Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. SCN207728, Joan P. Weber, Judge.
McINTYRE, J.
A jury convicted John Harlan of attempted false imprisonment by violence or menace (Pen. Code, §§ 236, 237, subd. (a), 664; all statutory references are to the Penal Code) as a lesser included offense of false imprisonment by violence or menace. Before the trial, Harlan admitted he had six strike prior convictions (§ 667, subds. (b) through (i)), two serious felony prior convictions (§ 667, subd. (a)(1)) and had served three prior prison terms (§ 667.5, subd. (b)). The trial court sentenced Harlan to 25 years to life in prison under the Three Strikes Law.
FACTS
At about 5:00 a.m. on February 17, 2006, Harlan telephoned Western Referral, an escort service providing nude and adult entertainment, identified himself as "Aaron Calloway," and requested services. Laura Hecox, the escort service's receptionist, contacted Kristin Herron at home and asked her to meet "Calloway" at an address in Escondido. Herron was a licensed entertainer for Western Referral.
Herron had trouble locating the address Harlan had given, including using the code to open the gate at the apartment complex where he was located. Hecox told Herron to look for a white male wearing jeans and a white hat. Herron rolled down the passenger window in her car as a man matching that description approached. The man, who was Harlan, asked if Herron was "Honey," her stage name. Harlan opened the passenger car door and entered the vehicle without Herron's permission. Harlan had a newspaper and a bottle of beer in a plastic bag; he smelled like beer, but did not appear drunk. Harlan refused to get out of the car despite numerous requests to do so by Herron and Hecox, whom Herron had called on her cell phone.
When another vehicle pulled up behind Herron's vehicle at the gate, she drove out of the driveway. At first, Herron followed Harlan's direction to turn onto Del Dios Road, but then suddenly turned into the parking lot of a liquor store, where several men were gathered. Herron's abrupt turn angered Harlan and he grabbed the steering wheel but then released it. Harlan said: "You fucking bitch, you shouldn't have did [sic] that. . . . You're not going to go anywhere." Harlan picked up the plastic bag and pulled a black handle from the middle of the newspaper; Herron saw a four-inch handle and a bit of silver blade, which she believed was a butcher knife.
Herron grabbed her keys, and Harlan took them away from her. As Herron opened the door, Harlan grabbed her arm, but she was able to pull her arm out of the jacket sleeve and get out of the car. Harlan then ran away.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as a possible but not arguable issue: Whether the court abused its discretion by not finding Harlan's background demonstrated that he was outside of the spirit of the Three Strikes Law and refusing to dismiss his prior robbery "strike" convictions.
We granted Harlan permission to file a brief on his own behalf. He has done so. Harlan contends: (1) he received ineffective assistance of counsel by both his appellate and trial attorneys; (2) there was insufficient evidence at the preliminary hearing; (3) his conviction is invalid because attempted false imprisonment by violence or menace is not a lesser included offense of false imprisonment by violence or menace; (4) the court erred by not holding a Marsden (People v. Marsden (1970) 2 Cal.3d 118) hearing; (5) the prosecutor committed misconduct; and (6) the court erred by not giving an instruction on an intoxication defense and improperly instructed the jury on filling out the verdict forms.
Ineffective Assistance of Counsel
A criminal defendant is guaranteed the right to the assistance of counsel by both the state and federal Constitutions. In People v. Ledesma (1987) 43 Cal.3d 171, 215, our Supreme Court noted: "Construed in light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance. [Citations.] Specifically, it entitles him to 'the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.' " The burden of proving a claim of ineffective assistance of counsel is on Harlan. (People v. Pope (1979) 23 Cal.3d 412, 425.) To establish a prima facie case of ineffective assistance of counsel, a defendant must show (1) counsel performed at a level below an objective standard of reasonableness under prevailing professional norms, and (2) the defense was subjected to prejudice flowing from the deficient performance of counsel. (People v. Hamilton (1988) 45 Cal.3d 351, 377.) Since failure of either prong is fatal to establishing ineffective assistance of counsel, we need not address both prongs if we find Harlan cannot prevail on one of them. (People v. Cox (1991) 53 Cal.3d 618, 656.)
Appellate counsel's purported failings were she failed to raise the ineffective assistance of trial counsel, did not seek to augment the record with the reporter's transcript for voir dire and opening statements, was unsuccessful at obtaining trial counsel's file and did not raise all reasonable arguments on appeal.
Harlan complains trial counsel conceded that Harlan was guilty in closing argument. Not exactly. The jury was instructed on three lesser offenses of false imprisonment by violence or menace. Counsel's strategy was to convince the jury to return a verdict on either of the two lesser included offenses that were misdemeanors─false imprisonment and attempted false imprisonment. Given the overwhelming evidence against Harlan, this was a legitimate tactical approach aimed at avoiding the Three Strikes Law. Harlan also claims counsel should have obtained and presented evidence regarding the safety locks in the rental car that Herron used. Such evidence, at most, could show Herron opened the door for Harlan and cast doubt on her testimony that the passenger side door was not locked, and she did not unlock it for Harlan. Even if such evidence was available and favorable to Harlan, the result would have been the same. Herron's version of the events was corroborated by Hecox's testimony and the police officer's testimony in which she recounted Harlan's admissions made after he was properly advised of his Miranda (Miranda v. Arizona (l966) 384 U.S. 436) rights. To the extent that Harlan argues trial counsel should have presented evidence, such as a can opener, that Harlan did not have a knife, we point out counsel cross-examined Herron on the knife issue and the jury found the allegation that Harlan personally used a knife in the commission of the offense to be untrue. Harlan's representation at trial did not constitute ineffective assistance of counsel.
Thus, appellate counsel was not ineffective by not raising a claim of ineffective assistance of trial counsel. Harlan's other claims about ineffective assistance of appellate counsel are also without merit. The standard record on appeal includes the reporter's transcript of the oral proceedings at trial but does not include "the voir dire examination of jurors and any opening statement." (Cal. Rules of Court, rule 8.320(c)(3).) A party may move to augment the record to include matters outside the normal record. (Cal. Rules of Court, rule 8.155.) However, to justify augmentation, the party must establish "with some certainty how [the requested transcripts] may be useful to him on appeal." (People v. Hill (1967) 67 Cal.2d 105, 124.) Harlan has failed to do so. As to Harlan's remaining complaints against appellate counsel, he has not shown he was prejudiced.
Sufficiency of Evidence at Preliminary Hearing
This issue is moot. "Where the evidence produced at trial amply supports the jury's finding, any question whether the evidence produced at the preliminary hearing supported the finding of probable cause is rendered moot. Even ' " '[i]f there is insufficient evidence to support the commitment, the defendant cannot be said to be prejudiced where sufficient evidence has been introduced at . . . trial' " ' to support the jury's finding as to the charge or as to the truth of the allegation. [Citations.]" (People v. Crittenden (1994) 9 Cal.4th 83, 137.)
Validity of Conviction
"When a defendant acts with the requisite specific intent, that is, with the intent to engage in the conduct and/or bring about the consequences proscribed by the attempted crime [citation], and performs an act that 'go[es] beyond mere preparation . . . and . . . show[s] that the perpetrator is putting his or her plan into action' [citation], the defendant may be convicted of criminal attempt." (People v. Toledo (2001) 26 Cal.4th 221, 230.) Moreover, section 1159 provides: "The jury . . . may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense." As to whether attempted false imprisonment by violence or menace is a necessarily included offense of false imprisonment by violence or menace, we note that appellate courts in this state have repeatedly accepted the principle that an attempt is a lesser included offense of any completed crime. (See, e.g., People v. Vargas (2002) 96 Cal.App.4th 456, 463 [attempted carjacking lesser included offense of carjacking]; People v. Post (2001) 94 Cal.App.4th 467, 479-483 [attempted perjury lesser included offense of perjury] People v. Jones (1999) 75 Cal.App.4th 616, 626-628 [attempted carjacking lesser included offense of kidnapping during carjacking]; People v. Aguilar (1989) 214 Cal.App.3d 1434, 1436, [attempted burglary lesser included offense of burglary]; People v. Splawn (1985) 165 Cal.App.3d 553, 559 [attempted insurance fraud lesser included offense of insurance fraud]. Harlan's conviction is valid.
Marsden Hearing
Since trial counsel was retained rather than appointed, People v. Marsden, supra, 2 Cal.3d 118 is not applicable. (People v. Lara (2001) 86 Cal.App.4th 139, 158.) There was no error.
Prosecutorial Misconduct
Harlan's complaint is that the prosecutor overstated Western Referral's service charge during his examination of Herron by asking what services are offered for $600 rather than $300. However, Herron answered the question by referring to the services offered for $300. Under federal law, prosecutorial misconduct comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citation.]" (People v. Harris (1989) 47 Cal.3d 1047, 1084; see also Darden v. Wainwright (1986) 477 U.S. 168, 181.) Under California law, prosecutorial misconduct must involve " ' "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' " (People v. Espinoza (1992) 3 Cal.4th 806, 820.) The prosecutor's misstatement in posing a question was not part of a pattern of egregious conduct that rendered the trial unfair and did not involve the use of deception or other reprehensible methods intended to persuade the jury. The prosecutor's examination of Herron concerning whether the car was locked also was not prosecutorial misconduct.
Intoxication Instruction
An instruction on voluntary intoxication is warranted only if there is substantial evidence that intoxication affected the actual formation of specific intent or mental state required for the offenses. (People v. Roldan (2005) 35 Cal.4th 646, 715; People v. Williams (1997) 16 Cal.4th 635, 677; § 22, subd. (b).) There was very little evidence that Harlan was intoxicated when he entered Herron's car and attempted to prevent her from getting out of the vehicle, and there was no evidence of the effect, if any, such alleged intoxication had on defendant. (People v. Ivans (1992) 2 Cal.App.4th 1654, 1661 [intoxication instruction not required "unless the evidence also shows he became intoxicated to the point he failed to form the requisite intent"].) Rather, the record shows Harlan had been drinking and carried a beer bottle when he entered Herron's vehicle, but there is no evidence he was intoxicated to the point that could have affected his ability to form the requisite specific intent for attempted false imprisonment by violence and menace. Harlan was not noticeably impaired in terms of language, gait, demeanor or ability to understand what was spoken to him. Thus, the evidence was inadequate to support an intoxication instruction.
Harlan's other instructional challenge is to an isolated sentence in the three-paged Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 3517, which the court gave in its entirety. Viewed in context, that particular sentence was not in error.
A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issue referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Harlan on this appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., BENKE, J.