P. v. >Baldwin>

 

 

 

 

 

 

 

 

 

 

Filed 11/19/13  P. v. Baldwin CA1/5

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TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

 

FIRST
APPELLATE DISTRICT

 

DIVISION
FIVE

 

 

 

 
>

>THE PEOPLE, >            Plaintiff and Respondent, >v. >ANTHONY LEE BALDWIN, >            Defendant and Appellant.

A136164         (Del Norte County       Super. >Ct.> No. CRF129177)

 

            Anthony
Lee Baldwin appeals from a judgment of
conviction entered after a jury found him guilty of href="http://www.fearnotlaw.com/">second degree robbery (Pen. Code,
§ 211, subd. (a)), petty theft with a prior theft conviction (Pen.
Code, §§ 484, subd. (a), 666, subd. (a)), and brandishing a knife
(Pen. Code, § 417, subd. (a)(1)). 
His sole contention on appeal is that he was denied his href="http://www.mcmillanlaw.com/">Sixth Amendment right to effective
assistance of counsel.  Specifically, Baldwin
claims his counsel provided ineffective assistance in the conduct of plea
negotiations with the prosecution and in failing to request a continuance after
Baldwin fell asleep during the proceedings below.

            We
conclude Baldwin’s claims fail because he has not
demonstrated he was prejudiced by counsel’s allegedly inadequate
performance.  Accordingly, we will affirm
the judgment.

Factual and
Procedural Background

            On
March 15, 2012, a man
later identified as appellant Baldwin attempted to leave
a Walmart store wearing a pair of shoes for which he had not paid.  Leticia Rosales, the store’s assistant
manager, followed Baldwin, and when she asked him to
stop, he turned around with a box cutter in his hand.  He moved forward until he was three to four
feet from Rosales and told her, “I’ll f---ing cut you, bitch.”  Rosales retreated, and Baldwin
ran to his car.  When she went out into
the parking lot to get the car’s license number, Baldwin
revved the engine and sped up toward her. 
The car came within one foot of Rosales before turning and speeding away.  Baldwin was arrested
some two weeks after the incident.

            An
information filed April 17, 2012,
charged Baldwin with the following three counts: second
degree robbery, petty theft with a prior theft conviction, and brandishing a
knife.

            Plea
Negotiations and First Marsden Motion

            Prior
to trial, Baldwin twice requested hearings under People v. Marsden (1970) 2 Cal.3d 118 (Marsden).  At the first >Marsden hearing, in addition to
complaining about trial counsel’s performance, Baldwin claimed defense counsel had
offered to the prosecution a plea for “grand theft of person with a bunch of
years,” even though he had told counsel he was unwilling to take a deal that
involved second degree robbery and was only willing to do some prison time for
petty theft with a prior conviction.  Defense
counsel explained the prosecution’s offer required Baldwin to plead to second
degree robbery because of its effect as a serious or violent felony under
California’s three-strikes law.  When his
client rejected the offer, defense counsel proceeded with the preliminary
hearing the next day.  Counsel
represented to the court that he had communicated with the district attorney
about appellant’s unwillingness to plead to a strike offense and the
unlikelihood of settlement absent a concession from the prosecution on this
point. 

            Baldwin
and his trial counsel agreed counsel would explore settlements while Baldwin maintained
a “rigid posture” to pressure the prosecution to offer a better deal.  Defense counsel acknowledged he had told the
district attorney, “[appellant] can do time standing on his head,” but
explained the comment’s purpose was to dissuade the prosecution from attempting
to settle the case by threatening to “pile on the time.”  He also acknowledged he had asked the prosecution
whether it would settle the case for a plea on the grand theft and brandishing
charges, believing that it might help his client avoid a strike offense, but
that he did not present it as an “offer.”  Defense counsel claimed that presenting this
idea early on would plant a seed for a future favorable offer.

            The
trial court denied Baldwin’s first Marsden
motion.

            Further
Plea Negotiations and the Second Marsden Motion

            Five
days before trial, defense counsel advised the court Baldwin was willing to
enter a guilty plea in exchange for a stipulated term of two years, but the
prosecution’s previous offers had “been in the range of five to six years.”  After defense counsel noted his client was
facing 10 or 11 years if his prior offenses were provable, the prosecutor told
the court the parties were too far apart to reach agreement.  As the prosecutor put it, “There’s no way we
would consider coming anywhere near two years[.]”  The court allowed the parties two days to
negotiate a resolution and warned Baldwin it would not consider plea or
sentence bargaining on the day of trial. 
The trial judge stated, “The only thing I would accept on the day of
trial is a plea to the sheet, which he has a huge exposure.”

            The
business day before trial, Baldwin requested another Marsden hearing, where he complained about perceived inadequacies
in defense counsel’s investigation of witnesses.  When the court asked Baldwin why he had not
raised his complaints earlier, Baldwin responded, “I didn’t think we were going
to go to trial.  I thought we were going
to plead out[.]”  The court denied the >Marsden motion.

            Later
that same day, the court warned Baldwin, “I will not accept anything other than
a straight up plea on -- after today.” 
The court then asked appellant directly whether he wanted to discuss a negotiated
resolution.  Baldwin responded that he
would “take the petty theft or grand theft,” although his counsel explained
Baldwin had not been willing to agree to a term of more than two years.  Defense counsel stated Baldwin was facing an
11-year maximum sentence, and the prosecutor made clear the People’s best offer
would be seven years of prison time with two priors. 

            The
trial court commented that there was no more it could do to help the parties’
negotiations.  Defense counsel made some
suggestions, such as having Baldwin plead to the charges and leave sentencing
to the court’s discretion, persuading the prosecution to agree to a sentence “lid”
when referring the matter to probation, or proceeding by way of a court
trial.  Noting that a lot of options were
on the table, the court adjourned the matter to give defense counsel a few
hours to confer with his client.  But when
court reconvened at the end of the day, Baldwin did not appear.  The court expressed its intention to go
forward with trial on the next business day.

            Baldwin’s
Counsel Declines to Request a Continuance

            After
completion of voir dire, the court received a note from a juror stating that
Baldwin was “nodding off from time to time.” 
The court excused the jury and asked appellant whether he was having a
hard time staying awake.  Baldwin said he
hadn’t gotten much sleep, and the court advised him to drink some coffee during
the break, while defense counsel suggested he get some fresh air.

            During
the examination of Rosales, the prosecutor interrupted to ask the court whether
Baldwin was okay.  Defense counsel
conferred with his client, and the court announced it would take the afternoon
break.  Once the jurors left, the court said
it had noticed Baldwin “sleeping on and off” during the prosecution’s direct
and defense counsel’s cross-examination. 
To “make a record on that issue,” defense counsel stated to the court
that earlier, in chambers, with all attorneys, appellant, and the court
present, defense counsel had explained that he did not believe “the fact that
[his] client is sleepy would constitute good cause to ask to continue the
matter,” and therefore he had not requested a continuance.  The trial judge responded that, although he had
not watched appellant constantly, he did not see him sleeping at all during the
second half of the morning, but did see appellant sleep during the first half
of the morning and quite a bit that afternoon.  The court ended the inquiry there, and the
proceedings resumed after the break.

            Request
to Change Plea

            In
the middle of trial, after one witness had taken the stand, Baldwin attempted
to change his plea to guilty.  The court stated
it would “allow [Baldwin] to enter an open plea to all three counts.”  After appellant conferred with his counsel in
court, counsel announced, “I’m sorry, your Honor.  We shall proceed.”  The court then resumed the trial.

            Conviction,
Sentence, and Appeal

            On
June 12, 2012, the jury convicted Baldwin on all counts.  On August 2, 2012, the court sentenced
Baldwin to nine years in prison.  The
following day, Baldwin filed this appeal.

Discussion

            Baldwin
contends his trial counsel provided ineffective assistance in two
respects.  First, he argues his counsel
did not adequately communicate the strength of the evidence against him and the
benefits of a plea bargain.  Appellant
claims that if he had been properly advised, he would have accepted the plea
bargain offered by the prosecution, which would have resulted in a shorter term
of imprisonment.  Second, Baldwin asserts
his counsel was ineffective because he failed to request a continuance when
Baldwin nodded off during the proceedings. 
According to Baldwin, this deprived him of his right to be mentally
present during trial.

I.          >Standard of Review

            On
appeal, a defendant claiming ineffective assistance of counsel has the burden
to demonstrate, by a preponderance of the
evidence, that he is entitled to relief on grounds of ineffective
assistance.  (E.g., People v. Ledesma (1987) 43 Cal.3d 171, 217-218.)  To establish ineffective assistance of
counsel in the context of his rejection of a plea bargain, Baldwin “must show
that (1) counsel’s representation was deficient, i.e., it fell below an
objective standard of reasonableness under prevailing professional norms; >and (2) counsel’s deficient performance
subjected the defendant to prejudice, i.e., there is a reasonable probability
that, but for counsel’s failings, the result would have been more favorable to
the defendant.  [Citations.]”  (In re
Alvernaz (1992) 2 Cal.4th 924, 936-937 (Alvernaz).)

            Defendant’s
burden is difficult to carry on direct appeal (People v. Vines (2011) 51 Cal.4th 830, 876), because the trial
record often does not indicate why trial counsel acted or failed to act in the manner
he did.  (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268.)  And we may not reverse a conviction for
ineffective assistance of counsel on direct appeal unless the record
affirmatively discloses that counsel had no rational tactical purpose for his
act or omission.  (People v. Vines, supra, 51 Cal.4th at p. 876.)  Where the record sheds no light on the issue,
we must affirm unless there could be no conceivable reason for counsel’s act or
omission.  (People v. Jones (2003) 29 Cal.4th 1229, 1254.)  Furthermore, our review of trial counsel’s
performance is deferential (People v.
Ledesma, supra, 43 Cal.3d at p. 216), and there is a strong
presumption that counsel’s actions fell within the wide range of reasonable
professional assistance.  (>People v. Vines, supra, 51 Cal.4th at
p. 876.)

            Nevertheless,
“we need not dwell on the question whether defendant can establish deficient performance
by his trial counsel” if he cannot establish prejudice, “that is, a reasonable
probability of a more favorable outcome in the absence of the assertedly
deficient performance.”  (>People v. Stewart (2004) 33 Cal.4th 425,
495.)  In other words, we ask “‘whether
counsel’s conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a just
result.’  [Citation.]”  (In re
Cudjo (1999) 20 Cal.4th 673, 687.) 
To meet this burden, a defendant must prove prejudice that is a
demonstrable reality and not simply speculation.  (People
v. Fairbank (1997) 16 Cal.4th 1223, 1241.)

            A
defendant claiming ineffective assistance in the plea bargaining process can
satisfy the prejudice prong by showing a reasonable probability that, absent
the deficient representation, he would have accepted the proffered plea bargain
and it would have been approved by the court.  (Alvernaz,
supra, 2 Cal.4th at p. 937.)  “In
this context, a defendant’s self-serving statement—after trial, conviction, and
sentence—that with competent advice he or she would have accepted a proffered plea bargain, is insufficient in
and of itself to sustain the defendant’s burden of proof as to prejudice, and
must be corroborated independently by objective evidence.  A contrary holding would lead to an unchecked
flow of easily fabricated claims.”href="#_ftn1"
name="_ftnref1" title="">[1]  (Id.
at p. 938.)

            Baldwin
relies in particular on Lafler v. Cooper
(2012) 566 U.S. ___ [132 S.Ct. 1376] (Lafler),
in which the United States Supreme Court articulated a standard of prejudice
similar to that adopted in Alvernaz.  To establish prejudice under >Lafler, “a defendant must show that but
for the ineffective advice of counsel there is a reasonable probability that
the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the
prosecution would not have withdrawn it in light of intervening circumstances),
that the court would have accepted its terms, and that the conviction or
sentence, or both, under the offer’s terms would have been less severe than
under the judgment and sentence that in fact were imposed.”  (Lafler,
supra, 132 S.Ct. at p. 1385.)

II.         Baldwin
Has Failed to Show He Was Prejudiced by Counsel’s Conduct in the Plea
Negotiations.

            Even
if we assume the performance of Baldwin’s counsel fell below an objective standard
of reasonableness under prevailing professional norms, his claim of ineffective
assistance must fail because he has not demonstrated prejudice.  (See Alvernaz,
supra, 2 Cal.4th at pp. 936-937.) 
Baldwin’s opening brief devotes only one paragraph to analyzing the
issue of prejudice under the facts of this case.  He simply recites the fact that the plea
offer of five to six years was less severe than his ultimate sentence of nine
years, and he claims his trial counsel failed properly to advise him about the
weaknesses of his case and its probable outcome.  He makes no explicit claim that he would have
accepted the plea offer, and even if this is implicit in is argument, his
opening brief points to no facts to support the claim.href="#_ftn2" name="_ftnref2" title="">>[2]  His bare, unsupported assertion “is
insufficient in and of itself to sustain the defendant’s burden of proof as to
prejudice, and must be corroborated independently by objective evidence.”  (See Alvernaz,
supra, 2 Cal.4th at p. 938.) 
Baldwin offers no such corroboration.

            Nor
does our independent examination of the record support an inference that
Baldwin would have accepted the proffered plea bargain.  Baldwin repeatedly expressed his
unwillingness to agree to a strike offense. 
He does not tell us what his counsel could have said to persuade him to
accept the plea bargain, given that defense counsel had already explained to
him the strength of the prosecution’s case, including the fact that there was
surveillance footage of Baldwin “brandishing a box knife in front of a store
employee[.]”  Indeed, at the first >Marsden hearing, defense counsel
expressed his view that based on the evidence available, there was a
substantial probability the jury would find Baldwin guilty.  And contrary to Baldwin’s claims, defense
counsel stated on the record (and in his client’s presence) that Baldwin faced
a maximum term of 11 years in prison if convicted.

            The
trial court itself told Baldwin it was not realistic for him to expect a
sentence of only “a couple years in prison.” 
In response, Baldwin said, “Oh, no.  I know that.”  The court also twice warned Baldwin it would
not consider plea or sentence bargaining on the day of trial.  Despite these warnings, Baldwin informed the
court, on the last business day before trial, that he would only “take the
petty theft or grand theft,” and defense counsel confirmed his client had never
expressed interest in a plea agreement that involved more than two years of
imprisonment.  At that point, the
prosecutor was adamant that the People would not accept any plea agreement
involving only six years’ imprisonment, because he thought it was “light” and
“almost a gift” given the seriousness of the offense.  The minimum term of imprisonment the
prosecutor would accept was seven years. 
Baldwin’s counsel urged him to offer the People a five-year term “to
narrow the gap.”  Baldwin made no such
offer, and the court recessed after the discussion of a possible negotiated
resolution.  When it reconvened, Baldwin
did not return.

            The
record before us shows Baldwin was unwilling to negotiate on the final day for
plea bargaining.  Although he was clearly
informed the court would entertain no more plea bargaining after that date,
Baldwin made no effort to engage in further negotiations and simply did not
return to court.  Baldwin has therefore
failed to demonstrate he was prejudiced, because there is no basis for
concluding he would have accepted the proffered plea bargain.  (Alvernaz,
supra, 2 Cal.4th at p. 937; accord, Lafler,
supra, 132 S.Ct. at p. 1385.)  Moreover,
Baldwin’s opening brief makes no effort to show either that the prosecution
would not have withdrawn the offer under the circumstances of the case, or that
the trial court would have accepted the plea bargain.  Baldwin says nothing about these crucial
elements of the prejudice analysis.  (See
Lafler, supra, 132 S.Ct. at
p. 1385 [“defendant must show . . . that . . . the
prosecution would not have withdrawn [the plea] in light of intervening
circumstances . . . [and] that the court would have accepted its
terms”]; Alvernaz, supra, 2 Cal.4th
at p. 937 [to show prejudice defendant “must prove . . . the
proffered plea bargain . . . would have been approved by the trial
court”].) 

III.       Baldwin
Suffered No Prejudice from His Counsel’s Failure to Request a Continuance.

            Baldwin
also claims his trial counsel was ineffective in failing to request a
continuance after Baldwin was observed sleeping during a portion of the
proceedings.  Baldwin argues he was
deprived of his constitutional right to be mentally present during a felony
prosecution.  Citing People v. Berling (1953) 115 Cal.App.2d 255, Baldwin asserts he
“was not conscious for much of his felony trial, therefore he was not present
as constitutionally mandated.”  We
conclude this assertion lacks factual support and further conclude Baldwin has
failed to establish he was prejudiced by his counsel’s alleged failure.

            Initially,
we note that Baldwin was observed sleeping only twice during the
proceedings.  The first time was during
parts of the jury voir dire, and the second was during parts of Rosales’s
examination.  As to Baldwin’s sleeping
during a portion of the voir dire proceedings, it is not reasonably probable that
his failure to remain alert affected the ultimate outcome of his trial.  “Because the use of peremptory challenges is
inherently subjective and intuitive, an appellate record will rarely disclose
reversible incompetence in [the jury selection] process.”  (People
v. Montiel (1993) 5 Cal.4th 877, 911.) 
Moreover, objections and peremptory challenges during the jury selection
process generally involve tactical choices by
counsel.  (See People v. Anderson (2001) 25 Cal.4th 543, 569-570.)  Baldwin directs us to nothing in the record
indicating defense counsel’s performance during voir dire fell below accepted
professional norms.  He also makes no
claim that the composition of the jury would have been different had he not
been “nodding off” during voir dire, much less any claim that a difference in
the makeup of the jury would have altered the verdict it reached.  Absent such a showing, Baldwin cannot
establish prejudice.

            Nor
are we persuaded Baldwin was prejudiced by counsel’s failure to request a
continuance after appellant was seen sleeping during portions of Rosales’s
testimony.  At the end of Rosales’s redirect
examination, the trial court asked whether defense counsel had any further
questions.  Counsel conferred with
Baldwin and told the court he had “[n]othing further.”  Perhaps more important, even after having the
opportunity to review the entire trial record, Baldwin’s appellate counsel does not suggest there were objections trial
counsel failed to make or lines of questioning trial counsel left unexplored.

            Baldwin
argues the jurors may have had an unfavorable impression of him after seeing
him sleep through parts of his trial.  He
speculates they “likely assumed that Baldwin’s act of sleeping reflected a lack
of interest and arrogance.”  Again,
however, he directs us to nothing in the record that would support this claim,
and his speculation is insufficient to prove prejudice.  (People
v. Fairbank, supra, 16 Cal.4th at p. 1241.)

            Baldwin
also claims his counsel’s failure to request additional time deprived him of
the opportunity to achieve a negotiated settlement.  For the reasons set forth in part II, >ante, we reject this argument.  Furthermore, his claim that his attempt to
change his plea during trial shows it is more than reasonably likely he would
have waived trial and pleaded is flatly contradicted by the record.  When Baldwin asked to change his plea after
examination of the first witness had begun, the trial court made clear it was
willing to allow Baldwin “to enter an open
plea to all three counts.”  (Italics
added.)  But after the trial court
indicated it was unwilling to allow Baldwin to remain free on bail, and the
prosecutor informed the court “the People are adamant about requesting remand
at this time,” Baldwin changed his mind and decided not to change his
plea.  Defense counsel later explained
that the issue of Baldwin’s custody status was the likely reason for his
client’s decision not to change his plea.

            Lacking
any evidence in the record that might establish prejudice, Baldwin would have
us hold his claimed inability to be mentally present during trial amounts to
structural error, making it reversible per se. 
Of course, “there is no constitutional prohibition against the trial and
conviction of a defendant who fails to pay attention in court—whether out of
indifference, fear, confusion, boredom, or sleepiness—unless that defendant also
cannot understand the nature of the proceedings against him or adequately
assist counsel in conducting a defense.” 
(Watts v. Singletary (11th
Cir. 1996) 87 F.3d 1282, 1287 [no doubt as to defendant’s competency where
defendant slept through 70 percent of his murder trial].)  Baldwin points to nothing in the record
demonstrating he was unable either to understand the proceedings against him or
to assist in conducting his defense.href="#_ftn3" name="_ftnref3" title="">>[3]

            The
cases upon which Baldwin relies for his claim of structural error are entirely
inapposite, for they involve circumstances in which the defendants were denied
their right under the California Constitution to have the assistance of an
interpreter throughout the proceedings. 
(People v. Aguilar (1984) 35
Cal.3d 785, 791 [defendant denied constitutional right to an interpreter where
same interpreter was not available to assist defendant throughout proceedings];
People v. Chavez (1981) 124
Cal.App.3d 215, 227-228 [defendant denied constitutional right to interpreter
where defense counsel required to
serve as both lawyer and interpreter].) 
Neither of these cases involved a claim of ineffective assistance of
counsel, and neither case considered the question of prejudice.

            Equally
inapposite is United States v.
Gonzalez-Lopez (2006) 548 U.S. 140. 
That case involved a defendant’s right to be represented by the counsel
of his choice.  (See id. at p. 144.)  The
court specifically distinguished a defendant’s right to choose counsel from a defendant’s right to effective assistance of counsel. 
(Id. at
pp. 146-147.)  The latter right is
not violated unless a defendant can establish prejudice.  (Id.
at p. 147 [“a violation of the Sixth Amendment right to >effective representation is not ‘complete’
until the defendant is prejudiced”].)  In
contrast, “[w]here the right to be assisted by counsel of one’s choice is
wrongly denied, . . . it is unnecessary to conduct an ineffectiveness
or prejudice inquiry to establish a Sixth Amendment violation.”  (Id.
at p. 148.)  Here, Baldwin is
claiming only ineffective assistance of counsel, and thus the holding of >United States v. Gonzales-Lopez has no
application.

            As
was true of Baldwin’s claim of ineffective assistance in the plea bargaining
process, Baldwin’s claim of ineffective assistance for failure to request a
continuance fails because he has not demonstrated prejudice.

Disposition

            The
judgment is affirmed.href="#_ftn4"
name="_ftnref4" title="">[4]

 

 

 

 

 

                                                                                                _________________________

                                                                                                Jones,
P.J.

 

 

We concur:

 

_________________________

Needham, J.

 

_________________________

Bruiniers,
J.