Opinion
G054268
01-09-2018
THE PEOPLE, Plaintiff and Respondent, v. JESSE DEGANTE, Defendant and Appellant.
Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Christine Levingston Bergman and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16WF0088) OPINION Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed as modified. Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Christine Levingston Bergman and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
An information charged Jesse Degante with attempted robbery (Pen. Code, §§ 664, subd. (a), 211, 212.5, subd. (c); count 1) by use of a deadly weapon (§ 12022, subd. (b)(1)), assault with a deadly weapon (§ 245, subd. (a)(1); count 2), and brandishing a deadly weapon (§ 417, subd. (a)(1); count 3). The information alleged defendant had two prior strikes under the "Three Strikes law" (§§ 667, subds. (d), (e)(2)(A)), 1170.12, subds. (b), (c)(2)(A)), two prior serious felony convictions (§ 667, subd. (a)(1)), and served a prior prison term (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code.
A jury convicted defendant of attempted robbery and brandishing a deadly weapon, and found true the allegation defendant used a deadly weapon to commit attempted robbery. Count 2 was dismissed following a mistrial. The court found true all prior conviction allegations and sentenced defendant to 15 years.
Defendant argues his attorney's failure to request a pinpoint instruction on voluntary intoxication as it applied to attempted robbery (CALCRIM No. 3426) constitutes prejudicial ineffective assistance of counsel. We conclude otherwise because the appellate record provides no basis to reject the "'"'strong presumption'"'" in favor of counsel's reasonable tactical decisions. (People v. Jones (2003) 29 Cal.4th 1229, 1254.)
Defendant also asserts the court miscalculated his presentence custody credits by applying the 15 percent limitation on the accumulation of presentence custody credits under section 2933.1. The Attorney General concedes this point. We modify the judgment accordingly and affirm the judgment as modified.
FACTS AND PROCEDURAL HISTORY
One night in January 2016, Elizabeth Reyes and her boyfriend, Gerardo Vivar, decided to chat and share a cigarette on the sidewalk in front of Vivar's Huntington Beach apartment. Defendant walked up to them holding a half-full bottle of flavored wine in one hand. Defendant offered to give Reyes and Vivar some wine in exchange for a cigarette. Vivar thought defendant seemed "[a] little bit intoxicated" from his "movements" and "breath."
Reyes and Vivar declined defendant's offer. Defendant moved away from them, but Vivar kept on eye on defendant "because obviously he was intoxicated" and "[p]eople who are intoxicated do irrational things." Defendant walked around a corner and into a walkway between two apartments. Vivar and Reyes heard the sound of breaking glass, and moments later, defendant walked back around the corner with a broken wine bottle in his hand.
Defendant came within four or five feet of Vivar and demanded Vivar's "stuff." Vivar backed away from defendant, but defendant pursued him with the broken bottle. Vivar told Reyes, "This guy is drunk. Call the cops, because we don't know what the hell he's going to do."
As Reyes called 911, Vivar kept his distance from defendant, but defendant kept moving toward Vivar while the two of them were "basically smack talking each other." Defendant eventually walked away from Vivar and stood with two unidentified women for a few moments before he returned, resumed his smack talk, and challenged Vivar to a fight.
Reyes's 911 call and her contemporaneous police statement were introduced at trial. Both Reyes's statements during the 911 call and her police statement correspond with Vivar's testimony. However, Reyes had forgotten most of the episode by the time of trial due to a medical condition. --------
Huntington Beach Police Officer Jake Knox responded to Reyes's 911 call. As Knox approached the scene, he saw defendant running toward his patrol car. Knox stopped and ordered defendant to stop. Defendant did not stop. He turned and ran away from Knox, and he appeared to be concealing something in his clothing.
Huntington Beach Police Officer Roman Altenbach arrived at the scene at about the same time and parked in defendant's path. At this point, defendant stopped, turned around, walked back to Knox, and followed Knox's directions.
Vivar and Reyes identified defendant as their assailant. The officers found broken glass and liquid in the walkway, and defendant had a full bottle of wine on his person.
Knox testified defendant appeared to be intoxicated, his breath smelled like alcohol, and his speech was slowed and slurred, but Knox also testified defendant had no trouble walking, running, or following directions.
Defendant did not testify at trial. Defense counsel argued, "It's the defense's position that [defendant] was pissed. He's drunk and mad. He wanted to fight because he couldn't have a cigarette. That's the defense."
With respect to the attempted robbery charge, counsel asserted defendant's anger and intoxication made it impossible to "really know" his intent, and "if you don't know, you can't convict him of the robbery."
The prosecutor pointed to defendant's ability to function normally and argued defendant planned to rob Vivar after Vivar refused to give him a cigarette. In the prosecution's view, despite the obvious signs of defendant's intoxication, there was no evidence defendant's intoxication interfered with his ability to form the specific intent to rob Vivar.
The court instructed the jury on attempted robbery (CALCRIM Nos. 460, 1600), and the lesser included offenses of attempted grand or petty theft of the person (CALCRIM Nos. 1800, 1801) for count 1.
CALCRIM No. 252 explained on the difference between general and specific intent crimes, and explained that an attempted robbery or attempted grand or petty theft conviction required the prosecution to present proof beyond a reasonable doubt defendant harbored the "specific intent and/or mental state" to commit those crimes.
DISCUSSION
1. Ineffective Assistance of Counsel
CALCRIM No. 3426 specifically states the jury may consider evidence of defendant's voluntary intoxication when "deciding whether the defendant acted . . . with" the "specific intent or mental state required." Defendant's trial attorney did not request this instruction, and defendant contends the failure to request CALCRIM No. 3426 constitutes prejudicial ineffective assistance of counsel. We disagree.
"To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel's performance fell below a standard of reasonable competence, and that prejudice resulted. [Citations.] 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. [Citation.]" (People v. Anderson (2001) 25 Cal.4th 543, 569; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Claims involving trial tactics and decisions are "more appropriately decided in a habeas corpus proceeding." (Mendoza Tello, at pp. 266-267; People v. Hart (1999) 20 Cal.4th 546, 625.)
As the Attorney General asserts, the appellate record reveals a reasonable explanation for counsel's failure to request CALCRIM No. 3426. To justify an instruction on voluntary intoxication, there must not only be substantial evidence of defendant's voluntary intoxication, but there must also be substantial evidence this intoxication "affected the defendant's 'actual formation of specific intent.'" (People v. Williams (1997) 16 Cal.4th 635, 677; People v. Saille (1991) 54 Cal.3d 1103, 1117.)
In this case, the circumstantial evidence of defendant's intoxication is not substantial. Vivar and Knox testified defendant appeared to be intoxicated, smelled like alcohol, and slurred his speech. But evidence of a defendant's appearance, breath, and speech, do not alone warrant an instruction on voluntary intoxication. (See, e.g., People v. Marshall (1996) 13 Cal.4th 799, 847-848 [evidence defendant was "under the influence of alcohol," appeared "'dazed'" and "'in a state of shock,'" and had a blood-alcohol level indicting impairment]; People v. McNeal (2009) 46 Cal.4th 1183, 1198.)
Moreover, there was no evidence about when, what, or how defendant became intoxicated. We contrast the evidence of intoxication in this case with that found in People v. Ramirez (1990) 50 Cal.3d 1158 (Ramirez) and People v. Cram (1970) 12 Cal.App.3d 37, 42 (Cram).
In Ramirez, the court found no error in the failure to give a voluntary intoxication instruction even though the defendant testified he had drunk eight to ten beers the night of his crime. (Ramirez, at pp. 1180-1181.) In Cram, the defendant testified he drank alcohol before the crime, he was "'pretty drunk,'" and he appeared to be "a 'little high.'" (Cram, at p. 43.)
As stated in People v. Spencer (1963) 60 Cal.2d 64, "'The mere fact that a defendant may have been drinking prior to the commission of a crime does not establish intoxication or require the giving of a requested instruction thereon.'" (Id. at pp 87-88.)
Furthermore, there was no evidence defendant's ingestion of alcohol affected his ability to form the specific intent to rob Vivar. According to witness testimony, defendant walked, ran, and followed directions without difficulty, and he was clear-headed enough to fashion a deadly weapon out of a wine bottle for use to demand Vivar's "stuff."
Again, this case is similar to Ramirez, supra, 50 Cal.3d 1158, in that the Ramirez defendant was able to give a detailed account of the crime to police following his arrest notwithstanding evidence of intoxication. (Id. at pp. 1180-1181.) The intoxicated defendant in Cram, supra, 12 Cal.App.3d 37, planned a robbery, gave a false name, gave directions, and took the victim's property despite evidence of intoxication. (Id. at pp. 88-89.)
In defendant's case, the court gave instructions explaining the specific intent required to convict defendant of attempted robbery and the lesser included offenses. Defendant does not challenge any aspect of these instructions on appeal. In light of the properly given instructions on the intent required for attempted robbery, and the paucity of facts to support giving an instruction on voluntary intoxication, we conclude defendant has failed to show there could be no reasonable tactical basis for counsel's failure to request CALCRIM No. 3426. (See People v. Smithey (1999) 20 Cal.4th 936, 986-987; People v. Castillo (1997) 16 Cal.4th 1009, 1018; People v. Dominguez (1992) 11 Cal.App.4th 1342, 1352-1353.) Based on the appellate record, defendant's ineffective assistance of counsel claim must fail.
Defendant cities and relies on People v. Hussain (2014) 231 Cal.App.4th 261, but that case is inapposite. In Hussain, a jury convicted the defendant of theft by larceny, and the defendant argued court error and ineffective assistance of counsel resulted in the failure to instruct the jury on the claim of right defense. (Id. at p. 268.) The appellate court found no trial court error, but decided counsel's failure to request a claim of right instruction constituted prejudicial ineffective assistance of counsel. (Id. at pp. 271-272.) However, the Attorney General in Hussain conceded substantial evidence supported giving a claim of right instruction. (Id. at p. 264.) The Attorney General makes no similar concession here.
2. Custody Credits
The court awarded defendant 269 actual days presentence custody credits, and 40 days conduct credits, using the 15 percent limitation on the accumulation of conduct credits of section 2933.1. Section 2933.1 applies to violent felonies, but not to attempt unless the charge is attempted murder. (People v. Reed (2005) 129 Cal.App.4th 1281, 1284-1285, fn. 1.) Defendant was convicted of attempted robbery. Therefore, the court should have used the more generous presentence custody credit calculation provided for in section 4019. The Attorney General concedes the error and we modify the judgment, accordingly.
DISPOSITION
The judgment is modified to reflect an award of 269 actual days, plus 134 days conduct credit, for a total of 403 days presentence custody credits pursuant to section 4019. The clerk of the superior court is directed to correct the abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
THOMPSON, J. WE CONCUR: ARONSON, ACTING P. J. IKOLA, J.