P. v. Black

Filed 1/12/09 P. v. Black CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Patrick F. Magers, Judge. Affirmed.

Leslie A. Rose, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Defendant and appellant Harold Dwayne Black appeals after he pleaded guilty to one count of assault by means of force likely to cause great bodily injury (GBI), admitted an allegation that he personally caused GBI to the victim, and admitted several prior prison term allegations. Defendants appointed appellate counsel has filed a brief pursuant to Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], and People v. Wende (1979) 25 Cal.3d 436, raising no specific issues. Defendant has been afforded the opportunity to file a supplemental brief, raising any additional issues, and he has done so. We have also undertaken the required examination of the entire record. For the reasons which follow, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

The victim, Roberto Ortiz, met defendant and his codefendant, Adrian Machichi, at a gas station and convenience store on the evening of August 12, 2006. The circumstances of the encounter were murky, as Ortiz gave several different versions of how the parties met, what they said to one another, and who had done what at the gas station and store. The upshot was that Ortiz entered a van driven by defendant. Defendant drove to a park, where defendant and Machichi beat and stabbed the victim repeatedly. They took money, consisting of several hundred dollars and a money order, from the victims wallet.

The prosecutor initially considered charges of kidnapping for robbery, robbery, assault likely to produce GBI, and simple kidnapping, against defendant and his codefendant. Defendant was eventually charged by information with one count of robbery, and one count of assault by means likely to result in GBI. As to each count, the information alleged that defendant had personally inflicted GBI on the victim. The information further alleged that defendant had suffered six prior prison terms, as well as two prior serious or violent felony prior (strike) convictions.

Jury trial began. In the course of victim Ortizs testimony, it became evident that there were discrepancies in his story concerning whether, for example, he had ever met or seen defendant or the codefendant before, about how much money the victim had in his possession, the exact manner in which the victim got into the van (voluntarily or otherwise), and the purpose of the victims interactions with defendant and Machichi: Ultimately, the victim admitted that Machichi was on the phone at the store, trying to buy drugs for the victim to give to his wifes granddaughter.

At that point in the trial, the court suspended proceedings to appoint counsel for victim Ortiz, because it appeared not only that he had committed multiple acts of perjury before the Court today, but also that he had attempted to buy drugs for a person who was possibly a minor.

According to defendants supplemental letter brief, the prosecutor appeared ready to grant immunity to witness Ortiz. Before trial resumed, therefore, defendant agreed to plead guilty to the assault charge, in exchange for dismissal of the robbery charge and some of the enhancement allegations. Defendant went over the plea agreement form, including the waiver of his rights, with his attorney. He agreed to plead guilty to the assault charge, and admitted the GBI allegation. Defendant further admitted four prison term priors and one strike prior. The court dismissed the robbery count, the two additional prison term priors, and one strike prior in the interests of justice.

Defendant requested immediate sentencing; the court imposed the middle term of four years for the assault, doubled to eight years as a second strike, plus three years for the GBI enhancement allegation, plus one year for each of the four prison term priors, for a total sentence of 15 years.

Defendant filed a notice of appeal, without requesting a certificate of probable cause.

ANALYSIS

I. Standard of Review

When counsel files a brief setting forth a summary of the facts and proceedings, but raises no specific issues, the Court of Appeal must conduct an independent review of the entire record to determine whether it reveals any issues which would, if resolved favorably to the appellant, result in reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3d 436, 441-442.)

Appointed appellate counsel has suggested two possible areas of inquiry: whether defendants plea was constitutionally valid, and whether his trial counsel provided ineffective representation.

Defendant has also personally filed a supplemental letter brief, the contents of which are discussed below.

II. No Ground for Reversal Appears

Defendant, in his supplemental letter brief, points to the curious circumstances surrounding the victims trial testimony, including the trial courts suspension of proceedings and appointment of counsel for the victim, on the basis of the appearance that the victim lied several times in court, and on the basis of his admission of potentially serious criminal activity.

In view of the victims apparent lies, defendant initially believed that his prospects at trial had substantially improved. The next court day, however, defendant heard the court inquire whether the prosecutor intended to offer immunity to the victim, and the prosecutor replied that she did. Defendant expresses confusion as to why a proven liar should be rewarded with immunity. Defendant states that he was then provided only 10 minutes to consider a proposed plea bargain of 15 years. Defendant asserts that he felt pressured under the limited time to consider the plea offer. He did discuss the matter with his family and with counsel, however. Defendant now asserts that he did not have a chance to ask his attorney all the questions he wished to ask. The prospect of a three-strikes life sentence, the prosecutors demeanor, and the trial courts acquiescence in the apparent rewards to the victim (offer of immunity, provision of counsel), made defendant afraid, and he agreed to sign the change-of-plea form. Defendant acknowledges that he went over the form with his attorney.

When both defendant and his codefendant changed their pleas, defendant became upset that his codefendant was sentenced only to five years in prison, while his own sentence was to be 15 years.

Defendant therefore suggests that his trial attorney was incompetent in failing to negotiate a lower prison sentence for him. He also argues that she was incompetent in failing to proceed with the jury trial, in view of the victims apparent falsehoods.

In order to prevail on a claim of ineffective assistance of counsel (IAC), the defendant bears the affirmative burden to show both that counsels conduct fell below an objective standard of reasonableness, and that counsels alleged errors prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694 [104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674]; Peoplev. Pope (1979) 23 Cal.3d 412, 423-424.) Failure on either prong will result in rejection of the claim; we need not consider the question of deficient performance if the claim may be disposed of on the ground of lack of prejudice. (In re Fields (1990) 51 Cal.3d 1063, 1079.)

Here, whatever the alleged deficiencies of defendants trial attorney may have been (and we perceive and concede none), his IAC claim falls with the failure to show prejudice. That the victim may have told lies in court about how much money he had ($860, $800, $360, or $300, whether he had only a $100 bill or must have had some smaller money), or how he had met defendant and the codefendant (having never seen them before, having seen them at the park, having seen them driving around the neighborhood), or his purposes in speaking with them (they accosted him out of the blue, versus the victim asking the codefendant to purchase drugs for him), or how he entered their vehicle (voluntarily or forcibly), did not contradict the essential facts of the offense.

The evidence was uncontroverted that defendant and the codefendant drove the victim to the park. They were videotaped getting into the car. Defendant and Machichi beat and stabbed the victim, though each blamed the other for the stabbing. The victim went to the hospital where his wounds were treated. His blood was found in several places in the park where he was attacked. His money was taken. The holder for his mobile telephone was found in the park. When police interviewed defendant, defendant had admitted involvement in the attack. The victims ancillary criminal conduct, including lying to avoid deportation, or to minimize his involvement in those criminal activities, did not controvert the substance of the offense to which defendant pleaded guilty.

Inasmuch as defendant was facing both robbery and assault charges, plus six prior prison term enhancements, as well as two prior qualifying strike convictions, he was at risk for two third-strike felony convictions. He was able to plead to only one new felony conviction, only four prior prison term enhancements, and only as a second-striker rather than as a third-striker. That defendant was afraid when he was presented with a plea offer demonstrates no more than a realistic assessment of his full exposure at trial. Fear of a longer sentence as motivation for a plea of guilty is not [a] valid ground for later withdrawal of that plea. (People v. Hunt (1985) 174 Cal.App.3d 95, 105, citing People v. Powers (1984) 151 Cal.App.3d 905, 917.)

Although defendant, in his letter brief, asserts that he had questions and he did not understand the plea proceedings, his claims are belied by the record, as well as his own words. The things defendant claims he did not understandwhy his codefendant received a lighter sentence, why the perjurious victim was proffered immunitydid not go to the issues fundamental to the plea: defendants understanding of his own constitutional rights, the consequences of his plea, and the voluntariness of his decision to plead guilty. Lay persons may not understand that witnesses in a criminal case may not be savory characters themselves, and may not understand that such witnesses may be offered immunity from criminal prosecution in order to obtain their testimony. Lay persons may not understand that different defendants may have different personal circumstances, such as prior felony convictions, which affect the overall sentence. Nevertheless, these failures of understanding do not affect the voluntariness, or otherwise, of a defendants decision to plead guilty.

Defendant stated orally on the record that he understood his constitutional rights and the consequences of his plea. He stated that he was not coerced into pleading guilty. He stated that he had had the opportunity to consult with counsel and that he had no further questions. Defendants plea satisfied constitutional standards. (Boykin v. Alabama (1969) 395 U.S. 238 [89 S.Ct. 1709, 23 L.Ed.2d 274]; In re Tahl (1969) 1 Cal.3d 122.)

In addition, defendant has not shown either that his trial counsels performance was defective in recommending the plea bargain, or that defendant was prejudiced thereby. (Strickland v. Washington, supra, 466 U.S. 668, 688, 694 [104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674]; Peoplev. Pope, supra, 23 Cal.3d 412, 423-424.)

Finally, we have reviewed the entire record in the matter, and have discovered no arguable issues requiring further discussion, or reversal of the judgment.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Ramirez

P.J.

/s/ King

J.

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