P. v. Coleman

Filed 9/24/07 P. v. Coleman CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Anne H. Egerton, Judge. Affirmed.

Sunnie L. Daniels, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Appellant claims ineffective assistance of counsel, because defense counsel did not call or interview a witness who had initially given potentially exonerating statements to the police, but later admitted having lied, and then entered a factual-basis plea, testifying adversely to appellant. Appellant also contends there was no substantial evidence to support a finding that his prior conviction was a serious felony requiring increased punishment as a second strike. We reject both contentions and affirm the judgment.

BACKGROUND

In full view of two police officers, appellant struck another man in the face with a handgun. Both officers, Detective Michael Ling and Officer Phillip Chan, testified at trial that the day of the incident, at approximately 4:00 p.m., they were sitting in their unmarked police car in plain clothes, monitoring the area for narcotics activity. Appellant parked his car approximately 10 feet away from the officers. Within seconds of parking, appellant emerged from his car holding a gun in his right hand, while his three female passengers remained in the car. Approximately 15 feet from the officers, appellant approached a man and yelled, Wheres my money? Appellant then struck the man in the face with the gun, returned to his car and drove off, with the officers following behind. The officers called for backup, and responding officers in a marked patrol car stopped appellant and placed him under arrest. A gun was found inside a black purse on the passenger floorboard of appellants car.

Appellant was convicted of assault with a firearm (count 2), in violation of Penal Code section 245, subdivision (a)(2),[1] and felon in possession of a firearm (count 3), in violation of section 12021, subdivision (a)(1). The jury found true the special allegation in count 2 that appellant had personally used a firearm in the commission of the assault, for purposes of sentence enhancement pursuant to section 12022.5, subdivision (a). Appellant waived a jury trial as to his four prior convictions, and the trial court found them to have been established beyond a reasonable doubt. Finding one of the priors was a serious felony within the meaning of section 1192.7, subdivision (c), the trial court sentenced appellant as a second striker to 11 years, four months in prison. He timely filed a notice of appeal.

DISCUSSION

1. Effective Assistance of Counsel

Appellant contends he was deprived of effective assistance of counsel, in violation of his right to a fair trial under the Sixth Amendment to the United States Constitution. Generally, a conviction will not be reversed based on a claim of ineffective assistance of counsel unless the defendant establishes both of the following: (1) that counsels representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsels unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)

Prior to sentencing, appellant complained to the trial court he was dissatisfied with defense counsel. The court construed appellants complaint to be motions to relieve or replace counsel and for a new trial. Among other things, appellant claimed his attorney failed to subpoena defense witnesses.

Defense counsels decision not to call certain witnesses is a matter of trial tactics which will not justify reversal, unless counsels decision resulted from an unreasonable failure to investigate. (People v. Bolin (1998) 18 Cal.4th 297, 334.) In this case, defense counsel, Ms. Cheng, did not fail to investigate. In a confidential hearing, the court questioned Cheng, who said she had reviewed the police reports, which detailed the passengers police interviews, and had determined they would not have been helpful. Further, Cheng told the court, one of the passengers had made a factual-basis plea, which would have been harmful to appellants defense. She explained she did not call the witnesses, not only because she found their statements unhelpful, but also because all their statements implicated appellant in some form of criminality.

The police reports Cheng reviewed were not in evidence and are not included in the appellate record. However, in Detective Lings preliminary hearing testimony, he described his interview with one of appellants passengers, Miss Miles, who told him she did not see appellant with a gun when he exited the car. She claimed the black purse was hers, and that the gun recovered from her purse had been there the entire time of the incident.

At respondents request, we have taken judicial notice of the transcript of Miless factual-basis plea to a misdemeanor violation of section 12031, carrying a loaded firearm. Under oath, Miles testified she had been a passenger in appellants car the day in question, along with the two other women, who were there to obtain drugs from appellant. She testified that when appellant saw a man, he stopped and exited the car, approached the man and asked where his money was. She then observed appellant hit the man in the face with a gun. After appellant hit the man, he came back to the car and handed Miles the gun, telling her to place it in her purse. Miles admitted she had lied to officers in her police interview, when she told them that she had not seen appellant hit the man and that the gun belonged to someone else.

Although Miless testimony does not support appellant, he contends counsel should nonetheless have called Miles as a defense witness, because the jury might have found Miless statements immediately after arrest more believable than statements made to obtain a lenient plea bargain. Appellant points out counsel could have impeached any testimony by Miles at trial that was inconsistent with her statements to the police; or, appellant suggests, if Detective Ling did not appear at trial, his preliminary hearing testimony could have been admitted as former testimony. Further, appellant argues, Miless statements would directly contradict the officers testimony, giving the jury cause to disbelieve the officers. We decline to second-guess defense counsels decision not to call Miles; it is clear counsel investigated the witness and made a considered tactical decision not to call her. (See People v. Bolin, supra, 18 Cal.4th at pp. 333-334.)

Appellant now contends that although counsel had reviewed Miless conflicting statements to the police and to the court, Chengs investigation was not reasonable, because her investigator did not interview Miles. As appellant did not complain on this ground in the trial court, counsel was not asked for her reasons for deciding not to interview Miles. A defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record. If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. [Citations.] (People v. Cunningham (2001) 25 Cal.4th 926, 1003.)[2]

Defense counsel was not required to conduct an exhaustive investigation of all potentially mitigating evidence. (See In re Andrews (2002) 28 Cal.4th 1234, 1254.) A satisfactory explanation for not interviewing a witness may appear from the facts already known to counsel. (See Strickland v. Washington (1984) 466 U.S. 668, 691.) Here, a satisfactory explanation for failing to interview Miles may be found in counsels awareness of Miless conflicting statements, and of the fact that the most damaging of her statements were made under oath. Not only did Miless testimony support the officers observations, but she implicated appellant in illicit drug activity. [S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. (Id. at pp. 690-691.)

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsels challenged conduct, and to evaluate the conduct from counsels perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. [Citation.] (Strickland v. Washington, supra, 466 U.S. at p. 689.) As counsel had sufficient information before her to determine that additional statements from Miles would not be helpful to the defense, and could have been harmful, we conclude appellant has not met his burden to overcome the presumption that counsels decision not to interview Miles resulted from sound trial strategy.

Moreover, appellant has not shown he was prejudiced by the absence of additional statements by Miles. Appellant contends Miles might have made exonerating statements, which the jury might have believed, and the jury might have rejected the officers testimony. [P]rejudice must be affirmatively proved; the record must demonstrate a reasonable probability that, but for counsels 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.] (People v. Bolin, supra, 18 Cal.4th at p. 333, quoting Strickland v. Washington, supra, 466 U.S. at p. 694.) A defendant must prove prejudice that is a demonstrable reality, not simply speculation. [Citation.] (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) We conclude appellants conjecture as to what might have been is insufficient to meet this burden.

2. Prior Conviction as Second Strike

Appellant was sentenced as a recidivist pursuant to section 667, subdivisions (b) through (i), due to his 1990 conviction for discharging a firearm at an unoccupied motor vehicle, in violation of section 247, subdivision (b).[3] The trial court sentenced appellant to 11 years, 4 months in prison. On count 2, assault with a firearm, the court chose the middle term of three years, doubled it pursuant to section 667, subdivision (e)(1), and added a four-year enhancement under section 12022.5, subdivision (a), for having used a firearm. As to count 3, felon in possession of a firearm, the court imposed one-third of the two-year middle term (eight months), and doubled it for a total of 16 months.

Appellant contends his 1990 conviction was improperly used to double his sentence, because the evidence was insufficient to prove the prior conviction was a serious felony within the meaning of section 1192.7, subdivision (c)(8), viz., any felony in which the defendant personally uses a firearm.[4] Respondent counters that sufficient evidence is found in appellants 1990 plea of nolo contendere to a violation of section 247, subdivision (b), as alleged in the information filed in the prior charge, the courts minutes of the plea and the abstract of judgment, in Los Angeles Superior Court Case No. BA011456, all of which were in evidence. The information alleged in relevant part: On or about January 7, 1990 . . . , the crime of SHOOTING AT AN UNOCCUPIED VEHICLE, in violation of PENAL CODE SECTION 247(b), a Felony, was committed by [appellant], who did willfully and unlawfully discharge a firearm at an unoccupied motor vehicle without the permission of the owner. It is further alleged that the above offense is a serious felony within the meaning of Penal Code Section 1192.7(c)(8). (Italics added.)

Respondent contends that by pleading nolo contendere to the charge as alleged, appellant admitted the enhancement allegation. Respondent cites the general rule that a guilty or no contest plea admits every element of the offense charged, including all allegations, and factors comprising the charge contained in the pleading. [Citations.] (People v. Tuggle (1991) 232 Cal.App.3d 147, 154 (Tuggle ), disapproved on another ground in People v. Jenkins (1995) 10 Cal.4th 234, 252; see also People v. Palacios (1997) 56 Cal.App.4th 252, 257.) We agree. At the time appellant entered his plea, section 1192.7, subdivision (c)(8), defined a serious felony (as it does now) as any other felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm. (Stats. 1989, ch. 1044, 2.5.) Thus, by pleading nolo contendere to the charge, including the allegation that the offense was a serious felony within the meaning of section 1192.7, subdivision (c)(8), appellant necessarily admitted he either inflicted great bodily injury on a person other than an accomplice, or personally used a firearm.[5]

Appellant contends that because section 247, subdivision (b), can be committed as an aider or abettor, the prosecution was required to provide substantial evidence that he personally used a firearm (or personally inflicted great bodily injury).[6] (See People v. Banuelos (2005) 130 Cal.App.4th 601, 605-606; People v. Blackburn (1999) 72 Cal.App.4th 1520, 1531.) Appellant compares his situation to that of the defendant in People v. Cortez (1999) 73 Cal.App.4th 276 (Cortez). There, the appellate court remanded for retrial solely to determine if the defendants prior conviction was a serious felony, because the evidence did not show the defendant personally used a firearm or deadly weapon, rather than having committed the offense as an aider and abettor. (See id. at pp. 278-280.) The court held that a bare guilty plea to discharging a firearm at a motor vehicle in violation of Penal Code section 12034, subdivision (c), was insufficient proof the defendant personally used a firearm. (Cortez, supra, at p. 283.) The Cortez court relied upon People v. Rodriguez (1998) 17 Cal.4th 253 (Rodriguez), in which the California Supreme Court held that a guilty plea to an offense that may be committed in alternative ways is not an admission of all alternatives, but an admission only to the least adjudicated element; thus, when at least one of the alternate elements would not qualify as a serious felony, there must be substantial evidence that the defendant committed the qualifying alternative. (Id. at pp. 261-262; Cortez, supra, 73 Cal.App.4th at pp. 283-284.)

Cortez and Rodriguez are distinguishable. In both cases, the prior guilty plea had been to the charge, but the charge did not contain a special allegation that the offense was a serious felony as statutorily defined. (See, e.g., Rodriguez, supra, 17 Cal.4th at p. 261; Cortez, supra, 73 Cal.App.4th at pp. 279-280.) Here, appellant pled to the charge as alleged in the information, which included the allegation that the crime was a serious felony as defined by section 1192.7, subdivision (c)(8). That provision contains alternatives, but both qualify as serious felonies. Thus, appellants plea may be construed as admitting only the least adjudicated element, but as both elements are qualifying factors, he necessarily admitted facts making the crime a serious felony.

Appellant contends nothing in the evidence of the 1990 conviction showed that he admitted or denied the special allegation that the offense was a serious felony. Appellant attempts to distinguish Tuggle, because in that case, the defendant pled guilty to robbery as set forth in Count 1 of the information. (Tuggle, supra, 232 Cal.App.3d at p. 154.) Appellant contends he cannot be deemed to have admitted the serious felony allegation, because his plea was not so expansive as in Tuggle. We disagree, and find no material difference in the facts. The serious felony allegation of the 1990 information was an integral part of count 1 -- the last sentence of the paragraph charging appellant with a violation of section 247, subdivision (b). No part of count 1 was stricken, and the courts order states: Defendant personally withdraws plea of not guilty to count 1. Rearraigned. Pleads nolo contendere . . . to violation of section 247.B Penal Code in count 1. We conclude appellants 1990 plea and the information were substantial evidence that he admitted all allegations, and factors comprising the charge contained in the pleading (Tuggle, at p. 154.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.

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[1] All further statutory references are to the Penal Code, unless otherwise indicated.

[2] A claim of ineffective assistance of counsel is more appropriately raised in a petition for writ of habeas corpus, when the relevant facts and circumstances such as counsels reasons for pursuing or not pursuing a particular strategy, do not appear in the record on appeal. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Appellant indicated an intention to file a petition for writ of habeas corpus sometime after November 2006, and to seek its consolidation with this appeal, but we have received no such petition.

[3] The trial court stayed imposition of sentence as to the three remaining prior convictions.

[4] The court also found the prior conviction to be a serious felony as defined by section 1192.7, subdivision (c)(23), viz., any felony in which the defendant personally used a dangerous or deadly weapon.

[5] As respondent points out in a footnote, the facts of the offense underlying the 1990 conviction are set forth in appellants memorandum of points and authorities in support of his motion to strike the prior conviction, brought pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Included is the fact that appellant personally fired a rifle in that incident.

[6] The information did not charge anyone other than appellant, and we find no other indication in the record of the 1990 conviction that there was ever a codefendant in the case.