In re Carlos L.
Filed 9/16/13 In re Carlos L. CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re CARLOS L., a Person
Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
CARLOS L.,
Defendant and Appellant.
D063267
(Super. Ct.
No. J230624)
APPEAL from
a judgment of the Superior Court
of
County, Richard R. Monroy, Judge. Affirmed.
Cynthia M.
Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, Steven T. Oetting and Michael T.
Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
This appeal
arises from a dispositional order
after Carlos L. (the Minor) admitted having committed an attempted murder for
the benefit of a street gang. In his
admission of attempted murder, the Minor accepted as a factual basis that he
aided and abetted the commission of the offense. The probation officer's report for the
dispositional hearing noted witness statements that claimed the Minor was the
person with the gun and the one who fired a shot at a rival gang member. The juvenile court considered that
information together with other data in the probation officer's report and
ordered the Minor be committed to the Department of Juvenile Justice
(DJJ). The Minor appeals contending the
court erred in considering the witness statements in the probation officer's
report, and that his trial counsel was ineffective for failing to object to
such statements. The Minor has also
filed a companion petition for writ of habeas corpus (In re
Carlos L., D064067) repeating his allegations that trial counsel was
ineffective.
We will
find no error by the court or the prosecution in referring to the witness
statements which identified the Minor as the person who used the firearm. We will also find the Minor has failed to
establish ineffective assistance by trial counsel. Accordingly, we will affirm the judgment. We will deny the petition for writ of habeas
corpus by separate order.
Before we
begin the discussion of the issues raised in this appeal, we pause to note what
is not at issue. The Minor does not
challenge his admission of the offense and the gang enhancement. Nor does the Minor challenge the juvenile
court's exercise of discretion in rejecting his request for placement in a
residential treatment facility and instead choosing to commit him to DJJ. With those limitations in mind, we will omit a
statement of facts of the underlying offense since it is not necessary for the
discussion of the issues on appeal.
PROCEDURAL
BACKGROUND
The Minor
was charged by petition filed in juvenile court with one count of attempted
murder (Pen. Code,
title="">[1]
§§ 664 & 187) and two counts of assault with a firearm (§ 245,
subd. (a)(2)). It was also alleged the
offenses were committed for the benefit of a street gang (§ 186.22, subd.
(b)(1)); that the attempted murder was premeditated (§ 189); and that the
Minor personally discharged a firearm (§§ 12022.5, subd. (a)(1) &
12202.53, subd. (c)).
The Minor
was on probation at the time of the offenses in this case.
The Minor
reached a negotiated settlement under the terms of which he admitted the
commission of the attempted murder and admitted the offense was committed for
the benefit of a criminal street gang.
The prosecution dismissed the remaining charges and allegations and
stipulated that the Minor was suitable for treatment as a juvenile. The dismissal of the remaining charges and
allegations was accompanied by a Harvey
waiver by the Minor.
At the
dispositional hearing the court set the maximum term for the offense at
19 years 8 months. At the
conclusion of the hearing the Minor was committed to DJJ.
DISCUSSION
I
The Minor
contends the court erred in considering "evidence" from the probation
officer's report. Specifically, the
Minor complains that the prosecution referred to witness statements contained
in the report that identified the Minor as the member of the gang who possessed
the firearm and as the person who fired the shot at the victim. The Minor contends that since the factual
basis, which was accepted for his admission was that he aided and abetted the
shooting, considered witness statements identifying him as the
"shooter" violated his plea agreement in some manner.
At the
outset we note several points. First,
there is no agreement expressed in this record that guaranteed, or even hinted
that a disposition excluding a DJJ commitment would occur. Further, the Minor's admission of the
attempted murder offense, even as an aider and abettor, still made him a
principal in that offense. (§ 31.)
A. Background
The Minor
negotiated an agreement under which he admitted the offense of attempted murder
as an aider and abettor and admitted the gang allegation. In return the prosecution stipulated the
Minor was suitable for treatment as a juvenile and dismissed the remaining
counts and allegations with a Harvey
waiver.
The social
study submitted by the probation officer for the
reports which contained statements from the parents of the victim, rival gang
members, that identified the Minor as the person who possessed the gun and
fired the shot at the victim, striking the victim's mother. The probation officer recommended that given
the Minor's gang affiliation, substance abuse, poor performance on probation
and his need for the appropriate level of services, that the court should
commit the Minor to DJJ and not to a residential treatment facility.
During the
disposition hearing the juvenile court said:
"I do think that the recommendation from probation
for DJJ is appropriate, given the offense that's in front of me, the
information that I have, and the fact that I am considering, as well as the
agreement with the People, which was a very beneficial agreement for Carlos to
limit his exposure in the manner that he did.
And as such, I think that the recommendation presented by probation, and
argued for by the People, is the appropriate one, and I will be following
it."
The Minor's
counsel did not object to the court's consideration of witness statements in
the social study, nor did counsel move to strike such statements and did not
object to the prosecutor's comments.
Thus the issue now raised was never presented to the trial court.
B. Legal Principles
It appears
that Minor's appellate counsel contends the factual statement given as part of
the admission constitutes some form of plea agreement. It is difficult to discern the nature of the
plea agreement here, other than agreement to admit attempted murder with the
gang enhancement, stipulate to juvenile status and dismiss the balance of the
petition with a Harvey waiver. Beyond that, we find no direct or implied
agreement on disposition contained in the record. However, we will briefly review applicable
principles regarding plea agreements.
It is
possible for a plea agreement to set
forth limitations on the court's sentencing power. (§ 1192.5; People v. Cruz (1988) 44 Cal.3d 1247, 1249.) The factual basis for a plea is required to
allow the trial court to satisfy itself that the offender understands the
offense to which the plea is entered and to assist in the determination of
voluntariness. (People v. French (2008) 43 Cal.4th 36, 50; In re Jermaine B. (1999) 69 Cal.App.4th 634, 640.)
Where a
plea agreement is based on promises from the prosecution or the court, those
promises must be honored. (
257, 262.) Where the plea agreement
includes the so-called "Harvey
waiver," the sentencing court may consider the dismissed counts and
allegations in determining the appropriate sentence for the offense(s)
admitted. Failure to object to an
alleged violation of the principles of People
v. Harvey, supra, 25
Cal.3d 754, will result in forfeiture of that issue. (People
v. Beagle (2004) 125 Cal.App.4th 415, 420.)
C. Analysis
As we have
noted it is a bit difficult to discern the precise error at issue in this
case. Clearly the Minor complains about
the reference to witnesses who describe him as the shooter in this case. Somehow, the court's consideration of the
social study and the facts surrounding the events, has been characterized as a
violation of a plea agreement. The
difficulty with such contention, however, is there simply was no agreement
regarding disposition, except to the extent charges and allegations were dismissed
and the Minor would be treated as a juvenile, all of which were of great
benefit to the Minor. Otherwise, neither
the court nor the prosecution made any direct or implied concessions as to the
ultimate disposition of the case.
Apparently, appellate counsel is of the view that the reference to
witness statements somehow changed an agreed upon disposition, but there is no
support for that position in the record.
In any
event, the court was clearly entitled to consider the facts surrounding the
offense. And, as we have noted, the
Minor admitted the offense of attempted murder as a principal, whether the
given factual basis was as a perpetrator or aider and abettor. Further, the probation officer independently
recommended DJJ commitment for the Minor for numerous reasons, in addition to
the manner of the commission of the offense.
In short,
the record does not support the claim of breach of some form of agreement
regarding disposition that might have been based on the difference between the
factual statement and the statements of witnesses that were contained in the
social study.
II
The Minor
contends trial counsel was ineffective for failing to object to the witness
statements contained in the social study and for failing to have such
statements removed. At the outset, we
note appellate counsel has not cited any authority for the proposition that
trial counsel could have successfully challenged factually accurate information
in the social study. Indeed, there has
never been any contention that the witness statements reported were
inaccurate. Instead, appellate counsel
merely asserts that any statements contrary to the factual basis of the Minor's
admission must be stricken.
Understandably, no authority has been cited for such position, because
it has no basis in law or logic.
A. Legal Principles
When a
defendant contends trial counsel has been ineffective, such defendant bears the
burden of showing that trial counsel's performance fell below the prevailing
standard of care, and that but for such error, it is reasonably probable there
would have been a different outcome for the defendant. (Strickland
v. Washington (1984) 466 U.S. 668, 694 (Strickland);
Cal.4th 715, 729.)
Where there
is no explanation for trial counsel's action, or inaction, we will not assume
error unless there can be no reasonable explanation for such action. (People
v. Camino (2010) 188 Cal.App.4th 1359, 1377.) Under the Strickland
standard we give deference to trial counsel's tactical decisions, unless such
decisions are clearly in error, or there can be no sound reason for counsel's
tactical choice.
In a
juvenile case the probation officer must submit a social study prior to the
disposition hearing, which study must discuss the minor's criminal history and
the circumstances and gravity of the offense among other issues. (Welf. & Inst. Code, §§ 706 &
725.5.)
B. Analysis
This record does not contain any information from which
we could infer ineffective assistance of trial counsel. On the contrary, counsel negotiated a very
favorable outcome for the Minor, given his history and the very serious nature
of his criminal conduct. Not only did
counsel get serious charges and allegations dismissed, but she also was able to
keep the Minor out of adult court.
Trial
counsel also conducted a vigorous effort to avoid a DJJ commitment for the
Minor. She argued strongly for a
client. That counsel was not able to
persuade the trial court to ignore the probation officer's recommendation does
not demonstrate ineffective assistance.
Rather, given the client's history and current offense the trial court
reasonably rejected counsel's proposal.
We also note appellate counsel has not challenged the trial court's
decision on the merits. The only
challenge made to the choice of a DJJ commitment is based on the specious claim
that the court could not consider anything that contradicts the factual basis
for the Minor's admission. As we have
already stated, there is no legal support for appellate counsel's argument in
this regard.
Accordingly,
we find the Minor has not met his burden on either prong of the
has not shown trial counsel was ineffective in any regard.
DISPOSITION
The
judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL,
P. J.
BENKE,
J.
name="_ftn1" title="">[1] All further statutory references are to the Penal Code
unless otherwise specified.
name="_ftn2" title="">[2] People v. Harvey
(1979) 25 Cal.3d 754, 758.
