Filed 1/5/18 P. v.Ayala CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JAIME AYALA,

Defendant and Appellant.
H044431
(Monterey County
Super. Ct. No. SS151981)


In re JAIME AYALA,

on Habeas Corpus.

H045079

Defendant Jaime Ayala was convicted by a jury of several charges arising out of an incident in which he refused to pull over for police officers and led them on a high speed chase, sometimes on the wrong side of the road, on surface streets and on Highway 1. The pursuit continued into a residential area of Seaside where Ayala hit several parked vehicles before his own was finally disabled. When Ayala resisted being placed under arrest, he was Tasered and even bitten by a police dog before he was finally subdued. Ayala was sentenced to a total term of 12 years, eight months in prison and the trial court imposed various fines and fees, detailed below.
We appointed counsel to represent Ayala in this court. Appointed counsel filed an opening brief which states the case and the facts, but raises no specific issues. We notified Ayala of his right to submit written argument in his own behalf within 30 days. In response, Ayala filed a letter brief arguing that video footage, whether from police body cameras or dashboard cameras, of his arrest would show not only that he did not resist arrest but that the arresting officers employed excessive force in arresting him.
Concurrent with his brief on appeal, Ayala has filed a petition for writ of habeas corpus, which we have ordered considered with the appeal. In his writ petition, Ayala contends that he was deprived of effective assistance of counsel when his attorney failed to introduce available evidence at trial that he did not willfully fail to appear in court on December 5, 2016, and, had that evidence been presented, the jury would likely not have convicted him on one count of failure to appear. For the reasons expressed herein, we deny the petition.
I. FACTUAL AND PROCEDURAL BACKGROUND
At 1:00 a.m. on November 22, 2015, police officers observed a gold Honda going approximately 60 to 70 miles per hour in a posted 45-mile-per-hour zone in Marina, California, headed towards Salinas. Officers activated their revolving lights and sirens, but the Honda did not stop. The Honda drove the wrong way on the road for several hundred yards and ran a red light before entering a parking lot. The Honda made a U turn, then began driving southbound in the northbound lane of traffic directly toward the pursuing officers, who swerved to avoid a collision.
The pursuit continued with the Honda reaching speeds of up to 80 to 90 miles per hour before it entered Highway 1, colliding with a barrier wall in the process. An officer unsuccessfully attempted to immobilize the Honda using a PIT (Pursuit Intervention Technique) maneuver, in which the officer pushed his front fender to the Honda’s rear side quarter panel.
On the highway, the Honda accelerated and officers testified their pursuit speed reached 120 miles per hour, with the Honda matching or exceeding that speed. The Honda took an exit into a residential area of Seaside. Once on surface streets, the Honda ran stop signs and hit several parked vehicles before a second PIT maneuver caused it to crash into a parked utility truck and come to a stop.
Ayala, the sole occupant, climbed out the rear passenger window of the Honda, onto the hood of the white truck. Ayala did not heed officers’ commands to stop and show his hands, so an officer shot him with his Taser. Ayala got to the sidewalk and continued to run, so the officer pulled the trigger on his Taser again, electrifying the prongs for an additional five seconds.
Another officer and his police dog were also on the scene and that officer directed his dog to bite Ayala. The dog bit Ayala’s forearm and took him to the ground. As he was on the ground, an officer saw Ayala raising his leg and, believing Ayala was about to kick another officer, punched Ayala in the head. Ayala was photographed on his arrival at the medical center before he was booked into jail and the photographs show he had blood coming from his nose, along with some bruising to his face and head, and other marks from the Taser and the dog bite.
Only one of the officers’ vehicles had a dash camera, but that unit was either not functioning or not recording. No officers had body cameras so there was no video of the pursuit or the arrest.
Following his arrest, Ayala waived his Miranda rights and told the interviewing officer that he “should have just pulled over.”
Ayala testified in his own defense and said that on the night of the pursuit, he first noticed a car tailgating him but did not see overhead lights. Once those lights were activated, he did not pull over because he was on parole. In the past, police have harassed him or put drugs in his car to create a parole violation. Because it was late at night in an isolated area, he wanted to get back to his brother’s house in Seaside so there would be witnesses to his interaction with police.
Ayala admitted he was speeding while trying to get to a safe place, but only 80 miles per hour, not 120. He did not drive at the officers on the wrong side of the road, and did not recall running any red lights.
After his car crashed into the utility truck, he crawled out and was immediately Tasered by an officer. He was not told to stop or put up his hands. Ayala said he was Tasered more than four times, and as he lay on the ground, an officer lifted him by his shirt and punched him three times in the face.
There was no testimony regarding Ayala’s failures to appear in court, but the prosecution introduced the relevant minute orders reflecting Ayala’s failures to appear as ordered on both January 13, 2016 (count 3) and December 5, 2016 (count 4), along with the bond documents showing that Ayala had posted bail and was out of custody on both occasions. The exhibits were addressed by the prosecution during final argument. In response, defense counsel argued that the prosecution had failed to meet its burden of proof that Ayala intended to evade court process when he did not appear in court on December 5, 2016, essentially conceding Ayala’s guilt on count 3.
Ayala was charged with one felony count of evading a peace officer while driving against traffic (Veh. Code, § 2800.4, count 1), one count of evading a peace officer with reckless driving (id., § 2800.2, subd. (a), count 2), two felony counts of failure to appear while on bail (Pen. Code, § 1320.5, counts 3 & 4), one misdemeanor count of hit and run involving property damage (Veh. Code, § 20002, subd. (a), count 5) and one misdemeanor count of resisting an officer (Pen. Code, § 148, subd. (a)(1), count 6). Prior to the jury being selected, Ayala admitted a prior strike conviction along with three prison prior convictions. (Id., §§ 667, subd. (d), 1192.7, subd. (c), 667.5, subd. (b).)
Following the close of evidence, the jury found him guilty on counts 1, 2, 3, 4 and 6, but not guilty on count 5. In a bifurcated proceeding, the trial court found true the allegation that Ayala was on bail when he committed counts 3 and 4. (Pen. Code, § 12022.1, subd. (b).)
The trial court imposed a six-year sentence on count 1, consisting of the upper term of three years, doubled due to the prior strike. On counts 3 and 4, the trial court imposed two further consecutive 16 month sentences (one third the middle term of two years, doubled due to the strike prior), plus one year each for his two prison priors and two years for the out-on-bail enhancement. On count 6, the trial court imposed a concurrent one year sentence to be served in any penal institution and stayed sentencing on count 2 under Penal Code section 654. Ayala’s aggregate sentence was thus 12 years, eight months, with a total of 204 days of credit (102 days of custody credits plus 102 conduct credits). The trial court imposed a $10,000 restitution fine (Pen. Code, § 1202.4, subd. (b)), along with an additional $10,000 restitution fine imposed but suspended pursuant to Penal Code section 1202.45. Additional fines and fees were imposed, including a $200 court operations assessment (Pen. Code, § 1465.8, subd. (a)(1)), a $150 court facilities assessment (Gov. Code, § 70373), and an $8 emergency air medical transportation fee (Gov. Code, 76000.10, subd. (c)(1)).
II. DISCUSSION
A. Appeal
In his letter brief, Ayala argues that his conviction for resisting arrest is based on “speculation” as there was no video footage of the pursuit and his arrest. He asks that “the court . . . look into the dash cam/video tape footage on this matter.” Given that it is apparently undisputed that no such footage exists, we review Ayala’s claim as a sufficiency of the evidence challenge to his conviction.
When faced with an appeal based on a claim of insufficient evidence, we must “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) In so doing, we “ ‘presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ ” (Id. at p. 576.) If we find substantial evidence, we will affirm the verdict.
Although Ayala’s testimony about the pursuit and his arrest differed substantially from that offered by the various officers who testified, it was the jury’s responsibility to decide which version it found more credible. The officers’ testimony constituted substantial evidence such that a reasonable finder of fact could have determined that Ayala was guilty of the charges brought against him.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the whole record and have concluded there is no arguable issue on appeal.
B. Petition for writ of habeas corpus
Ayala’s petition argues that his trial counsel was constitutionally ineffective for failing to present evidence that he did not have the necessary specific intent to evade court process when he failed to appear for court on December 5, 2016. Rather, as trial counsel was aware, Ayala was just over an hour late to court because he had to take his daughter to school that morning and his bus was late. He immediately went to the court clerk’s office to have his matter restored to the calendar and further addressed the issue with the bail bond company.
It is the petitioner’s burden on application for habeas corpus to state fully and with particularity the facts on which relief is sought and to include copies of reasonably available documentary evidence supporting the claim. (People v. Duvall (1995) 9 Cal.4th 464, 474.) Here, Ayala offers two declarations along with relevant minute orders and documents from the bail bond company in support of his petition: (1) habeas counsel’s declaration authenticating documentary exhibits and recounting a telephone conversation with trial counsel regarding his failure to introduce exculpatory evidence in relation to the failure to appear on December 5, 2016; and (2) Ayala’s declaration stating why he was late for court on December 5, 2016 and the steps he took to restore his case to the calendar and reinstate his bond. Ayala argues this evidence would have contradicted the specific intent element of the offense of failure to appear. Since trial counsel is obligated to present the strongest possible defense, his failure to present evidence as to why Ayala was late for court constituted ineffective assistance of counsel. Because trial counsel raised his exculpatory evidence both in a preliminary hearing and at Ayala’s sentencing hearing, there was no reasonable basis for him not to raise it at trial. We disagree.
Criminal defendants are constitutionally entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) California courts have defined effective assistance as “ ‘the reasonably competent assistance of an attorney acting as [the defendant’s] diligent conscientious advocate.’ ” (Ibid.)
The standard of review for an ineffective assistance of counsel claim is well settled. “To prevail on a claim of ineffective assistance of counsel, a defendant ‘ “must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice.” ’ [Citation.] A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. (Strickland v. Washington (1984) 466 U.S. 668, 689.) Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts. (Id. at p. 690.) To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Moreover, prejudice must be affirmatively proved; the record must demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ (Strickland v. Washington, supra, 466 U.S. at p. 694.)” (People v. Maury (2003) 30 Cal.4th 342, 389.)
The appellate record before us does not expressly reveal why trial counsel failed to present exculpatory evidence relating to the charge of failing to appear on December 5, 2016. We thus turn to the evidence provided with the habeas corpus petition. (People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267 [ineffective assistance of counsel claim is more appropriately decided in habeas corpus proceeding when appellate record sheds no light on the challenged act or omission].)
Ayala’s declaration states he was late to court on December 5 because he took his daughter to school, but then the bus he intended to take to court did not show up. When he arrived at court just before 10:00 a.m., he went to the clerk’s office and followed the instructions to get his case back on calendar. He also informed his bail bond company that he was late and that the court had issued a bench warrant. After providing the letter from the bail bond company to the court, along with a $50 payment, he obtained a new court date. Ayala informed his attorney about why he was late, but his attorney never discussed having Ayala testify about this at trial.
Trial counsel did not submit a declaration, but habeas counsel describes her telephone conversation with him, as follows: “I telephoned trial counsel, Mr. Michael Belter . . . to ask him why he did not introduce available evidence that Mr. Ayala did not intend to be late, did appear in court by 9:49 a.m., made immediate efforts to put his case back on calendar, appeared on the date he was given, and argue to the jury that he was not intending to avoid the process of the court when he failed to appear on December 5, 2016. Trial counsel’s response was that he was really focused on the other counts, and could not articulate a specific reason for not introducing this evidence.”
It is important to remember that Ayala was facing two counts of failure to appear. In count 3, he was charged with failing to appear in court on January 13, 2016 and in count 4, he was charged with failing to appear on December 5, 2016. Instead of introducing exculpatory evidence relating to Ayala’s December 5, 2016 failure to appear, trial counsel attempted to convince the jury that the prosecution had failed to meet its burden of proof on count 4. In making this argument, trial counsel essentially conceded that Ayala was guilty of failing to appear as charged in count 3, telling the jury, “[c]ircumstantially . . . when you’re told to be in court and then you don’t show up in court for four months, one could infer or based on a reasonable interpretation of the circumstantial evidence that that was an intent to evade the court.” Counsel then immediately said, “You don’t have a similar type of evidence with respect to Count 4 and that’s the failure to appear on December 5th, 2016. [¶] . . . [Y]ou’re going along and then all of a sudden the evidence drops off. [Ayala] wasn’t in court on the 5th and therefore the prosecution is saying that . . . he acted with intent to actually evade the court process. [¶] The burden of proof is on the prosecution.”
It is a well-recognized strategy to concede guilt on one charge in an effort to build goodwill with the jury and concentrate on other charges. (People v. Gurule (2002) 28 Cal.4th 557, 612.) The California Supreme Court has rejected ineffective assistance of counsel claims in similar cases, holding that partial concessions of culpability may be a legitimate tactical choice by defense counsel where the incriminating evidence is strong. (See People v. Hart (1999) 20 Cal.4th 546, 631; People v. Bolin (1998) 18 Cal.4th 297, 334-335; People v. McPeters (1992) 2 Cal.4th 1148, 1186-1187.)
Here, Ayala’s counsel, faced with trying to defend two failure to appear charges, reasonably decided to concede that the prosecution met its burden of proof on count 3 in an attempt to persuade the jury that the prosecution did not meet its burden on count 4. Although the jury did not agree with counsel, this does not mean that trial counsel’s tactical decision was not reasonable.
We also find that Ayala’s ineffective assistance of counsel claim fails based on an inability to establish prejudice. Ayala cannot affirmatively “demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” (People v. Maury, supra, 30 Cal.4th at p. 389, quoting Strickland v. Washington, supra, 466 U.S. at p. 694.)
We are not persuaded that the jury would have found in Ayala’s favor—by at least a reasonable probability—if trial counsel had presented evidence of Ayala’s excuse for not appearing in court on December 5, 2016. We do not find the evidence presented here to be sufficiently compelling in light of the fact that the jury obviously did not find Ayala to be a particularly credible witness. The jury convicted him of every other charge, with the exception of count 5, obviously discounting his self-serving testimony regarding the pursuit and his eventual arrest. We conclude that the failure to ask Ayala about why he did not appear in court on December 5, 2016, was not “ ‘sufficient to undermine confidence in’ ” the jury’s verdict on that charge. (People v. Maury, supra, 30 Cal.4th at p. 389; Strickland v. Washington, supra, 466 U.S. at p. 694.)
III. DISPOSITION
The judgment is affirmed.
The petition for writ of habeas corpus is denied.






Premo, J.





WE CONCUR:






Elia, Acting P.J.








Grover, J.