P. v. Rangel

Filed 3/16/07 P. v. Rangel CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

On March 30, 2005, a jury convicted defendant of one count of continuous sexual abuse of a child under the age of 14 (Pen. Code, 288.5, subd. (a)) and one count of sexual penetration while the victim is unconscious of the nature of the act (Pen. Code,  289, subd. (d)).[1] The same day, defendant admitted he had served a prior prison term ( 667.5, subd. (b)) and that he had been convicted of one prior serious felony ( 667, subd. (a)) and two violent or serious felonies that qualified as strikes under the Three Strikes law ( 667, subds. (b)-(i) & 1170.12). On April 19, 2005, the trial court denied defendants request to strike one of the strike priors and sentenced defendant to 61 years to life in prison with an additional consecutive seven year sentence. On appeal, defendant contends: (1) his counsel provided ineffective assistance by advising him to admit the prior serious felony and prior strike convictions; and (2) the trial court abused its discretion in denying his request to strike one of the strike convictions.[2] We affirm the judgment.

By a petition for a writ of habeas corpus, which this Court previously ordered considered with the appeal, defendant reiterates his ineffective assistance of counsel claim. We deny defendants petition.

                                                                                                                                                 I.            Factual Background

A.                 Count One

In June 2002, when defendants daughter, T., was eight years old, she began visiting defendant about once a week. At the time, defendant lived with his wife and his stepdaughter, B., and T. lived with her mother. One day while T. was visiting defendant, she sat on the floor to complete her homework and to watch television. Defendant sat on the couch behind her, placed his legs on either side of her and squeezed her breasts under her shirt. He also rubbed her vagina under her pants.

T. recalled that defendant touched her in this manner about every other time she visited him. Defendant sometimes put his fingers inside T.s vagina, which hurt her. This continued for many months. Defendant moved away for a period of time during the summer of 2003 because B. accused him of molesting her, but he continued molesting T. when he returned.

B. Count Two

Around midnight on July 16, 2003, when B. was 16 years old, she called her cousin, upset and crying. She told her cousin that she had been sleeping but awoke because someone was touching her. She said she kicked the person and he left the room. B. eventually told her cousin that it was defendant who had fingered her while she slept.

B. called a friend to pick her up. B.s friend told her father, an off-duty police officer, that B. was upset. The officer called B., who was crying uncontrollably, and she told him she had been awakened by her stepfather placing a finger into her vagina. The officer alerted other police officers and drove to B.s house. B. ran to the car yelling, Oh, my God hes coming. B. was crying hysterically and continued to cry in the car. B. said defendant had molested her twice before, when she was ten and twelve years old. The officer spoke with B.s mother who said she was afraid defendants family would hurt her and B.

B. was taken to the hospital for a sexual assault examination. The nurse who examined B. identified two injuries in the vaginal area and concluded the injuries were consistent with digital penetration.

B.s mother later asked the police to withdraw all charges. At trial, B. denied that defendant molested her, denied and/or did not recall describing the incident to police officers, and said she did not recall receiving a sexual assault examination.

                                                                                                                                                                 II.           Discussion

A.                 Ineffective Assistance of Counsel

For criminal sentencing purposes in this state, the term serious felony is a term of art. (People v. Warner (2006) 39 Cal.4th 548, 552.) Among other things, a prior conviction for a serious felony renders the offender subject to the more severe sentencing provisions of the [T]hree [S]trikes law. ( 667, subds.(b)-(i), 1170.12.) (People v. Warner, supra, 39 Cal.4th at p. 552.) The Three Strikes law provides for a possible life sentence if the defendant has two prior convictions that are violent or serious felonies. (See 667.) Serious felony is defined in section 1192.7 and includes any felony in which the defendant personally uses a firearm. ( 1192.7, subd. (c)(8).)

In this case, the information alleged two prior convictions arising out of the same incidentFalse Imprisonment with Personal Use of a Firearm ( 236/237) and Inflicting Corporal Injury Upon Spouse with Personal Use of a Firearm ( 273.5).[3] A March 1, 2000 Abstract of Judgment for the convictions in Santa Clara County Superior Court Case No. 177075 shows defendants convictions for false imprisonment and inflicting corporal injury upon spouse, but does not list a firearm enhancement or otherwise refer to firearm use.[4] The probation report for the current matter describes the offenses, however, and refers to defendants use of a firearm: On November 8, 1994, the defendant and the victim argued and the defendant kicked the victim in the thigh and choked her around the neck. When victim [T.s mother] tried to leave, the defendant pointed a .25-caliber automatic pistol at her several times and said he was going to put a bullet in her head. Defendant told the probation officer in the current matter that he did not point a gun at the victim, and said she pointed it at him during the argument.

After the jury returned its verdict, defendant admitted the prior convictions as alleged in the information and waived his right to a court trial. Defense counsel stipulated to the factual basis for the admissions. Defendant argues that because he was not convicted of a firearm enhancement in connection with the felony convictions, his counsel provided ineffective assistance in advising him to admit the priors without forcing the prosecution to prove their truth. We disagree.

As defendant concedes, the trier of fact may conclude that a prior offense was committed with personal use of a firearm, and, thus, is a serious felony, even if the defendant was not convicted of a firearm enhancement. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1530-1531 [if the defendant was not convicted of a firearm enhancement, the trier of fact may look at the entire record of conviction to determine whether the defendant personally used a firearm].) Defendant argues, however, that even if a trier of fact may conclude that a firearm was used, it does not necessarily mean the trier of fact would so conclude. He contends that counsel failed to conduct an adequate investigation into the priors, and misadvised him regarding their admission, thereby depriving him of a potentially meritorious defense.

To show ineffective assistance of counsel, defendant must prove that trial counsels representation fell below an objective standard of reasonableness, and that counsels error prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-690; People v. Williams (1997) 16 Cal.4th 153, 215.) To render reasonably competent assistance, a criminal defense attorney has a duty to investigate carefully all defenses of fact and of law that may be available to the defendant, to confer with his client to elicit matters of defense, and to advise the defendant of his rights and take action to preserve them. (People v. Pope (1979) 23 Cal.3d 412, 424-425 & fn. 14 (Pope), internal quotations omitted; see also People v. Mattson (1959) 51 Cal.2d 777, 791 [explaining counsels duty to investigate carefully all defenses of fact and law and to confer with defendant about any such defenses prior to any plea or admission].) If counsels failure to perform these obligations results in the withdrawal of a crucial or potentially meritorious defense, the defendant has not had the assistance to which he is entitled. (Pope, supra, 23 Cal.3dat p. 425, footnote omitted.) If the record 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 contention must be rejected. (People v. Mitcham (1992) 1 Cal.4th 1027, 1058, internal quotations and citations omitted.)

In the situation before us, a reasonably competent attorney would be informed of the types of prior convictions that qualify as strikes and advise his or her client of the applicable law in any discussion of a plea or admission. (See People v. McCary (1985) 166 Cal.App.3d 1, 7-9 (McCary).) Defendant points to no place in the record, however, which indicates that trial counsel was not reasonably informed of the facts before advising him to admit the priors. (See People v. Vargas (2001) 91 Cal.App.4th 506, 537 [the defendant bears the burden of showing the court that trial counsels decision to advise defendant to admit the priors was not informed].) A recommendation to admit the priors does not necessarily mean that counsel was unaware that the convictions were not serious felonies absent evidence in the record of conviction of use of a firearm; counsel may have advised defendant to admit the priors because she believed the evidence of defendants firearm use was compelling or that challenge would be futile. Because the priors were not litigated below, we cannot ascertain the strength of the Peoples evidence, nor can we conclude that counsels decision was unreasonable.[5]

Defendants assertion that counsel provided ineffective assistance because his ability to dispute the priors constitutes a potentially meritorious defense is a misstatement of the law. The mere existence of an unasserted but potentially meritorious defense does not establish ineffective assistance; defendant must show that counsels representation fell below that of a reasonably competent attorney. If, for example, counsel failed to investigate adequately or misadvised the defendant of the applicable law, and that resulted in the withdrawal of a potentially meritorious defense, then we may conclude counsel provided ineffective assistance. (See, e.g., Pope, supra, 23 Cal.3d at p. 425; In re Cordero (1988) 46 Cal.3d 161, 181 [counsels representation may be inadequate if evidence supporting a potentially meritorious defense remains unexplored], italics added.)

Defendant cites McCary, supra, 166 Cal.App.3d 1, People v. Plager (1987) 196 Cal.App.3d 1537 (Plager) and People v. Maguire (1998) 67 Cal.App.4th 1022 (Maguire) as support for the contention that competent counsel would not have advised him to admit the priors. These cases do not aid defendants argument. In both McCary and Plager, the prosecution could not, as a matter of law, prove that the prior convictions were serious felonies. (McCary, supra, 166 Cal.App.3d at pp. 7-8; Plager, supra, 196 Cal.App.3d at p. 1542.) Trial counsel thus erred in failing to determine the invalidity of the serious felony allegations and in permitting defendant to admit their truth. (McCary, supra, 166 Cal.App.3d at pp. 7-8; Plager, supra, 196 Cal.App.3d at pp. 1542-1543.) Likewise, in Maguire, adequate research by counsel would have revealed that defendants behavior did not violate the terms of the statute. (Maguire, supra, 67 Cal.App.4th at p. 1030.) Counsel thus erred in failing to determine the legal insufficiency of the charges and to take steps to contest them prior to defendants plea. (Id. at pp. 1030-1031.) In the present case, however, the serious felony allegations are not legally insufficient, but simply subject to dispute. Defendants admission of the priors does not on its face establish that counsel erred.

Defendants reliance on People v. Johnson (1995) 36 Cal.App.4th 1351 (Johnson) is similarly unavailing. In Johnson, counsel provided ineffective assistance by failing to correctly calculate [the defendants] maximum potential sentence before permitting him to enter a plea[.] (Johnson, supra, 36 Cal.App.4th at p. 1357.) There is no evidence in this case that counsel misadvised defendant as to the ramifications of his admission of the serious felony priors.

Because the appellate record is silent as to counsels investigation of this issue, and as to counsels advice to defendant, we cannot conclude that [defendant] has established that defense counsel conducted an inadequate investigation. (See Pope, supra, 23 Cal.3d at p. 429.) We also cannot conclude that counsel misadvised defendant regarding the ability to defend the priors or that counsels strategic decision to advise defendant to admit the priors was without rational support. (Cf. People v. Vargas, supra, 91 Cal.App.4th at pp. 537-538 [Presuming an informed decision by trial counsel, we must further presume that trial counsels decision was a tactical choice which we cannot, for such lack of showing, review in this appeal.].) We therefore reject defendants contention that he was denied effective assistance of counsel in connection with his admission of the serious felony priors.

B.                Habeas Corpus Petition

Where the record does not illuminate the basis for the challenged acts or omissions, a claim of ineffective assistance is more appropriately made in a petition for habeas corpus. (Pope, supra, 23 Cal.3dat p. 426.) While defendants appeal was pending in this court, he filed a petition for writ of habeas corpus. The petition sets forth additional evidence relating to his claim of ineffective assistance of counsel, including declarations by appellate counsel and defendant and the trial courts February 16, 1995 order in case number 170775, which granted defendant three years probation.

Because a petition for a writ of habeas corpus seeks to collaterally attack a presumptively final criminal judgment, the petitioner bears a heavy burden initially to plead sufficient grounds for relief, and then later to prove them. (People v. Duvall (1995) 9 Cal.4th 464, 474.) If no prima facie case for relief is stated, the court will summarily deny the petition. If, however, the court finds the factual allegations, taken as true, establish a prima facie case for relief, the court will issue an OSC. (Id. at p. 475; In re Clark (1993) 5 Cal.4th 750, 769, fn. 9.)

Defendants additional factual allegations and the supporting documents do not establish a prima facie case that counsel provided ineffective assistance in connection with his admission of the serious felony allegations. In regard to counsels investigation, appellate counsel states that he contacted trial counsel and she had no particular recollection of the events surrounding those admissions. Trial counsel told appellate counsel she was in the process of obtaining the file, but has provided no further information. Although trial counsel did not provide an explanation for the failure to contest the priors, her response is not an acknowledgement that she has no explanation for her actions. She simply had not reviewed the file. Moreover, the facts that are before us provide ample justification for her recommendation to admit the priors.

The supporting declarations show that the priors could be proven from the record of conviction. Appellate counsel states: My review of the file in case number 177075 also showed that in a reporters transcript from January 30, 1995, petitioner pleaded no contest to the first two charges in the information, and at the same time he also admitted the personal use of a firearm allegations. (Italics added.) Defendant confirms that at the change of plea hearing for the felony convictions, he admitted, as part of the plea agreement, that in committing these offenses [he] personally used a firearm. A reporters transcript from a change of plea hearing is part of the record of conviction and may be used to show a prior serious felony. (People v. Sohal (1997) 53 Cal.App.4th 911, 915-916 [in determining whether prior was a serious felony, it was proper for court to consider transcript of plea in which defendant admitted to factual basis for plea, including that he personally used a deadly weapon in the assault]; see also People v. Abarca (1991) 233 Cal.App.3d 1347, 1350-1352 [defendants affirmation during change of plea hearing that he was pleading guilty to burglary of a residence reliably established that burglary conviction involved a residence].) The fact that the firearm enhancement ( 12022.5, subd. (b)) was thereafter dismissed on the motion of the People does not preclude the prosecution from relying on defendants admission at the change of plea hearing. (See People v. Blackburn, supra, 72 Cal.App.4th at pp. 1527-1528, 1530-1531 [even if the personal use allegation is stricken in the underlying conviction, the trier of fact may use the record of conviction to find that a firearm was used].)

In addition, defendant does not allege that he was told he had no defense to the priors or that he was otherwise misadvised. He states, instead: I admitted those prior offenses because my trial attorney, Susannah Shamos, said it would be in my best interest to do so. That counsel advised him it was in his best interest to admit the priors does not mean that she was unaware of a possible defense. In light of defendants admission at the change of plea hearing, it may have been in his best interest not to contest the priors. Challenging the priors would have taken additional time and resources with little likelihood of a positive result. Indeed, it was likely to serve only to show defendants lack of responsibility for his past actions, which would adversely impact a later Romero[6] motion to strike the priors.

Defendant also fails to state that had he known of a possible defense at the time of the admission, he would not have admitted the priors. This leaves the record before us bereft of evidence of prejudice resulting from counsels alleged errors. (See People v. Ledesma (1987) 43 Cal.3d 171, 217 [In addition to showing that counsels performance was deficient, a criminal defendant must also establish prejudice before he can obtain relief on an ineffective-assistance claim.].) Defendants assurance that he would testify that he did not use a firearm in the commission of the prior felonies, if given the opportunity, does not fill that void, nor does it establish that counsels advice to admit the priors was based on inadequate investigation or was otherwise incompetent.

We find petitioner has failed to establish a prima facie case which, if true, would entitle him to relief.

C.                Romero Motion

Defendant contends the court abused its discretion in denying his request to strike one of his prior strike convictions. We disagree.

Under Romero, a trial court has discretion to strike a prior strike conviction in the furtherance of justice so that a defendant is not subject to the statutorily increased penalty. (Romero, supra, 13 Cal.4th at pp. 529-530.) In ruling on a motion to strike a prior conviction subject to the Three Strikes law, the court must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)

We review the trial courts decision for abuse of discretion. (Williams, supra, 17 Cal.4th at p. 162.) Defendant has the burden to clearly show that the sentencing decision was irrational or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977, internal quotations omitted.)

In support of defendants Romero motion, defense counsel argued that the prior strike convictions should count as one strike, not two, because the strikes arose from the same transaction, the incident occurred almost 11 years earlier when defendant was only 23, and defendant received probation. Counsel also argued that defendant had completed a 52-week domestic violence program since the incident, had completed parole successfully, and has a solid job history. The trial court denied the motion to strike, citing a number of factors.

We find no abuse of discretion. Appellant has a lengthy criminal history, beginning when he was a juvenile. His adult offenses include thirteen misdemeanors (such as assault with a deadly weapon, fighting in public, and exhibiting a firearm) and three felonies (transportation of a controlled substance and the two felonies discussed above). (Cf. People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630 [punishments under recidivist statutes are based not merely on that persons most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes].) Defendant also violated probation for his most recent prior offenses and, as the trial court observed, one can only say he successfully completed parole if you ignore the convictions that were now here on[.] (See People v. Gaston (1999) 74 Cal.App.4th 310, 321 [noting that the defendant was on parole at the time of the current offense in affirming denial of Romero motion].) Finally, as the trial court recognized, the serious nature of the prior strikes and of the current convictions strongly supports denial of the motion to strike. (See Williams, supra, 17 Cal.4th at p. 161.) On this record, we cannot conclude that defendant is outside the spirit of the Three Strikes law, or that the trial courts ruling was arbitrary or irrational.

                                                                                                                                                              III.         Disposition

The judgment is affirmed. Defendants petition for habeas corpus is denied.

_______________________

Mihara, Acting P.J.

WE CONCUR:

_________________________

McAdams, J.

_________________________

Duffy, J.

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

[2] A third issue raised in defendants opening brief was later withdrawn by defendants appellate counsel.

[3] The relevant code sections do not list false imprisonment and inflicting corporal injury upon spouse as serious or violent felonies. (See generally 1192.7, subd. (c), 667.5, subd. (c).)

[4] The trial court admitted the Abstract of Judgment, which imposed execution of sentence after probation was revoked, as an exhibit in connection with defendants motion to strike and sentencing.

[5] Defendant stresses that the probation officer appears to have understood that the prior convictions included firearm enhancements. We do not see how the probation officers report, prepared after conviction, is relevant to counsels investigation, knowledge, or advice prior to defendants admission.

[6]People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).