Filed 9/26/18 P. v. Killian CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge.

R. Randall Riccardo, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

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Appointed counsel for defendant Curtis Lee Killian asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We sent a letter to defendant, advising him of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. He responded, contending he is innocent of the crimes and was forced to plead under the circumstances. Our review of the entire record reveals no arguable issues on appeal. Accordingly, we affirm.

PROCEDURAL SUMMARY

On March 3, 2015, in the Mojave Judicial District, the Kern County District Attorney filed a complaint against defendant, charging him with sexual intercourse or sodomy with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (a);[1] count 1), oral copulation or sexual penetration with a child 10 years of age or younger (§ 288.7, subd. (b); count 2), continuous sexual abuse or lewd and lascivious conduct with a child under the age of 14 years (§§ 1203.066, subd. (b), 288, 288.5, subd. (a); count 3), and lewd and lascivious acts with a child under the age of 14 years (§ 288, subd (a); count 4). The complaint further alleged counts 3 and 4 were serious felonies (§ 1192.7, subd. (c)(6)).

On March 11, 2015, defendant was arraigned on the complaint. Attorney Tyson Beers was appointed the next day.

On May 15, 2015, the preliminary hearing was held. Beers offered no affirmative defense or argument. At the conclusion of the preliminary hearing, the trial court granted Beers’s request to be relieved. The case was then transferred to Bakersfield for arraignment on the information.

On May 19, 2015, the Kern County District Attorney filed an information containing the same charges as the complaint.

On May 27, 2015, the trial court referred defendant to Indigent Defense Program (IDP) for appointment of counsel. Attorney Joseph King specially appeared for counsel of record. Defendant waived formal arraignment, entered a not guilty plea, and demanded a jury trial.

On July 10 and 14, 2015, Attorney Charles Soria specially appeared for counsel of record. The trial date was continued.

On September 18, 2015, Attorney Arturo Revelo appeared as counsel of record. The trial date was continued.

On January 15, 2016, defendant rejected a plea offer of 24 years.

On October 11, 2016, after repeated delays, many due to Revelo’s involvement in other trials, Revelo filed a notice of a motion to be heard on November 18, 2016, to be relieved due to a conflict of interest. Revelo declared:

“I am an attorney licensed to practice law before all of the courts of the State of California and I have represented defendant in this case. [¶] Due to complete breakdown of communications between my office and the investigator assigned to the case of [defendant’s] case, a conflict of interest arose which now places me in a position which requires me to request the court to relieve me from further representation of [defendant] in this case. [¶] There is no possible way to solve this conflict, and I have no choice but to request that the court allow me to withdraw as attorney of record in this case.”

On November 18, 2016, defendant filed a notice of his Marsden[2] motion for substitution of counsel. At the hearing, the trial court referred defendant to IDP for appointment of counsel.

On November 28, 2016, Attorney Fred Gagliardini appeared as counsel of record.

More delays ensued. On August 22, 2017, the trial court held a hearing to allow Gagliardini to memorialize his concerns and comments regarding representation by defendant’s prior counsel, Beers and Revelo. Gagliardini explained that defendant’s case had languished under previous counsel, resulting in the destruction of evidence of defendant’s trucking logs and cell phone data needed to prove his whereabouts at the times of the alleged crimes. Many of the records were destroyed in the ordinary course of business after 90 days. The court noted that defendant was arraigned on the complaint in Mojave on March 11, 2015, and Beers was appointed the next day. The case was then transferred to Bakersfield for arraignment on the information, which occurred on May 27, 2015. IDP was appointed on July 10 or 14, 2015. Soria appeared on behalf of Revelo at a hearing, and Revelo made his first appearance on the record on September 18, 2015. The court noted that Beers and Revelo might be contacted for further explanation regarding time-sensitive information requested to aid in defendant’s defense.

On August 29, 2017, defendant pled no contest to three counts of lewd and lascivious acts with a child under the age of 14 years (§ 288, subd. (a)) on an amended information, in exchange for three consecutive terms of eight years, for a total of 24 years in prison. Counsel stipulated to a factual basis for the plea.

On October 3, 2017, the trial court denied probation and sentenced defendant to the agreed-upon 24 years in prison. The court prohibited contact between defendant and the victim, awarded credits, and imposed various fines and fees.

On October 5, 2017, defendant filed a notice of appeal. The trial court granted defendant’s request for a certificate of probable cause based on his allegation he had been denied due process because his prior attorneys of record knowingly permitted exculpatory evidence to be destroyed.

FACTS

The following factual statement is taken from the probation report.

“On February 11, 2015, an officer was assigned to a Child Protective Services referral for the alleged sexual abuse of the six-year-old victim, Jane Doe. On February 6, 2015, the victim reported to her maternal grandmother that her 25-year-old stepfather, [defendant], and his 24-year-old brother, [the uncle], co-defendants in this matter, had sexually abused her. The maternal grandmother reported this information to authorities.

“The victim told her maternal grandmother she reported the abuse to her mother … that [defendant] and [the uncle] had asked her to ‘put his thing in her mouth’ and one of them had ‘licked’ her ‘private parts.’ The victim also stated [defendant] showed her pornographic movies with fathers and daughters performing sexual acts and provided the victim with a vibrator and told her to ‘practice’ with it. The victim reported [defendant] began molesting her at age four. The maternal grandmother provided authorities with a 22-minute video where the victim described the sexual abuse she endured by [defendant] and [the uncle].

“The victim stated when [the uncle] was living in the home, he would ‘lick’ her ‘private parts’ and ‘bit down’ on her vagina, which hurt her. When she told [the uncle] that it caused pain, he ‘just didn’t listen.’ [The uncle] would also give her candy in exchange for her putting her mouth on his private part, which she did. The victim stated these acts made her ‘very uncomfortable.’ She reported [the uncle] began molesting her at age five. The victim stated she was told by [defendant] not to tell anyone because it would cause her mother and [defendant] to divorce and he would no longer get to see the victim.

“On the same date, the victim disclosed this information to her grandmother and the grandmother contacted [the mother]. [The mother] told the grandmother the victim told her [defendant] and [the uncle] sexually molested her and [the mother] discovered a vibrator in the victim’s room. When [the mother] questioned the victim, the victim told [her] that [defendant] provided the vibrator to her. The grandmother also confronted [defendant], who denied molesting the victim.

“On February 12, 2015, a forensic interview and a SART examination was conducted with the victim. The victim gave extremely detailed and articulate information regarding the abuse by [defendant] and [the uncle], which was consistent with the information she provided to her grandmother. Further, the victim described both [defendant] and [the uncle] placed their penises in her mouth and made her ‘choke.’ When asked if anything ever came out of their penises, the victim stated [defendant’s] penis had a substance come out into her mouth which she described as being ‘salty,’ which she spit out. The victim also described an incident where [defendant] bent her over and attempted to place his penis inside her. The victim began to cry because it hurt, at which time [defendant] told her that’s why they need to ‘practice.’ When questioned regarding the vibrator, the victim described where the sex toys used on her were located and what they looked like. The SART examination revealed a possible scar at the bottom of her vagina and ultimately, it was discovered the victim tested positive for chlamydia.

“A search warrant was executed on the reported address of the victim on that same date and [the mother] and [defendant] were located and detained. Several items were located in the residence in the locations the victim described. When questioned, [the mother] told officers she believed [the uncle] was likely responsible for sexually assaulting the victim; however, did not believe [defendant] had done anything to her. When asked why [the mother] did not report the abuse, she told officers she had been a victim of sexual abuse as a child and believed Child Protective Services would have done something wrong.

“[The mother] also told officers approximately four months prior to that date, she found blood in the panties of the victim. [The mother] disclosed that both herself and [defendant] had genital herpes.

“[Defendant] was arrested at that time and transported to the Kern County Jail where he was booked on related charges.

“An arrest warrant was issued for [the uncle] and he was located and arrested on March 3, 2015, in Fresno. He was transported to the Kern County Jail where he was booked on related charges.”

DISCUSSION

On appeal, defendant claims his defense counsel did not perform adequately to obtain the records needed to prove his innocence. He asserts that he has been lied to from the start of his case and he wants a chance to prove his innocence. He says he was out of the state or county when the crimes were committed, he was never left alone with his children, he never saw the victim naked, and the victim herself denied he had committed the crimes. He also explains that the tests conducted before he was booked into the jail showed he was negative for chlamydia, and he learned his wife had been treated for chlamydia. He says he had no other choice but to take the plea agreement because Gagliardini told him he would lose at trial and was looking at 67 years to life in prison. He maintains he is innocent of these crimes, which he says he would never commit.

“[W]hen a defendant pleads guilty or no contest and is convicted without a trial, only limited issues are cognizable on appeal. A guilty plea admits every element of the charged offense and constitutes a conviction [citations], and consequently issues that concern the determination of guilt or innocence are not cognizable. [Citations.] Instead, appellate review is limited to issues that concern the ‘jurisdiction of the court or the legality of the proceedings, including the constitutional validity of the plea.’ ” (In re Chavez (2003) 30 Cal.4th 643, 649.) “A certificate of probable cause cannot render reviewable a claim that is otherwise not cognizable on appeal from a guilty plea.” (People v. Collins (2004) 115 Cal.App.4th 137, 149.) Accordingly, defendant’s claims of innocence are not cognizable.

Defendant’s second claim that his prior counsel were inadequate for failing to investigate alibi evidence raises a claim of ineffective assistance of counsel. To establish ineffective assistance of counsel, a defendant must show (1) counsel’s representation was deficient and (2) counsel’s deficient performance was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).)

To establish deficiency, a defendant must show that “counsel’s performance … fell below an objective standard of reasonableness under prevailing professional norms.” (People v. Mai (2013) 57 Cal.4th 986, 1009.) In assessing this prong, a court “defers to counsel’s reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance.” (Ibid.) Because this presumption typically can be rebutted only with evidence outside the record, ineffective-assistance claims are generally raised in habeas corpus proceedings. (People v. Carrasco (2014) 59 Cal.4th 924, 980; see Mai, supra, at p. 1009.)

To establish prejudice, the defendant must make a showing “sufficient to undermine confidence in the outcome” that but for counsel’s deficient performance there was a “reasonable probability” that “the result of the proceeding would have been different.” (Strickland, supra, 466 U.S. at p. 694; Ledesma, supra, 43 Cal.3d at pp. 217-218.) “It is not sufficient to show the alleged errors may have had some conceivable effect on the trial’s outcome; the defendant must demonstrate a ‘reasonable probability’ that absent the errors the result would have been different.” (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, supra, at p. 694.) “A defendant must prove prejudice that is a ‘ “demonstrable reality,” not simply speculation.’ ” (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) “[T]he … test ‘is not solely one of outcome determination. Instead, the question is “whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” ’ ” (In re Hardy (2007) 41 Cal.4th 977, 1019.) Where a defendant’s claim is premised on a failure to investigate, the existence of prejudice depends on both the strength of the evidence defense counsel could have developed with a reasonable investigation and the strength of the prosecution’s case. (See In re Thomas (2006) 37 Cal.4th 1249, 1265.) To establish prejudice in the context of a plea, a defendant must show “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” (Hill v. Lockhart (1985) 474 U.S. 52, 59.)

Here, the record on appeal does not contain evidence to establish defendant’s claim of ineffective assistance of counsel. (People v. Jenkins (2000) 22 Cal.4th 900, 952 [review on direct appeal is limited to the appellate record].) Although evidence was apparently destroyed, defendant may be able to obtain other forms of evidence, such as affidavits or declarations, to prove the facts he says would exonerate him, and thus demonstrate he was prejudiced by counsel’s failure to investigate the alibi evidence. If defendant possesses or can obtain such evidence outside the appellate record to support his allegations, he may present his claim by way of a petition for writ of habeas corpus. (See People v. Williams (2013) 56 Cal.4th 630, 691 [some ineffective assistance claims “can be fully addressed only in a habeas corpus petition because they require investigation of evidence outside the record in order to potentially establish prejudice”]; People v. Mendoza (2007) 42 Cal.4th 686, 711 [“Whether defendant can establish prejudice based on facts outside of the record is a matter for a habeas corpus petition.”]; People v. Barella (1999) 20 Cal.4th 261, 272 [record on appeal did not definitively establish whether counsel acted as defendant asserted; defendant’s claim of ineffective assistance of counsel should be resolved in a habeas corpus proceeding rather than on appeal]; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

DISPOSITION

The judgment is affirmed.