P. v. Giles

 

 

 

 

 

 

 

 

 

Filed 10/7/13  P. v. Giles CA2/7

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 

SECOND
APPELLATE DISTRICT

 

DIVISION
SEVEN

 

 
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THE PEOPLE,               Plaintiff and Respondent,               v.   ROBERT THOMAS GILES,               Defendant and Appellant.

B244724         (Los Angeles County       Super. Ct. No. PA073718)

 

 

                        APPEAL
from a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.  

Dalila C. Lyons, Judge. 
Affirmed.

 

                        Armand
Tinkerian, under appointment by the Court of Appeal, for Defendant and
Appellant.

           

                        Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Eric E. Reynolds
and Ana R. Durate, Deputy Attorneys General, for Plaintiff and Respondent.

 

____________________________________

 

Appellant Robert Thomas
Giles appeals from the judgment upon his conviction for grand theft after he
pled no contest to the charge.  Appellant
argues that he did not receive effective assistance of counsel during the
negotiation phase of his plea deal.  More
specifically, appellant contends that his counsel: (1) failed to challenge the
sufficiency of the charges; (2) failed to present evidence that could have
mitigated his sentence and could have possibly resulted in a reduction of the
charges against him; (3) did not file a written discovery motion; and (4) failed
to file a motion to exclude appellant’s incriminating statement to police.  As we shall explain, there is no evidence in
the record on appeal as to why counsel acted (or failed to act) in the manner
which appellant complains about on appeal. 
Appellant has thus failed to carry his burden to prove ineffectiveness
of his trial counsel.  Accordingly, we
affirm the judgment.

FACTS AND PROCEDURAL HISTORY

            The Crime.

In 2012 appellant was arrested for theft of copper
wire from the Los Angeles Department of Water and Power (DWP) and damage to DWP
power lines located near San Francisquito Road.  DWP estimated that the total value of damage
to the power lines, on the low end, was approximately $687,700 – $354,000 for
labor and equipment to repair all the damage; $182,400 to replace the copper
wire; $6,800 to replace the insulators; and $13,000 for megawatt hours lost due
to relays on the circuit.  >

            The Charges and
Appellant’s Plea.

Appellant was charged with grand theft of personal
property in violation of Penal Code section 487, subdivision (a) in count (1),
vandalism causing damaging over $400 in violation of Penal Code section 594,
subdivision (a) in count (2), and cutting a utility line in violation of Penal
Code section 591, in count 3. 

Prior to the preliminary
hearing the prosecutor made a plea offer to appellant for a five-year term
(to the charge in count 1) with victim restitution to be determined based on
the evidence – at that point it appeared that it would be close to $1 million
dollars.  Appellant’s counsel
communicated the offer to appellant, who stated that he would plead to a term
of three years with no restitution.  Appellant’s
counter offer was presented to the prosecution at the beginning of the
preliminary hearing, but was not accepted.   


At the preliminary hearing, appellant’s counsel made a
motion to suppress appellant’s incriminating statements during his interview
with Detective Marino as violating his rights under Miranda v. Arizona (1966) 384 U.S. 436.  Counsel argued that appellant invoked his
right to counsel while making his incriminating statements to the Detective,
and thus the statements should be suppressed. 
The court denied the motion finding that appellant’s invocation of right
to counsel was made after his incriminating statements, and therefore the
admission of his statement would not violate Miranda.  

At the end of the preliminary hearing, the court
denied appellant’s motion to dismiss, finding there was “sufficient cause to believe
the following defendant guilty thereof, to wit, Robert Thomas Giles, count one,
violation of Penal Code section 487 subsection (a) . . . [and] held to answer
on the Penal Code section 12022.6(a)(2) . . . as to count two, violation of
594(a) and also special allegation Penal Code section 12022.6(a); also count
three, violation of 591, and also special allegation of 12022.6 (a)(2) . . .
.” 

At a hearing on September 5,
2012,
the prosecutor offered another plea deal to appellant, which the parties discussed
in court.  Appellant was offered five
years: consisting of a guilty plea to count 1 for a high term of three years,
plus two years (one year each) for admitting two of the prison term
enhancements, and a $60,000 cap on victim restitution.  The prosecutor offered to dismiss the
remaining charges and allegations.  This
offer would be five years with 50 percent time and local custody time, and
would be served in county jail as opposed to href="http://www.mcmillanlaw.com/">state prison.  The prosecutor also noted in the present case
his maximum exposure was approximately 12 years in state prison.   

Appellant’s counsel indicated that appellant might not
accept the offer.  The court stated that
it believed that given the possible sentence, it was a good offer.  Appellant’s counsel pointed out that he had
made two counter offers to the People which had been rejected: (1) “waive back
time, and one-year residential live-in program” and (2) the plea to count 1 for
three years in state prison.  Appellant’s
counsel pointed out that although appellant had an extensive criminal record,
his priors were not serious nor involved a history of violence, and that his
prior criminal conduct was related to his “drug use.”  Counsel argued that appellant would benefit
from some type of residential drug treatment program.   

The court asked appellant if he wanted to speak to his
attorney more about the bargain, so that he would understand the consequences
of not accepting the plea offer.  The
court reminded appellant of his criminal history and his possible maximum 12
year sentence if he were to go to trial and be convicted.  Appellant asked if it would be possible for
the term to go down to four years, but the prosecutor said based on appellant’s
extensive criminal history the offer was five years.

The court again asked appellant if he wanted to speak
to his attorney to make sure that he understood the matter and had sufficient
time to speak with him about the consequences and benefits of accepting the
plea.  The court continued the
proceedings so that appellant could consult with his attorney.  

When the proceedings resumed, appellant’s counsel
indicted that appellant was willing to accept the prosecution’s offer.  Counsel expressed a concern about whether
appellant’s admission to prison priors might make him ineligible to serve his
time in a local facility.  Counsel stated
that if he were sent to state prison he would withdraw his agreement to the
plea.  The court and the prosecutor
agreed that it appeared that none of the priors excluded appellant from serving
his time in county jail.  The court then
asked appellant if he understood the terms of the agreement, and if he had
sufficient time to speak to counsel about the case, and the terms of the
agreement.  Appellant responded
affirmatively, and proceeded to plead no contest to the grand theft count, and
sign a felony advisement of rights, waiver and plea forms.   

Appellant filed a timely href="http://www.fearnotlaw.com/">notice of appeal and sought a certificate
of probable cause, which was granted by the trial court. 

DISCUSSION

In this court appellant asserts that the judgment
should be reversed because he received ineffective assistance of counsel.  Appellant argues that counsel was ineffective
during the plea negotiations.  

I.      
>Appellant Failed to Establish Ineffectiveness of Counsel by
Evidence Demonstrated In the Record.

 

Both the Sixth Amendment of
the United States Constitution and Article I, Section 15, of the California
Constitution guarantee the right of a criminal defendant to the assistance of
counsel.  (People v. Ledesma (1987) 43 Cal.App.3d 171, 215.)  These rights grant a defendant effective
assistance rather than bare assistance. 
(Ibid.)  

“Where a defendant has been denied the effective
assistance of counsel in entering a plea of guilty, he is entitled to reversal
and an opportunity to withdraw his plea if he so desires.”  (People
v. Hunt (1985) 174 Cal.App.3d 95, 104.) 
A defendant’s guilty plea must be based upon his “full awareness of the
relevant circumstances and the likely consequences of his action” to be
valid.  (Ibid.) 

To prove counsel is ineffective, appellant must first
show that counsel’s performance fell below an objective level of
reasonableness.  (Strickland v. Washington (1984) 466 U.S. 668, 686-687.)  In a criminal case, this requires counsel’s
“diligence and active participation in the full and effective preparation of
his client’s case.  (People v. Pope (1979) 23 Cal.3d 412, 424-425 (Pope).)  This includes the
“duty to investigate carefully all defenses of fact and of law that may be
available to the defendant . . . .”  (>Ibid. quoting In re Williams (1969) 1 Cal.3d 168, 175.) 

            Second, appellant must show that the
deficient performance by counsel prejudiced the defense.  To prove prejudice, it must be shown that
“there is a reasonable probability that but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”  (Hill
v. Lockhart (1985) 474 U.S. 52, 57 quoting Strickland, 466 U.S. at p. 694.) 
In order to demonstrate prejudice stemming from inadequate
representation in advising a defendant to enter a plea, the defendant must
establish a reasonable probability that but for the improper advice, he or she
would not have pled guilty.  (>In re Resendiz (2001) 25 Cal.4th 230,
253) or that he could have negotiated a more favorable plea deal.  (People
v. Martinez (2013) ___ Cal.4th ___, ___ (2013 WL 4829206, p. 5) [“[B]ecause
the test for prejudice considers what the defendant would have done, not what
the effect of that decision would have been, a court . . . may not deny relief
simply by finding it not reasonably probable the defendant by rejecting the
plea would have obtained a more favorable outcome”].)  This occurs when “counsel’s acts or omissions adversely affect defendant’s ability
to knowingly, intelligently and voluntarily decide to enter a plea of guilty.”  (People v. Hunt, supra, 174 Cal.App.3d at p. 105.)  Therefore, “[i]f counsel’s acts or omissions appear to result
in defendant’s entering a plea under the influence of ‘mistake, ignorance or
inadvertence or any other factor overreaching defendant’s free and clear
judgment’ which would justify withdrawal of his plea, he was ineffectively
represented by counsel.”  (>Ibid. quoting People v. McCary (1985) 166 Cal.App.3d 1, 10.) 

Appellant has the burden of proving inadequate trial
assistance.  (Pope, supra, 23 Cal.3d at
p. 425.)  Moreover, “unless a defendant
makes both showings, it cannot be said that the conviction or death sentence resulted
from a breakdown in the adversary process that renders the result
unreliable.”  (Ibid.)

Appellant claims he did not receive effective
assistance of trial counsel.  Appellant
claims instances of his trial counsel’s ineffectiveness include: (1) failure to
present mitigating evidence, including appellant’s status as a veteran, which
would have made him eligible for alternative sentencing or residential
treatment; (2) failure to challenge the evidence supporting the charge of grand
theft and failure to argue that he should have been charged with a lesser
offense; (3) failure to file a formal discovery motion; and (4) failure to file
a motion to exclude appellant’s incriminating statements to police. 

            The record before this court on
appeal does not demonstrate why appellant’s trial counsel did not take the
complained of actions.

When an appellant seeks to establish a claim of
ineffectiveness of counsel on matters not disclosed by the record on appeal, a
petition for writ of habeas corpus is the appropriate procedure.  (People
v. Pope, supra, 23 Cal.3d at p. 426, fn. 17, see also Ledesma, supra, 43 Cal.App.3d at pp. 218-219 [holding that although
the record raised serious doubts about counsel’s competence, it was not
sufficient to demonstrate ineffective assistance, however, a consolidated
habeas corpus petition did reveal inadequate performance.])  A petition for habeas
corpus extends far beyond the record on appeal, while an appeal is limited to
the four corners of the underlying record. 
(People v. Waidla (2000) 22
Cal.4th 690, 749, fn. 1.)  In habeas
proceedings the defendant has an opportunity to obtain and present evidence
from trial counsel outside of the record to “fully describe his or her reasons
for acting or failing to act in the manner complained of.”  (People
v. Pope, supra, 23 Cal.3d at p. 426.) 
Permitting the trial attorney an opportunity to explain puts courts in a
position to “intelligently evaluate whether counsel’s acts or omissions were
within the range of reasonable competence.” 
(Ibid.)  Thus, a claim for ineffective assistance of
counsel must be rejected when “the record on appeal sheds no light on why
counsel acted or failed to act in the manner challenged.”  (Ibid.)   In such cases, “unless counsel was asked for
an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation,” the case is affirmed on appeal.  (Ibid.) 

In People v.
Mendoza Tello (1997) 15 Cal.4th 264, 266, Mendoza Tello was convicted for
possession of cocaine.  A deputy pulled
Mendoza Tello over when he saw him light a marijuana cigarette.  (Ibid.)  He consented to a search of the car, and the
officer proceeded to do a pat down as he felt this was necessary for officer
safety.  (Ibid.)  Before the pat down
began, a vile of cocaine fell from Mendoza Tello’s pocket.  (Ibid.)  On appeal, he argued that his counsel was
ineffective for not making a motion to suppress the evidence.  (Ibid.)  The court found nothing in the record to
suggest why counsel failed to move to suppress the evidence, “because the
legality of the search was never challenged or litigated, facts necessary to a
determination of that issue are lacking.” 
(Ibid. quoting >People v. Cudjo (1993) 6 Cal.4th 585,
627.)  It concluded that “an appellate
court should not declare that a police officer acted unlawfully, suppress
relevant evidence, set aside a jury verdict, and brand a defense attorney
incompetent unless it can be truly confident all the relevant facts have been
developed and the police and prosecution had a full opportunity to defend the
admissibility of the evidence.”  (>People v. Mendoza Tello, supra, 15
Cal.4th at p. 268.) 

Similar to the Mendoza
Tello case, there is nothing in the record on appeal
to show why counsel did or did not act in the manner appellant complains about
on appeal.  The record does reflect that
appellant’s trial counsel did seek to obtain a better plea bargain for
appellant by arguing that his prior criminal record was not serious and that
his prior criminal conduct was the result of his drug abuse.  He also sought to ensure that appellant would
not serve time in state prison.href="#_ftn1"
name="_ftnref1" title="">[1]  Nonetheless, the record is silent about the
alleged failings of counsel at issue on appeal. 
Perhaps his counsel took the actions at issue, or perhaps as a matter of trial strategy
counsel decided against pursuing such actions. 
Maybe counsel acted without good reason. 
Because the record on appeal is silent, we simply do not have sufficient
evidence before us to determine these matters one way or the other, and
therefore appellant’s appeal must be rejected. 
Appellant failed to carry his burden of proving his counsel was
ineffective on appeal.  Appellant’s
ineffective assistance of counsel claim is more appropriately presented in a
habeas corpus proceeding in which appellant could present any additional
evidence outside the record to establish his claim.href="#_ftn2" name="_ftnref2" title="">[2]


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>DISPOSITION

 

            The judgment is affirmed.

 

 

 

                                                                                                                                    WOODS,
J.

 

We concur:

 

 

 

                        PERLUSS, P. J.                                                                               SEGAL,
J.*