Tooby's California Post-Conviction Relief for Immigrants

 

The state and federal constitutions grant the accused the right to the effective assistance of counsel.  In People v. Soriano,[307] the court stated that claims of ineffective assistance in conjunction with a guilty plea should be raised on direct appeal or in habeas corpus.[308]

 

To invoke habeas jurisdiction, however, one must be in custody in violation of law.[309]  In many circumstances, including those discussed above in which DHS custody has been held insufficient to invoke federal or state habeas corpus jurisdiction, custody is absent. 

 

            For every constitutional violation there must be a remedy.  California courts must entertain nonstatutory motions to invalidate particular stages of a criminal case, even entire criminal convictions, on constitutional grounds.  For example, in Murguia v. Municipal Court,[310] the Supreme Court stated:

 

Although no clear California statutory authority provides for such a pretrial motion to dismiss [on grounds of discriminatory prosecution], we have no doubt in light of the constitutional nature of the issue as to the trial court's authority to entertain such a claim.  (Accord, Jones v. Superior Court (1970) 3 Cal.3d 734, 738-739, 91 Cal.Rptr. 578 . . . ; People v. Coffey (1967) 67 Cal.2d 204, 215 and fn. 11, 60 Cal.Rptr. 457 . . . .)

 

This rule -- that constitutional violations must find a remedy even if no statute provides one -- has been specifically applied to claims of ineffective counsel.  For example, in People v. Fosselman: [311]

           

Penal Code section 1181 enumerates nine grounds for ordering a new trial.  It is true the section expressly limits the grant of a new trial to only the listed grounds, and ineffective assistance is not among them.  Nevertheless, the statute should not be read to limit the constitutional duty of trial courts to ensure that defendants be accorded due process of law.  “Upon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused.”  (Glasser v. United States (1942) 315 U.S. 60, 71 [parallel citations omitted]; see also Powell v. Alabama (1932) 287 U.S. 45, 52 [parallel citations omitted]; People v. Davis (1973) 31 Cal.App.3d 106, 110, 106 Cal.Rptr. 897; Schwarzer, Dealing with Incompetent Counsel -- The Trial Judge’s Role (1980) 93 Harv.L.Rev. 633, 639, fn. 27, 649.)  The Legislature has no power, of course, to limit this constitutional obligation by statute.  (People v. Davis, supra, 31 Cal.App.3d at p. 110, 106 Cal.Rptr. 897.)  It is undeniable that trial judges are particularly well suited to observe courtroom performance and to rule on the adequacy of counsel in criminal cases tried before them.  (See McMann v. Richardson (1970) 397 U.S. 759, 771 [parallel cites omitted].)  Thus, in appropriate circumstances justice will be expedited by avoiding appellate review, or habeas corpus proceedings, in favor of presenting the issue of counsel’s effectiveness to the trial court as the basis of a motion for new trial.  If the court is able to determine the effectiveness issue on such motion, it should do so.  The court should have done so in the case at bar.

 

The court therefore has authority to vacate the plea or sentence on grounds of ineffective counsel.

 

            We begin with the general proposition that a motion for new trial is a statutory right and may be made only on the grounds enumerated in Penal Code section 1181.  (People v. Sainz (1967) 253 Cal.App.2d 496, 500 [61 Cal.Rptr. 196].)  The only exception to the rule occurs where strict adherence to the rule would deny the accused due process of law.

 

            Since the duty of the trial court to afford every defendant in a criminal case a fair and impartial trial is of constitutional dimension, the inherent power of the court to correct matters by granting a new trial transcends statutory limitations.  (People v. Oliver (1975) 46 Cal.App.3d 747, 751 [120 Cal.Rptr. 368].)  (People v. Cardenas (1981) 114 Cal.App.3d 643, 647-648, 170 Cal.Rptr. 763.)

 

            “Although it has been stated that motions for new trial must be made on one or more of the grounds enumerated in Penal Code section 1181 (see, e.g., People v. Sainz, 253 Cal.App.2d 496, 500 [61 Cal.Rptr. 196]), new trials are frequently granted on nonstatutory grounds ‘where the failure to do so would result in a denial of a fair trial to a defendant in a criminal case.’  (People v. Davis, 31 Cal.App.3d 106, 109 [106 Cal.Rptr. 897].)  The duty of a trial court to afford every defendant in a criminal case a fair and impartial trial is of constitutional dimension.  Where the procedure has fallen short of that standard, an accused has been denied due process, and the inherent power of the court to correct matters by granting a new trial transcends statutory limitations (People v. Davis, supra, 31 Cal.App.3d 106, 110).”[312]

 

Therefore, in these limited circumstances where there is no habeas custody, the trial court possesses the inherent authority to grant a post-judgment motion to vacate a plea based on ineffective assistance of counsel.

 

It is firmly established that the trial court has the inherent authority to grant a new trial on non-statutory grounds where the failure to do so would result in the denial of a fair trial and the violation of constitutional rights.[313]  This authority to grant a non-statutory new trial extends to claims of ineffective assistance of counsel.[314]

 

The court’s inherent authority derives from its constitutional duty to ensure that defendants be accorded due process of law.[315]  “Upon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused.”[316]  As the court stated in People v. Oliver, “The duty of the trial court to afford every defendant in a criminal case a fair and impartial trial is of constitutional dimension.  Where the procedure has fallen short of that standard, an accused has been denied due process, and the inherent power of the court to correct matters by granting a new trial transcends statutory limitations.” 

 

The court has the same inherent authority to grant a post-judgment motion to vacate a plea obtained in violation of the constitutional rights of the accused.

[307] People v. Soriano (1987) 194 Cal.App.3d 1470, 1477

[308] See also People v. Adamson (1949) 34 Cal.2d 320, 327 (habeas corpus is a means to attack a judgment of conviction obtained in violation of fundamental constitutional rights, including the denial of counsel).

[309] See Penal Code § 1474.

[310] Murguia v. Municipal Court (1975) 15 Cal.3d 286, 124 Cal.Rptr. 204, 209 n.4.

[311] People v. Fosselman (1983) 33 Cal.3d 572, 189 Cal.Rptr. 855, 861.

[312] People v. Oliver (1975) 46 Cal.App.3d 747, 751, 120 Cal.Rptr. 368.

[313] People v. Fosselman (1983) 33 Cal. 3d 572, 583.

[314] Ibid.

[315] See People v. Davis (1973) 31 Cal.App.3d 106, 110-11.

[316] People v. Fosselman (1983) 33 Cal.3d 572, 583.