California Courts of Appeal Reports

SANGHA v. BARBERA, G035195 (Cal.App. 12-26-2006) ROOPINDER
SINGH SANGHA, Plaintiff and Appellant, v. VINCENT LA
BARBERA, Defendant and Respondent. G035195. Court of
Appeal of California, Fourth District, Division Three.
December 26, 2006. Certified for Publication.

Appeal from a judgment of the Superior Court of Orange
County, No. 04CC03857, Gail A. Andler, Judge. Affirmed.

Day, Day & Brown, Christopher J. Day; Law Office of William
Kopeny and William Kopeny for Plaintiff and Appellant.

Lewis Brisbois Bisgaard & Smith and Gary M. Lape for
Defendant and Respondent.



In an action for legal malpractice, Roopinder Sangha
alleged his former criminal defense attorney, Vincent La
Barbera, negligently advised him to plead guilty to felony
vandalism (Pen. Code, § 594, subd. (a); all
statutory citations are to this code unless noted) in
exchange for dismissal of a pending criminal threats charge
( § 422). He later retained new counsel, persuaded
the court to set aside his plea, and admitted guilt to a
misdemeanor vandalism charge.

The trial court granted La Barbera’s summary judgment
motion, citing Sangha’s failure to raise a triable issue of
material fact on whether he had shown actual innocence and
postconviction exoneration, necessary requirements for a
legal malpractice action arising from the attorney’s
allegedly negligent representation in the earlier criminal
case. Sangha contends these requirements apply only to the
felony vandalism offense, the crime to which La Barbera
negligently advised Sangha to plead guilty. We conclude
Sangha must show actual innocence and postconviction
exoneration not only of felony vandalism, but also the
lesser included offense of misdemeanor vandalism. Because
Sangha failed to make the requisite showing, we affirm the



On June 24, 2001, Sangha and his girlfriend, Sasha
Aggarwal, argued en route to Aggarwal’s Lake Forest
apartment. Sangha later drove to Aggarwal’s parents’ Irvine
home to demand a key to the apartment. When she refused to
turn over the key, Sangha stated loudly: “‘I’m going to
burn down your house, kill you and your family.'” Sangha
took Aggarwal’s cell phone from the trunk of her car and
threw it at her, breaking an adjacent bedroom window.
During the argument, Sangha damaged Aggarwal’s cell phone,
dented her car, and took Aggarwal’s change purse,
containing her apartment key. In her application for a
domestic violence restraining order filed a few days later,
Aggarwal declared she feared for her life based on Sangha’s
previous threats and violence.

Sangha disputed some of these facts. He admitted he
threatened to burn down the house, but denied threatening
to kill Aggarwal or her family. He also claimed Aggarwal
did not take his threat seriously and denied denting her

In July 2001, Sangha was charged with making a felony
criminal threat and misdemeanor violations for vandalism
and petty theft. Sangha hired La Barbera in late July and
paid him $7,500 to represent him through the preliminary
hearing phase of the proceedings. After several
continuances, on March 11, 2002, the prosecutor offered to
dismiss the criminal threats charge if Sangha would plead
guilty to a vandalism “wobbler.” Sangha would be placed on
three years probation with no jail time if he agreed to
take anger management classes and participate in a
community service program. La Barbera recommended Sangha
accept the plea bargain, explaining that if he successfully
completed probation, the conviction would “wobble down” to
a misdemeanor, which could then be expunged. Sangha
reluctantly agreed and pleaded guilty to an amended
complaint charging him with vandalizing property in excess
of $400. He executed a Tahl waiver and guilty plea form,
declaring under penalty of perjury he maliciously destroyed
property worth more than $400. The court suspended
imposition of sentence and placed Sangha on three years
formal probation. Per the agreement, the prosecutor
dismissed the criminal threat and theft charges.

Sangha later claimed he could not renew his license to deal
securities because of his felony vandalism conviction.
Sangha retained new counsel who, on March 2, 2004,
persuaded the trial court to grant Sangha’s writ of error
coram nobis and set aside his guilty plea. The court’s
order noted that the prosecution stipulated to set aside
Sangha’s felony vandalism plea and agreed to order the
clerk to destroy the plea forms dated March 11, 2002.[fn2]
In its minute order, the court relied on section 17,
subdivision (b), to “reduce” Sangha’s felony vandalism
offense under section 594, subdivision (b)(1), to a
misdemeanor “at request of Defense.”[fn3] Sangha then
signed a waiver of rights form and pleaded guilty to a
misdemeanor vandalism charge ( § 594, subd. (a)), a
lesser included offense to felony vandalism, the crime to
which Sangha had originally pleaded guilty. Sangha was
placed on informal probation for 41 days. In April 2004,
the court granted his petition to expunge ( §
1203.4) the misdemeanor conviction.

Ten days after the new plea, on March 12, 2004, Sangha sued
La Barbera for legal malpractice, alleging he was “so
negligent in [his] investigation, handling and prosecution
of [the] action that plaintiff ended up with a felony
conviction, all to [p]laintiff’s damage. . . .”[fn4] The
complaint also alleged Sangha “was factually innocent of
the felony charges against him, and of the felony charge he
was convicted of.”

The trial court granted La Barbera’s summary judgment
motion, ruling that Sangha failed to show postconviction
exoneration, a prerequisite to obtaining relief for legal
malpractice. (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th
1194, 1198, 1205 (Coscia).) The court also concluded Sangha
could not establish actual innocence, a necessary element
to establish legal malpractice in a criminal case. (Wiley
v. County of San Diego (1998) 19 Cal.4th 532, 536 (Wiley).)



We review a grant of summary judgment de novo. (Artiglio v.
Corning, Inc. (1998) 18 Cal.4th 604, 612.) The court must
grant summary judgment “if all the papers submitted show
that there is no triable issue as to any material fact and
that the moving party is entitled to a judgment as a matter
of law.” (Code Civ. Proc., § 437c, subd. (c).)

A defendant moving for summary judgment has the burden of
showing “one or more elements of the cause of action . . .
cannot be established, or that there is a complete defense
to that cause of action.” (Code Civ. Proc., § 437c,
subd. (p)(2).) If the defendant satisfies this requirement,
the burden then shifts to the plaintiff to show by
admissible evidence that a triable issue of material fact
exists. (Ibid.) To meet this burden, the plaintiff “‘”may
not rely upon the mere allegations or denials of its
pleadings . . . but, instead, shall set forth the specific
facts showing that a triable issue of material fact exists
as to that cause of action. . . .” [Citations.]'” (Village
Nurseries v. Greenbaum (2002) 101 Cal.App.4th 26, 35-36.)
“There is a triable issue of material fact if, and only if,
the evidence would allow a reasonable trier of fact to find
the underlying fact in favor of the party opposing the
motion in accordance with the applicable standard of proof.
[Fn. omitted.]” (Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 850; see Evid. Code, § 115
[preponderance of evidence standard applies where, as here,
no higher burden is specified by law].)


A. To Maintain a Legal Malpractice Action Against a Former
Attorney in a Criminal Proceeding, Plaintiff Must
Demonstrate Actual Innocence and Postconviction Relief

The elements of a legal malpractice action are: (1) a duty
to use such skill, prudence, and diligence as are commonly
exercised by other members of the legal profession; (2)
breach of that duty; (3) a proximate causal connection
between the breach and the resulting injury; and (4) actual
loss or damage resulting from the attorney’s negligence.
(Budd v. Nixen (1971) 6 Cal.3d 195, 200, superseded by
statute on other grounds.) In Wiley, supra, 19 Cal.4th at
page 536, the California Supreme Court held that for public
policy reasons a plaintiff in a criminal malpractice action
also must show actual innocence of the criminal offense.

The court based its decision on several considerations.
First, “`”permitting a convicted criminal to pursue a legal
malpractice claim without requiring proof of innocence
would allow the criminal to profit by his own fraud, or to
take advantage of his own wrong, or to found [a] claim upon
his iniquity, or to acquire property by his own crime. . .
.”‘” (Wiley, supra, 19 Cal.4th at p. 537.)

Second, public policy requires a plaintiff to bear sole
responsibility for the consequences of his or her criminal
acts. Thus, “‘[a]ny subsequent negligent conduct by a
plaintiff’s attorney is superseded by the greater
culpability of the plaintiff’s criminal conduct.
[Citation.]'” (Wiley, supra, 19 Cal.4th at p. 538.) “Only an
innocent person wrongly convicted due to inadequate
representation has suffered a compensable injury because in
that situation the nexus between the malpractice and
palpable harm is sufficient to warrant a civil action,
however inadequate, to redress the loss.” (Id. at p. 539.)

Third, the criminal justice system provides postconviction
procedural protections for all criminal defendants who
suffer violations of their Sixth Amendment right to
effective assistance of counsel. (Wiley, supra, 19 Cal.4th
at p. 542.) “If the defendant has in fact committed a
crime, the remedy of a new trial or other relief is
sufficient reparation in light of the countervailing public
policies. . . .” (Id. at p. 543.) Requiring actual
innocence also eliminates the risk “`”of two conflicting
resolutions arising out of the same or identical
transaction.” [Citation.]'” (Id. at p. 544.)

In Coscia, supra, 25 Cal.4th at page 1201, the Supreme
Court relied on the same policy reasons to require a former
criminal defendant to obtain postconviction exoneration as
a prerequisite to showing actual innocence in a legal
malpractice action. The court defined postconviction relief
as “a final disposition of the underlying criminal case
— for example, by acquittal after retrial, reversal
on appeal with directions to dismiss the charges, reversal
followed by the People’s refusal to continue the
prosecution, or a grant of habeas corpus relief. . . .”
(Id. at p. 1205.) Thus, the requirements of actual innocence
and postconviction relief are “distinct, but related”
concepts. (Id. at p. 1197.) “Actual innocence” refers to a
determination in a civil trial that a plaintiff has
demonstrated innocence in fact by a preponderance of the
evidence. (Levine v. Kling (7th Cir. 1997) 123 F.3d 580,
582-583; Shaw v. State, Dept. of Admin. (Alaska 1993) 861
P.2d 566, 570, fn. 3 [distinguishing actual innocence from
legal innocence, which may occur for reasons unrelated to
actual guilt; e.g., a successful motion to suppress
evidence of guilt].) In contrast, a plaintiff may satisfy
the postconviction exoneration requirement even if the
relief obtained is not based on the plaintiff’s innocence
or his lawyer’s incompetence. (Coscia, supra, 25 Cal.4th at
p. 1205, fn. 4.)[fn5] For example, a plaintiff who obtains
postconviction relief because defense counsel misled or
coerced the client into an involuntary guilty plea
satisfies the requirement. With these principles in mind, we
turn to the merits of Sangha’s appeal.

B. No Triable Issue of Fact Exists on the Element of
Actual Innocence

The parties disagree on the scope of the actual innocence
requirement. Does it apply only to specific offenses that
are the subject of a plaintiff’s malpractice action? Does
this requirement encompass lesser included offenses? Or,
more broadly, does it apply to all related offenses that
were or might have been charged? (Wiley, supra, 19 Cal.4th
at p. 547 (conc. opn. of Werdegar, J.).) Wiley does not
directly address these issues.

In Wiley, the plaintiff and former criminal defendant
obtained postconviction relief when the trial court granted
his habeas corpus petition and vacated the judgment. The
district attorney abandoned the prosecution and Wiley sued
for malpractice. (Wiley, supra, 19 Cal.4th at p. 535.)
Here, as in Wiley, Sangha obtained new counsel who
persuaded the trial court to set aside his criminal
conviction for felony vandalism. Here, however, the
prosecution did not abandon Sangha’s criminal case, but
instead filed a misdemeanor vandalism charge in lieu of the
felony, to which Sangha pleaded guilty. Sangha’s subsequent
malpractice complaint focused only on La Barbera’s allegedly
negligent representation on the original felony vandalism

Sangha argues he need only show actual innocence of the
felony vandalism charge. He contends “it is not innocence of
any offense that must be pled and proved, but innocence of
the crime, for which the attorney’s legal malpractice led
to the wrongful conviction.” Relying on the policy
pronouncements of Wiley and Coscia, and cases from foreign
jurisdictions, La Barbera contends Sangha must show actual
innocence of misdemeanor vandalism, a lesser included
offense to felony vandalism,[fn6] and any other
transactionally related offenses.

Our analysis is two-fold: even assuming Sangha need only
show actual innocence on the felony vandalism charge, his
separate statement fails to demonstrate a triable issue of
fact on this issue. And even if Sangha could surmount this
obstacle, we conclude the rationale of Wiley and Coscia
requires a plaintiff in a criminal legal malpractice case
to show actual innocence and postconviction exoneration on
any guilty finding for a lesser included offense, even
though plaintiff alleges he received negligent
representation only on the greater offense. Because Sangha
fails to make this showing, he cannot prevail on appeal.

1. Sangha’s Actual Innocence Showing on Felony Vandalism

La Barbera had the initial burden of demonstrating Sangha
could not establish one or more elements of his malpractice
action. On the actual innocence element, La Barbera’s
separate statement claimed the following was an undisputed
material fact: “The guilty plea [to felony vandalism] that
Sangha initialed and specified was true and correct under
penalty of perjury [and] further stated in relevant part:
`That on 6/25/01 w/in OC[] I did maliciously destroy
property belonging to Sasha Aggarwal in excess of $400.'”
Because La Barbera supported this statement with evidence
of Sangha’s guilty plea form, the burden shifted to Sangha
to raise a triable issue of fact on the actual innocence

Sangha’s separate statement disputed La Barbera’s assertion
by citing his deposition testimony explaining he signed the
guilty plea form because “his attorney said he had to, even
though it was not accurate.” To support his claim that his
admission on the plea form was inaccurate, Sangha referred
to the investigative police report which listed the
property damage as less than $400. These responses failed to
establish a triable issue of fact on actual innocence.
Sangha’s explanation that his lawyer forced him to plead
guilty does not address whether the value of the property
he admitted destroying exceeded $400. As to the value of
the property, the trial court correctly sustained a hearsay
objection to the police report and Sangha does not question
that ruling on appeal. Because Sangha offered no other
evidence to show the property damage was less than $400,
the trial court did not err in granting summary judgment,
even accepting Sangha’s legal interpretation of the actual
innocence requirement.

2. Sangha Must Show Evidence of Actual Innocence on the
Lesser Included Offense of Misdemeanor Vandalism

Applying the policy factors discussed in Wiley and Coscia,
we conclude Sangha must show actual innocence on the
misdemeanor vandalism offense, even though Sangha limited
his malpractice claim to the representation he received on
the felony vandalism charge.

Sangha concedes he maliciously destroyed the victim’s
property, and therefore does not claim actual innocence on
the misdemeanor vandalism crime. He merely disputes the
extent of the damage, arguing his criminal conduct fell
short of the $400 threshold for felony vandalism. He
contends a competent attorney would have negotiated a more
favorable bargain, similar to the one he ultimately
received, thereby avoiding the potential loss of his
securities license for pleading guilty to the wrong
crime.[fn7] But as Wiley instructs, “The fact that
nonnegligent counsel `could have done better’ may warrant
postconviction relief, but it does not translate into civil
damages. . . .” (Wiley, supra, 19 Cal.4th at p. 539.) The
court explained that for criminal malpractice “a
defendant’s own criminal act remains the ultimate source of
his predicament irrespective of counsel’s subsequent
negligence. Any harm suffered is not `only because of’
attorney error but principally due to the client’s
antecedent criminality.” (Id. at p. 540; Coscia, supra, 25
Cal.4th p. 1203 [“convicted criminal’s conduct is deemed to
be the sole cause of his or her indictment and conviction
— either after trial or based on a guilty plea”].)
It follows that “‘damages should only be awarded to a
person who is truly free from any criminal involvement.'”
(Wiley, at p. 539, italics added.) While Sangha minimizes
his misconduct, it is undisputed he is not truly free from
any criminal involvement.

A comparison of the criminal acts constituting felony and
misdemeanor vandalism demonstrates the necessity of
applying the actual innocence requirement to lesser
included offenses. Vandalism is an intentional and
malicious act damaging or destroying property. Although the
classification of the offense turns on the value of the
property damaged or destroyed, the mental state and
criminal acts for both felony and misdemeanor vandalism are
identical. (See CALCRIM Nos. 2900, 2901 (2006).) The same
policy considerations supporting the imposition of an
actual innocence requirement for the originally charged
offense apply with equal force to a lesser included crime.
Sangha’s interpretation of Wiley would allow him to shift
responsibility for his own criminal act and alleviate the
consequences of his conduct. It would also violate the
statutory maxim, “[n]o one can take advantage of his own
wrong” (Civ. Code, § 3517) by allowing him
potentially to profit from his own criminal conduct. As
Wiley observes, “[i]f the defendant has in fact committed a
crime, the remedy of a new trial or other relief is
sufficient reparation in light of the countervailing public
policies and considering the purpose and function of
constitutional guaranties.” (Wiley, supra, 19 Cal.4th at p.

Redante v. Yockelson (2003) 112 Cal.App.4th 1351 supports
our view the actual innocence requirement applies to lesser
included offenses. There, Redante was convicted of numerous
sexual crimes with underage girls. After his convictions
were affirmed on appeal, Redante sued his appellate lawyer
for failing to challenge his convictions based on
discrepancies concerning the victim’s age. Redante argued he
was wrongly convicted of crimes pertaining to minors under
the age of 14 because the victim was older. Affirming an
order granting summary judgment, the appellate court
concluded Redante could not establish actual innocence
“[e]ven if the victim were 14 years old, Redante’s
conviction would have been for a different crime.” (Id. at
p. 1358, fn. 2.)

Bailey v. Tucker (Pa. 1993) 621 A.2d 108, offers a more
extensive analysis than Redante and bolsters our view
Sangha is not entitled to relief. There, the appellate
court reversed Bailey’s murder conviction because his trial
counsel failed to investigate and pursue an intoxication
defense. On retrial, a jury found Bailey guilty of the
lesser crime of voluntary manslaughter. In the wake of this
more favorable outcome, Bailey sued his original trial
counsel. The Pennsylvania Supreme Court held that to
prevent the “the possibility of a defendant actually
profiting from his crime, we require that as an element to
a cause of action in trespass against a defense attorney
whose dereliction was the sole proximate cause of the
defendant’s unlawful conviction, the defendant must prove
that he is innocent of the crime or any lesser included
offense. If a person is found guilty of a crime, and that
person is indeed innocent of any degree of that crime, and
it is established that the wrongful conviction was
proximately caused by counsel’s gross dereliction in his
duty to represent the defendant, only then will the
defendant be able to collect monetary damages. If a person
is convicted of a crime because of the inadequacy of
counsel’s representation, justice is satisfied by the grant
of a new trial. However, if an innocent person is
wrongfully convicted due to the attorney’s dereliction,
justice requires that he be compensated for the wrong which
has occurred.” (Id. at p. 113, all italics added, except
last italics in original; see also id. at p. 115, fn. 2.)

Sangha argues that language in Wiley and other out-of-state
decisions support his interpretation of the actual
innocence requirement. For example, he cites Wiley’s
disapproval of damages for a plaintiff “`who actually
committed the criminal offense . . .'” (Wiley, supra, 19
Cal.4th at p. 539) to support his argument the actual
innocence requirement applies only to the charged offense
which is the subject of the malpractice claim. But the
entire quote also includes the observation that “‘damages
should only be awarded to a person who is truly free from
any criminal involvement.'” (Ibid., italics added.) In any
event, the carefully selected snippets from Wiley and
out-of-state decisions Sangha cites shed little light on
the matter because none of them directly confronted the
issue. More convincing is the public policy rationale
underlying Wiley, which persuades us the actual innocence
requirement does apply to lesser included offenses.[fn8]
Sangha does not claim he can show actual innocence on the
lesser offense of misdemeanor vandalism. Accordingly, the
trial court did not err in granting summary judgment.

C. Sangha Failed to Show Postconviction Exoneration on the
Misdemeanor Vandalism Offense

The same public policy considerations apply to the
requirement plaintiff show postconviction exoneration. La
Barbera shifted the burden to Sangha to show a triable
issue of fact on this issue when he introduced evidence
Sangha received probation after pleading guilty to
misdemeanor vandalism. Postconviction exoneration is a
“final disposition” of the underlying case. (Coscia,
supra, 25 Cal.4th at p. 1205.) Probation, however short, is
not a final disposition exonerating the criminal defendant.
Here, Sangha failed to introduce any evidence he received
postconviction relief on his misdemeanor conviction. This
serves as an additional ground supporting the grant of
summary judgment.



The judgment is affirmed. Costs are awarded to respondent.




[fn1] The following summary is derived from the facts and
supporting evidence cited by the parties in their separate
statements presented at the summary judgment motion.

[fn2] We have reviewed the superior court file. The clerk
did not destroy Sangha’s guilty plea form, which remains
part of the record.

[fn3] Section 17 does not authorize a court to “reduce” a
charge from a felony/misdemeanor wobbler to a lesser
included misdemeanor. The section provides that a wobbler
is deemed a misdemeanor under certain circumstances, e.g.,
when the court imposes a punishment other than imprisonment
or when the court grants probation without imposition of
sentence and at the time of granting probation or thereafter
declares the offense to be a misdemeanor.

[fn4] Nothing in the complaint or in the record of the
summary judgment motion discloses the nature of plaintiff’s

[fn5] Outright rejection of a postconviction claim based on
ineffective assistance of counsel “may preclude a criminal
defendant from maintaining a malpractice action against
trial counsel. . . .” (Coscia, supra, 25 Cal.4th at p.
1205, fn. 4.)

[fn6] Felony vandalism prohibits the malicious destruction
of property causing damage of $400 or more. Misdemeanor
vandalism shares the same elements except it applies to
property damage less than $400. “Under California law, a
lesser offense is necessarily included in a greater offense
if either the statutory elements of the greater offense, or
the facts actually alleged in the accusatory pleading,
include all the elements of the lesser offense, such that
the greater cannot be committed without also committing the
lesser.” (People v. Birks (1998) 19 Cal.4th 108, 117.)
Misdemeanor vandalism is therefore a lesser included
offense because a person cannot commit felony vandalism
without also committing the lesser misdemeanor offense.

[fn7] Although Sangha emphasizes his innocence of the
criminal threat charge because Aggarwal did not take his
threat seriously, we note in passing the prosecution could
have prosecuted him for attempted criminal threat, a strike
under the Three Strikes law. (People v. Toledo (2001) 26
Cal.4th 221, 234 [attempted criminal threat committed if
victim lacks sustained fear he or she reasonably could have
entertained under the circumstances]; see also §
667, subd. (c); § 1170.12, subd. (a).) Sangha’s
acceptance of the felony vandalism plea bargain eliminated
this possibility.

[fn8] Because the issue has no bearing on our decision, we
do not decide whether the actual innocence requirement
applies to all transactionally related offenses.