P. v. Tovar
Filed 5/2/13 P. v. Tovar
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE
PEOPLE,
Plaintiff and Respondent,
v.
JOE
TALEVERA TOVAR,
Defendant and Appellant.
E056301
(Super.Ct.No. RIF10002636)
OPINION
APPEAL
from the Superior Court of
Maureen
M. Bodo, under appointment by the Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
On September 22, 2010, an information charged
defendant and appellant Joe Talevera Tovar and codefendants Duane Jaramillo and
Anthony Rios, inmates in state prison, with one count of
force likely to cause great bodily injury.
(Pen. Code, § 4501.) The
information also alleged one special prior offense. (Pen. Code, §§ 667, subds. (c), (e)(1),
1170.12, subd. (c)(1).) The information
also alleged multiple prior offenses as to the codefendants.
After
a four-day jury trial, the jury found defendant guilty as to count 1. The trial court set a sentencing hearing, as
well as a court trial regarding the prior offense.
At
the hearing on April 01, 2011, defendant
admitted the special prior and also entered a plea in case No. RIF10005536. In the instant case, the trial court
sentenced defendant to two years eight months in state prison, with
102 days of credit for time served, to run consecutive with case No.
RIF10005536.
However,
the April 1, 2011, minute order
states that the “[s]pecification of plea†is “[s]tate [p]rison 2 years 8
months,†and “[d]efendant is arraigned for pronouncement of judgment.†Also, the abstract of judgment shows that
defendant was “convicted by†“pleaâ€â€”not by a jury. We will direct the superior court to correct
its April 1, 2011 minute order and
the abstract of judgment to reflect that defendant was found guilty by a jury.
Defendant
filed a timely notice of appeal.
On January 30, 2010, Officers Gonzales and
Ochoa were working as correctional officers at the California Rehabilitation Center in Norco. Officer Gonzales was supervising the
“Facility 3 mini yard.†Around 1:30 p.m., he heard a grunting noise
and someone shouting, “CO, CO, CO.†When
he turned around, he saw four inmates fighting.
One, later identified as the victim, was on the ground, while three
other inmates were assaulting him. The
officer was standing about 30 to 40 feet from the fight. Officer Gonzales called a “Code 1†and ran
toward the fight. There were
approximately 200 to 300 inmates in the area.
Once the fight began, those inmates scattered.
When
Officer Gonzales was within six to 10 feet of the four inmates, he ordered them
to stop fighting and to “get down†on the ground. When the inmates failed to comply, the
officer used pepper spray twice; neither burst of the spray stopped the fight.
Officer
Ochoa was in the main yard, which is about 30 to 40 feet away from where the
fight was taking place. When Officer
Ochoa heard the shouting, he ran toward the fight and told the inmates to get
down. He also used pepper spray on
them. Officer Gonzalez then drew his
baton and struck inmate Rios on the wrist.
At that time, the other two inmates, identified as Jaramillo and
defendant, got down on the ground.
Neither
Officer Gonzales nor Officer Ochoa saw the victim strike the other three
inmates or fight back. Officer Gonzales
did not know how or why the fight began.
The assault lasted approximately 40 to 50 seconds and consisted of a
“barrage†of rapid punches. Both
officers testified that all three inmates kicked the victim, although neither
officer had mentioned kicking in their reports.
All
of the inmates, including the victim, were searched for weapons. No weapons were found.
The
victim was bleeding, and he had numerous cuts and scratches on his face and
arms. He was escorted to the infirmary,
where he was examined and treated by Nurse Vuong. Nurse Vuong reported that the victim had
numerous facial injuries, a swollen ear, and abrasions to his
blood or injuries to the victim’s torso.
The nurse then had the victim transferred to an outside hospital for
further evaluation and treatment.
Defendant
and the other two inmates were each escorted, by a separate officers, to the
shower area of the infirmary for decontamination because they had been exposed
to pepper spray.
After
the decontamination process, Nurse Arthur examined the three inmates. He saw no redness on inmate Jaramillo’s hands
and no swelling on inmate’s Rios’s wrists.
He did testify that he saw redness and swelling on defendant’s
hands. He also saw reddened areas on
defendant’s face, back, and torso, but he did not see any scratches or
abrasions on defendant.
After defendant
appealed, and upon his request, this court appointed counsel to represent
him. Counsel has filed a brief under the
authority of People v. Wende (1979)
25 Cal.3d 436 and Anders v. California
(1967) 386 U.S. 738, setting forth a statement of the case, a summary of the
facts and potential arguable issues, and requesting this court to undertake a
review of the entire record.
We offered
defendant an opportunity to file a personal supplemental brief, and he has done
so. On February 5, 2013, defendant submitted a one-page handwritten
brief. In his supplemental brief,
defendant essentially argues that his counsel rendered ineffective assistance
of counsel (IAC). Pursuant to the
mandate of People v. Kelly (2006) 40
Cal.4th 106, we have independently reviewed the record for potential error.
We
hereby address defendant’s IAC claim. In
order to establish a claim of IAC, defendant must demonstrate, “(1) counsel’s
performance was deficient in that it fell below an objective standard of
reasonableness under prevailing professional norms, and (2) counsel’s deficient
representation prejudiced the defendant, i.e., there is a ‘reasonable
probability’ that, but for counsel’s failings, defendant would have obtained a
more favorable result. [Citations.] A ‘reasonable probability’ is one that is
enough to undermine confidence in the outcome.
[Citations.]†(
540-541, citing, among other cases, Strickland
v. Washington (1984) 466 U.S. 668; accord, People v. Boyette (2002) 29 Cal.4th 381, 430.) Hence, an IAC claim has two components: deficient performance and prejudice. (Strickland
v. Washington, at pp. 687-688, 693-694; People v. Williams (1997) 16 Cal.4th 153, 214-215;
503; People v. Ledesma (1987) 43
Cal.3d 171, 217.) If defendant fails to
establish either component, his claim fails.
When a claim of
ineffective assistance is made on direct appeal, and the record does not show
the reason for counsel’s challenged actions or omissions, the conviction must
be affirmed unless there could be no satisfactory explanation. (People
v. Pope (1979) 23 Cal.3d 412, 426.)
After reviewing
the reporter’s transcript, we note that defendant’s counsel actively engaged in
cross-examination of the witnesses and advocated for defendant. Moreover, after the trial but prior to
sentencing, defendant requested that the court remove his defense counsel and
appoint a new one. At that hearing,
defendant informed the court as to why he felt his counsel was
ineffective. After hearing defendant’s
arguments, the court stated: “I believe
that I watched [defense counsel] during the trial. He was prepared. He asked good cross-examination questions of
the witnesses. He made good arguments on
your behalf. We just met in chambers
this morning. He was doing a good job
wanting to get you the best deal that you could get that would wrap up all of
your cases together, and wouldn’t—and you wouldn’t have to be sentenced to such
a long sentence as you might have been otherwise. [¶] He
talked the D.A. into trying to combine everything and get you a reasonable
number of years, and I thought he did a good job in representing you.†We agree with the trial court’s assessment of
defense counsel’s representation of defendant.
Based on the
above, we find that defense counsel did not render assistance below an
objective standard of reasonableness under prevailing professional norms.
In his
supplemental brief, defendant also argues, in one sentence, that he “was denied
the right to cross examine the victim on the case.†In this case, however, the victim did not
testify and no statements made by the victim were admitted into evidence. Evidence of the assault and resulting
injuries to the victim was presented by the officers who witnessed the assault
and by the nurses who had examined the victim and inmates. Defendant was free to cross-examine those
witnesses. The transcript shows that defense
counsel actively represented defendant.
We have conducted
an independent review of the record
and find no arguable issues. However, as noted ante,
the minute order and abstract of judgment incorrectly reflect that defendant
was convicted via a plea and not by a jury.
We have the inherent power to correct clerical errors to make records
reflect the true facts. (
181, 185.) Therefore, the minute order
and abstract of judgment should be corrected.
The
superior court clerk is directed to correct the minute order dated April 1, 2011, and the abstract of
judgment filed on April 13, 2011, to accurately
reflect that defendant was convicted by a jury, and to forward copies of the
corrected documents to the Department of
Corrections and Rehabilitation. In
all other respects, the judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We
concur:
HOLLENHORST
Acting P. J.
KING
J.
