Filed 5/2/17 P. v. Candelaria CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
JEAN CARLOS CANDELARIA,
Defendant and Appellant.
B271365
(Los Angeles County
Super. Ct. No. BA404664)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Craig Elliott Veals, Judge. Affirmed.
Eric E. Reynolds, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
________________________________
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Following a jury trial, defendant, Jean Carlos Candelaria,
was convicted of assaulting a peace officer (Pen. Code, § 245,
subd. (c)) and two counts of evading an officer with willful
disregard for the safety of people or property (Veh. Code, §
2800.2, subd. (a)). The trial court found defendant had two prior
serious or violent felonies (Pen. Code, §§ 667, subds. (a) & (b)-(i))
and imposed a 35-year-to-life state prison sentence.
Defendant’s appointed appellate counsel filed a brief
pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende)
requesting we independently review the entire record to
determine if there are any arguable issues on appeal. We notified
defendant he could independently brief any contentions he
wanted to have considered. Defendant filed a supplemental brief
arguing his trial attorney was ineffective because she: (1) failed
to subpoena the partner of one of the testifying officers; (2)
conceded to the jury that he was guilty of the evading offenses;
and (3) did not file a motion to examine the personnel file (for
exculpatory or impeachment information) of the officer who
testified to the assault. We affirm the judgment.
BACKGROUND
The People offered the testimony of Los Angeles Police
Officer Josue Pena to support an evading offense which occurred
on November 8, 2012. Pena and his partner initially intended to
stop defendant because his vehicle had improperly tinted
windows and no license plate; and because defendant failed to
stop at a stop sign. Defendant however fled from the officers,
committing multiple Vehicle Code violations along the way. He
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was arrested after he collided with other vehicles at an
intersection.
Culver City Police Officer Jason Salazar provided the sole
testimony regarding evading and assault offenses that occurred
on November 24, 2013. At approximately 4:00 a.m., he and his
partner responded to a radio call of a suspicious person
attempting to open car doors on Hannum Avenue. When Salazar
reached the scene, he observed defendant sitting alone in the rear
passenger seat of a Chevrolet Trailblazer. Salazar believed
defendant may have been the person reportedly attempting to
burglarize vehicles. Salazar stopped his car in front of the
Trailblazer and shined spotlights to illuminate it.
As the officers were exiting the patrol car, defendant began
to move around inside the Trailblazer. Salazar yelled, “Police,
don’t move, let me see your hands.” Defendant climbed into the
driver’s seat, turned on the headlights, started the vehicle, and
suddenly accelerated toward Salazar. The officer jumped to the
curb. Defendant sped by Salazar and, as he did so, his right-side
mirror passed within one foot of the officer.
A police pursuit ensued wherein defendant committed
multiple traffic infractions. Defendant escaped after entering a
parking structure and abandoning his vehicle. Defendant’s
fingerprints were found on the interior and exterior of the car.
DISCUSSION
Ineffective Assistance of Counsel
“‘“A criminal defendant is guaranteed the right to the
assistance of counsel by both the state and federal Constitutions.
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[Citations.] ‘Construed in light of its purpose, the right entitles
the defendant not to some bare assistance but rather to effective
assistance.’” [Citations.] It is defendant’s burden to demonstrate
the inadequacy of trial counsel. [Citation.] [The California
Supreme Court has] summarized defendant’s burden as follows:
“‘In order to demonstrate ineffective assistance of counsel, a
defendant must first show counsel’s performance was “deficient”
because his “representation fell below an objective standard of
reasonableness . . . under prevailing professional norms.”
[Citations.] Second, he must also show prejudice flowing from
counsel’s performance or lack thereof. [Citation.] Prejudice is
shown when there is a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”’”
[Citation.] [¶] Reviewing courts defer to counsel’s reasonable
tactical decisions in examining a claim of ineffective assistance of
counsel [citation], and there is a “strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” [Citation.] Defendant’s burden is
difficult to carry on direct appeal, . . . : “‘Reviewing courts will
reverse convictions [on direct appeal] on the ground of inadequate
counsel only if the record on appeal affirmatively discloses that
counsel had no rational tactical purpose for [his or her] act or
omission.’” [Citation.]’ [Citation.] If the record on appeal ‘“‘sheds
no light on why counsel acted or failed to act in the manner
challenged[,] . . . unless counsel was asked for an explanation and
failed to provide one, or unless there simply could be no
satisfactory explanation,’ the claim on appeal must be rejected,”’
and the ‘claim of ineffective assistance in such a case is more
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appropriately decided in a habeas corpus proceeding.’ [Citation.]”
(People v. Vines (2011) 51 Cal.4th 830, 875-876.)
Subpoena of Officer Baskaron. Based on the arguments of
the prosecutor and defense counsel, it appears Baskaron was
Salazar’s partner. The record does not provide an explanation of
why Baskaron was not subpoenaed by the defense. We cannot
rule out the possibility that defense counsel was concerned
Baskaron’s testimony would incriminate defendant. In any
event, counsel made the tactical decision to argue to the jury that
the reason the prosecutor did not have Baskaron testify may have
been because Baskaron would have damaged the People’s case.
We cannot say there was no satisfactory explanation for defense
counsel’s decision not to subpoena Baskaron. And, defendant has
not explained (nor can he on this cold appellate record) what
Baskaron’s testimony would have been and how it may have
altered the result of the trial.
Concession of Guilt. Again we are provided with no
explanation for defense counsel’s concession to the jury that
defendant was guilty of the evading offenses. Defendant does not
identify any weaknesses in the prosecution’s evading evidence
and, indeed, we note that the November 24 charge was fortified
by the fact that it was captured on video (which was played for
the jury). It is not irrational for a defense attorney to concede
certain charges that cannot be reasonably disputed in order to
bolster the credibility of a defense mounted against other
charges. (See People v. Gurule (2002) 28 Cal.4th 557, 611-612;
see also People v. Samayoa (1997) 15 Cal.4th 795, 845-846.)
Although defendant claims his attorney disregarded his
instruction to refrain from making the concession, he points to
nothing in the record to support that assertion. The record does
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not demonstrate it was unreasonable for defense counsel to
concede guilt on the evading offenses, or that there may have
been a different result if she had adopted another strategy.
Motion for Production of Exculpatory/Impeachment
Evidence. It is difficult to conclude defense counsel was
incompetent for failing to file such a motion as the record does
not address what information defense counsel had about
Salazar’s history with the police department. What we do know
is counsel solicited testimony that Salazar was a sworn police
officer for less than 18 months, suggesting his personnel file was
likely not extensive.
In addition, there is nothing in the record that gives the
impression defendant’s proposed motion would have yielded
information that could have altered the outcome of the trial. (See
In re Avena (1996) 12 Cal.4th 694, 730 [trial counsel cannot be
deemed ineffective for failing to file a motion to discover
personnel records where habeas petitioner fails to show what
counsel would have discovered had he made the motion].) In fact,
even if we were to assume complaints about the officer’s conduct
would have been discovered, we have no information indicating
witnesses related to those complaints would have been available
and willing to testify, or what their testimony would have been.
(See People v. Medina (1995) 11 Cal.4th 694, 773 [claim of
ineffective assistance of counsel cannot be established by mere
speculation about testimony of potentially available witnesses].)
Under these circumstances, defendant has not satisfied his
burden of demonstrating either the ineffectiveness of his trial
attorney, or that his trial attorney’s alleged mistakes prejudiced
his case.
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Appellate Counsel’s Wende Request
Pursuant to Wende, supra, 25 Cal.3d 436, we examined the
record to determine if there are any arguable issues on appeal.
Based on that independent review, we have determined there are
no arguable issues on appeal. Defendant’s appointed counsel has
fully satisfied his responsibilities under Wende.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KUMAR, J.
We concur:
KRIEGLER, Acting P.J.
BAKER, J.

 Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.