Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Humboldt County Super. Ct. No. CR061501
NEEDHAM, J.
Levi Garza appeals from a judgment of conviction and sentence entered after he pled guilty to multiple counts pursuant to a plea agreement. He contends: (1) the court’s imposition of the upper term of sentence violated the Sixth Amendment under Cunningham v. California (2007) 127 S.Ct. 856; (2) the court erred or ignored several factors in mitigation; and (3) his trial counsel provided ineffective assistance of counsel by failing to file a statement in mitigation. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
Appellant, along with co-defendants Nate Garza, Deshawn Moore, and Gregory Scheider, were charged with kidnapping for ransom (Pen. Code, § 209, subd. (a) [count one]); kidnapping for rape (§ 209, subd. (b) [count two]); forcible rape in concert (§ 264.1 [count three]); and forcible sodomy in concert (§ 286, subd. (d) [count five]). Appellant was also charged with forcible false imprisonment (§ 236 [count six]) and possession of marijuana for sale (Health & Saf. Code, § 11359 [count eight]). In addition, one or more of the other defendants was charged with attempted forcible oral copulation in concert (§§ 664/288a, subd. (d) [count four]) and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a) [count seven].
Except where otherwise indicated, all statutory references are to the Penal Code.
Counts one through five were alleged to have been perpetrated against “Jane Doe” on March 7, 2006, with personal use of a firearm. (§ 12022.5, subd. (a)(1); § 12022.53, subd. (b).) Count six was allegedly committed against Jane Doe on March 9, 2006, with use of a firearm. Counts seven and eight were alleged to have been committed on March 16, 2006.
A. Underlying Facts
There was no preliminary hearing in this case, and the matter was resolved by a plea agreement. The following facts are taken from the probation report.
“According to Humboldt County Sheriff’s Department report #200601525, on March 13, 2006, contact was made with twenty-one year old Jane Doe regarding a sexual assault.
“According to Jane Doe about two months prior she got a ride to Sacramento with Majadi Scruggs and two men known to her as Baby B and Pooh. Before leaving she saw defendant place two pounds of marijuana into the car she, Scruggs and the other two men would be traveling in. She was dropped off in Sacramento, and later learned that Baby B and Pooh had been caught with the marijuana in Lake County and arrested.
“Defendant was holding her responsible for the marijuana, and over the previous month left several messages on her voice mail. In the messages, he stated things such as ‘I want my money,’ ‘I’m gonna bury you,’ and ‘your [sic] gonna dig your own grave.’
“Jane Doe had returned to town about two weeks prior and was trying to stay hidden because she was afraid of defendant. On March 7, 2006, she was in the Garberville area with her boyfriend Hugo Ramos. She arranged to meet her friend Rick Hoss at the DMV in Redway. When she arrived at the DMV she got into Hoss’ vehicle. A few minutes later co-defendant, Nate Garza pulled into the parking lot. He approached the vehicle and attempted to pull her out. Hoss grabbed her and pulled her back into his vehicle and drove away. Nate Garza followed them to the Renner station. Defendant then showed up with his girlfriend Kristina Bishop. Defendant wanted her to go with him, but she did not want to, and Hoss would not let him take her. Ramos arrived at the scene and convinced her to go with defendant. He assured her nothing would happen to her. She got into the vehicle with defendant, Bishop, and Ramos.
“While driving to the Garza residence, defendant told her ‘sell your kids, cuz I will kill your kids, I want my money.’ Upon arriving at the Garza residence she was scared and attempted to run away. Defendant caught her by the hair and the back of the jacket and pulled her to the residence. She was told to go upstairs to defendant’s bedroom. Defendant produced a large silver revolver, and slapped her on the left side of her face. He pushed her out of the bedroom, and into the living room. Defendant struck her on the back of the head with the butt of the revolver. She fell to the floor, and when she stood up he was holding a .22 caliber rifle. He showed her the weapon was loaded and told her he would shoot her if she tried to run. Defendant directed her to go outside, then followed her pointing the rifle at her. Once outside defendant, Nate Garza, co-defendant Deshawn Moore, and co-defendant Greg Scheider, followed her to a tree. Defendant tied her to the tree with a yellow rope and a metal chain. She had bindings around her wrists, pulling her arms behind her, as well as around her body and legs.
“She had been tied to the tree for several hours when Nate Garza and co-defendant Moore approached her. Each of them slapped her in the face with his penis and tried to force her to perform oral copulation.
“She was left tied to the tree overnight wearing only a tank top and pants. It was noted by the officer that the week the incident took place was unusually cold, and it snowed in the Garberville area several times. While tied up, defendant came out several times and kicked her.
“Sometime after daylight the following morning, March 8, 2006, she was able to free herself from her bindings and attempted to flee to a neighbor’s residence. The dogs started to bark, and co-defendants Moore and Scheider caught her. She was dragged back to the residence and taken upstairs to defendant’s bedroom. Defendant pointed the rifle at her and told her to take off her clothes. Once undressed, she was ‘hogtied,’ with her hands and feet bound behind her back. She sat for hours, still bound, in the living room. Defendant would periodically come to check on her and kick her.
“That evening, while Nate Garza, co-defendant Moore and co-defendant Scheider were in the room, defendant said ‘get your six grand worth.’ Nate knelt down behind her as she lay on her belly, still bound, and inserted his erect penis into her vagina, then pulled out and ejaculated in her hair. When Nate was done, co-defendant Moore, who was very intoxicated, inserted his penis into her vagina, then forced her onto her back, laying on her hands. From this position he again penetrated her vagina with his penis, then inserted it into her anus. When Moore was finished Scheider approached her. She had been struggling, cursing and spitting on them, but by this time she was so exhausted that all she could do was cry. She was left naked through the night. Twice during the night defendant came out to check on her and told her ‘your gonna be here for two months, I’m not gonna let you out of my sight.’
“The next day, March 9, 2006, defendant planned to go to a concert in Eureka. He showed her a black semi-automatic handgun and told her he would shoot her if she tried to run. Defendant brought her some clothes, untied her and told her to get dressed. She, defendant and Kristina Bishop drove to Eureka. Bishop was dropped off at the Broadway Motel. Defendant then picked up Levi Curley, and they all drove to the Red Lion Inn. Curley went into the office for a few minutes then returned to the vehicle. Defendant then went into the office for a few minutes. She reported that she did not know what Curley knew, and she was afraid to flee when he was in the car. When defendant returned she went with him to room 321. She had left her purse in the car when taken to Whitethorn, so she grabbed it and took it with her. They had been in the room for less than an hour when defendant took a shower. Before he got in the shower he told her, ‘if you try to leave I will find you.’ Once defendant was in the shower, she fled taking her cell phone with her. She called a friend who gave her a ride to her father’s house in Eureka. She stayed with a friend for several hours until she got a ride to the Humboldt House Inn in Garberville.”
B. Plea
Pursuant to a negotiated plea, appellant pled guilty to kidnapping (§ 207, count one, reduced from § 209, subd. (a)), forcible rape (§ 264.1, count three), false imprisonment (§ 236, count six), and felony possession of marijuana for sale (Health & Saf. Code, § 11359, count eight), without the firearm-use allegations. The other charges were dismissed. It was agreed that, if appellant passed a polygraph test, the forcible rape charge (count three) would be set aside. Apparently he passed, as count three was later dismissed at the prosecution’s request.
C. Pre-Sentence Matters and Probation Report
The prosecutor filed a statement in aggravation, noting several factors in aggravation and no factors in mitigation, and urging that the upper term be imposed. Appellant’s attorney did not file a statement in mitigation.
The probation report gave appellant’s side of the story: “Defendant reported that after finding out his girlfriend was pregnant, he was in need of money. He reported knowing Jane Doe for several years. He said she used to date his father, and he and his brother had both baby[-]sat her children. Defendant [stated] Jane Doe is known as a drug addict and thief, and few people trust her. He indicated he had known her for so long, and she had never stolen from him, that he did trust her. Defendant said he had some marijuana and Jane Doe told him she could sell it and bring him back the money. He gave her the marijuana then did not hear from her for two months. He said he was angry and left messages on her voice mail, saying things he did not mean. [¶] On the day of the present offense Jane Doe went with him willingly and she requested that her boyfriend, Hugo Ramos, go with her. When they arrived at the property he told her he was going to have her pick up trash then he was going to tie her to a tree. He said when she was done picking up trash she walked over to the tree and sat down against it. He reported tying her at the wrists to the tree. He stated she was tied to the tree for about 15 to 20 minutes, but no more than 30 minutes. He reported he was with her the whole time talking to her. He said during their conversation he was telling her that she cannot steal from people, and that he was now having to make a “joke” of her. He said after he untied her from the tree they went up to his room and smoked some marijuana. He said Jane Doe stayed at the property and “partied” with his mother the rest of the evening. [¶] Defendant said the next day Jane Doe went with him to Eureka because she wanted to go to the show with him. He said they stopped at [the] house of one of her friends on the way out of town so she could get some money. He said as they were driving into Eureka, she was calling friends trying to get someone to bring her identification so she could get into the show. [¶] Defendant said Jane Doe was like family and he does not know where she came up with this story. He admitted he tied Jane Doe to the tree, but he said she was never hurt. Defendant said he is not the kind of person to beat a woman and put a gun in her face. He said he feels bad that his co-defendant[s] are in trouble for something they didn’t do. He stated ‘my brother was not even there, Deshawn was working on the house and Greg was just on the property.’”
The probation report also noted some conflicts in the accounts of the events: “It is difficult, perhaps impossible to determine fact from fiction in this case. Jane Doe reported she was tied to a tree overnight. Defendant admitted he tied Jane Doe to a tree, but stated it was only for fifteen to twenty minutes, during the day, and that he sat there the entire time talking to her. In co-defendant Scheider’s statement, he reported walking up to the house during daytime hours and seeing defendant untying Jane Doe from the tree. Jane Doe also described being left naked and hog tied for a day. She further described a vicious rape by co-defendant[s] Nate Garza, Moore and Scheider. However, all four defendant[s] passed a polygraph exonerating them of this crime. Jane Doe stated defendant took her to the Red Lion Inn in Eureka, where she was eventually able to ‘escape’ defendant. However, Jane Doe’s sister stated they met that day and returned to the Red Lion Inn, where Jane Doe took a shower. [¶] Jane Doe’s allegations are very serious and law enforcement appears to have done an excellent job attempting to corroborate her allegations. However, it appears that much of Jane Doe’s story may be fiction, and defendant is now facing a potentially lengthy prison sentence.”
The probation department nonetheless found the following circumstances in aggravation: appellant’s prior convictions were numerous (Cal. Rules of Ct., rule 4.421(b)(2)) and appellant was on summary probation when the crimes were committed (rule 4.421(b)(4)). The probation report stated: “No circumstances in mitigation were found. [¶] As no circumstances in mitigation were found, the aggravated prison term appears appropriate in this case.” (Italics added.) An attached “information sheet” confirmed there were no mitigating factors.
All further rules references are to California Rules of Court.
The probation department therefore recommended that the court impose a suspended upper term of eight years eight months on counts one and eight, but that probation be granted.
D. Sentencing
At the sentencing hearing of September 13, 2006, the court acknowledged that it had reviewed the probation report and announced its intention to deny probation and its inclination to sentence appellant to the middle term on count one. Defense counsel waived appellant’s right to file a statement in mitigation. The parties debated whether the plea agreement required appellant to be sentenced to prison, or whether the plea was “open” for the court to grant probation. The court ordered a copy of the transcript of the plea hearing and continued the matter.
The sentencing hearing reconvened on September 29, 2006. Based on its review of the plea transcript, the court concluded that the plea agreement had not contemplated probation. The prosecutor gave the judge two unsigned letters regarding appellant, which were not contained in the probation report, and appellant’s attorney stated he had no objection to the court considering them. Defense counsel also noted that he had received additional letters in support of appellant, very similar to what had already been submitted to the probation department, but he had left them at his office because they were untimely. Appellant’s attorney argued in favor of a lower term. The prosecutor argued for the upper term.
The court reviewed the factors in aggravation and mitigation in the Rules of Court and indicated which ones applied and which ones did not. The court found the following aggravating factors: appellant “did induce others to participate in the commission of the offense and did occupy a position of leadership or dominance of other participants in its commission” (rule 4.421(a)(4)); appellant had prior convictions, and his convictions were of increasing seriousness (rule 4.421(b)(2)); and appellant was on probation at the time the offense was committed (rule 4.421(b)(4)). The court found none of the circumstances in mitigation enumerated in rule 4.423, but found mitigating circumstances of appellant’s age and the effect of a prison term on appellant and his family. Concluding that the aggravating factors outweighed the mitigating circumstances, the court sentenced appellant to eight years in state prison: the eight-year upper term for kidnapping, plus concurrent upper terms of three years for false imprisonment and three years for possession of marijuana for sale.
In regard to the rule 4.423 factors, the court explained: “As I indicated, I did my best to find a circumstance in mitigation that might even apply to your case. I don’t find any of that. . . . Under the circumstances in mitigation, I do not find that any of the circumstances in mitigation listed under [rule] 4.423 are applicable here.” (Italics added.)
This appeal followed.
II. DISCUSSION
Appellant contends: (1) the court’s imposition of the upper terms of sentence violated the Sixth Amendment under Cunningham v. California (2007) 127 S.Ct. 856 (Cunningham); (2) the court erred or ignored several factors in mitigation; and (3) his trial counsel provided ineffective assistance of counsel by failing to file a statement in mitigation.
A. Cunningham
Appellant maintains that the court erred by imposing upper terms based on facts that were neither found by a jury beyond a reasonable doubt nor admitted by appellant. In Cunningham, the court held that California’s determinate sentencing law violated a defendant’s federal constitutional right to a jury trial by assigning to the trial judge, rather than the jury, the authority to make factual findings that subject a defendant to the possibility of an upper term sentence. (Cunningham, supra, 127 S.Ct. at p. 871.)
Our Supreme Court has since clarified how Cunningham should be applied. In People v. Sandoval (2007) 41 Cal.4th 825, the court held that the aggravating fact of a prior conviction (see rule 4.421(b)) is exempt from the constitutional requirement of a jury trial and proof beyond a reasonable doubt. (Sandoval, at pp. 836-837; see Almendarez-Torres v. United States (1998) 523 U.S. 224.) In People v. Black (2007)41 Cal.4th 799, it was held that the federal Constitution does not preclude a court from imposing an upper term sentence if the court finds and relies upon this recidivism factor, whether or not the court also cites other aggravating factors. (Black, supra, at pp. 810-816.)
Here, one of the aggravating factors on which the court relied was the recidivism factor of rule 4.421(b)(2), which applies where the defendant’s prior convictions are either numerous or of increasing seriousness. The probation report had indicated that this aggravating factor applied, stating “Defendant’s prior convictions are numerous.” At the sentencing hearing, the court stated: “I do find that 4.421(b)(2) does apply. Defendant does have prior convictions and, obviously, his convictions are of increasing seriousness.” (Italics added.) Given the fact that appellant had several prior convictions, and the probation report indicated that his prior convictions were “numerous,” we read the trial court’s language to refer both to the numerosity of appellant’s convictions (“[appellant] does have prior convictions”) and to their increasing seriousness (“and, obviously, his convictions are of increasing seriousness”).
Substantial evidence supported these findings. Appellant had eight prior convictions: driving without a license in 2002 (Veh. Code, § 12814.6); speeding in 2002 (Veh. Code § 22349, subd. (a)); exhibition of speed in 2003 (Veh. Code, § 23109, subd. (c)); speeding and lack of evidence of financial responsibility in 2004 (Veh. Code, §§ 22350, 16028, subd. (a)); battery in 2005 (Pen. Code, § 242); driving under the influence in 2005 (Veh. Code, § 23152, subd. (a)); and disturbing the peace in 2006 (Pen. Code, § 415). In addition, in the present proceeding he was convicted of kidnapping, false imprisonment, and possession of marijuana for sale. His prior convictions were numerous and, comparing the earlier motor vehicle violations with the more recent priors, of increasing seriousness.
Even if the trial court found the recidivism factor based only on the increasing seriousness of the prior convictions, and not their number, the fact remains that appellant’s eight prior convictions are numerous, and they thus rendered him eligible for the upper term. As the court recently stated in People v. Stuart (2008) 159 Cal.App.4th 312: “Here, although the court did not mention defendant’s six prior misdemeanor convictions as a reason for imposing the upper term, those convictions qualified as an aggravating circumstance under rule 4.421(b)(2) of the California Rules of Court . . .. Six prior convictions are plainly ‘numerous.’ Because one legally sufficient aggravating circumstance was justified based on defendant’s record of prior convictions, the trial court’s finding of additional aggravating circumstances did not violate defendant’s constitutional rights under Black.” (Stuart, at p. 314. Footnote omitted.)
Appellant contends that his prior convictions were not of increasing seriousness. We disagree. In any event, the argument is immaterial given the number of appellant’s prior convictions. Appellant fails to establish error under Cunningham.
Respondent points out that the court also relied on the fact that appellant committed his present crimes while on probation (rule 4.421(b)(4)), which also falls within the recidivism exception. (People v. Yim (2007) 152 Cal.App.4th 366, 371.) Appellant counters that he was merely on “summary probation,” which is a term formerly used for a “conditional sentence.” (See City of Victorville v. County of San Bernardino (1991) 233 Cal.App.3d 1312, 1314.) Section 1203, subdivision (a) differentiates between a conditional sentence, which is the “suspension of the imposition or execution of sentence and the order of revocable release in the community subject to the conditions established by the court without the supervision of the probation officer,” (italics omitted) and “probation,” which applies where there is supervision by the probation officer. We need not and do not decide whether “probation” in rule 4.421(b)(4) includes summary probation.
B. Mitigating Factors
Appellant contends that the court erred in not finding, or ignoring, a number of mitigating factors. In his opening brief, appellant speculates that the judge must have ultimately ignored the mitigating factors mentioned in the probation report and its attachments, because the judge was initially inclined to impose a middle term, or even consider probation, but in the end imposed the upper term. In his reply brief, appellant refines or clarifies his contention, asserting there were some significant factors in mitigation that the sentencing court did not consider. Both arguments lack merit.
The argument is unfounded. The probation report was received and reviewed by the judge before he expressed his initial inclination in regard to sentence. The judge stated: “I do have probation officers’ reports [for appellant and his co-defendants] which I have reviewed.” At the same initial hearing, the judge indicated he had read the report regarding appellant in particular, including its attachments. Appellant’s argument, therefore, is that the judge paid attention to certain statements in the probation report at first, but later ignored them when ultimately imposing sentence. A far more logical interpretation is that the court ultimately agreed with the probation department that the aggravating factors warranted the upper term, and the statements favorable to appellant in the probation report did not amount to significant mitigating circumstances.
The sentencing judge must consider factors in aggravation and mitigation in choosing whether to impose the lower, middle, or upper term. (§ 1170, subd. (b); rules 4.409 & 4.420(b).) Under the rules in effect at the time of sentencing in this case, circumstances in mitigation had to be established by a preponderance of the evidence. (Former rule 4.420(b), effective January 1, 2001.) The trial court may minimize or entirely disregard mitigating factors, without explaining why. (People v. Salazar (1983) 144 Cal.App.3d 799, 813 [court did not err in rejecting mitigating factors, because the court “may minimize or entirely disregard mitigating factors without stating its reasons”].) Moreover, while the court must consider “[r]elevant criteria enumerated” in the Rules of Court, those criteria “will be deemed to have been considered unless the record affirmatively reflects otherwise.” (Rule 4.409; italics added.)
In the matter before us, the record does not affirmatively show that the court failed to consider mitigating factors. To the contrary, the record shows that none of the factors enumerated in rule 4.421 was present. While the probation report contained some statements that appellant construes to be in his favor, as well as some supportive letters as attachments, there is absolutely no basis for concluding the trial court ignored them.
For several reasons, the record demonstrates that the court considered the statements favorable to appellant, but found them to be insignificant. (The probation department did not think they were very significant either, since it too advocated the upper term.) First, the court expressly stated that it had reviewed the probation report and its attachments. Second, while the court concluded there were no circumstances in mitigation under rule 4.423, so did the probation report. Third, the probation report—notwithstanding all of the comments favorable to appellant—recommended the upper term of sentence of eight years and eight months. In imposing the upper term, the court sentenced appellant to just eight years. Fourth, the court stated: “As I indicated, I did my best to find a circumstance in mitigation that might even apply to your case,” but did not find any under rule 4.423. We do not see how appellant can claim that the trial court ignored mitigating circumstances when the court said that it did its best to find one. Fifth, as to potential (non-enumerated) mitigating circumstances, the court found two: appellant’s age and the impact prison would have on appellant and his family. (See rule 4.408.) Clearly, the court did not ignore potentially mitigating circumstances, but instead concluded that what appellant contends to be mitigating influences were insignificant. (See People v. Thompson (1982) 138 Cal.App.3d 123, 127 [where sentencing court found “no mitigation, no aggravation,” appellate court concluded: “In stating ‘no mitigation’ the court was merely rejecting the mitigating influences as being insignificant”].)
Nor does appellant demonstrate error in the court’s conclusion, after reviewing the relevant material, that there were no mitigating factors. Although appellant points to several statements in the probation report that he believes should have lessened his sentence, it was not unreasonable for the court to conclude they were insignificant.
For example, appellant claims there was “some doubt about the offenses” in light of conflicting evidence noted in the probation report and, according to appellant, the witnesses’ accounts may not have established a kidnapping. However, the trial court need not share the probation report’s assumption that the defendants’ statements deserved equal footing with the victim’s account. Appellant pled guilty to the crimes and, as the prosecutor pointed out, the probation report did not seem to appreciate fully the concept of accomplice liability. The statement in aggravation supported the kidnapping charge. In any event, the court may reject the probation officer’s view, without stating reasons. (See People v. Butler (1988) 202 Cal.App.3d 602, 607; People v. Waite (1983) 146 Cal.App.3d 585, 595; People v. Bracamonte (1982) 137 Cal.App.3d 936, 940.) Appellant also argues that he “did not harm [the victim]” because the rape did not really occur. However, the court stated: “I don’t consider any of the . . . original charges concerning sexual offenses as having occurred.” (Italics added.) Therefore, the court did not consider the alleged rape in imposing sentence.
Appellant’s other contentions fare no better. He claims that he had not previously committed any crimes of moral turpitude, but that does not make less severe the present charges to which he pled guilty, including kidnapping, false imprisonment by force, and possession of marijuana for sale. (See People v. Castro (1985) 38 Cal.3d 301, 317 [possession of heroin for sale is crime of moral turpitude].) He laments an “unhappy childhood” and a “lack of education” that deprived him of needed “orientation,” but there is no direct nexus between those circumstances and his present crimes. He also refers us to the support he had in the community, as demonstrated by a woman who advised that appellant had never stolen from her and was not a threat to the community, as well as a friend who described him as a “stand up guy.” The trial court could reasonably find these characterizations insignificant, since appellants’ friends and family might have a personal interest in reducing appellant’s prison term.
In addition, appellant notes that his “personal characteristics” were a mitigating factor because, about four months before sentencing, he married his girlfriend and his daughter was born. Contrary to appellant’s assertion, however, the court did acknowledge appellant’s personal characteristics and found that prison would have an impact on appellant and his family. The court has broad discretion to determine that aggravating factors outweigh mitigating circumstances.
Garza’s reliance on People v. Covino (1980) 100 Cal.App.3d 660 is misplaced. In Covino, the probation report noted there were no circumstances in mitigation, but the defendant’s attorney, employer and a friend wrote letters supporting his character and noting he had an unhappy marriage and a drinking problem, which could be considered circumstances in mitigation under rule 4.408. (Covino, at pp. 669.) The sentencing court imposed the aggravated term, based on aggravating factors set forth in the probation report. (Ibid.) The court of appeal remanded to the trial court for a new hearing on mitigating and aggravating circumstances because (1) the sentencing judge limited his consideration of circumstances in mitigation to those specified by rule 4.423 (formerly rule 423), ignoring matters that might be considered under rule 4.408 (formerly rule 408); and (2) the defendant’s “presumed prior conviction appears not indeed to have been a conviction.” (Covino, at pp. 670-672.)
Covino is obviously distinguishable from the matter at hand. Here, the court did not limit its consideration of mitigating circumstances to those listed in rule 4.423; instead, it expressly found two non-enumerated mitigating factors pursuant to rule 4.408. Nor did the court rely on a conviction that was later dismissed or stricken.
C. Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, the appellant must show: (1) counsel’s performance was deficient because his representation fell below an objective standard of reasonableness under prevailing professional norms; and (2) prejudice flowing from counsel’s performance or lack thereof. (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) We reverse convictions on the ground of inadequate counsel only if “the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.” (People v. Fosselman (1983) 33 Cal.3d 572, 581.) Ineffective assistance claims may be rejected on direct appeal “ ‘[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged.’ ” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
Appellant contends that his trial counsel was ineffective because he failed to file a statement in mitigation before sentencing. Because the record provides no affirmative reason why trial counsel chose not to file a statement in mitigation, appellant’s claim is speculative and unavailing. (People v. Bolin (1998) 18 Cal.4th 297, 334.)
In any event, appellant fails to show that he was prejudiced by counsel’s decision not to file a statement in mitigation. Such a statement is one means by which mitigating circumstances may be brought to the court’s attention. (Pen. Code, § 1170, subd. (b); rule 4.437.) The court already had the probation report and considered it. In addition, counsel argued vigorously for a middle or lower term for appellant at the hearing, insisting that appellant had accepted responsibility for his actions, had a family, and had learned a lot in county jail. Aside from the fact that appellant (through counsel) waived his right to file a statement in mitigation, repeating the same information in the form of a statement in mitigation would not have made it more persuasive. Indeed, there is no reason to believe that defense counsel’s statement in mitigation would have been more compelling than appellant’s opening brief and reply brief in this appeal, and we find those briefs to be entirely unpersuasive. There is no reasonable possibility that appellant would have obtained a more favorable result if his counsel had filed a statement in mitigation.
Appellant’s other attempts to prove ineffective assistance fail as well. He points out that his defense attorney could have called as witnesses the authors of the letters submitted on his behalf. There may be a variety of legitimate reasons for defense counsel not to do so, including the unavailability or reluctance of those witnesses, or the possibility that the letters would appear more credible and persuasive than the witnesses themselves. Appellant also blames counsel for failing to submit to the court some untimely letters of support and failing to investigate the circumstances referenced by the probation report. But there is nothing in the record that even remotely suggests that such investigation, or more of the same letters, would have done anything to change the sentence in this case.
III. DISPOSITION
The judgment is affirmed.
We concur. SIMONS, Acting P. J., REARDON, J.
Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.