Filed 9/15/22 In re Smith CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re KALEAH SMITH,

on Habeas Corpus.

 B314243

 (Los Angeles County

 Super. Ct. No. NA103415)

On petition for writ of habeas corpus. Petition granted.

Richard B. Lennon and Suzan E. Hier, under appointment

by the Court of Appeal, for Petitioner.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Scott A. Taryle, Supervising Deputy 

Attorney General and Idan Ivri, Deputy Attorney General for 

Respondent.

____________________________
2

INTRODUCTION

In 2018 Kaleah Smith pleaded no contest to first degree 

murder and attempted willful, deliberate, and premeditated 

murder. Smith later unsuccessfully sought to withdraw her plea. 

Her efforts to seek appellate review were also unsuccessful.

Smith filed a petition for writ of habeas corpus in the 

Supreme Court, arguing her trial counsel provided ineffective

assistance because he did not advise her accurately about her 

eligibility for a youth offender parole hearing under Penal Code 

section 3051.1 The Supreme Court ordered the Secretary of the 

Department of Corrections and Rehabilitation to show cause, 

returnable in this court, why Smith “is not entitled to relief based 

on her claim that trial counsel rendered ineffective assistance 

during plea negotiations either by failing to advise her or by 

misadvising her as to her parole eligibility under . . .

section 3051, subdivision (b)(3).” We grant the petition.

FACTUAL AND PROCEDURAL BACKGROUND

A. Smith Pleads No Contest to Murder and Attempted 

Murder

In November 2015, when Smith was 22 years old, she went 

with several friends to a housing project, where one of the friends

shot at two people sitting on some stairs. One of the two victims 

died. (People v. Alvarado (Feb. 22, 2021, B298355 [nonpub. opn.]; 

People v. Smith (June 18, 2020, B295351) [nonpub. opn.]), review 

den. Sept. 9, 2020, S263561.) 

1 Statutory references are to the Penal Code.
3

The People charged Smith with first degree murder (§ 187, 

subd. (a)) and attempted willful, deliberate, and premediated 

murder (§§ 187, subd. (a), 664). The People alleged that Smith 

committed the offenses for the benefit of, at the direction of, or in 

association with a criminal street gang with the specific intent to 

promote, further, or assist in criminal conduct by gang members 

(§ 186.22, subd. (b)(1)(C)) and that a principal personally and 

intentionally discharged a firearm causing great bodily injury or

death (§ 12022.53, subds. (d) and (e)(1)). 

On January 17, 2018, the day of trial, Csaba Palfi, Smith’s 

trial counsel, informed the court that Smith had agreed to a 

negotiated disposition. The court told Smith that she would be 

pleading “open to the sheet”2 and that the court “ultimately” 

would sentence her to a prison term of 25 years to life. The

prosecutor stated the charges and allegations and asked Smith a 

series of questions, including whether she understood that, by 

pleading no contest to “the entire sheet,” she would be pleading 

no contest to all the charges and admitting all the allegations;

whether she understood the sentence would be a prison term of 

25 years to life; whether she wanted to give up her constitutional 

rights that accompany a criminal trial; and whether she was 

pleading no contest freely and voluntarily because she believed it 

was in her best interest to do so. Smith answered “Yes” to each of 

the court’s questions.

Smith pleaded no contest to first degree murder and 

attempted willful, deliberate, and premeditated murder and 

admitted the gang and firearm allegations. The trial court found 

2 To “plead to the sheet” means to plead guilty to all counts 

and to admit all enhancement allegations. (People v. Codinha

(2021) 71 Cal.App.5th 1047, 1059.)
4

that Smith “knowingly, understandingly, and intelligently”

waived her constitutional rights and that she entered her plea 

“freely and voluntarily” with “an understanding of the nature and 

the consequences thereof.”

B. Smith Attempts To Withdraw Her Plea

Two months after Smith pleaded no contest, she sought to 

have the court relieve Palfi and to withdraw her plea. At a 

hearing on Smith’s request to change her appointed counsel 

under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), Smith 

stated that Palfi’s advice caused her to plead “under a mental 

state of duress” and that she wanted her plea to be “reconsidered, 

withdrew, and retracted.” Recounting his conversations with 

Smith before the plea, Palfi told the court that he discussed with 

Smith her rights to go to trial and to testify and that he advised 

her that “to have a chance with the jury she would have to 

testify.” Palfi stated that, after speaking with the prosecutor on 

the day of trial, he informed Smith the offer “was 25 to life.” Palfi 

said he told Smith there was a “possibility of a parole hearing 

according to the Franklin case” because she “was under 23” years 

old when she committed the crimes.

3 Palfi said he explained to 

3 In People v. Franklin (2016) 63 Cal.4th 261, at pages 277, 

280 and 286, the California Supreme Court held the enactment of 

section 3051, “which requires the Board [of Parole Hearings] to 

conduct a ‘youth offender parole hearing,’” mooted the 

defendant’s “challenge to his original sentence” under the United 

States Supreme Court’s decision in Miller v. Alabama (2012) 

567 U.S. 460 [132 S.Ct. 2455, 183 L.Ed.2d 407], which held 

“mandatory life without parole for those under the age of 18 at 

the time of their crimes violates the Eighth Amendment’s 
5

Smith that “[i]t was in that range, Franklin set forth, 16 years to 

23 years” and that Franklin gave Smith the right to a hearing, 

but “not a guaranteed parole date,” which “would be dependent 

on . . . how well she did in prison.” Palfi said he informed Smith 

that, if she did her best in prison, “she would have an 

opportunity” for parole, but that, “if we went to trial and lost, 

then pretty much there was no opportunity. It would be a 

50-years-plus sentence.” The trial court construed Smith’s 

statements as “a motion that says that [Palfi] ineffectively 

represented her in the plea negotiations and that she would not 

have pled.” The court denied Smith’s request to replace Palfi. 

Five months later, Smith again asked the court to replace

Palfi. At the hearing on her second request under Marsden, 

Smith stated that Palfi misrepresented the offer from the 

prosecutor and that she would not have accepted the offer had 

she known she would be pleading to first degree murder instead 

of second degree murder. Palfi again recounted his discussions 

with Smith before her plea. Palfi stated that he knew the 

prosecutor would try to depict Smith as “the ringleader” and that 

he reviewed with Smith questions the prosecutor might ask her if 

she testified. Palfi stated that, on the day of trial, he asked 

prohibition on ‘cruel and unusual punishments’” (id. at p. 465; see 

Stats. 2013, ch. 312, § 4). Palfi’s reference to Franklin may have 

been a shorthand reference to the provisions of the legislation 

that enacted section 3051. “A Franklin proceeding gives ‘an 

opportunity for the parties to make an accurate record of the 

juvenile offender’s characteristics and circumstances at the time 

of the offense so that the Board, years later, may properly 

discharge its obligation to “give great weight to” youth-related 

factors [citation] in determining whether the offender is “fit to 

rejoin society.”’” (In re Cook (2019) 7 Cal.5th 439, 449.) 
6

Smith if she wanted to settle her case. Palfi said he told Smith

the likelihood the prosecutor would agree to the same sentence 

she offered Zariah McCollum, one of Smith’s codefendants, “was 

slim” to “none,”

4 but suggested they could ask if the prosecutor 

would agree to second degree murder, which would mean a 

sentence of 15 years to life. Palfi admitted he “made a mistake” 

and explained: “For some unknown reason, I was stuck on that, 

that she would be entitled to a [youth offender parole] hearing in 

15 years . . . . That was the mistake. But I think the mistake has 

been rectified . . . by the subsequent plea that she entered into.”

The court found Palfi did not do “anything wrong in this case,” 

but relieved him as Smith’s counsel because of “irreconcilable 

conflict” between the two of them. 

On September 4, 2018 Smith, represented by new counsel,

filed a motion under section 1018 to withdraw her plea. Smith 

claimed she entered a plea “to charges and consequences that 

were not expected by her, explained [to her], understood by her, 

and all against her free will.” Smith asserted she labored “under 

a mistake as to the seriousness of the consequences of conviction”

and “felt pressured by all involved and her attorney to take the 

‘deal’ without having sufficient time to digest and contemplate 

the ramifications of her plea.” Smith attached correspondence 

between her and Palfi, including two memoranda Palfi had 

written her. 

4 As part of her plea bargain, McCollum agreed to testify for 

the prosecution, which she did in the trial of Smith’s other 

codefendant, Alejandro Alvarado. A jury convicted Alvarado of 

first degree murder and attempted willful, deliberate, and 

premeditated murder and found firearm allegations true. (People 

v. Alvarado (Feb. 22, 2021, B298355) [nonpub. opn.].)
7

In the first memorandum, which Palfi wrote on January 17, 

2018 (the day of Smith’s plea), Palfi summarized his assessment 

of the strengths and weaknesses of the case. Palfi stated Smith 

was “facing basically two life terms” and suggested asking the 

prosecutor to settle the case by having Smith plead to second 

degree murder and admit the gang allegation. Palfi told Smith

that, if a jury convicted her of first degree murder and attempted 

murder, she “would be looking at 50 years and that is without the 

gun or gang enhancements.” Palfi stated: “However, the bright 

spot in all of this is a new case . . . which directs the Board of 

Prisons[5] to hold a parole hearing on cases as yours to determine 

when you might or would get out. There are NO promise[s] of 

release[,] just a hearing after 15 years, that could be at 85% or 

100% of your time and I am not sure. Why? Because it is a new 

law on the books and everyone is scrabbling to figure it out.” 

In the second memorandum, which Palfi wrote 

approximately six months later, Palfi recounted the 

circumstances surrounding Smith’s decision to plead no contest:

Palfi informed Smith the prosecutor would only accept a plea to 

first degree murder and an admission to the gang allegation, “for 

a total of thirty-five years.” Palfi told Smith that he “wasn’t 

certain” when she would be eligible for a parole hearing under 

“these circumstances.” After the plea, Palfi called Smith’s 

husband and “mistakenly” told him that Smith had pleaded to 

second degree murder and that she would be eligible for a parole 

hearing in 15 years. When Palfi went to see Smith a few weeks 

later, he made the same mistake of “conflating” the right to a 

5 The Board of Parole Hearings replaced the Board of Prison 

Terms in July 2005. (See § 5075, subd. (a); In re Shaputis (2008) 

44 Cal.4th 1241, 1245, fn. 1.)
8

parole hearing with Smith’s sentence of “25 to life” and told

Smith that she had pleaded to second degree murder.

At the hearing on Smith’s motion to withdraw her plea

under section 1018, Palfi testified that, on the day of the plea, he 

spoke to the prosecutor and conveyed to Smith the offer of

pleading to first degree murder and accepting a sentence of 25 

years to life. Palfi said Smith “absolutely” was “cognizant of” the 

prosecutor’s offer. Palfi recalled that, when he went to see Smith

after the plea, “one of the first things” she told him was “I pled to

25. I plead to first degree.”

Smith testified that, when Palfi advised her the “best that 

we could do” was for her to plead no contest to second degree 

murder for a sentence of 15 years, plus 10 years for the gang 

enhancement, she told him she “would take that.” Smith stated 

Palfi never informed her that the prosecutor rejected the 

defense’s offer of second degree murder. Smith explained that,

when the prosecutor told her she would be sentenced to 25 years 

to life, she thought that meant the sentence was a term of 15 

years to life, plus 10 years for the gang enhancement. 

The trial court recalled that, when Smith entered her plea, 

the court found her plea was “knowing, voluntary, and 

intelligently made.” The court stated, “There’s nothing that’s 

been presented to change my mind on that.” The court found

that Palfi made “quite clear” to Smith the prosecutor’s offer 

required her to plead to first degree murder and that, as 

evidenced by the “consistent things” she said after the plea,

Smith “seemed very clear on it.” The court concluded that, while 

Smith had “some belief from somewhere that it was second 

degree” murder, she consistently stated her sentence “was at 

least 25 years.” The court denied Smith’s motion to withdraw her 
9

plea and sentenced her under the plea agreement to a prison 

term of 25 years to life on the murder conviction. The court also 

imposed and stayed execution of a life term on the attempted 

murder conviction and terms on the firearm and gang 

enhancements. The court also imposed assessments, a booking

fee, a restitution fine, and a victim restitution award.

6

C. Smith Seeks Appellate Relief

Smith filed a notice of appeal and a statement requesting a 

certificate of probable cause under section 1237.5. Smith stated 

she “was sentenced to 25 years to life for murder in the first 

degree due to the mistakes of Mr. Palfi’s errors” and was 

misadvised about the terms of her plea. The trial court denied 

Smith’s request for a certificate of probable cause, finding she 

had “no basis for appeal.” 

Smith then filed a petition for writ of mandate in this court, 

asking us to direct the trial court to issue a certificate of probable 

cause to allow her to appeal the denial of her motion to withdraw 

her plea. We denied the petition for writ of mandate, and the 

Supreme Court denied Smith’s petition for review. (Smith v. 

Superior Court (July 11, 2019, B298049), review den. Aug. 21, 

2019, S256907.)

Smith next filed a petition for writ of habeas corpus in this 

court, contending Palfi provided ineffective assistance. Smith 

asserted Palfi’s erroneous or incomplete advice caused her to 

6 Smith appealed the order imposing the assessments, 

booking fee, restitution fine, and victim restitution award. We 

affirmed, and the Supreme Court denied Smith’s petition for 

review. (People v. Smith, supra, B295351; People v. Smith, supra, 

S263561.)
10

plead no contest, which she would not have done had Palfi 

properly advised her that section 3051 applied to her even if she 

decided to go to trial. We summarily denied Smith’s petition. (In 

re Smith (June 17, 2020, B306272).)

Finally, Smith filed a petition for writ of habeas corpus in 

the Supreme Court, making the same claims she made in the

petition for writ of habeas corpus she filed in this court.7 The 

Secretary filed an informal response, arguing that the petition 

was procedurally barred and that Palfi did not provide ineffective 

assistance. The Supreme Court directed the Secretary to show 

cause, returnable before this court, why Smith was not entitled to 

relief based on her claim Palfi failed to advise her or misadvised 

her about her parole eligibility under section 3051, subdivision 

(b)(3). (In re Kaleah Smith on Habeas Corpus (August 11, 2021, 

S266965).)

D. This Court Orders a Referee To Conduct an 

Evidentiary Hearing

The Secretary filed a return to Smith’s petition, and Smith 

filed a traverse. After reviewing the parties’ submissions, we 

directed the Presiding Judge of the Los Angeles County Superior 

Court to appoint a referee to conduct an evidentiary hearing and 

make recommended findings of fact on what Palfi advised Smith 

about the terms of her plea, whether Smith understood at the 

time of her plea she was pleading to first degree murder with a 

sentence of 25 years to life, what Palfi advised Smith about 

7 Smith also claimed the attorney who represented her at the

sentencing hearing (not Palfi) provided ineffective assistance by 

failing to object to the court’s imposition of a $3,106.50 victim 

restitution award. 
11

section 3051 if Smith pleaded no contest to first degree murder, 

and what Palfi advised Smith about section 3051 if a jury 

convicted her on all the charges. 

The referee conducted an evidentiary hearing. Smith and 

the prosecutor testified, but Palfi had died before the hearing. 

The referee made the following findings: (1) Palfi advised Smith 

the prosecutor rejected Smith’s offer to plead no contest to second 

degree murder, and Palfi conveyed to Smith the prosecutor’s offer

to have Smith plead to all the charges on the “sheet” and receive 

a sentence of 25 years to life; (2) Smith agreed to “take the deal” 

and understood that “she was pleading to first degree murder at 

the time of the plea” and that her sentence would be 25 years to 

life; (3) there “is no way to know” what Palfi “might have testified

to telling Smith” about section 3051 if Smith pleaded no contest 

to first degree murder, although (the court inferred) if Palfi said 

anything on this topic, “it would have logically been different 

than the parole hearing date for second degree murder”; and

(4) Smith did not recall Palfi “saying anything about her 

eligibility under section 3051” if a jury convicted her on all the 

charges, and Palfi did not testify about this issue at the hearing 

on Smith’s motion to withdraw her plea and “now is unavailable.”

DISCUSSION

A. Smith’s Petition Is Not Procedurally Barred

The Secretary contends that, because Smith “fully 

litigated” her claim of ineffective assistance of counsel in her 

motion to withdraw her plea and the trial court denied her 
12

request for a certificate of probable cause under section 1237.5,

8

Smith may not “raise a habeas claim alleging ineffective 

assistance of counsel in connection with a plea negotiation in 

order to circumvent the denial of a certificate of probable cause 

on the same claim.” Smith contends that the allegations in her 

petition differ from those in her motion to withdraw her plea and 

that, because the record of the motion to withdraw the plea did 

not reflect whether Palfi had a tactical reason for his omissions, 

the petition provides an opportunity to address those issues. 

The decision by the Supreme Court to issue an order to 

show cause in this case disposes of the Secretary’s procedural-bar 

argument. The “issuance of an order to show cause indicates the 

Supreme Court has determined the claim is not procedurally 

barred.” (In re Smith (2020) 49 Cal.App.5th 377, 386; see In re 

Taylor (2019) 34 Cal.App.5th 543, 554 [“‘[w]ere there a valid 

procedural bar, we would have expected [our state] Supreme 

Court to deny the petition rather than issuing an order to show 

cause returnable before this court’”]; In re Ramirez (2019) 

32 Cal.App.5th 384, 406, fn. 11 [same].) The Secretary made the 

same procedural argument in her informal response to Smith’s 

petition for writ of habeas corpus before the Supreme Court, and 

8 Section 1237.5 states: “No appeal shall be taken by the 

defendant from a judgment of conviction upon a plea of guilty or 

nolo contendere . . . except where both of the following are met: 

[¶] (a) The defendant has filed with the trial court a written 

statement . . . showing reasonable constitutional, jurisdictional, 

or other grounds going to the legality of the proceedings. 

[¶] (b) The trial court has executed and filed a certificate of 

probable cause for such appeal with the clerk of the court.” (See 

People v. Stamps (2020) 9 Cal.5th 685, 694; People v. Johnson

(2009) 47 Cal.4th 668, 676.)
13

the Supreme Court issued an order to show cause. We see no 

reason to question the Supreme Court’s implicit ruling there is no 

procedural bar to hearing Smith’s petition. (See Maas v. Superior 

Court (2016) 1 Cal.5th 962, 974 [“[i]f the court determines that 

the petition states a prima facie case for relief on a claim that is 

not procedurally defective, the court issues the writ of habeas 

corpus, or an order to show cause”].)9

Moreover, because “claims of ineffective assistance are 

often more appropriately litigated in a habeas corpus proceeding, 

the rules generally prohibiting raising an issue on habeas corpus 

that was, or could have been, raised on appeal [citations] would 

not bar an ineffective assistance claim on habeas corpus.” (People 

v. Tello (1997) 15 Cal.4th 264, 267; see In re Robbins (1998) 

18 Cal.4th 770, 814, fn. 34 [argument that a claim should have 

been raised on appeal or that a claim was raised and rejected on 

appeal does not apply “to claims of ineffective assistance of trial 

counsel even if the habeas corpus claim is based solely upon the 

appellate record”].) Smith did not raise the issue of Palfi’s 

incomplete or inaccurate advice about section 3051 in her motion 

to withdraw her plea. Indeed, as stated in our order for an 

evidentiary hearing, “‘no inquiry was made’” at the hearing on 

Smith’s motion to withdraw her plea into whether Palfi advised 

Smith section 3051 applied. And the trial court did not make any 

findings on whether Palfi failed to advise, or misadvised, Smith 

9 This procedural history distinguishes this proceeding from 

In re Chavez (2003) 30 Cal.4th 643 and In re Brown (1973) 

9 Cal.3d 679, disapproved on another ground by People v. Mendez

(1999) 19 Cal.4th 1084, 1097, the two cases on which the 

Secretary principally relies. The Supreme Court in those cases 

did not issue an order to show cause. 
14

on the applicability of section 3051, nor did the court make any 

rulings on whether Palfi’s representation was constitutionally 

ineffective. Contrary to the Secretary’s argument, Smith did not 

fully litigate her claim Palfi rendered ineffective assistance when 

he advised her about the ramifications of pleading no contest 

versus going to trial. A habeas proceeding gives Smith the 

opportunity and ability to supplement the record with evidence 

Palfi gave incomplete or incorrect advice about section 3051. (See 

People v. Hoyt (2020) 8 Cal.5th 892, 958 [“[u]sually, ‘ineffective 

assistance [of counsel claims are] more appropriately decided in a 

habeas corpus proceeding’”]; People v. Johnson (2009) 47 Cal.4th 

668, 684 [“Generally, if it cannot be determined from the record 

whether counsel had a reasonable strategic basis for acting or 

failing to act in the manner challenged, a claim of ineffective 

assistance ‘is more appropriately decided in a habeas corpus 

proceeding.’”]; People v. Cotton (1991) 230 Cal.App.3d 1072, 1083 

[where a “claim of ineffective assistance of counsel relies on 

matters outside the appellate record, a petition for habeas corpus 

is a proper vehicle for getting the matter before the court”].)

B. Trial Counsel Rendered Ineffective Assistance

1. Applicable Law

a. Ineffective Assistance of Counsel

“To demonstrate ineffective assistance of counsel,” a 

defendant “‘must show that counsel’s performance was deficient, 

and that the deficiency prejudiced the defense.’” (People v. 

Johnsen (2021) 10 Cal.5th 1116, 1165; see In re Long (2020) 

10 Cal.5th 764, 773 [defendant must show counsel’s action or 
15

omission “‘fell below an objective standard of reasonableness’ 

[citations] in light of ‘the professional norms prevailing when the 

representation took place’” and “‘a reasonable probability that, 

but for counsel’s unprofessional errors, the result of the 

proceeding would have been different’”].) The two-part test under

Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052, 80 

L.Ed.2d 674] (Strickland) “applies to challenges to guilty pleas 

based on ineffective assistance of counsel.” (Hill v. Lockhart

(1985) 474 U.S. 52, 58 [106 S.Ct. 366, 88 L.Ed.2d 203]; see In re 

Alvernaz (1992) 2 Cal.4th 924, 934 [“in order successfully to 

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 counsel’s incompetence, the defendant would not have 

pleaded guilty and would have insisted on proceeding to trial”];

People v. Montoya (2021) 68 Cal.App.5th 980, 998 [same].)

The standard for judging counsel’s representation “‘is a 

most deferential one.’ [Citation.] We ‘must indulge a “strong 

presumption” that counsel’s conduct falls within the wide range 

of reasonable professional assistance because it is all too easy to 

conclude that a particular act or omission of counsel was 

unreasonable in the harsh light of hindsight.’ [Citation.] ‘Unlike 

a later reviewing court, the attorney observed the relevant 

proceedings, knew of materials outside the record, and interacted 

with the client, with opposing counsel, and with the judge.’ 

[Citation.] Accordingly, we must ‘reconstruct the circumstances 

of counsel’s challenged conduct, and . . . evaluate the conduct 

from counsel’s perspective at the time.’” (In re Long, supra, 

10 Cal.5th at pp. 773-774; accord, People v. O’Hearn (2020) 

57 Cal.App.5th 280, 294.) The defendant “‘must overcome the 
16

presumption that, under the circumstances, the challenged action 

“might be considered sound trial strategy.”’” (In re Gay (2020) 

8 Cal.5th 1059, 1073.)

“Because a petition for a writ of habeas corpus is a 

collateral attack on a presumptively final criminal judgment,” the 

defendant “bears the burden of proving his entitlement to relief 

by a preponderance of the evidence. [Citations.] The referee’s 

factual findings are ‘entitled to great weight where supported by 

substantial evidence.’ [Citations.] Those findings are not, 

however, conclusive, and ‘we can depart from them upon 

independent examination of the record even when the evidence is 

conflicting.’ [Citations.] The ultimate responsibility for 

determining whether [the petitioner] is entitled to relief rests 

with” the reviewing court. (In re Gay, supra, 8 Cal.5th at 

pp. 1072-1073; accord, In re Lewis (2018) 4 Cal.5th 1185, 1191.)

b. Section 3051

Section 3051, subdivision (b)(3), provides: “A person who 

was convicted of a controlling offense that was committed when 

the person was 25 years of age or younger and for which the 

sentence is a life term of 25 years to life shall be eligible for 

release on parole at a youth offender parole hearing during the 

person’s 25th year of incarceration.” (See People v. Franklin

(2016) 63 Cal.4th 261, 277 (Franklin).) “As originally enacted, 

section 3051 referred to offenses committed before the offender 

was 18 years old. The age was raised to 23 years by an 

amendment that became effective on January 1, 2016.” (In re 

Trejo (2017) 10 Cal.App.5th 972, 981, fn. 6; see Stats. 2015, 

ch. 471, § 1.) “The section was later extended to offenders who 

were ‘under age 26 when they committed their crimes.’” (People 
17

v. Benzler (2021) 72 Cal.App.5th 743, 748; see Stats. 2017, 

ch. 675, § 1.) 

Thus, at the time of Smith’s plea, section 3051 provided 

that defendants like Smith who were under 23 years old when 

they committed their crimes would be entitled to a youth offender 

parole hearing during their 25th year of incarceration. The 

Supreme Court explained that, for “those juvenile offenders 

eligible for youth offender parole hearings, the provisions of 

Senate Bill No. 260,” which added section 3051 to the Penal Code, 

“are designed to ensure they will have a meaningful opportunity 

for release no more than 25 years into their incarceration.” 

(Franklin, supra, 63 Cal.4th at p. 277; see In re Trejo, supra, 

10 Cal.App.5th at p. 981.) Section 3051 thus “effectively reforms 

the parole eligibility date of a juvenile offender’s original 

sentence so that the longest possible term of incarceration before 

parole eligibility is 25 years.” (Franklin, at p. 281; see In re Cook

(2019) 7 Cal.5th 439, 449 [same]; People v. Scott (2016) 

3 Cal.App.5th 1265, 1281 [“section 3051 has abolished de facto 

life sentences” “by virtue of its provision for mandatory parole 

eligibility hearings after no more than 25 years in prison”].)

2. Palfi Had a Duty Not To Misadvise Smith 

About Her Parole Eligibility

Palfi may not have had an affirmative duty to advise Smith

that section 3051 applied to her convictions, whether by plea or 

by jury verdict. (See People v. Reed (1998) 62 Cal.App.4th 593, 

597 [defense counsel’s failure to inform the defendant about the 

limit on how much credit he could earn to reduce his time in

prison “was not ineffective assistance”]; id. at p. 598 [“‘parole 

eligibility is a collateral rather than a direct consequence of a 
18

guilty plea,’” and “‘a criminal defendant’s ‘actual knowledge of 

consequences which are collateral to the guilty plea is not a 

prerequisite to the entry of a knowing and intelligent plea’”]; see 

also People v. Barella (1999) 20 Cal.4th 261, 272 [“a defendant is 

not entitled to withdraw or set aside a guilty plea on the ground 

that the trial court, in accepting the plea, failed to advise the 

defendant of a limit on good-time or work-time credits

available”].) But Palfi did have a duty not to misadvise Smith

about her eligibility for parole if she rejected the prosecution’s

offer. (See People v. Huynh (1991) 229 Cal.App.3d 1067, 1080, 

1083 [defense counsel’s incorrect statement in court that the 

defendant would be eligible for parole in seven years instead of 

11 years four months, combined with the defendant’s testimony

he would not have waived his right to a jury trial had he been 

properly advised, established “‘a prima facie case for relief on 

habeas corpus’”]; see also People v. Johnson (1995) 

36 Cal.App.4th 1351, 1355, 1357 [defense counsel’s

miscalculation of the defendant’s maximum potential sentence by 

11 years before the defendant pleaded no contest was

“a dereliction of her duty to ensure that defendant entered his 

plea with ‘full awareness of the relevant circumstances and the 

likely consequences of his action’”]; People v. McCary (1985) 

166 Cal.App.3d 1, 9 [“defendant’s counsel did not meet the 

threshold standards of competency in failing to determine the 

enhancement was invalid and to inform defendant of this fact in 

the course of plea negotiations”]; see also People v. Ogunmowo

(2018) 23 Cal.App.5th 67, 77 [“[a]ffirmatively misadvising a client 

that he will not face immigration consequences as a result of a 

guilty plea in a drug trafficking case—when the law states 
19

otherwise—is objectively deficient performance under prevailing 

professional norms”].) 

Palfi told Smith that, if she accepted the plea offer, she 

would have an opportunity for early parole under the “new law,”

but that if she went to trial and lost she would essentially

(“pretty much,” in Palfi’s words) not have that opportunity. This 

(mis)advice was incorrect. In fact, Smith would have had the 

same opportunity for a youth offender parole hearing in 25 years 

under section 3051 whether she pleaded no contest to the charges 

or was convicted by a jury on those charges. Palfi’s erroneous 

advice “fell below an objective standard of reasonableness under 

prevailing professional norms.” (In re Alvernaz, supra, 2 Cal.4th 

at p. 937; see ibid. & fn. 6 [“defense counsel must communicate 

accurately to a defendant the terms of any offer made by the 

prosecution” and “inform the defendant of the consequences of 

rejecting it, including the maximum and minimum sentences 

which may be imposed in the event of a conviction”].)10

10 The Supreme Court cautioned that “a defense attorney’s 

simple misjudgment as to the strength of the prosecution’s case, 

the chances of acquittal, or the sentence a defendant is likely to 

receive upon conviction, among other matters involving the 

exercise of counsel’s judgment, will not, without more, give rise to 

a claim of ineffective assistance of counsel.” (In re Alvernaz, 

supra, 2 Cal.4th at p. 937.) Palfi’s misstatement about Smith’s 

ineligibility for parole if a jury convicted her was not a 

misjudgment about Smith’s likely sentence; it was contrary to a

law passed two years before Smith agreed to plead no contest. 

(See People v. McCary, supra, 166 Cal.App.3d at p. 12 [“‘“There is 

nothing strategic or tactical about ignorance.”’”].)
20

3. Smith Has Shown Prejudice

“In determining whether a defendant, with effective 

assistance, would have accepted [or, as here, rejected] the offer,

pertinent factors to be considered include: whether counsel 

actually and accurately communicated the offer to the defendant; 

the advice, if any, given by counsel; 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 whether the defendant indicated he or she was 

amenable to negotiating a plea bargain.” (In re Alvernaz, supra, 

2 Cal.4th at p. 938; accord, In re Resendiz (2001) 25 Cal.4th 230, 

253; People v. Breslin (2012) 205 Cal.App.4th 1409, 1421.) 

A defendant’s “self-serving statement . . . 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.” 

(Alvernaz, at p. 938; see Resendiz, at p. 253; Breslin, at p. 1421.) 

Smith presented sufficient evidence of prejudice. She

stated in her declaration she would have chosen “to go to trial” 

and “profess” her innocence had she known she would be eligible 

for a parole hearing after 25 years “no matter how long the 

sentence” she received from the court. And objective evidence 

corroborated Smith’s declaration: Although the referee found 

Palfi correctly communicated the prosecutor’s offer to Smith, the 

first prejudice factor under Alvernaz, the advice Palfi gave Smith, 

the second Alvernaz factor, supported a finding of prejudice. As 

discussed, Palfi’s misstatement that Smith would lose her chance 

for a youth offender parole hearing if she lost at trial was 

incorrect as a matter of law and created an illusory advantage to 

accepting the plea offer.
21

Moreover, the disparity between “the terms of the proposed 

plea bargain and the probable consequences of proceeding to 

trial,” the third Alvernaz factor, was insignificant. Because 

under either scenario Smith would have been entitled to a youth 

offender parole hearing during the 25th year of her incarceration

(see In re Cook, supra, 7 Cal.5th at p. 449), the plea bargain 

offered little tangible benefit.11 Had Palfi not misinformed Smith 

that a prison sentence after conviction by a jury would be more 

than 50 years, without the possibility of an earlier parole 

hearing, it was reasonably probable Smith would not have 

accepted the plea offer.12 (See In re Vargas (2000) 83 Cal.App.4th 

1125, 1141 [defendant “presented credible evidence supporting 

his statements that his motivation in accepting the plea 

agreement was based upon” trial counsel’s “misrepresentations 

and coercive statements”]; People v. Johnson, supra, 

36 Cal.App.4th at pp. 1355-1356, 1358 [trial counsel’s 

miscalculation by 11 years of the defendant’s maximum potential 

sentence had he gone to trial “was a substantial inducement in 

his decision to plead nolo contendere”]; People v. McCary, supra, 

166 Cal.App.3d at pp. 8, 9, 11 [defendant “was prejudiced” by 

trial counsel’s failure “to ascertain” he “was not legally subject to 

the charged enhancement” because the prosecutor’s promise to 

11 Regardless of her aggregate prison sentence, if the Board 

denies Smith parole at her first youth offender parole hearing,

the Board will “set the time for a subsequent youth offender 

parole hearing in accordance with” section 3041.5, 

subdivision (b)(3). (§ 3051, subd. (g).)

12 To the extent the fourth Alvernaz factor is relevant in a 

case where the defendant accepts a plea agreement, Smith 

demonstrated she was amenable to negotiating a plea bargain.
22

dismiss the enhancement “had no value whatsoever”]; cf. In re 

Resendiz, supra, 25 Cal.4th at p. 254 [defendant failed to show 

prejudice because the plea agreement offered him a benefit of six 

months of incarceration and three years of probation, compared 

to five years four months of incarceration “had the prosecution 

chosen to seek maximum penalties”].)

The Secretary argues that “admitting culpability via a 

guilty plea in a murder case may be an important factor in favor 

of granting parole” and that “the operative question under the 

second Strickland prong is whether it is reasonably probable that 

[Smith] would have given up the possibility that a no contest plea 

would make her a better parole candidate in exchange for the 

possibility that she would be acquitted at trial.” That is not the 

question. Palfi never told Smith pleading no contest would 

improve her odds or prospects before the Board of Parole 

Hearings.13 The question is what Smith would have done had 

Palfi not misstated her parole eligibility under section 3051, not 

what Smith would have done had Palfi not misadvised her about 

section 3051 and told her about factors the Board might consider 

in granting or denying parole. (See Hill v. Lockhart, supra, 

474 U.S. at p. 59 [the “‘prejudice’” requirement “focuses on 

whether counsel’s constitutionally ineffective performance 

affected the outcome of the plea process”]; In re Resendiz, supra, 

25 Cal.4th at p. 253 [“a defendant who pled guilty demonstrates 

prejudice caused by counsel’s incompetent performance in 

advising him to enter the plea by establishing that a reasonable 

probability exists that, but for counsel’s incompetence, he would 

13 In fact, when describing the parole process, all Palfi told 

Smith was that a “parole date” would depend on “how well she 

did in prison.” 
23

not have pled guilty and would have insisted, instead, on 

proceeding to trial”].)

Nor would advising Smith to accept responsibility for her 

crimes and admit her guilt necessarily help her in a parole 

hearing 25 years later. Although one of the circumstances 

tending to show suitability for parole is “demonstration of 

remorse” (In re Shaputis (2008) 44 Cal.4th 1241, 1257; see In re 

Lawrence (2008) 44 Cal.4th 1181, 1203), acceptance of 

responsibility “‘works in favor of release “[n]o matter how 

longstanding or recent it is,” so long as the inmate “genuinely 

accepts responsibility.”’” (In re Twinn (2010) 190 Cal.App.4th 

447, 467; see In re Barker (2007) 151 Cal.App.4th 346, 368-369; 

In re Elkins (2006) 144 Cal.App.4th 475, 495.) Thus, Smith did 

not need to admit culpability for her crimes in 2018 to show her 

suitability for parole in 2043. (See Lawrence, at p. 1226 [in light 

of the remorse petitioner expressed years after the crime and 

“other factors establishing suitability” for parole, the gravity of 

the petitioner’s commitment offense provided “no support for the 

Governor’s conclusion that petitioner is unsuitable for parole at 

the present time”].)14 

14 In re Tapia (2012) 207 Cal.App.4th 1104, on which the 

Secretary relies, is distinguishable. In that case the defendant 

refused to identify his coconspirator until the day of his parole 

hearing, which the court found constituted “an ongoing threat to 

public safety” over many years. (Id. at p. 1112.) As discussed,

Smith can attempt to show she is suitable for parole in 25 years

by (among other things) genuinely accepting responsibility; she 

just doesn’t have to accept responsibility at the time and by way 

of a plea. (See, e.g., In re Twinn, supra, 190 Cal.App.4th at 

pp. 470-471 [petitioner was entitled to parole even though he did 
24

The Secretary also argues that, given “McCollum’s 

cooperation with police,” Smith’s “likelihood of being acquitted 

was extremely low.” According to the Secretary, “Palfi would 

have explained that [Smith’s] best chance to be released on parole 

. . . was to plead guilty and demonstrate rehabilitation, and it is 

likely [Smith] would have accepted that advice.” Again, nothing 

in the record supports the Secretary’s argument that Palfi would 

have explained to Smith the benefits of accepting responsibility 

early or that Smith would have decided not to require the People 

to prove their case beyond a reasonable doubt to a jury. (See Lee 

v. United States (2017) ___ U.S. ___ [137 S.Ct. 1958, 1966-1967, 

198 L.Ed.2d 476] [when “the respective consequences of a 

conviction after trial and by plea” are, “from the defendant’s 

perspective, similarly dire, even the smallest chance of success at 

trial may look attractive”]; cf. People v. Rodriguez (2021) 68 

Cal.App.5th 301, 311-312 [under section 1473.7 “prejudice is 

established if the movant shows ‘there is a reasonable probability 

[he or she] would not have pleaded guilty—and would have 

risked going to trial (even if only to figuratively throw a “Hail 

Mary”)—had [he or she] known the guilty plea would result in 

mandatory and dire immigration consequences’”].) Because Palfi 

provided ineffective assistance, Smith is entitled to withdraw her 

plea. (See People v. McCary, supra, 166 Cal.App.3d at p. 7 

[“[w]here a defendant has been denied the effective assistance of 

counsel in entering a plea of guilty, he is entitled to reversal and 

not acknowledge his involvement in, or accept responsibility for, 

his role in the murder until almost 20 years after the crime].)
25

an opportunity to withdraw his plea if he so desires”]; see also 

People v. Huynh, supra, 229 Cal.App.3d at p. 1084 [if the superior 

court finds that the defendant “was incorrectly advised by 

defense counsel about parole eligibility . . . and that a reasonable 

defendant would not have submitted the case to court trial as he 

did had he been properly advised [citation], then defendant will 

be entitled to withdraw from the terms of the submission”].)

DISPOSITION

The petition is granted. The trial court is directed to allow 

Smith to withdraw her plea of no contest and enter a different 

plea.

SEGAL, J.

We concur:

PERLUSS, P. J.

WISE, J.*

* Judge of the Alameda County Superior Court, assigned by 

the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.