P. v. Ruvalcaba
Filed 4/13/11 P. v. Ruvalcaba CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
| THE PEOPLE, Plaintiff and Respondent, v. LONGINOS GUTIERREZ RUVALCABA, Defendant and Appellant. | F059194 (Super. Ct. No. BF126756A) OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge.
David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant Longinos Gutierrez Ruvalcaba challenges his convictions for being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1))[1] and possession of ammunition by a person prohibited from possessing a firearm (§ 12316, subd. (b)(1)) on the grounds that he received ineffective assistance of counsel. He also contends he is entitled to a recalculation of presentence work and custody credits. We disagree and will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On February 16, 2009, Bakersfield Police Officer Dennis Eddy and other officers went to Ruvalcaba’s residence; Ruvalcaba was on parole at the time. Ruvalcaba and Sandra Soltero, who also lived at the residence, answered the door. Ruvalcaba was extremely nervous and anxious when he saw it was officers at the door.
One of the officers explained why they were there and another conducted a patdown of Ruvalcaba. Officers commenced a search of Ruvalcaba’s bedroom and the common areas of the house. In a cupboard between the master bedroom and Ruvalcaba’s bedroom, officers found a firearm wrapped in a blue and white rag. The firearm was a silver and black loaded .22-caliber semiautomatic.
During the search, Officer Jason Williamson sat in the living room with Ruvalcaba and Soltero. When another officer whispered in Williamson’s ear, Ruvalcaba asked, “What’s up” Williamson told him a gun had been found and Ruvalcaba turned to Soltero and said, “You know that ain’t my gun.” Soltero paused and looked down then stated, “that ain’t his gun.”
Officers immediately separated Ruvalcaba and Soltero to prevent them from talking to one another. Soltero was questioned and told the police the gun belonged to her, that it was a .25-caliber, and that it was gold and black.
Ruvalcaba was charged with possession of a firearm by a felon and possession of ammunition by a person prohibited from possessing a firearm. It also was alleged that he had served three prior prison terms. Ruvalcaba pled not guilty and requested a jury trial. He admitted the prior prison term allegations.
Prior to the start of trial, Ruvalcaba successfully moved in limine to preclude Williamson from testifying that in his opinion Ruvalcaba was trying to intimidate Soltero during the search. The trial court instructed the prosecutor to make her witnesses aware of the ruling. The trial court stated it would treat in limine objections as continuing objections.
During his testimony at trial, Williamson stated in reference to Ruvalcaba that “it appeared to me that he was trying to intimidate her” and defense counsel objected. The trial court sustained the objection and struck the statement. Williamson almost immediately made the same statement again in response to another question from the prosecutor.
At trial Soltero claimed the gun was hers and that she was nervous and scared when questioned by officers, which is why she was mistaken about the caliber and color. She claimed to have bought the gun from “Amy” for cash; she did not otherwise know Amy; and she bought the gun because she was pregnant and did not always feel safe. Soltero claimed she wrapped the gun and put it on the top shelf of the cupboard so children could not reach it.
During her examination of Soltero, the prosecutor began asking questions about Soltero’s conversations with Ruvalcaba. Defense counsel objected and asked for a sidebar. Outside the presence of the jury, the prosecutor revealed that the day prior she had received disks of lengthy taped conversations between Soltero and Ruvalcaba that were made when Soltero visited him in jail. Defense counsel indicated he might request a mistrial based on failure to produce and disclose the disks timely. The trial court ordered the prosecution to provide copies of the disks immediately.
The prosecutor stated she wanted to impeach Soltero with the contents of the tapes. The tapes disclosed (1) Soltero knew Amy; (2) Ruvalcaba instructing Soltero what to do to get him out of jail; (3) Ruvalcaba telling Soltero that if she tells the police someone gave her the gun he will be able to get out of jail; and (5) Soltero stating she will do anything she can to help get Ruvalcaba out of jail.
Defense counsel commented that he simply did not know what the tapes contained. He then renewed his objection to Williamson’s testimony. The prosecutor confirmed she had made Williamson aware of the in limine ruling. The trial court acknowledged Williamson violated the ruling.
The trial court stated it would give defense counsel an opportunity to speak with Ruvalcaba about a mistrial. The trial court commented that the prosecution should have given the defense notice of the taped conversations and should have provided this information earlier. The trial court noted that the tapes seemed to indicate that Ruvalcaba reached an agreement with Soltero for Soltero to give false testimony.
The trial court then stated that, as opposed to granting a mistrial, it was inclined to exclude any mention of the jailhouse conversations and tapes. In addition, the trial court would strike Williamson’s testimony that was in violation of the in limine ruling and instruct the jury that it was not to consider Williamson’s testimony for the purpose of determining whether Ruvalcaba was trying to intimidate Soltero.
The trial court then gave defense counsel an opportunity to discuss with Ruvalcaba the option of a mistrial or curative instruction and the discovery sanction. After a brief recess during which Ruvalcaba and defense counsel spoke privately, the trial court asked if the defense was requesting a mistrial. Defense counsel responded that after speaking with Ruvalcaba, they were not requesting a mistrial but instead were prepared to submit on the trial court’s tentative ruling.
The trial court struck Williamson’s testimony that violated the in limine ruling and admonished the jury. The taped conversations were not admitted into evidence.
The jury found Ruvalcaba guilty as charged.
DISCUSSION
Ruvalcaba challenges his convictions on the basis of ineffective assistance of counsel. He contends defense counsel was ineffective for failing to move for a mistrial and that there was no tactical reason for this failure. He also contends he is entitled to a recalculation of presentence work and custody credits under the January 25, 2010, amendments to section 4019.
I. No Ineffective Assistance of Counsel
Generally, “To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings. [Citations.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1003.) “[I]n assessing a Sixth Amendment attack on trial counsel’s adequacy mounted on direct appeal, competency is presumed unless the record affirmatively excludes a rational basis for the trial attorney’s choice. [Citations.]” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1260.)
“A claim of ineffective assistance of counsel based on a trial attorney’s failure to make a motion or objection must demonstrate not only the absence of a tactical reason for the omission [citation], but also that the motion or objection would have been meritorious, if the defendant is to bear his burden of demonstrating that it is reasonably probable that absent the omission a determination more favorable to defendant would have resulted. [Citations.]” (People v. Mattson (1990) 50 Cal.3d 826, 876.) In the present case, the record discloses defense counsel had a reasonable tactical purpose for not moving for a mistrial.
The record shows that the taped conversations between Ruvalcaba and Soltero were incriminating, they demonstrated that Ruvalcaba was urging Soltero to give false testimony, and that Soltero lied at trial. Had the defense moved for a mistrial, the tapes would have been used in a subsequent trial not only to convict Ruvalcaba of the weapons charges, but perhaps to add an additional charge of suborning perjury. These circumstances did not bode well for a successful defense and justified defense counsel’s tactical decision. (People v. Scott (1997) 15 Cal.4th 1188, 1212.)
The record also reflects that defense counsel made this tactical decision after consultation with Ruvalcaba. We cannot say defense counsel’s performance fell below the standard to be expected of a reasonably competent attorney, even if Ruvalcaba may have been adamantly opposed to counsel’s failure to move for a mistrial. (See People v. Freeman (1994) 8 Cal.4th 450, 485 [“‘“By choosing professional representation, the accused surrenders all but a handful of ‘fundamental’ personal rights to counsel’s complete control of defense strategies and tactics”’”].)
“[T]he … risks and disadvantages of defense counsel’s strategy do not establish that counsel was incompetent for adopting it. Rather, the risks and disadvantages must be considered in light of the available alternatives.” (People v. Hayes (1990) 52 Cal.3d 577, 624.) By not moving for a mistrial, the incriminating tapes were excluded, Soltero’s potentially exculpatory testimony was preserved, and the jury was instructed and admonished to disregard Williamson’s comments that violated the in limine ruling.
On the record before us, Ruvalcaba has failed to demonstrate that counsel rendered ineffective assistance.
II. No Entitlement to Recalculation of Credits
Ruvalcaba contends he is entitled to a recalculation of presentence work and custody credits pursuant to the January 25, 2010, amendments to section 4019. He raises this issue pursuant to this court’s standing order of February 11, 2010.
As Ruvalcaba acknowledges, this issue has been decided adversely to him by this court. Our decision has been appealed and the issue is currently pending before the California Supreme Court in People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963. We decline to depart from our analysis and conclusion as set forth in Brown until the California Supreme Court rules otherwise.
DISPOSITION
The judgment is affirmed.
