Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Santa Barbara, Joseph Lodge, Judge, Super. Ct. No. 1213826
Alan G. Karow, for Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Dana M. Ali, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Louie Leyva was convicted by plea of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)) and appeals, contending that he was denied effective assistance of counsel. The trial court denied probation and sentenced appellant to six years state prison. We affirm.
All statutory references are to the Penal Code.
On the evening of August 14, 2006, appellant threatened Maxwell Spencer outside a Santa Barbara deli, calling Spencer a "white ass motherfucker." Appellant followed Spencer into the deli, pushed him, and pointed a handgun at his neck. Appellant said, "Do you want to die?" He pulled the trigger but the handgun did not fire.
Appellant kicked and punched Spencer, then ran to a creek bed where he was arrested. The police found the handgun the next day in a bush near the deli.
Ineffective Assistance of Counsel
Appellant argues that he received ineffective assistance of counsel because his attorney failed to enter an "open plea" when the felony complaint was first filed. To prevail on a claim of ineffective assistance of counsel, appellant must show deficient representation and resulting prejudice, i.e., but for counsel's errors, appellant would have received a more lenient sentence. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693]; People v. Barnett (1998) 17 Cal.4th 1044, 1124.) Where the record on appeal "fails to disclose why counsel acted or failed to fact in the manner challenged, we will affirm the judgment 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation . . . .' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 333.)
An "open plea" is a plea where no promises are made as to the sentence. (People v. Williams (1998) 17 Cal.4th 148, 156.)
Here the complaint charged assault with a firearm (§ 245, subd. (a)(2)) and two misdemeanors: battery (§ 242) and destroying evidence (§ 135). The maximum sentence was four years state prison. After appellant's arraignment, the prosecution was granted leave to filed a first amended complaint alleging assault with a semiautomatic firearm (§ 245, subd. (b)) which carried a sentence range of three, six, or nine years.
Appellant was arraigned September 19, 2006, entered a plea of not guilty, and remained free on bail. The prosecution was granted leave to file an amended complaint on October 6, 2006, at which time appellant entered a not guilty plea and agreed to continue the preliminary hearing. On December 8, 2006, appellant entered into a written negotiated plea which provided that the prosecution would dismiss counts two and three for battery and destroying evidence.
The record is silent on whether counsel and appellant discussed an early plea. One could speculate that appellant was advised to enter an early change of plea and declined to do so because appellant was out on bail and believed his chances for probation were greater if he waited. Counsel was "captain of the ship" on matters of trial tactics, but appellant retained the right to decide whether to plead guilty. (People v. Robles (2007) 147 Cal.App.4th 1286, 1289-1290.)
Assuming, arguendo, that counsel should have anticipated that the prosecution would amend the complaint to charge a more serious ADW, it was not ineffective assistance of counsel. "[A] defense attorney's simple misjudgment as to the strength of the prosecution's case, the chances of acquittal, or the sentence a defendant is likely to receive upon conviction, among other matters involving the exercise of counsel's judgment, will not, without more, give rise to a claim of ineffective assistance of counsel. [Citations.]" (In re Alvernaz (1992) 2 Cal.4th 924, 937.)
Appellant argues that counsel had "other options" and could have requested a continuance or advised appellant to enter a change of plea in "response" to the prosecution's motion to amend the complaint. The prosecution, however, had the statutory right to file a first amended complaint with leave of court before the preliminary hearing. (§ 1009.) The amendment did not change the substance of the charge but more accurately described the weapon used in the assault. Had counsel objected, the objection would have likely been overruled because the amendment did not prejudice appellant or deny him due process. (See e.g., People v. Robinson (2004) 122 Cal.App.4th 275, 282.) The effective assistance of counsel does not require the making of futile or frivolous motions. (People v. Memro (1995) 11 Cal.4th 786, 834; People v. Ramirez (2003) 109 Cal.App.4th 992, 1002.)
In People v. Montiel (1985) 39 Cal.3d 910, the Supreme Court concluded that counsel's failure to enter a not guilty by reason of insanity plea at an early stage of a capital case was not ineffective assistance of counsel. "Such a claim can best be adjudicated in a habeas corpus proceeding where evidence could be produced to show that the asserted failure deprived defendant of a meritorious defense. (Citations.) Nothing in the record presently before us suggests that . . . counsel's asserted lack of diligence amounted to a denial of effective assistance of counsel. [Citations.]" (Id., at p. 923.)
Like Montiel, appellant relies on a silent record and has failed to demonstrate that counsel's representation fell below an objective standard of reasonableness. "In order to prevail on such a claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission. [Citations.]" (People v. Ray (1996) 13 Cal.4th 313, 349.)
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.