P. v. Avila

 

 

 

 

 

 

 

Filed 10/3/13  P.
v. Avila CA5

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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opinion has not been certified for publication or ordered published for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

FIFTH APPELLATE DISTRICT

 
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THE PEOPLE,   Plaintiff and Respondent,                           v.   JOSE RUBEN AVILA,   Defendant and Appellant.

F065507   (Super. Ct. Nos. VCF210477 & VCF264336)     >OPINION

 

THE COURThref="#_ftn1"
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            APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Tulare
County.  Darryl B. Ferguson, Judge.

            Meredith J.
Watts, under appointment by the Court of Appeal, for Defendant and Appellant.

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and
Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

            While
defendant Jose Ruben Avila was on probation, he stole two sago palm trees from
an acquaintance’s front yard.  Defendant
pled guilty to grand theft, the taking of personal property valued over
$950.  (Pen. Code, § 487, subd.
(a).)  On appeal, he contends href="http://www.mcmillanlaw.com/">defense counsel was ineffective for
failing to investigate the value of the palms. 
We will affirm.

BACKGROUND

At the preliminary hearing, a
police officer testified that the homeowner who owned the sago palms described
the trees as over 30 years old and approximately six feet tall.  The homeowner estimated their value at $3,000
for both.  The homeowner’s neighbor had
witnessed the theft and identified defendant as the perpetrator.  Defendant was acquainted with the homeowner
because he had met the homeowner’s deceased wife at church and she had given
him work as a handyman.

At the arraignment hearing,
defendant pled not guilty to the grand theft charge.

At a href="http://www.fearnotlaw.com/">pretrial hearing, the prosecutor asked
whether the defense would be willing to stipulate to the amount of the theft so
the prosecutor would not be required to call a nursery employee to
testify.  Defense counsel declined,
stating:  “Since it’s an element of the
offense, we can’t stipulate.”  Later at
the same hearing, defense counsel stated that defendant now wished to enter a
plea and receive the six-year indicated term previously mentioned by the
court.  The court reiterated that the
maximum penalty to which defendant would be exposed at trial was seven years
eight months, and even if defendant prevailed at trial, he would still receive
the previously imposed and suspended six-year term for his probation
violation.  The court explained, “So,
really, I’m pretty much giving you a free ride here on these palms.”  The court stated that the restitution would
be less than $3,000 if defendant could prove the palms were worth less.  Defendant said he would like to dispute the
value of the palms, and the court responded that he could do that at the
restitution hearing.  Defendant said he
appreciated it.  The court questioned
defendant and proceeded to take his plea. 
The court asked whether there was a factual basis for the plea, and
defense counsel answered, “Yes, there is, based upon police reports and
preliminary hearing.”  When the court
asked for defendant’s plea, the court described the crime as taking “property
of a value exceeding $950, to wit: 
S[a]go palms .…”  Defendant
answered, “Guilty.”  The court accepted
the plea and also found defendant in violation of probation.

At the sentencing hearing, the
defense presented no evidence regarding the value of the palms, and the court
set restitution at $3,000.  There was
some discussion about the possible return of the palms.  The court noted its concern that the trees
might no longer be worth $3,000 because sago palms are easily destroyed, but it
stated that the homeowner could determine whether return of the trees was
satisfactory restitution.

DISCUSSION

“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.” 
(In re Alvernaz (1992) 2 Cal.4th 924, 934.)  The burden of proving ineffective assistance
of counsel is on the defendant, and he is required to show both that defense
counsel’s performance was deficient and that he suffered prejudice because of
it.  (Strickland v. Washington
(1984) 466 U.S. 668, 687-696; People v. Ledesma (1987) 43 Cal.3d 171,
216-217.)  In the context of a guilty
plea, in order to show ineffective assistance of counsel, the defendant has the
burden to prove by a preponderance of the evidence:  (1) defense counsel’s representation
fell below an objective standard of reasonableness under prevailing
professional norms and (2) the defendant suffered prejudice from counsel’s
deficient performance in that “there is a reasonable probability that, but for
counsel’s errors, [the defendant] would not have pleaded guilty and would have
insisted on going to trial.”  (Hill v.
Lockhart (1985) 474 U.S. 52, 59, fn. omitted; see also In re Resendiz
(2001) 25 Cal.4th 230, 239, 248-254, abrogated on another ground in >Padilla v. Kentucky (2010) 559 U.S. 356,
370.)

Here, defendant claims that defense
counsel was ineffective because he “never followed up to determine whether the
palms were of sufficient value that [defendant] should plead to grand theft.” 
Defendant asserts that prejudice is shown from the face of the record,
based on common sense, because “there was no investigation whatever of the only
available defense.”  He explains that if
his conviction had been for petty theft, not grand theft, he “could have argued
that the court should not impose the suspended sentence from the first case,
and the court might have been more receptive.”

First, there is no evidence before
us that defense counsel did not investigate the value of the sago palms.  Thus, defendant cannot show from the record
that defense counsel’s performance was deficient.  Second, there is no evidence before us
suggesting the value of the palms was in fact less than $950.  Thus, defendant cannot show there is a
reasonable probability he would not have pled guilty had counsel investigated
the value.  Under these circumstances,
defendant can prove neither requirement of ineffective assistance.

If defendant has evidence outside
the record to support these requirements, he should present his case by way of
habeas corpus.  Claims of ineffective
assistance of counsel are more appropriately litigated in a href="http://www.mcmillanlaw.com/">habeas corpus proceeding.  Where, as here, the record does not show if
or why counsel failed to act in the way defendant claims, we must reject an
ineffective counsel claim based only on the record on appeal.  (See People v. Mendoza Tello (1997) 15
Cal.4th 264, 266-267.)  A verified
petition for habeas corpus allows a defendant to allege facts outside the
appellate record to show that counsel actions or failures might constitute
ineffectiveness.  (See People v.
Michaels (2002) 28 Cal.4th 486, 526; People v. Anderson (2001) 25 Cal.4th
543, 598.)

>DISPOSITION

The judgment is affirmed.