Opinion
D072685
06-05-2018
THE PEOPLE, Plaintiff and Respondent, v. FERNANDO MEZA, Defendant and Appellant.
Nancy E. Olsen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, and Marvin E. Mizell, Deputy Attorney 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD268669) APPEAL from a judgment of the Superior Court of San Diego County, Kathleen M. Lewis, Judge. Affirmed. Nancy E. Olsen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, and Marvin E. Mizell, Deputy Attorney General, for Plaintiff and Respondent.
Based on his attempt to purchase goods from a retailer with a stolen check and his ensuing arrest, defendant Fernando Meza was charged with two felonies (Pen. Code, §§ 530.5, subd. (a) [identity theft], 459 [burglary]) and one misdemeanor (Health & Saf. Code, § 11377, subd. (a) [possession of a controlled substance]). He ultimately pled guilty to one count of felony identity theft (§ 530.5, subd. (a)) in exchange for dismissal of the other two counts, the prosecutor's agreement not to oppose local time, and credit for time served. He was sentenced to three years' probation.
Further statutory references are to the Penal Code unless otherwise indicated.
Following revocation of his probationary status for violating various terms and conditions, Meza appeals. He contends that his trial counsel rendered ineffective assistance during plea bargaining in failing to argue that his two felony counts should have been subsumed by a single misdemeanor charge. While the People concede we can address Meza's belated ineffectiveness claim, they argue that it fails on its merits.
Yet the fact that we can address Meza's ineffective assistance claim does not mean we can, on this record, reach the intriguing legal question underpinning it—i.e., was Meza was charged with the wrong crimes? As we shall explain, the state of the law governing Meza's offense(s) was unsettled when he pled guilty and, to an extent, remains unclear today. More importantly though, the record is silent as to how Meza's counsel advised him on his plea (if at all) in light of this uncertainty. That silence is significant when it comes to Meza's current claim. On direct appeal, as here, we will not reverse a claim on the ground of ineffective assistance unless the record affirmatively shows that counsel's action (or inaction) had no rational tactical basis. Not only does this record fail to show that a tactical basis was lacking, but a conceivable tactical basis emerges. Counsel may well have forgone the arguments so that Meza could reap the benefits of his plea bargain rather than stake his future on an uncertain legal argument.
For that reason, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2016, Meza entered a retailer with the intent to purchase $113 of merchandise using a check and driver's license belonging to other individuals. A search incident to his arrest yielded a controlled substance.
We recognize that "[a] probation report 'ordinarily is not part of the record of conviction.' " (People v. Burnes (2015) 242 Cal.App.4th 1452, 1458). However, because here both parties rely on the facts of Meza's offense as provided in the probation report, we consider the undisputed factual background contained therein. Moreover, we note that the salient facts of Meza's offense—at least for the purpose of this appeal—were also included in his request for a certificate of probable cause, which the trial court granted.
Meza was subsequently charged with three counts: felony use of the personal identifying information of another (§ 530.5, subd. (a), count 1); felony burglary (§ 459, count 2); and possession of a controlled substance, a misdemeanor (Health & Saf. Code, § 11377, subd. (a), count 3). He pled guilty to the first count. In exchange, the balance of the charges was dismissed, the prosecutor agreed not to oppose local time, and Meza received credit for time served. Based on his plea, Meza was placed on three years' probation, subject to certain terms and conditions. He did not then appeal.
Almost a year later, Meza's probation was revoked for violations of the attendant terms and conditions and a two-year sentence was imposed. He filed a notice of appeal following his probation revocation and sought a certificate of probable cause based on the similarity between his offense and the one considered by the Supreme Court in People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales). The certificate was granted.
In this appeal, Meza's counsel initially filed a brief presenting no arguments for reversal but instead asking this court to review the entire record for error in accord with People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. Thereafter, we requested briefing on the following two issues:
"(1) Did Meza's counsel render ineffective assistance in failing to argue that Meza's initial burglary charge under . . . section 459 should have been charged as shoplifting under . . . section 459.5, and that such a shoplifting charge would have then precluded his charge of—and subsequent guilty plea to—felony identity theft under . . . section 530.5? (See [Gonzales, supra, 2 Cal.5th at pp. 875-876]; see also People v. Page (2017) 3 Cal.5th 1175.) (2) Is this issue cognizable on appeal following revocation of Meza's probation, or is such a claim more properly treated as a petition for writ of habeas corpus? (Compare People v. Munoz (1975) 51 Cal.App.3d 559, 563 with People v. Vest (1974) 43 Cal.App.3d 728, 731-732.)"Per our request, Meza's counsel filed a letter brief contending that his trial counsel indeed rendered ineffective assistance and that the issue was cognizable. The People filed a responsive letter brief conceding that we can consider Meza's ineffective assistance of counsel claim on direct appeal from his probation revocation. However, they contend that Meza's claim fails on its merits.
Given the parties' agreement that Meza's ineffective assistance of counsel claim is cognizable on direct appeal, we proceed to the merits without further discussion of this procedural issue. (See People v. Munoz, supra, 51 Cal.App.3d at p. 563; see also Adoption of Alexander S. (1988) 44 Cal.3d 857, 865 [stating in dicta, "It has been held that a court may entertain a belated appeal from a final judgment where a constitutional claim of ineffective assistance of counsel is alleged"].)
DISCUSSION
Meza argues that his counsel rendered ineffective assistance during plea bargaining in failing to recognize the impact of Proposition 47, the Safe Neighborhoods and Schools Act, on his charges. Primarily relying on Gonzales, supra, 2 Cal.5th 858, he contends his counsel should have argued that Proposition 47's shoplifting statute (§ 459.5) precluded both his initial felony burglary charge (§ 459) and the felony identity theft charge (§ 530.5, subd. (a)) that he ultimately pled guilty to.
It is well-established that a criminal defendant is entitled to effective assistance of counsel during pleading and plea bargaining. (In re Alvernaz (1992) 2 Cal.4th 924, 933.) We review an ineffective assistance claim under the standard set by Strickland v. Washington (1984) 466 U.S. 668 (Strickland). (In re Alvernaz, at p. 934; see Hill v. Lockhart (1985) 474 U.S. 52, 58-59.) To prevail in this context, the defendant "must establish not only incompetent performance by counsel, but also a reasonable probability that, but for counsel's incompetence, the defendant would not have pleaded guilty and would have insisted on proceeding to trial." (In re Alvernaz, at p. 934.)
Counsel's representation was deficient if "it fell below an objective standard of reasonableness under prevailing professional norms." (In re Alvernaz, supra, 2 Cal.4th at p. 936.) Before a client pleads guilty, effective counsel should confer about "all defenses of fact and of law that may be available." (People v. McCary (1985) 166 Cal.App.3d 1, 8 (McCary).) "[C]ompetent counsel are required to know the state of the law applicable to issues in their cases" and are "expected to ' "discover those additional rules of law which, although not commonly known, may readily be found by standard research techniques." ' " (People v. Blessett (2018) 22 Cal.App.5th 903, 946, mod. ___ Cal.App.5th ___ (Blessett), quoting McCary, at p. 8.) But "[a]s a matter of common sense, an attorney is not required to raise an argument based on an as-yet-to-be-filed opinion." (In re Richardson (2011) 196 Cal.App.4th 647, 661.)
"A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." (Strickland, supra, 466 U.S. at p. 689.) We will "not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight." (People v. Scott (1997) 15 Cal.4th 1188, 1212.)
Similarly, we will not reverse a conviction for ineffective assistance on direct appeal unless "(1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation." (People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).) As we shall explain, this precept is fatal to Meza's claim.
The state of the law governing Meza's charges was murky when he pled guilty. Nearly two years before his offense, "Proposition 47 created the new crime of 'shoplifting,' defined as entering an open commercial establishment during regular business hours with the intent to commit 'larceny' of property worth $950 or less." (Gonzales, supra, 2 Cal.5th at p. 862, citing § 459.5, subd. (a).) Subdivision (a) of section 459.5 deems shoplifting a misdemeanor and subdivision (b) mandates that "[a]ny act of shoplifting as defined in [section 459.5, subdivision (a)] shall be charged as shoplifting." The statute further provides that "[n]o person who is charged with shoplifting may also be charged with burglary or theft of the same property." (§ 459.5, subd. (b).)
At the time of Meza's plea, the courts of appeal were split as to whether an entry with intent to commit theft by false pretenses (like Meza's charge) constituted shoplifting under section 459.5, which by its terms requires an "intent to commit larceny." (§ 459.5, subd. (a); see People v. Hudson (2016) 2 Cal.App.5th 575, 582-583.) The Supreme Court granted review on the issue. (See People v. Hudson, at pp. 582-583.) Months after Meza entered his plea, our high court ultimately answered the question affirmatively—entry with intent to commit a nonlarcenous theft qualifies as shoplifting. (Gonzales, supra, 2 Cal.5th at p. 862.)
The interplay between the shoplifting statute and identity theft was even more nebulous at the time of Meza's plea. A single published Court of Appeal case shed limited light on the issue. (See People v. Garrett (2016) 248 Cal.App.4th 82, 87-88 (Garrett).) Garrett concluded that a defendant's entry into a convenience store to use a stolen credit card to purchase property less than $950 constituted misdemeanor shoplifting. (Id. at p. 84.) In reaching that conclusion, the Sixth Appellate District rejected the People's argument that the defendant's intent to commit felony identity theft rendered the burglary statute independently applicable. (Id. at p. 87; compare § 459.5 [the shoplifting statute, specifying "intent to commit larceny"] with § 459 [the burglary statute, specifying "intent to commit grand or petit larceny or any felony" (italics added)].) Citing subdivision (b) of the shoplifting statute (§ 459.5), Garrett reasoned that "even assuming defendant intended to commit felony identity theft, he could not have been charged with burglary under . . . section 459 if the same act—entering a store with the intent to purchase merchandise with a stolen credit card—also constituted shoplifting under [s]ection 459.5." (Garrett, at p. 88.)
Later faced with the same argument from the Attorney General in Gonzales, the Supreme Court endorsed Garrett's rationale. (See Gonzales, supra, 2 Cal.5th at p. 876.) To this day, however, the full impact of the shoplifting statute on a standalone identity theft charge remains hotly debated. (Compare People v. Sanders (2018) 22 Cal.App.5th 397 with People v. Jimenez (2018) 22 Cal.App.5th 1282.)
To be sure, at the time Meza pled guilty there were colorable—but uncertain—arguments to be made that his two felony convictions should have been subsumed by a single misdemeanor shoplifting charge. Competent counsel assisting Meza should have recognized the uncertainty of the law in this area and advised him of it. (Blessett, supra, 22 Cal.App.5th at p. 946.) But whether counsel had to present those arguments to the trial court is a different issue.
Meza's counsel may have informed him of the uncertainty in the law, but decided to forgo explicitly raising the perhaps tenuous legal arguments in court so that Meza could take advantage of a rather favorable plea bargain. In exchange for pleading guilty to a single count of felony identity theft, Meza's other two charges were dismissed (one a felony and the other a misdemeanor), the prosecutor agreed not to oppose local time, and Meza received credit for time served. He was placed on probation. The possibility of probation sooner may simply have been worth more to him than the doubtful chance of a misdemeanor conviction later.
In sum, the record does not evince the total absence of a "rational tactical purpose" for counsel's failure to make these arguments, nor is a "satisfactory explanation" for Meza's plea entirely wanting. (See Mai, supra, 57 Cal.4th at p. 1009.) We recognize that further factual development could ultimately reveal otherwise. But in light of the available facts, we cannot conclude that counsel's performance was necessarily deficient. Accordingly, we affirm. Of course, our affirmance is without prejudice to Meza's ability to raise this issue or—pending further crystallization of the governing law—possibly a related claim that his conviction was in excess of the trial court's jurisdiction (see generally In re Zerbe (1964) 60 Cal.2d 666, 668) in a later petition for writ of habeas corpus.
Meza also asserts his counsel should also have argued that his identity theft charge was misdemeanor petty theft under section 490.2, another provision added by Proposition 47. He relies primarily on inferences drawn from decisions filed after his plea, namely, People v. Page, supra, 3 Cal.5th 1175 and People v. Romanowski (2017) 2 Cal.5th 903. But any argument that identity theft constituted petty theft under section 490.2 was even more tenuous at the time of his plea than was an argument based on the shoplifting statute. And even assuming it were a colorable argument then, that fact would not alter our rationale for rejecting his ineffective assistance of counsel claim today. --------
DISPOSITION
The judgment is affirmed.
DATO, J. I CONCUR: O'ROURKE, J. I CONCUR IN THE RESULT: BENKE, Acting P. J.