Opinion
E074360
10-21-2020
In re HECTOR JOSEPH HOLGUIN, on Habeas Corpus.
Edward Mahler, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, and Joseph C. Anagnos, Deputy Attorney General, for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF1801819 OPINION ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Becky L. Dugan, Judge. Petition denied. Edward Mahler, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, and Joseph C. Anagnos, Deputy Attorney General, for Respondent.
Hector Joseph Holguin pled guilty to one felony count of forgery, and the trial court placed him on probation for three years. (Pen. Code, § 470, subd. (b); unlabeled statutory citations refer to this code.) In this habeas proceeding, Holguin argues that defense counsel rendered ineffective assistance by failing to understand and advise him that his conduct constituted only a misdemeanor. His argument relies on changes in the law effected by Proposition 47 and defense counsel's claimed failure to understand those changes. We conclude that Holguin has failed to demonstrate ineffective assistance of counsel and therefore deny his petition for a writ of habeas corpus.
BACKGROUND
Holguin's acquaintance, James O'Brien, worked as a tow truck driver. In August 2018, O'Brien took checks from a car in the course of impounding it. He gave one of the checks to Holguin and told Holguin the account holder's name. Holguin wrote the check out to himself in the amount of $400, signed the account holder's name, and cashed the forged check at the account holder's bank. Holguin does not know the account holder and did not have his permission to sign his name on the check.
The People charged Holguin with one felony count of forging the seal or handwriting of another and one felony count of misusing personal identifying information. (§§ 470, subd. (b), 530.5, subd. (a).) At his arraignment in October 2018, Holguin pled guilty to the forgery count. Pursuant to the plea agreement, the People moved to dismiss the count for misusing identifying information, and the court granted the motion. The court suspended the imposition of sentence and placed Holguin on probation for three years.
Sometime around December 2018, Holguin filed a petition for resentencing under Proposition 47. (The record does not contain his petition for resentencing, but it contains the People's response. The response states that it was due on December 7, 2018, although the deputy district attorney signed the response on January 22, 2019.) The trial court denied the petition for resentencing in February 2019. In March 2019, Holguin filed a notice of appeal from the order denying the Proposition 47 petition. In December 2019, he filed the instant petition for a writ of habeas corpus. We issued an order to show cause.
DISCUSSION
Holguin argues that his counsel rendered ineffective assistance by failing to understand and advise him that he committed a misdemeanor. The People contend that several procedural bars apply to Holguin's habeas petition, and in any event, his ineffective assistance claim lacks merit. Regardless of any procedural bars, we agree with the People that Holguin's claim fails on the merits.
I. Proposition 47 Background
Proposition 47 was approved by the voters in November 2014 and reduced the penalties for a number of theft-related offenses, including forgery of certain financial instruments. (People v. Sanders (2018) 22 Cal.App.5th 397, 401-402.) Before Proposition 47, forgery was a "wobbler" offense, regardless of the value of the forged instrument. (Former § 473; Stats. 2011, ch. 15, § 360; People v. Franco (2018) 6 Cal.5th 433, 436.) Since the passage of Proposition 47, forgery is a misdemeanor if the offense involves a "check, bond, bank bill, note, cashier's check, traveler's check, or money order" valued at $950 or less. (§ 473, subd. (b); People v. Franco, supra, at p. 436.) But there are exceptions to this misdemeanor treatment. As relevant here, the offense may still be punished as a felony if the defendant "is convicted both of forgery and of identity theft, as defined in Section 530.5." (§ 473, subd. (b).) Section 530.5 criminalizes the misuse of personal identifying information, and although the offense is sometimes referred to as '"identity theft,"' it is not a theft offense. (People v. Jimenez (2020) 9 Cal.5th 53, 59 (Jimenez).) Thus, a person who forges a check below the $950 threshold may be convicted of felony forgery, so long as the person is also convicted of misusing identifying information.
The People charged Holguin with a felony count of misusing identifying information, but when he pled guilty it was unclear whether his conduct could be charged as such. In People v. Gonzalez (2017) 2 Cal.5th 858 (Gonzalez), the defendant cashed two stolen checks for less than $950 and was charged with felony forgery and felony burglary. (Id. at p. 862.) Our Supreme Court held that entering a bank to cash those stolen checks constituted misdemeanor shoplifting under a new Proposition 47 provision (§ 459.5). (Gonzalez, supra, at pp. 862, 876-877.) Moreover, that conduct had to be charged as misdemeanor shoplifting and could not have been charged as burglary or a theft offense. (§ 459.5, subd. (b); Gonzalez, at p. 862.)
In the wake of Gonzalez, appellate courts split on whether the same or similar conduct could be charged as a felony act of misusing identifying information. Some courts held that it could not under Gonzalez, and that it could only be charged as misdemeanor shoplifting. (E.g., People v. Jimenez (2018) 22 Cal.App.5th 1282, 1289-1290 [defendant cashed two stolen checks for less than $950], revd. (2020) 9 Cal.5th 53; People v. Brayton (2018) 25 Cal.App.5th 734, 736, 739 (Brayton) [defendant used a stolen driver's license and stolen merchandise to obtain store credit of about $100], disapproved of by Jimenez, supra, 9 Cal.5th at p. 72.) At least one court held that even though the defendant's conduct satisfied the elements of misdemeanor shoplifting, the defendant could still be charged with and convicted of misusing identifying information. (People v. Sanders (2018) 22 Cal.App.5th 397, 399-400, 405-406 [defendant used another's credit card to charge about $170 at two commercial establishments].) The split of authority existed at the time of Holguin's guilty plea, and our Supreme Court was reviewing the cases on both sides of the issue. (E.g., People v. Jimenez, supra, review granted July 25, 2018, S249397; People v. Sanders, supra, review granted July 25, 2018, S248775.)
The Supreme Court resolved the issue in Jimenez. It is not true that "any conduct that a prosecutor could reasonably treat as fulfilling the elements of shoplifting must be charged as shoplifting, and cannot be charged as anything else, including misuse of identifying information." (Jimenez, supra, 9 Cal.5th at p. 66.) Such conduct may not be charged as burglary or some other theft offense, as the court held in Gonzalez, supra, 2 Cal.5th 858, but misusing identifying information is not a theft offense. (Jimenez, at pp. 69, 71.) Accordingly, Jimenez's felony convictions for misusing identifying information were not eligible for reduction to misdemeanor shoplifting. (Id. at pp. 59-60.)
II. Ineffective Assistance
To prevail on a claim of ineffective assistance of counsel, the defendant "must show that (1) counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel's deficient performance subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant." (In re Alvernaz (1992) 2 Cal.4th 924, 936-937; see also Strickland v. Washington (1984) 466 U.S. 668, 688, 694.)
Holguin argues that counsel was deficient because she failed to understand that the People could not have charged him with a felony count of misusing identifying information, and that his conduct constituted only misdemeanor shoplifting or misdemeanor forgery. But had counsel so advised Holguin, she would have been wrong: At the time of his plea, there was a split of authority on the issue, and review by our high court was pending. The law was unclear.
Holguin suggests that the law was clear at the time in the sense that there was binding authority. He points out that the Supreme Court had not yet granted review in Brayton, one of the cases supporting his position that conduct amounting to misdemeanor shoplifting must be charged as such and may not be charged as misusing identifying information. (See Brayton, supra, 25 Cal.App.5th at p. 736.) Because Brayton was not under review on the date of his guilty plea, Holguin concludes that the decision bound the trial court and the People. But six days after his guilty plea, the Supreme Court granted review in Brayton and deferred further action pending disposition of Jimenez. (People v. Brayton (2018) 428 P.3d 178, 179 .) That was predictable, given that the Court had granted review in a number of cases presenting the same issue. Brayton does not therefore change our conclusion that the law was unclear at the time of Holguin's plea.
We assume for the sake of argument that Holguin's counsel failed to understand the split of authority and the unsettled state of the law. Even assuming that she consequently performed deficiently, Holguin fails to demonstrate that counsel's deficiency prejudiced him.
To demonstrate prejudice in cases involving guilty pleas, the defendant must show that counsel's deficient performance "affected the outcome of the plea process. In other words, . . . the defendant must show that there is a reasonable probability that, but for counsel's errors, he [or she] would not have pleaded guilty and would have insisted on going to trial." (Hill v. Lockhart (1985) 474 U.S. 52, 59.) "In many guilty plea cases, the 'prejudice' inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error 'prejudiced' the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the 'prejudice' inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial." (Ibid.)
Here, Holguin fails to establish a reasonable probability that the outcome of the plea process would have been more favorable absent counsel's error. First, he has not shown that it is reasonably probable that counsel would have recommended he plead not guilty, given the unsettled state of the law. That is, she may have decided that he was better off taking the plea deal, rather than going to trial and risking conviction for two felonies. He acknowledges that he committed forgery, and his declaration in support of the habeas petition sets forth the facts showing that. Those same facts demonstrate that he was also guilty of misusing identifying information. The offense requires a showing that he willfully obtained personal identifying information belonging to someone else, used that information for an unlawful purpose, and did so without consent. (People v. Lee (2017) 11 Cal.App.5th 344, 355-356.) Personal identifying information includes names and checking account numbers. (§ 530.55, subd. (b).) According to Holguin's declaration, he willfully obtained the account holder's name and checking account number from O'Brien, used that information to forge and cash the check for $400, and did so without the account holder's consent. Thus, had Holguin gone to trial, the jury would have convicted him of both forgery and misusing identifying information. And the law is now clear that both felony convictions would have been proper. (§ 473, subd. (b); Jimenez, supra, 9 Cal.5th at pp. 58-59.)
Second, Holguin has not shown that it is reasonably probable that he would have changed his plea if counsel had correctly advised him. His declaration states: "Had I known that based on my conduct that my offense was a misdemeanor and not a felony I would not have pleaded guilty to a felony." But he proffers no evidence that if he had known the law was unsettled, he would have rejected the plea deal.
Third, even if counsel had recommended that he reject the plea deal, and even if he had followed her advice, there is no reasonable probability that he would have obtained a better result by going to trial. As we have explained, he would have suffered two felony convictions rather than one. Holguin argues that the matter might not have proceeded to trial because "[t]here [was] no reason to suspect" that the People would have chosen that course instead of offering him a misdemeanor plea deal. He suggests that if the People were "made aware of Brayton," they would have realized a felony conviction was out of the question. But it is not reasonably probable that the People would have acted as though Brayton foreclosed the possibility of two felony convictions at trial. There is no evidence that the People were unaware of Brayton, supra, 25 Cal.App.5th 734, or that the case would have motivated them to offer a misdemeanor plea deal. (See In re Alvernaz, supra, 2 Cal.4th at p. 946 [petitioner did not demonstrate prejudice by declaring that absent counsel's error, he would have attempted to negotiate a different plea deal, because there was no evidence that the People were prepared to make a counteroffer "or otherwise engage in the plea bargaining process"].) It is at least as likely that they were aware of Brayton (and the split of authority more generally) and believed that it was only a matter of time before the Supreme Court granted review of the case, rendering it nonbinding on the trial court.
In sum, even assuming that counsel performed deficiently, Holguin fails to demonstrate that her performance prejudiced him. His claim of ineffective assistance therefore lacks merit.
DISPOSITION
The petition for a writ of habeas corpus is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J. We concur: RAMIREZ
P. J. SLOUGH
J.