Opinion
D057025
08-02-2011
THE PEOPLE, Plaintiff and Respondent, v. JORGE GUADARRAMA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JCF20241)
APPEAL from a judgment of the Superior Court of Imperial County, Raymundo Ayala Cota, Judge. Affirmed in part, reversed in part and remanded.
A jury convicted Jorge Guadarrama of two counts of battery by a prisoner on a nonprisoner (Pen. Code, § 4501.5) and made a true finding that Guadarrama suffered two prior serious or violent felonies within the meaning of the "Three Strikes" law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). After denying Guadarrama's motion to strike one or both of his prior strikes pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), the trial court sentenced Guadarrama to two consecutive prison terms of 25 years to life.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Guadarrama contends that (1) defense counsel offered ineffective assistance in connection with the Romero motion; and (2) we must remand for resentencing because the trial court incorrectly believed that it lacked discretion to impose concurrent rather than consecutive sentences. We conclude that (1) Guadarrama has not established ineffective assistance of counsel, but (2) the trial court erred in believing that it lacked discretion to impose a concurrent sentence. Accordingly, we vacate the sentence and remand for the trial court to determine whether Guadarrama's two prison terms of 25 years to life should be served concurrently or consecutively to each other.
I
FACTUAL AND PROCEDURAL BACKGROUND
While serving a prison term for two attempted murders, Guadarrama was involved in a riot at Calipatria State Prison. The riot began when an inmate resisted a patdown by a correctional officer in an exercise yard, and other inmates rushed toward the correctional officer. As Officer Anthony Mosley responded to the incident, he was attacked by several inmates, including Guadarrama. Guadarrama hit Officer Mosley in the side of the head as Officer Mosley was blocking punches with his arm. Officer Manuel Sandoval intervened to assist Officer Mosley during the attack and was hit on the shoulder and face by Guadarrama.
Guadarrama was charged with and convicted of two counts of battery by a prisoner on a nonprisoner (§ 4501.5) based on his blows to Officers Mosley and Sandoval. The jury found that Guadarrama suffered two prior convictions for attempted murder, which constituted serious or violent felonies within the meaning of the Three Strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)).
Defense counsel filed a motion to strike one or both of Guadarrama's prior strikes pursuant to Romero, supra, 13 Cal.4th 497, and section 1385. Defense counsel argued that the trial court should strike the prior strikes because, among other things, there was no evidence Guadarrama personally caused injuries to the correctional officers; there was no indication that Guadarrama was a ringleader of the riot; the attempted murders were committed when Guadarrama was 17 years old; and Guadarrama did not otherwise have a lengthy criminal history.
Statements made by counsel and the trial court during the hearing on the Romero motion and the subsequent sentencing hearing are relevant to the issues presented in this appeal, and we therefore proceed to discuss them in detail.
The Romero hearing and the sentencing hearing took place on the same day. At the Romero hearing, the prosecutor stated, "If the court [is] moved to leniency, I think that's certainly within the court's discretion. . . . If the court was feeling lenient, the People would not object to granting the Romero motion as to one of the two victims, leaving the Defendant with one life sentence." Asked for clarification by the trial court, the prosecutor stated, "The People would not object to the court granting the Romero motion as to one of the two victims. . . . If the court were moved in the interest of justice, what would remain is a possibility that the Defendant would be paroled out after 25 years." The trial court asked, "Is that the People's request?" The prosecutor responded, "It would be, Your Honor. I would not object to that."
The trial court then turned to defense counsel, stating, "I take it, the defense would not object to that?" Defense counsel responded by pointing out that section 654 might
apply, and that the sentence on one of the counts might therefore be stayed. The trial court stated that it was "a little bit confused" about why defense counsel was addressing the section 654 issue in the context of the Romero motion when the prosecutor was "essentially offering to stipulate that I may go ahead and . . . in the event I that I was going to be giving him a life sentence and deny the Romero motion, not to give him consecutive life terms." Defense counsel replied by acknowledging that "we have to decide . . . what the court's ruling is going to be on the issue of striking a prior strike before we get to whether or not [Guadarrama] should be sentenced on one or two counts of life. It's a threshold issue . . . ."
Section 654, subdivision (a) provides in relevant part that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Where "section 654 prohibits multiple punishment, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited." (People v. Reed (2006) 38 Cal.4th 1224, 1227.)
Returning to the subject of the Romero motion, the prosecutor then commented that "what [the trial court] would be effectively doing is by granting the Romero motion on one of the counts but not the other, [Guadarrama] could be sentenced to what I feel is a just disposition. He's earned a life sentence. I feel he will get one in this case. But two life sentences would remove any possibility of parole, . . . and so that was my suggestion." The prosecutor explained, "The People would be amenable to . . . striking one of the prior convictions as to Count Two. So [Guadarrama] would stand . . . to be sentenced on Count One with two strikes and Count Two with one or no strikes. So it would be a sentence of 25 to life plus, presumptively, three years, or the upper term of four years."
Defense counsel responded: "I guess my only response would be, Your Honor, generally what I've seen is when courts grant Romero, the reasons don't differentiate. They either strike a prior for all sentencing purposes, or they don't. They don't tend to strike it as to one count. I don't know if what he's proposing has ever been done. I've only seen where the strike is stricken. And then you sentence under a two strikes scheme[,] or both strikes are stricken and you sentence under a no strikes scheme. But the court has been in practice longer than me."
The trial court stated that because defense counsel was not willing to stipulate, it would move forward with ruling on the Romero motion. It then denied the Romero motion, with a lengthy explanation of why Guadarrama did not fall outside the spirit of the Three Strikes Law, including the seriousness of Guadarrama's prior convictions and his voluntary participation in a violent prison riot.
Having denied the Romero motion, the trial court turned to the issue of sentencing. Defense counsel made no further attempt to argue that section 654 was applicable, and the trial court noted that "this is not a [section] 654 issue" because "[y]ou've got two different victims here." The trial court stated that according to its understanding, it was required to impose consecutive terms but "if the People wish to make some kind of a motion and/or reach some kind of stipulation . . . , then I'm willing to listen." The trial court indicated, however, that it was inclined to impose consecutive sentences. It stated, "[A]t this point, I find it very difficult for me not to impose consecutive life sentences. But I'll hear from the People and the Defendant if there's some kind of stipulation. But if there is, then it should have to be because that's what the People desire, and the Defendant is willing to have imposed, and that I did not exercise my independent judgment." The trial court asked the prosecutor: "[I]s that your wish, then, that I, essentially, by some means fail to give him consecutive sentences for a life term?" The prosecutor answered in the negative, stating that "under the circumstances, with the Romero motion denied, the law is straightforward and clear as to sentencing, and I don't think I have the authority to interpose my judgment over the will of the [L]egislature."
In an attempt to obtain concurrent sentences for Guadarrama, defense counsel argued, "I think the court does have discretion to run two sentences concurrently. I don't think that's outside of the court's discretion to do that." The trial court disagreed, stating, "The problem with that is that my understanding of the law is that they are consecutive. I don't think I have that discretion." The trial court then sentenced Guadarrama to two consecutive terms of 25 years to life, stating that "the statutory scheme . . . mandates 25 to life consecutive sentences under the facts of this case unless the court makes the appropriate findings under Romero and strikes priors."
During sentencing, the trial court made other statements indicating that it believed it lacked discretion to impose a concurrent sentence. The trial court stated, "And my understanding is that this is consecutive terms. So, quite frankly, right now I think that the law compels me to . . . sentence the Defendant in accordance with the law." The trial court also stated, "[W]ith life sentences, I don't think there is any room for me to exercise . . . discretion . . . ."
By the time of sentencing, Guadarrama had already finished serving the prison term on his prior convictions.
II
DISCUSSION
A. Guadarrama Has Not Established That Defense Counsel Was Ineffective
Guadarrama contends that he received ineffective assistance of counsel in connection with the Romero motion because defense counsel (1) did not know that the trial court could strike a prior strike with respect to only one count and (2) erroneously argued during the Romero motion that section 654 would apply at sentencing.
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) That right "entitles the defendant not to some bare assistance but rather to effective assistance." (Ibid.)A defendant claiming ineffective assistance of counsel has the burden to show: (1) counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); Ledesma, at pp. 216, 218.) Prejudice is shown when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694.)
In addition,"[r]eviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel's omissions." (People v. Lucas (1995) 12 Cal.4th 415, 442 (Lucas); see also People v. Anderson (2001) 25 Cal.4th 543, 569 (Anderson)["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."].)
We first examine Guadarrama's argument that defense counsel was ineffective because she stated that she did not know whether the trial court had discretion to strike a prior strike as to only one of the two counts for which Guadarrama was being sentenced. At the outset we note that, despite defense counsel's professed lack of knowledge on the issue, the law is clear that "a trial court in a Three Strikes case may exercise its discretion under section 1385, subdivision (a), so as to dismiss a prior conviction allegation with respect to one count, but not with respect to another." (People v. Garcia (1999) 20 Cal.4th 490, 503-504.) The prosecutor was apparently aware of this principle in suggesting that the trial court should grant the Romero motion for only one of the two counts for which Guadarrama was being sentenced.
Guadarrama contends that defense counsel was ineffective because she had a professional duty to understand the applicable law, and she did not know whether the trial court was permitted to strike the prior strikes as to only one of the two counts, causing her to reject the prosecutor's proposed resolution of the Romero motion. However, the fundamental flaw in this argument is the lack of evidence in the appellate record that defense counsel's purported uncertainty about the applicable law was the basis for her refusal to stipulate to the prosecutor's suggested resolution of the Romero motion.
Although defense counsel noted that she didn't know whether "what [the prosecutor was] proposing has ever been done," she stated that she would defer to the trial court's understanding. She did not say that she was refusing to stipulate to the prosecutor's proposed resolution of the Romero motion because she was uncertain as to the law. Indeed, it is possible that defense counsel refused to stipulate to the prosecutor's suggested resolution of the Romero motion because a much better outcome was possible if the trial court granted the Romero motion as to both counts. In ruling on a claim of ineffective assistance of counsel, we inquire whether there was a "rational tactical purpose" (Lucas, supra, 12 Cal.4th at p. 442) and "satisfactory explanation" (Anderson, supra, 25 Cal.4th at p. 569) for defense counsel's actions. Here, if the trial court decided to strike one of the prior strikes for both counts, Guadarrama would have received a determinate sentence of two, three or four years for each count, which would have been doubled due to the one prior strike. (§§ 4501.5, 667, subd. (e)(1), 1170.12, subd. (c)(1).) That outcome would have been far better for Guadarrama than the sentence of 25 years to life plus a two-, three- or four-year determinate term, which would have resulted if defense counsel had agreed to the prosecutor's suggestion (§§ 4501.5, 667, subd. (e)(1), 1170.12, subd. (c)(2)). The possibility of a more favorable outcome is a plausible tactical reason for why defense counsel did not accept the prosecutor's proposed resolution of the Romero motion.
Further, we note that defense counsel did not expressly state that she was uncertain about whether the trial court was legally authorized to strike the prior strikes as to only one of the two counts. She stated that she did not know whether what the prosecutor was proposing "has ever been done," and had "only seen" strikes stricken as to each count. It is plausible that defense counsel made these statements so that the prosecutor's suggestion would seem highly unusual and to dissuade the trial court from accepting the prosecutor's suggestion. In that case, defense counsel's statement would be tactical rather than evidence of ineffective assistance.
In sum, because there is no evidence that defense counsel's purported uncertainty about the applicable law caused her to reject the prosecutor's proposed resolution of the Romero motion, Guadarrama has not established, as required, that prejudice occurred because of counsel's lack of legal knowledge (Strickland, supra, 466 U.S. at p. 687), and has not established that defense counsel acted without a rational tactical purpose (Lucas, supra, 12 Cal.4th at p. 442). The claim of ineffective assistance based on defense counsel's purported uncertainty about the law is therefore without merit.
There also is no merit to Guadarrama's argument that defense counsel was ineffective based on her statements regarding section 654 during the hearing on the Romero motion. Guadarrama contends that despite the prosecutor's mention of section 654, it was clearly inapplicable because section 654 does not apply when "the defendant's violent act injures different victims." (People v. Deloza (1998) 18 Cal.4th 585, 592 (Deloza).) According to Guadarrama, because defense counsel did not understand the applicable law, she did not represent him effectively during the Romero motion. The problem with this argument is that even if defense counsel mistakenly believed section 654 applied, no prejudice resulted. (Strickland, supra, 466 U.S. at p. 687.)
Guadarrama focuses on the impact that defense counsel's flawed understanding of section 654 must have had on her advocacy of the Romero motion, but there is no evidence that defense counsel's understanding of section 654 caused her to advocate less forcefully for the Romero motion or to refuse the prosecutor's proposed resolution of the Romero motion. Defense counsel argued at length in support of the Romero motion, and as we have discussed, there were sound tactical reasons for her to reject the prosecutor's proposed resolution of the Romero motion, regardless of her belief that section 654 applied.
We therefore conclude that Guadarrama has not established that defense counsel was ineffective. B. The Trial Court Improperly Concluded That It Lacked Discretion to Impose a Concurrent Sentence
Guadarrama's final argument is that the trial court erred in concluding that it lacked discretion to order that the two indeterminate prison terms of 25 years to life be served concurrently to each other rather than consecutively.
As a preliminary matter, we note that the trial court's comments during sentencing are susceptible to only one interpretation: it believed it lacked discretion to order that the sentences be served concurrently to each other. The Attorney General's argument to the contrary — that the trial court believed it had discretion to impose a concurrent sentence, but simply declined to exercise that discretion — is simply not supported by the record. The trial court rejected defense counsel's request to impose concurrent sentences, stating "I don't think I have that discretion" and "I don't think there is any room for me to exercise . . . discretion."
The trial court was not clear about why it believed it lacked discretion. One possibility is that the trial court was focusing on the language of section 4501.5, defining the crime of which Guadarrama was convicted. That statute refers consecutive sentencing, stating that "[e]very person confined in a state prison of this state who commits a battery upon the person of any individual who is not himself a person confined therein shall be guilty of a felony and shall be imprisoned in the state prison for two, three, or four years, to be served consecutively." (§ 4501.5, italics added.) However, because Guadarrama was sentenced under the Three Strikes law, the sentencing provisions in section 4501.5 were not applicable. The Three Strikes law provides that its sentencing provisions — including those dealing with the application of consecutive or concurrent sentences — apply "[n]otwithstanding any other provision of law." (§ 1170.12, subds. (a), (d); see also § 667, subd. (c).) "The Three Strikes law, when applicable, takes the place of whatever law would otherwise determine defendant's sentence for the current offense." (Romero, supra, 13 Cal.4th at p. 524; see also People v. Franklin (1997) 57 Cal.App.4th 68, 73-74 [construing the phrase "notwithstanding any other provision of law" in the Three Strikes law]; People v. Tillman (1999) 73 Cal.App.4th 771, 783 [same].) Therefore, the statement in section 4501.5 that the sentence specified in that section is "to be served consecutively" did not determine whether the trial court had discretion to impose a concurrent sentence here.
We note that the trial court may have focused on this language, as the prosecutor highlighted it during the hearing on the Romero motion, stating that "[section] 4501.5 lists in its language that it shall be consecutive."
The other possibility is that the trial court understood that the issue of whether consecutive sentences were mandatory was governed by the Three Strikes law, and that it interpreted that law to divest it of any discretion to impose concurrent sentences in this case. As we will explain, however, under the facts of Guadarrama's case, the Three Strikes law gave the trial court discretion to impose a concurrent sentence.
"Section 667, subdivision (c)(6) states, 'If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to subdivision (e).' (See § 1170.12, subd. (a)(6).) Our Supreme Court has synthesized the effect of sections 667, subdivision (c)(6) and 1170.12, subdivision (a)(6) as follows: ' "By implication, consecutive sentences are not mandatory under subdivision (c)(6) if the multiple current felony convictions are 'committed on the same occasion' or 'aris[e] from the same set of operative facts.'" [Citation.]' ([Deloza, supra,]18 Cal.4th [at p.] 591, quoting People v. Hendrix (1997) 16 Cal.4th 508, 512-513.)" (People v. Garcia (2008) 167 Cal.App.4th 1550, 1566; see also People v. Lawrence (2000) 24 Cal.4th 219, 233 (Lawrence)["where a sentencing court determines that two or more current felony convictions were either 'committed on the same occasion' or 'aris[e] from the same set of operative facts' . . . , consecutive sentencing is not required under the three strikes law, but is permissible in the trial court's sound discretion"].)
Here, Guadarrama's two convictions for battery by a prisoner on a nonprisoner were committed on the same occasion. As our Supreme Court has explained, crimes are committed on the same occasion for the purposes of consecutive sentencing under the Three Strikes law when there is " 'at least a close temporal and spatial proximity between two events.'" (Lawrence, supra, 24 Cal.4th at p. 229.) Guadarrama's battery on the two correctional officers in this case occurred almost simultaneously, as Guadarrama struck Officer Sandoval as he intervened while Guadarrama was attacking Officer Mosley. Because Guadarrama's two crimes were committed on the same occasion, consecutive sentencing was not mandatory under the Three Strikes law. The trial court thus improperly believed that it lacked discretion to order that the two prison terms of 25 years to life be served concurrently to each other rather than consecutively.
" 'Where, as here, a sentence choice is based on an erroneous understanding of the law, the matter must be remanded for an informed determination.' . . . However, '[i]f the record shows that the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required.'" (People v. Gamble (2008) 164 Cal.App.4th 891, 901, citation omitted). The trial court gave no indication as to whether it would have exercised its discretion to order that the two prison terms of 25 years to life be served concurrently to each other rather than consecutively. We will therefore remand for the trial court to determine whether to impose a concurrent or consecutive sentence.
DISPOSITION
The sentence is vacated and this matter is remanded to the trial court for further proceedings consistent with this opinion. In all other respects, the judgment is affirmed.
IRION, J. WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.