedural Background

On February 19, 2005, sheriffs deputies were dispatched to Sumas home following a report of an assault. Suma answered the door and was taken into custody on an outstanding warrant from Humboldt County. During a protective sweep incident to the arrest, the deputies saw numerous items associated with processing hashish from marijuana. After obtaining a search warrant, special agents returned to search the property. They seized nearly 22 pounds of marijuana as well as hashish, which was alternately described as honey oil. They also seized cash totaling $23,972, a digital scale used for weighing marijuana or hashish, and chemicals and other materials associated with manufacturing honey oil hashish.

Following a preliminary hearing, the Mendocino County District Attorney filed a seven-count information on May 4, 2005, charging Suma with manufacturing a controlled substance ( 11379.6, subd. (a); count one), assault with a deadly weapon (Pen. Code,  245, subd. (a)(1); count two), vandalism (Pen. Code,  594, subd. (b)(1); count three), grand theft (Pen. Code,  487, subd. (a); count four), cultivation of marijuana ( 11358; count five), possession of marijuana for sale ( 11359; count six), and misdemeanor cruelty to animals (Pen. Code,  597, subd. (b); count seven).

At a hearing on March 24, 2006, the district attorney advised the court that the parties were prepared to enter into a plea agreement. The district attorney offered to amend count one of the information to reflect a charge of offering to manufacture hashish ( 11379.6, subd. (c)), a lesser included offense of manufacturing hashish ( 11379.6, subd. (a)). In exchange for Sumas guilty plea to the amended charge, the district attorney offered to dismiss all the remaining counts of the information. The district attorney also agreed that Suma would be placed on felony probation.

Suma agreed to plead guilty to the amended charge and accept the negotiated disposition outlined by the prosecutor. Before the court accepted the plea, however, Suma and his defense counsel told the court Suma wished to raise on appeal the issue of whether he could assert a defense to the section 11379.6 charge under the Compassionate Use Act of 1996, also referred to as Proposition 215 ( 11362.5). Sumas defense counsel told the court: [I]t is our intention to accept the plea bargain as offered. But an issue has come up of whether or not this honey process is . . . within Proposition 215. I understand theres been some court decisions here that its not and . . . I dont know whether theyre before or after the attorney generals opinion that it is included within Proposition 215. [] Ive spoken with the district attorney and . . . we agree that it could be writted or appealed. Im not sure in my own mind which is the best way to go on that, and I thought maybe it would be best to put this off until after the break and we could discuss it in chambers how the Court would prefer to deal with that.

The court asked if there was any legal issue preventing the plea. Defense counsel responded: The legal issue is that [Suma] has contended that he was making this honey substance asas a caregiver. Hes got letters. He can do that pretty well. [The prosecutor] says that . . . the creation of the honey oil . . . constitutes manufacturing. I dont think thats right, but apparently some courts here in Mendocino havetrial courts have decided that it isnt within your [Proposition] 215. [] And as I say, an opinion has come down by the attorney general that hashish is within [Proposition] 215. How do you get it without processing it? I mean, its kind of a complicated question. And I talked with the district attorney about it and . . . their position is that were welcome to appeal it or writ it however we feel is most appropriate. Because the question should be decided. [] So we want to accept the plea bargain, but we want to also appeal and writ this. Im not sure whether it would be best to do it before or after, and I kind of would like the Courts advice on that. The court took a recess to consider the matter.

After the recess, Suma agreed to the negotiated disposition. Before waiving his right to present a defense, Suma stated, I was specifically told that theres a precedence [sic] thats been set that I may not use a medical defense for honey oil in a trial. Sumas defense counsel responded: We dont know that. We dont know how that would work out. But as of right now, . . . this county has held that that defense isnt available for honey oil. When the court asked Suma if any promises had been made to encourage him to enter the plea other than those outlined by the court, Sumas defense counsel interjected that we did discuss that this matter will be appealed or writted following imposition of sentence to make a determination on the legality of the application of this section [ 11362.5] to the manufacture of this honey oil. The court responded by stating I understand that theres legal issues and you wish to preserve the right to appeal.

The court conducted a sentencing hearing on May 5, 2006. At the outset of that hearing, Sumas defense counsel moved to withdraw as counsel of record. Defense counsel indicated that Suma did not agree with his approach to the case and wished to withdraw his plea. Suma explained he was misinformed that he would be able to appeal on the issue of whether he could avail himself of a medical marijuana defense. He stated: I was promised thatI was sort ofI was informed Id be able to appeal on the 11379.6. And I wasnt informed this before . . . I pled guilty. And it was never made truly clear to me that I wasnt going to be able to appeal on 11379.6. And after I pled guilty, I then received a call from my lawyer saying if Im going to appeal on 11379.6 I will have to withdraw my plea and go to the other judge and he will have to say you may not use medical marijuana as a defense, you may not use the defense you wish to use, which is honey oil is medical marijuana. And that is the defense I wish to use.

The court told Suma he could withdraw his plea but that the original charges would be reinstated. The court stated: Its going to go to trial [on] each and every charge, even the ones that were dismissed by the People. You face a substantial period of time in the Department of Corrections if youre convicted on more than one felony in this matter. You received a huge benefit from the People and dismissal of several felony charges at the time you entered your plea as well as reduction on the charge that you actually pled guilty to. [] You also received a very great benefit of the promise of no state prison at the outset, meaning that you could serve your time on felony probation with a maximum of one year in county jail with a possibility of successfully completing probation and getting this matter dismissed in that way. The court asked Suma, [A]re you willing to put aside all of these benefits, withdraw your plea and take the risks that you have at trial, sir? Suma stated he did not know if [he was] willing to risk state prison for fighting this.

Following a recess, Sumas defense counsel reported that Mr. Suma has thought long and hard about this, your honor; and weve talked about and talked about it with his wife, and he feelshes reluctant, but he feels he should go along with the negotiation that we have. The court agreed to sentence Suma to felony probation and ordered him to serve 120 days in county jail.

Suma filed a timely notice of appeal. In his notice of appeal, he requested a certificate of probable cause, claiming that his Sixth Amendment right to counsel had been violated and that he had received ineffective assistance of counsel in connection with his plea. The trial court granted the certificate of probable cause.

While his appeal was pending, Suma filed a petition for a writ of habeas corpus, claiming he had received ineffective assistance of counsel. In a declaration accompanying his petition, Suma stated his defense counsel told him before entry of his guilty plea that he could raise the applicability of a medical marijuana defense on appeal. He claimed he would not have accepted the plea bargain if he had known he could not raise a medical marijuana defense on appeal. Suma acknowledged he learned before sentencing that his defense counsel had been mistaken in telling him he could raise the medical marijuana issue on appeal. He stated, I debated whether to make a motion to withdraw my plea [but defense counsel] warned me that I could go to prison if I did that. My girlfriend was six months pregnant with my child at the time, and I did not feel as though I could take this risk.

We consolidated the writ petition with the pending appeal and requested that the People file informal opposition to the petition on or before the date the respondents brief was due.

Discussion

In both his appeal and his petition for a writ of habeas corpus, Suma claims he received ineffective assistance of counsel because his trial counsel did not fully investigate or preserve for appeal the issue of whether the Compassionate Use Act ( 11362.5) would provide a defense to the section 11379.6 charge of offering to manufacture hashish. As explained below, Sumas claim fails because he has not shown that, but for his counsels deficient performance, he would have rejected the plea and insisted on proceeding to trial.

1. Suma failed to demonstrate that he suffered any prejudice as a result of his trial counsels alleged deficient representation.

Plea bargaining and pleading are critical stages in the criminal process at which a defendant is entitled, under both the Sixth Amendment to the federal Constitution and article I, section 15 of the California Constitution, to the effective assistance of legal counsel. [Citations.] It is well settled that where ineffective assistance of counsel results in the defendant's decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea. [Citations.] [] To establish ineffective assistance of counsel under either the federal or state guarantee, a defendant must show that counsels representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsels deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsels failings, the result would have been more favorable to the defendant. [Citations.] (In re Resendiz (2001) 25 Cal.4th 230, 239, fn. omitted.) In order to successfully challenge a guilty plea on the ground of ineffective assistance of counsel, a defendant must establish not only incompetent performance by counsel, but also a reasonable probability that, but for counsels incompetence, the defendant would not have pleaded guilty and would have insisted on proceeding to trial. [Citation.] (In re Alvernaz (1992) 2 Cal.4th 924, 934;see also Hill v. Lockhart (1985) 474 U.S. 52, 58-59.)

Suma asserts that his trial counsels performance was deficient because counsel never bothered to test the applicability of a medical marijuana defense and incorrectly told Suma he could raise the issue on appeal. The record reflects that defense counsel had a tactical reason for recommending the plea in light of the uncertain legal and factual application of a medical marijuana defense to a charge of offering to manufacture hashish. Indeed, although Suma argues at length that processing marijuana into hashish is protected by the Compassionate Use Act, the issue is far from settled. Suma fails to cite any case authority establishing that a person who manufactures hashish is protected by Californias medical marijuana laws. The only authority offered for this proposition is an Attorney Generals opinion concluding that hashish is included within the meaning of marijuana as that term is defined in the Compassionate Use Act. (86 Ops.Atty.Gen.Cal. 180 (2003).) However, that opinion does not state that the Compassionate Use Act provides a defense to a charge of violating section 11379.6. In short, the law remains unsettled as to whether a medical marijuana defense applies to a charge of manufacturing hashish.

Furthermore, even if Suma were entitled to assert a medical marijuana defense to a charge of violating section 11379.6, there is reason to question the factual support for the defense. It would have been Sumas burden to prove he was a qualified medical marijuana user or caregiver and that the quantity and form of the marijuana was reasonably related to current medical needs. (See CALCRIM No. 2375.) As the prosecutor pointed out at the sentencing hearing, the evidence found at Sumas home supported an argument he was engaged in a large-scale manufacturing operation. Given the questionable factual and legal support for a medical marijuana defense he might have claimed, Suma faces a significant hurdle on appeal to establish that his defense counsels performance was deficient. We reverse on the ground of inadequate assistance on appeal only if the record affirmatively discloses no rational tactical purpose for counsels act or omission. [Citations.] (People v. Montoya (2007) 149 Cal.App.4th 1139, 1148.)

Nevertheless, although Sumas defense counsel may have had a valid tactical reason for recommending a plea instead of pursuing a medical marijuana defense, counsel plainly erred in advising Suma he could address the availability of a medical marijuana defense on appeal when that issue had never been raised in the trial court. We find it unnecessary to determine whether defense counsels misadvice may be deemed constitutionally ineffective assistance of counsel, however, because we conclude Suma has failed to demonstrate prejudice. (See Hill v. Lockhart, supra, 474 U.S. at p. 60.) In order to establish prejudice after a guilty plea, a defendant must prove there is a reasonable probability that, but for counsels errors, he would have rejected the plea and insisted on going to trial. (In re Resendiz, supra, 25 Cal.4th at p. 253.) A defendants assertion that he would not have pled guilty if given competent advice must be corroborated independently by objective evidence.  [Citations.] (Ibid.)

Here, the objective evidence belies Sumas claim he would have rejected the plea if he had been properly informed that he had no right to appeal on the issue of a medical marijuana defense. There was good reason to question whether Suma would have succeeded on a medical marijuana defense, either at trial or on appeal. Further, he was facing multiple felony charges, including assault, vandalism, and grand theft. Even if he could have successfully raised a medical marijuana defense to the drug charges, he has not indicated he would have had any valid defense to the other charges. (Cf. In re Resendiz, supra, 25 Cal.4th at p. 254 [claim that petitioner would have rejected plea and proceeded to trial fails when petitioner does not explain how he would have defended against charges at trial].) There is no reason to believe he would have rejected a plea bargain dismissing those charges simply in order to pursue a questionable medical marijuana defense to the drug charges. Perhaps the most telling evidence is Sumas own decision not to withdraw his plea at the time of sentencing. By that time, defense counsel had corrected his earlier mistake and properly informed Suma that he had no right to appeal on the medical marijuana issue unless he withdrew his plea and first raised the issue in the trial court. Suma had the opportunity to withdraw his plea and take any necessary action to preserve the medical marijuana issue for appeal. He specifically chose not do so, expressing a concern that he could not take the risk of going to prison in order to pursue a medical marijuana defense. With full knowledge that he would forfeit his right to appeal on the medical marijuana issue, Suma elected to accept the terms of the plea bargain. Thus, we conclude there is no reasonable probability Suma would have rejected the plea and proceeded to trial had he received competent advice regarding his appeal rights at the time he originally entered his plea.[2]

To the extent Suma claims his trial counsel provided ineffective assistance of counsel by failing to preserve the medical marijuana issue for appeal, the contention is unpersuasive. When a defendant enters a guilty plea, the grounds for appeal are limited. Other than search and seizure issues specifically reviewable under [Penal Code] section 1538.5, subdivision (m), all errors arising prior to entry of plea of guilty or nolo contendere are waived by the plea, except those based on reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings; . . . [Citations.] (People v. Shults (1984) 151 Cal.App.3d 714, 718-719; see also Pen. Code,  1237.5, subd. (a).) A defendant may not receive the benefits of a plea bargain and then attempt to improve the deal on appeal. (People v. Vera (2004) 122 Cal.App.4th 970, 983.)

It was not an option for Suma to accept the plea bargain and then challenge on appeal the one remaining charge as to which he had agreed to plead guilty. At most, if Sumas counsel had preserved the medical marijuana issue for appeal by bringing a motion in the trial court, and if Suma were able to demonstrate on appeal that the trial court erred in refusing to permit him to assert a medical marijuana defense to a charge of violating section 11379.6, his remedy would be limited to being allowed to withdraw his plea. In such a case, he would be returned to the status quo ante before the plea agreement, with all of the original charges reinstated. (See People v. Superior Court (Garcia) (1982) 131 Cal.App.3d 256, 258.) For reasons amply demonstrated above, there is no reason to believe Suma would have sought to set aside his plea deal simply to pursue a medical marijuana defense to the drug charges. Indeed, when faced with that option at sentencing, he rejected it. Thus, there is no reasonable probability that, but for his counsels failure to preserve the medical marijuana issue for appeal, Suma would have secured a more favorable outcome at trial.

2. Sumas habeas petition fails to state a prima facie case for relief.

When an appellate court receives a petition for a writ of habeas corpus, it must first determine whether the petitions factual allegations, if taken as true, entitle the petitioner to relief. (People v. Duvall (1995) 9 Cal.4th 464, 474-475.) If no prima facie case for relief is stated, the court will summarily deny the petition. (Id. at p. 475.)

Sumas habeas petition does not state a prima facie case for relief. He asserts that he would have rejected the plea bargain if he had been properly advised of his appeal rights. But he also admits he was properly informed by his defense counsel at the time of sentencing that he could not raise the medical marijuana issue on appeal. Suma acknowledges that he debated whether to withdraw his plea but chose not to, recognizing that he could go to prison if he did. Nowhere in his writ petition in there any indication he had any defenses to the charges that were dismissed pursuant to the plea bargain. The factual allegations in the writ petition simply confirm what is reflected in the record on appeal, but they do not supply any additional objective evidence to suggest Suma would have rejected the plea and proceeded to trial.

Disposition

The judgment is affirmed. The petition for a writ of habeas corpus is denied.

_________________________

McGuiness, P.J.

We concur:

_________________________

Siggins, J.

_________________________

Horner, J.*

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[1] All further statutory references are to the Health and Safety Code unless otherwise specified.

[2] Because we conclude Suma was not prejudiced by his attorneys purportedly deficient performance, we need not decide whether a person charged with manufacturing hashish ( 11379.6) may assert a medical marijuana defense ( 11362.5). We express no opinion on the issue.

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