In re Recinos

Filed 10/23/08 In re Recinos CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

ORIGINAL PROCEEDING. Petition for Writ of Habeas Corpus. Robert Gustaveson and Robert M. Martinez, Judges. Petition granted.

Tracy J. Dressner, under appointment by the Court of Appeal, for Petitioner.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and James William Bilderback II, Deputy Attorneys General, for Respondent the People of the State of California.

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In his petition for writ of habeas corpus, Jorge Recinos argues that his trial counsel and his appellate counsel were constitutionally ineffective in their representation of him. We conclude that Recinoss trial counsel rendered ineffective assistance when he informed the trial court that this court mandated a particular sentence following an appeal. The result of this deficient conduct is that the trial court never exercised its discretion in considering the appropriate sentence, thereby undermining confidence in the outcome of the proceeding. We grant Recinoss petition and order the case remanded to the trial court for resentencing. We reject Recinoss other claimed examples of ineffective assistance of counsel.

FACTUAL AND PROCEDURAL BACKGROUND

1. Underlying Facts^[1]

Recinos and three codefendants were charged with and convicted of carjacking, kidnapping for purposes of carjacking, and grand theft. The underlying events occurred on December 11, 2002. In the light most favorable to the prosecution, the record shows Eduardo Hernandez and Alejandro Rivera exited a white van and forced entry at gunpoint into Juan Lopezs truck, in which Lopez was transporting electronic equipment worth approximately $900,000. Hernandez drove Lopezs truck, and Rivera sat in the passenger seat and warned Lopez that if he did anything, he would be shot. After approximately 20 minutes, Lopez was transferred to another vehicle. Alberto Garzon, who had a gun in his waistband, ordered Lopez into a Suburban.

The van Hernandez and Lopez exited belonged to RCS Incorporated. Paperwork, including a paycheck with Recinoss name, was found in the van and when Recinos was arrested, he wore a shirt bearing the RCS logo. The van was parked outside the warehouse where Lopezs truck was taken. A handgun was found in the floorboard of the van.

Police spotted the truck as it was backing into a yard and blocking traffic. Recinos and Rivera were standing next to a large iron gate that looked like it was the iron gate that would close or open the yard. It appeared that Recinos and Rivera had just opened the gate. A white van was parked near the truck. When questioned by police after the incident and at trial, Lopez did not recognize Recinos.

Recinos did not testify. He presented no witnesses in his defense.

2. Sentencing

Prior to trial, the prosecutor offered the four defendants a plea deal. As part of the joint deal, Recinos was offered a three-year prison term. One or more of the other defendants did not agree to the deal, but Recinos informed the court he was prepared to enter a no contest plea in return for a three-year sentence. Trial counsel, Gary Meastas, indicated he recommended the plea as Recinos was looking at a life sentence in this matter . . . . The prosecutor rejected a request that Recinos be allowed to plead separately, and the court did not agree to it.

Following conviction, the trial court, the Honorable Robert Gustaveson presiding, sentenced Recinos to the aggravated term of nine years for carjacking, plus a one-year enhancement pursuant to Penal Code section 12022, subdivision (a)(1) because a principal was armed.^[2] The court imposed that sentence after stating that Recinos was less involved than the other three codefendants. Recinos doesnt have any prior record [and] wasnt among those who actually got into the truck and took the victim . . . . And I believe that, you know, inference was during the trial ‑‑ and, of course, the jury didnt buy it ‑‑ he just happened to be walking along there and happened to be nice and wanted to help the guy back to the warehouse.

The court stayed the sentence for kidnapping for purposes of carjacking pursuant to section 654. This was an unauthorized sentence. Section 654 required the court to sentence Recinos on the crime which carried the greater penalty (kidnapping for purposes of carjacking) and stay the sentence on the crime which carried the lesser penalty (carjacking). ( 654, subd. (a) [An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest possible term of imprisonment].) Notwithstanding its unauthorized status, both the prosecutor and defense counsel informed the court that it could sentence Recinos on the lesser count.

In a declaration filed in support of the habeas petition, Meastas stated that he recognized the sentence was unauthorized, but that he pursued it because it benefitted his client. Sensing an opportunity to secure for my client a sentence that I believed was more commensurate with his personal culpability, I encouraged the court to stay the sentence on the kidnapping for the purpose carjacking count, and sentence Mr. Recinos on the lesser carjacking count.

Meastas also stated that because of this unauthorized sentence, he warned Recinos not to appeal. I told Mr. Recinos that the ten-year sentence imposed by the trial court was very favorable to him. I warned Mr. Recinos that the sentence could be subject to legal challenge if he pursued an appeal. I specifically warned Mr. Recinos that if he appealed his case, there was a good chance that his ten-year sentence would be thrown out, and that he would instead be given a life sentence.

Recinoss current counsel, in her declaration attached to Recinoss supplemental petition, states that Meastas told Recinos not to appeal, but did not explain why Recinos should not appeal.

3. Prior Appeal

Recinos was represented on appeal by Stephen Lathrop. Prior to the appeal, Lathrop wrote Recinos the following: [T]he trial court imposed an illegal sentence in your favor. . . . [] This means that the judge had no power to sentence you to anything less than life in prison with the possibility of parole. Your current sentence of 10 years imprisonment is illegal and is subject to being set aside at any time, regardless of whether you proceed with the appeal. However, by proceeding with the appeal you may increase the chance that the sentencing error will be discovered. [] You have the choice of abandoning your appeal (i.e., dismissing your appeal) or continuing with your appeal. As you will see, we have raised arguable issues in your appeal, but I cannot guarantee that you will ultimately be successful on appeal. Also, if you abandon your appeal I cannot guarantee that the sentencing error will not surface. For example, if you abandon your appeal, the Attorney General and/or the Court of Appeal may take notice of your illegal sentence, or the prison authorities may still find the error in a routine review of your file. If the error is discovered in this way, then you will be resentenced to life imprisonment.

Recinos responded in a letter drafted by another inmate as follows: You have raised very arguable issues in his appeal. I have told him the Catch 22 situation with which he is faced. He does not wish to abandon his appeal. The issues that you have addressed are right on point, Mr. Recinos states that he was not present when the events took place.

According to Recinoss current counsels declaration, Recinos learned of the unauthorized sentence from Lathrops letter. Recinos had Mr. Lathrops letter translated by an inmate friend [and] understood from the letter that he was in a dead end alley. That is, even if he cancelled his appeal there was no guarantee that he would not get a life sentence later so he continued his appeal. Mr. Recinos did not understand Mr. Lathrop to be saying that he would definitely get a life sentence if he went forward with his appeal.

In the appeal, we concluded that carjacking is a lesser included crime of kidnapping for purposes of carjacking. Therefore, we reversed Recinoss sentence on carjacking, leaving only the kidnapping for purposes of carjacking claim. Having reversed the carjacking conviction, we remanded the case to the trial court for resentencing.

We also concluded that, although Lathrop did not raise the substantial evidence in the opening brief, the reply brief indicated an effort to raise that issue and there was good cause for the court to consider it. We found sufficient evidence to support Recinoss conviction based on the evidence that the white van exited by Hernandez and Lopez was owned by RCS Incorporated and had paperwork belonging to Recinos. In addition, there was evidence Recinos opened the gate for the truck at the yard, a place we concluded was not one of temporary safety because Recinoss codefendants were still in a stolen truck with stolen merchandise and were still harboring the victim.

4. Resentencing

After the remittitur issued, Recinos was resentenced, the Honorable Robert Martinez presiding. Attorney Meastas again represented Recinos and stated to the court my understanding is that the Court of Appeals [sic] is mandating a particular sentence. At the time this matter was ‑‑ that Mr. Recinos was sentenced, I advised him not to file an appeal. Nonetheless, he decided to go forward with the appeal. [] I spoke personally with the appellate counsel twice on this matter. He told . . . Mr. Recinos not to go forward with the appeal. Mr. Recinos nonetheless wanted to go forward with the appeal; and, consequently, we find ourselves in this position today.

The court sentenced Recinos to life with the possibility of parole plus a one-year term pursuant to section 12022, subdivision (a)(1). Meastas asked the court, [J]ust so Im clear, theres no notice of appeal that would be filed at this point. The court responded, No. This is the directions of the Court of Appeals [sic] in terms of ‑‑ well ‑‑ no, thats right.

5. Habeas Petition

Recinos filed in pro. per. a habeas petition. We asked that new counsel, Tracy Dressner, be appointed to represent him in the writ petition. Counsel filed a supplemental habeas petition arguing that both trial and appellate counsel were ineffective.

DISCUSSION

The sole issue in this proceeding is whether Recinos received ineffective assistance of counsel. The standard for ineffective assistance is now well established. Recinos bears the burden to show first, that counsels performance was deficient because it fell below an objective standard of reasonableness [] . . . under prevailing professional norms. [Citations.] Unless a defendant establishes the contrary, we shall presume that counsels performance fell within the wide range of professional competence and that counsels actions and inactions can be explained as a matter of sound trial strategy. [Citation.] . . . . If a defendant meets the burden of establishing that counsels performance was deficient, he or she also must show that counsels deficiencies resulted in prejudice, that is, a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. [Citation.] [Citation.] (People v. Lopez (2008) 42 Cal.4th 960, 966; see also Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland).) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland,at p. 694; see also In re Hardy (2007) 41 Cal.4th 977, 1019.) Speculation as to the effect of errors is insufficient to show constitutionally deficient representation. (People v. Williams (1988) 44 Cal.3d 883, 937.)

[W]e accord great deference to counsels tactical decisions [citation], and . . . courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight [citation]. Tactical errors are generally not deemed reversible, and counsels decisionmaking must be evaluated in the context of the available facts. [Citation.] (People v. Stanley (2006) 39 Cal.4th 913, 954.) A reviewing court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed. (People v. Upsher (2007) 155 Cal.App.4th 1311, 1325.) The same standards apply to representation on appeal. (People v. Osband (1996) 13 Cal.4th 622, 664.)

I. Initial Sentencing

A. Recinos Does Not Show Trial Counsel Was Ineffective for Initially Advising the Court to Sentence Recinos on the Lesser Carjacking Count

Recinos argues that trial counsel should have been aware the sentence based on the carjacking count was unauthorized and not advised the court to impose an unauthorized sentence. According to Recinos trial counsel provided ineffective assistance of counsel at petitioners initial sentencing when he prov[ided] the trial court with the erroneous advice that the court could legally proceed with the sentencing on carjacking rather than kidnapping for carjacking. Meastas states in his declaration that he was aware the sentence was unauthorized but pursued it because it benefitted his client.

We need not resolve the discrepancy of whether counsel was aware the sentence was unauthorized or consider the propriety of purposefully advancing an unauthorized sentence. Even if we assume this conduct was deficient, Recinos demonstrates no prejudice.

Recinos cannot show prejudice from Meastass strategy of seeking a 10-year sentence. Recinos benefitted from that decision rather than suffering harm. Recinos was in no worse position at resentencing than if the trial court had imposed an authorized sentence at the initial sentencing hearing.

Recinoss statement that the trial court might have entertained a motion pursuant to People v. Dillon (1983) 34 Cal.3d 441 (Dillon) and reduced the conviction from kidnapping for carjacking to carjacking does not show the failure to bring such a motion resulted in a deficient performance. Competent counsel is not required to make all conceivable motions . . . for the sake of the record. (People v. Montoya (2007) 149 Cal.App.4th 1139, 1147.) Arguing the trial court might have entertained such a motion shows only that it may have been a conceivable motion, not that it was one that should have been pursued. Nor does Recinos show that a Dillon motion would have benefitted him where the court sentenced him to 10 years.

In Dillon, the court found a sentence for felony murder of life imprisonment constituted cruel or unusual punishment under the California Constitution. (Dillon, supra, 34 Cal.3d at p. 489.) The court reduced the conviction to second degree murder. (Id. at p. 450.)

Even if counsel had moved to reduce the sentence pursuant to Dillon and even if the court had entertained a motion pursuant to Dillon, Recinos shows no reasonable probability it would have led to a more favorable sentence than the 10-year sentence he received. Therefore, Recinos fails to show he suffered prejudice from this alleged deficient performance of trial counsel. Because Recinos fails to show prejudice, he has not shown that he received constitutionally deficient conduct.

B. Recinos Does Not Show Trial Counsel Was Ineffective for Failing to Warn Him About the Unauthorized Sentence

Recinos argues [t]rial counsel compounded his erroneous advice to the court that petitioners sentence was legal by recommending to petitioner that he not appeal his case, but failing to explain to petitioner the reason behind his recommendation. There is a factual discrepancy regarding whether Meastas warned Recinos that the sentence was unauthorized. For purposes of this proceeding only, we assume that trial counsel did not warn Recinos, and we further assume the failure to give such a warning constitutes deficient conduct.

Recinos shows no prejudice from the alleged deficient conduct. Recinoss counsel on the original appeal, Lathrop, explained to Recinos that his sentence was unauthorized and asked Recinos if he wanted to abandon the appeal. Therefore, even if trial counsel did not adequately explain to Recinos that the sentence was unauthorized, that deficiency was remedied by appellate counsels letter informing Recinos that the sentence imposed was unauthorized.

Recinos received the letter from appellate counsel, had a fellow inmate translate it for him, made a calculated decision to continue with the appeal, and with the help of the other inmate, informed his counsel of his decision. At resentencing, Recinos explained to the court: the attorney also told me that in case of an investigation in prison and if they found out that they made that mistake they were going to . . . give me the correct sentence. This shows Recinos understood his sentence may have been corrected even if he chose to abandon the appeal, just as Lathrop stated.

Even absent trial counsels warning, Recinos understood that he was taking a risk by appealing. Recinos also understood that even if he chose instead to forego the appeal, there was a risk the unauthorized sentence would be discovered and corrected. Because Recinos learned of the unauthorized sentence and decided to continue with the appeal, he shows no prejudice from the alleged deficient conduct of trial counsel failing to explain why Recinos should not appeal. Recinos faced a difficult decision, but one that he was informed of prior to the appeal, regardless of which attorney notified him. Therefore, even assuming Meastass conduct was deficient, Recinos shows no prejudice.

II. Appeal

A. Recinos Does Not Show His Appellate Attorney Rendered Ineffective Assistance by Failing to Argue on His Behalf

Recinos argues that appellate counsel Lathrop failed to highlight the tenuous nature of the evidence against him because the opening brief simply incorporates by reference the codefendants statements of fact. Recinos states that his appellate attorney portrayed him in a worse light than the evidence when he wrote, Recinos was later arrested with Rivera when the two were seen directing the truck into the yard located at 1131 South Eastern. According to Recinos, appellate counsel also failed to separately raise the sufficiency of the evidence in Recinoss opening brief and instead only joined in the arguments of the codefendants.

We need not decide if appellate counsels performance in writing the statement of facts and arguing the sufficiency of the evidence was deficient. Even assuming such deficiency, Recinos cannot show prejudice. Finding good cause, this court considered the sufficiency of the evidence with respect to Recinos notwithstanding counsels failure to raise it in the opening brief. In addition, the court accurately described the record even if counsel did not. This court expressly found there was sufficient evidence to sustain Recinoss conviction, so contrary to Recinoss argument there is no reasonable probability it would have found insufficient evidence for kidnapping for carjacking if appellate counsel had done a better job. Because he does not demonstrate prejudice, Recinos lacks one prong of ineffective assistance of counsel.

B. Recinos Does Not Show Appellate Counsel Was Ineffective for Failing to Advise Him that His Sentence for Carjacking Would Definitely Be Reversed

Recinos argues that Lathrop rendered ineffective assistance for failing to specifically advise him that, if his conviction for carjacking were reversed on appeal, Recinos would be sentenced to life imprisonment. On appeal, Recinos joined in all of the arguments of his codefendants. That included an argument that carjacking was a lesser included offense of kidnapping for purposes of carjacking, an issue that the Attorney General conceded. In his letter to Recinos, Lathrop advised Recinos of the unauthorized sentence but did not separately advise him that one of the issues raised would require reversal of the carjacking conviction.

Recinos acknowledges that he was warned his sentence was unauthorized and may be discovered on appeal. In light of this warning, he decided to proceed anyway. An appeal offered the possibility of a reversal, a strong tactical reason to pursue the appeal. Recinos had persuaded the trial judge that he was less culpable than his three codefendants and had a strategic reason for deciding to pursue the appeal.

Recinos identifies no prejudice from the failure to advise him specifically of the potential reversal of the carjacking charge. In her declaration on his behalf, Recinoss habeas counsel states: Mr. Recinos understood from the letter that he was in a dead end alley. That is, even if he cancelled his appeal there was no guarantee that he would not get a life sentence later so he continued his appeal. Mr. Recinos did not understand Mr. Lathrop to be saying that he would definitely get a life sentence if he went forward with his appeal. Recinos does not argue or provide any evidence that he would have abandoned the appeal if Lathrops letter had been more specific. He understood that he was in a dead end alley even without the specific warning he argues he should have received. Despite his concern about pursuing an appeal, he decided to go forward because he wanted to correct the wrongs that were committed against him. Recinos identifies no prejudice from this alleged deficiency of explaining to him that it was likely on appeal the carjacking conviction would be reversed.

III. Resentencing

A. Recinos Shows that Trial Counsel Rendered Ineffective Assistance by Misunderstanding the Nature of this Courts Remand

A more severe sentence may be imposed following a successful appeal if the initial sentence was unlawful or unauthorized. (People v. Craig (1998) 66 Cal.App.4th 1444, 1449.) Upon remand for resentencing, the trial court has jurisdiction to modify every aspect of the sentence. (People v. Burbine (2003) 106 Cal.App.4th 1250, 1259.) Trial Attorney Meastas was incorrect in understanding that this court mandated a particular sentence. Counsels performance was deficient in misunderstanding the scope of remand.

The remaining question is whether Recinos suffered any harm from this deficiency. We conclude that the trial courts failure to exercise its sentencing discretion undermines confidence in the outcome of the proceedings. For example, the court is vested with broad discretion in granting or denying probation in any given case. (People v. Downey (2000) 82 Cal.App.4th 899, 909.) As the Attorney General acknowledged, section 209.5 affords a court discretion to sentence a defendant to probation. ( 209.5, subd. (c) [In all cases in which probation is granted, the court shall, except in unusual cases where the interests of justice would best be served by a lesser penalty, require as a condition of the probation that the person be confined in the county jail for 12 months. If the court grants probation without requiring the defendant to be confined in the county jail for 12 months, it shall specify its reason or reasons for imposing a lesser penalty].)

In other contexts, courts have held that the failure to exercise discretion constitutes an abuse of discretion. For example, in People v. Sandoval (2007) 41 Cal.4th 825, 847-848, the California Supreme Court explained that in applying the determinate sentencing law, the failure to exercise discretion may constitute an abuse of discretion. Similarly, failure to exercise discretion under section 1385 constitutes an abuse of discretion where it is based on a mistaken belief regarding a lack of authority to exercise such discretion. (People v. Orabuena (2004) 116 Cal.App.4th 84, 99.)

Here, the trial court never exercised its discretion because it was advised incorrectly that this court mandated a particular sentence. The failure to exercise discretion undermines confidence in the outcome of the proceeding. (Strickland, supra, 466 U.S. at p. 694.) The prosecution initially offered Recinos a three-year sentence as part of a joint settlement rejected by his codefendants. In addition, the trial court at the initial sentencing concluded that Recinos was not as culpable as his codefendants. Nothing in the record indicates how the trial court would have sentenced Recinos had it considered the sentence anew after the appeal. The mistaken understanding of the scope of the sentencing hearing derailed the process of evaluating all the relevant sentencing factors and allowing the court to appropriately exercise its discretion. Therefore, Recinos demonstrates that he was harmed by counsels deficient conduct. We cannot say how the trial court would have ruled and remand this case to the trial court for a new sentencing hearing, in which all relevant factors are considered and Recinos has the opportunity to make any appropriate arguments.

DISPOSITION

The petition for writ of habeas corpus is granted. The case is remanded to the trial court. The trial court shall hold a sentencing hearing. Upon the issuance of remittitur, the clerk of this court is directed to forward a copy of this opinion to the State Bar pursuant to Business and Professions Code section 6086.7.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P. J.

We concur:

RUBIN, J. FLIER, J.

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^[1] We take judicial notice of the record in People v. Rivera et al. (Jan. 25, 2005, B168920) [nonpub. opn.]. We repeat many of the facts from the prior appeal.

^[2] The principles of Cunningham v. California (2007) 549 U.S. 270 are not applicable because the carjacking conviction was reversed and the case was remanded for resentencing.

All undesignated statutory citations are to the Penal Code.