Opinion
H041706
05-17-2017
THE PEOPLE, Plaintiff and Respondent, v. IVAN VARGAS et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1481473)
Defendants Ivan Vargas and Destiny Martinez were convicted by a jury of several offenses including assault, burglary and vandalism in connection with an altercation at an apartment complex. The two victims, who witnessed an associate of Vargas and Martinez steal a box of strawberries from a traveling vendor's cart, confronted defendants about that theft, precipitating the attack.
On appeal, Vargas raises the following arguments: (1) there was insufficient evidence to support his conviction for burglary as an aider and abettor of Martinez's assault on one of the victims, either directly or under the natural and probable consequences doctrine; and (2) a sentencing enhancement based on a prior prison term must be stricken since the underlying offense is subject to being reduced to a misdemeanor pursuant to Proposition 47. Vargas also claims, and the People concede, that his sentence violates Penal Code section 654's prohibition against multiple punishments.
Unspecified statutory references are to the Penal Code.
Martinez raises the following issues on appeal: (1) there is insufficient evidence to support her conviction for vandalism as an aider and abettor, either directly or under the natural and probable consequences doctrine; and (2) her trial counsel provided ineffective assistance by conceding to the jury that Martinez was guilty of aiding and abetting vandalism.
With the exception of the sentencing errors raised by Vargas, we find no merit to the other arguments raised by defendants. Accordingly, we will affirm the judgment as to Martinez in its entirety. We will reverse the judgment as to Vargas for further proceedings as detailed below.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Amended information
On August 6, 2014, the Santa Clara County District Attorney's Office filed an amended information listing the following charges against both Vargas and Martinez: (1) Dissuading a witness by force or threat (§ 136.1, subd. (c)(1), count 1); (2) burglary of an inhabited dwelling (§§ 459, 460, subd. (a), count 2); (3) assault by means of force likely to produce great bodily injury on Liliana Grajeda (§ 245, subd. (a)(4), count 3); and (4) misdemeanor vandalism (§§ 594, subds. (a), (b)(2)(A), count 6). ~(CT 501-505, 506)~ Martinez and Vargas were also charged with separate counts of assault against Alejandro Montes (§ 245, subd. (a)(4), counts 4, 5). ~(CT 505-506)~ The amended information further contained criminal street gang allegations (§§ 186.22, subds. (b)(1)(A), (C), (b)(4), (d)) as to both Martinez and Vargas. Finally, with respect to Vargas, the amended information alleged he had prior strike and prior serious felony convictions. (§§ 667, subds. (a), (b)-(i), 667.5, subd. (b), 1170.12.) ~(CT 502)~
It was alleged that Martinez personally inflicted great bodily injury on Grajeda in the assault. (§§ 12022.7, subd. (a), 1203, subd. (e)(3).) ~(CT 505)~
B. Evidence presented at trial
In August 2013, the two victims, Liliana Grajeda and Alejandro Montes, were living in an apartment complex in San Jose, along with their three children and their nephew. ~(RT 180)~ Around 8:00 p.m. on August 3, their oldest daughter was returning to the apartment after going for a run with her boyfriend. ~(RT 184-185)~ As the two walked through the courtyard of the complex, they encountered a group of five people, drinking and smoking. ~(RT 186-187)~ The daughter recognized Vargas and Martinez, along with Vargas' brother, Jose, as they also lived in the same apartment complex. ~(RT 188)~ Some of the members of the group taunted the daughter and her boyfriend as they walked up the stairs to her apartment. Grajeda heard the taunting through the screen door and shouted out, "Respect," in Spanish to the group. ~(RT 196)~
Martinez's sister, Shantinee, and a juvenile male, whose identity is not relevant to these proceedings, were also among those in the group.
About 15 minutes later, a strawberry vendor came to the victims' door, leaving his cart downstairs. ~(RT 196, 534)~ After buying some strawberries, the oldest daughter and Grajeda were sitting at the dining room table from which they could look out a window into the courtyard. They saw the juvenile male in Vargas' group take a box of strawberries off the vendor's cart and run behind the complex. Grajeda remarked to her husband, Montes, how rude it was for the group to steal the man's strawberries since that was how he made his living. She also told Montes not to do anything because Vargas and his friends had been drinking and she was concerned about how they would react to being confronted.
Montes did not heed her advice and went outside to talk to the group. His teenage nephew followed him outside. Montes walked up to Vargas and said he and his friends should pay the man for the strawberries and that it was wrong of them to take them. Vargas responded that it was none of Montes' business. Montes walked away, to think about what he could do next and to locate the vendor.
One of the people in the group yelled at Grajeda upstairs, who shouted back and said she would call the police about the theft. Martinez yelled at Grajeda, daring her to call the police, saying "Go ahead, you guys are all wetbacks and they're going to take you guys." ~(RT 205)~
Montes started to walk back toward his apartment and Martinez confronted him, yelling obscenities. She poured the beer she was drinking on him and then hit him on the head with the can several times. ~(RT 209-210)~ The other four people surrounded him and blocked his path to the stairs. Vargas removed his shirt and walked toward Montes, challenging him to fight, but Montes just backed away.
Grajeda told her daughter to call the police. Martinez continued to yell up at Grajeda in the apartment, and challenged Montes to hit her. Grajeda called out that Montes would never hit a woman and that if Martinez wanted to fight, she should come up and fight her. Grajeda then told her daughter to take her two younger sisters in the back room and stay on the phone with the 911 dispatcher. ~(RT 228-229)~
Martinez ran upstairs into the apartment and attacked Grajeda, pushing her down onto the sofa near the window. She punched Grajeda in the head repeatedly. Grajeda had blood all over her face. Her older daughter tried to pull Martinez off, but could not. Grajeda curled up into a ball to protect herself, but did not fight back.
Shantinee and the juvenile male ran into the apartment and also tried, unsuccessfully, to pull Martinez away. Montes and his nephew also ran up the stairs into the apartment, followed by Vargas and two other men. Montes tried to close the apartment door, but Vargas and the others pushed it open. The three men started to attack Montes. ~(RT 497-498)~
As Shantinee struggled with Martinez and Grajeda, she hit a small window nearby, breaking it. A few seconds later, Jose (Vargas' brother) grabbed a toy crib that was outside the apartment and broke the larger window above the sofa. ~(RT 245-246)~ The broken glass fell on Grajeda and Martinez, and Martinez climbed off her.
Just after the fight ended, but before the police arrived, Jose told the victims, "this is what you get if you mess with us." ~(RT 250)~ He also said "Norte," a word which the older daughter knew was associated with Norteño gang members. ~(RT 250)~
Grajeda was transported to the hospital. She had suffered injuries to her head, face and arms, including a broken nose, which required surgery to repair. Montes was hit in the face, head and back but did not consider his injuries serious enough to warrant medical attention. ~(RT 502, 510)~
Candace Washington, who lived in the apartment next to the victims', testified for the defense. ~(RT -639-640)~ On the night of the incident, her dogs started barking so she went to her front door and opened it when she heard voices outside. ~(RT 640)~ She saw Vargas and two other men outside. ~(RT 641)~ From the victims' apartment, she could hear arguing and bumping noises. She then heard Shantinee scream, " 'They're stabbing me.' " ~(RT 643)~ Vargas was saying that they needed to get his girlfriend (Shantinee) out of there. One of the other men warned those inside the victims' apartment that they had until the count of three to open the door. ~(RT 645)~ They did not open the door after he counted to three, so he kicked in the window to the victims' apartment. Washington never saw Vargas hit anyone, break a window or kick on the victims' door. When Shantinee came out of the apartment, Washington saw her arm was bleeding a little.
C. Verdict
The jury acquitted Vargas and Martinez on count 1. ~(CT 508, 515)~ Vargas was found guilty on counts 2, 3, 5 and 6. ~(CT 509-513)~ The jury found Martinez guilty as charged on counts 2, 3 and 6, and found her guilty of the lesser-included offense of simple assault on count 4. ~(CT 516-523)~ The jury also found true the gang enhancement allegations against both Vargas and Martinez. ~(CT 509-513, 516-523)~ In a bifurcated proceeding, the trial court found true the allegations that Vargas had prior strike and prior serious felony convictions.
D. Sentencing
1. Vargas' sentence
On October 31, 2014, after denying his Romero motion, the trial court sentenced Vargas to a total term of 16 years in prison, consisting of the middle term of eight years on count 2, plus a consecutive two-year term on count 5, along with the five year enhancement under Proposition 8 (§ 667.5, subd. (a)) and a one-year prison prior enhancement. ~(CT 602, RT 903-904)~ The court further imposed, but stayed a middle term of six years on count 3 pursuant to section 654. ~(CT 602, RT 903)~ The court imposed a middle term of four year sentence, to run concurrent, on count 6. ~(RT 903-904, CT 602)~ The 10 year gang enhancements were stricken, and Vargas was awarded 193 days of custody credits and 28 days of conduct credits. ~(RT 901, 903, CT 602)~
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Vargas was ordered to pay $3,782 in victim restitution to Grajeda and Montes. ~(CT 602, RT 901)~ He was further ordered to pay a restitution fund fine of $10,000 (§ 1202.4, subd. (b)), a $10,000 parole revocation fine (suspended) (§ 1202.45), a $41 crime prevention fine (including penalty assessments (§ 1202.5)), a $120 criminal conviction assessment (Gov. Code, § 70373), a court security fee of $160 (§ 1465.8), and a $129.75 criminal justice administration fee payable to the City of San Jose (Gov. Code, § 29550.1). ~(CT 602, RT 903)~
The restitution fine was joint and several with Martinez.
2. Martinez's sentence
On October 31, 2014, the trial court sentenced Martinez to a total term of seven years eight months in prison, consisting of the upper term of four years on count 3, with three additional years for the great bodily injury enhancement, plus a consecutive eight-month sentence (one-third the middle term) on count 4. ~(CT 641)~ The trial court imposed a concurrent term of two years on count 6, imposed and stayed a six year term on count 2 under section 654. ~(CT 641)~ The gang enhancements on counts 2 and 3 were stricken. ~(CT 641)~ Martinez was awarded 190 days of custody credit and 28 days of conduct credits. ~(CT 641)~
Martinez was further ordered to register as a gang offender (§ 186.30) and ordered to pay joint and several victim restitution of $3,782 to Grajeda and Montes (§ 1202.4, subd. (a)), a $6,300 restitution fund fine (§ 1202.4, subd. (b)), a $6,300 parole revocation fine (suspended) (§ 1202.45), a $41 crime prevention fine (including penalty assessments (§ 1202.5)), a $120 criminal conviction assessment (Gov. Code, § 70373), a court security fee of $160 (§ 1465.8), and a $129.75 criminal justice administration fee payable to the City of San Jose (Gov. Code, § 29550.1). ~(CT 641)~
II. DISCUSSION
A. Sufficiency of the evidence to support Vargas' and Martinez's convictions for aiding and abetting
Vargas argues there was insufficient evidence to support the allegations that he aided and abetted Martinez's burglary, either directly or under the natural and probable consequences theory. Vargas contends Martinez's burglary was complete at the time she entered the victims' apartment, and his actions following that entry did not facilitate or encourage her crime.
Martinez similarly argues there was insufficient evidence supporting her conviction for vandalism as an aider and abettor, either under the theory that she directly aided those who committed vandalism or under the natural and probable consequences theory.
We disagree with Vargas' and Martinez's arguments in their entirety.
1. Standard of review and applicable legal principles
When faced with an appeal based on a claim of insufficient evidence, we must "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) In so doing, we " 'presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " (Id. at p. 576.) If we find substantial evidence, we will affirm the verdict.
"Both aiders and abettors and direct perpetrators are principals in the commission of a crime." (People v. Calhoun (2007) 40 Cal.4th 398, 402.) An aider and abettor must "act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." (People v. Beeman (1984) 35 Cal.3d 547, 560.)
"[A] defendant may be held criminally responsible as an accomplice not only for the crime he or she intended to aid and abet (the target crime), but also for any other crime that is the 'natural and probable consequence' of the target crime." (People v. Prettyman (1996) 14 Cal.4th 248, 261.) "Thus, for example, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault." (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) "Aider and abettor culpability under the natural and probable consequences doctrine is vicarious in nature." (People v. Chiu (2014) 59 Cal.4th 155, 164 (Chiu).)
"A nontarget offense is a ' "natural and probable consequence" ' of the target offense if, judged objectively, the additional offense was reasonably foreseeable. [Citation.] The inquiry does not depend on whether the aider and abettor actually foresaw the nontarget offense. [Citation.] Rather, liability ' "is measured by whether a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted." ' " (Chiu, supra, 59 Cal.4th at pp. 161-162.) Ordinarily, "[r]easonable foreseeability 'is a factual issue to be resolved by the jury.' " (Id. at p. 162.)
2. Vargas' culpability for burglary
Vargas' assertion that Martinez's burglary was complete at the time she entered the apartment in order to attack Grajeda is contrary to law. Burglary, "consists of an act—unlawful entry—accompanied by the 'intent to commit grand or petit larceny or any felony.' (§ 459.)" (People v. Montoya (1994) 7 Cal.4th 1027, 1041 (Montoya).) "[F]or the purpose of assessing the liability of an aider and abettor, a burglary is considered ongoing during the time the perpetrator remains inside the structure.". (Id. at p. 1045 (italics added).)
The rationale for this rule is, as follows: " '[Burglary] laws are primarily designed [] not to deter the trespass and the intended crime, which are prohibited by other laws, so much as to forestall the germination of a situation dangerous to personal safety.' " (People v. Gauze (1975) 15 Cal.3d 709, 715, quoting People v. Lewis (1969) 274 Cal.App.2d 912, 920.) "It is manifest that the increased danger to the personal safety of the occupant, and the increased risk of loss or damage to his or her property contemplated by the statutory proscription, do not terminate at the moment entry is accomplished, but rather continue while the perpetrator remains inside the structure." (Montoya, supra, 7 Cal.4th at p. 1042.) Thus, a defendant who forms the intent to aid and abet after the direct perpetrator has entered the home is still culpable for aiding and abetting burglary. (Id. at pp. 1044-1045.)
Based on the evidence presented at trial, a reasonable jury could have concluded that Vargas was aware that Martinez intended to assault Grajeda when she ran upstairs. The jury also could have concluded that Vargas' assault on Montes at the door to the apartment prevented him from assisting Grajeda. Furthermore, because Martinez had to go into the apartment in order to assault Grajeda, a reasonable jury could have found that burglary was a natural and probable consequence of Martinez's intended assault. Because this burglary was ongoing while Martinez remained in Grajeda's apartment, Vargas' actions were sufficient to establish his guilt in aiding and abetting both the burglary as well as the assault.
There was also sufficient evidence to support the prosecution theory that Vargas directly aided and abetted the burglary. Montes and his nephew both testified that when Montes entered the apartment to aid his wife, Vargas and another member of the group began to attack him, which prevented Montes from helping Grajeda. This attack on Montes therefore facilitated Martinez's ongoing burglary.
It is true that Washington testified she heard Shantinee shout something about being stabbed before Vargas entered the apartment, which supports Vargas' claim he entered in order to help his girlfriend. However, Montes' nephew, who was in the apartment during Martinez's attack, testified that he did not hear Shantinee shout anything to the effect that she was being stabbed. The jury was entitled to give less credit to Washington's description of events and more to that offered by Montes' nephew. We will not disturb the trial court's credibility determinations on appeal. (People v. Maury (2003) 30 Cal.4th 342, 403 ["[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends."].) The jury must have rejected Vargas' explanation that he was only trying to enter the apartment to rescue his girlfriend, Shantinee, and based on the other evidence presented, it was reasonable for the jury to do so. In sum, there was sufficient evidence Vargas intended to aid and abet Martinez's burglary and assault when he attacked Montes at the door to the apartment.
3. Martinez' culpability for vandalism
Martinez argues she cannot be liable as an aider and abettor of vandalism because she had no knowledge her companions intended to damage the victims' property and she had no intent to help them do so. She alternatively argues that vandalism is not a natural and probable consequence of her companions' assault on Montes as they tried to enter the apartment because the window was broken as they tried to enter, not after.
The evidence presented at trial shows that Martinez started the quarrel with Montes and Grajeda—at least the physical aspect of that fight—and there was ample evidence she either intended that the other members of her group would assist her, or it was at least reasonably certain they would. Whether she actually knew her associates intended to break windows inside the victims' apartment or otherwise damage their property is not relevant.
Moreover, her assault on Grajeda, pushing her down on the couch and punching her in the face and head, allowed Martinez's companions to enter the apartment and simultaneously prevented Grajeda from calling the police. It is foreseeable that getting into a fight with someone inside an occupied structure will result in some damage to the occupant's property. Thus, the jury could have reasonably concluded that Martinez had the intent to aid and abet Shantinee and Jose and that vandalism was a foreseeable result.
With respect to Martinez's argument about the timing of the window breaking, the trial testimony about this timeline was not particularly clear. All the witnesses could agree upon was that the entire incident began and ended in a very short period of time and it was chaotic.
Several witnesses testified Martinez began her assault on Grajeda before the other men tried to enter the apartment. Liz Montes testified she saw several people outside the apartment striking her father as he tried to close the door on them. ~(RT 359)~ Montes testified to substantially the same effect. ~(RT 498)~ Grajeda's nephew testified that he saw Vargas and another man hitting Montes as he tried to close the door. ~(RT 468)~ He said that after the attackers left and the door was closed, he could see that the window was broken. ~(RT 474)~ Thus, a reasonable jury could have found that the assault on Montes had already begun when the window was shattered.
Ultimately however, it makes no difference that the record may be unclear on which came first: the assault on Montes or the breaking of the window. The jurors were appropriately instructed they did not need to agree on the target crime Martinez intended to aid and abet, so long as they found that she participated in some identified target crime. ~(RT 748-749, CT 460-461)~ The jury could reasonably have found that Martinez's assault on Grajeda was the target crime, and that the vandalism was a natural and probable consequence of that crime. Although Martinez was directly responsible for that assault, she is still vicariously liable for the acts of her accomplices. (See People v. McCoy, supra, 25 Cal.4th at p. 1120 ["The aider and abettor doctrine . . . obviates the necessity to decide who was the aider and abettor and who the direct perpetrator or to what extent each played which role"].) It is undisputed that Martinez was punching Grajeda and had her pinned on a couch directly below the window at the very moment that it was broken. Alternatively, the jury could have found that burglary was the target crime, and that the vandalism was a natural and probable consequence of that offense. Regardless, there is ample evidence supporting the jury's finding that Martinez is liable for the vandalism which occurred during the fight Martinez herself instigated.
B. Vargas' sentence for assault should be stayed under section 654
Vargas argues the trial court should have stayed the consecutive sentence of two years imposed on count 5, for his assault of Montes, pursuant to section 654. The People have conceded the issue, and we agree the concession is appropriate.
Section 654 provides 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." This statute "precludes multiple punishment for a single act or omission, or an indivisible course of conduct," regardless of whether the sentence imposed is concurrent or consecutive. (People v. Deloza (1998) 18 Cal.4th 585, 591-592.) "[W]hen a court determines that a conviction falls within the meaning of section 654, it is necessary to impose sentence but to stay the execution of the duplicative sentence." (People v. Duff (2010) 50 Cal.4th 787, 796.)
In this case, Vargas' conviction on count 2, for aiding and abetting the burglary, arose out of his assault of Montes, the same course of conduct which underlies his conviction on count 5. Consequently, the trial court should have imposed a stay on the subordinate two-year term. (People v. Duff, supra, 50 Cal.4th at p. 796.)
C. Vargas' sentence enhancement on his 2009 prison prior conviction
Vargas argues the trial court improperly enhanced his sentence based on a prison prior term he served due to a 2009 felony conviction for receiving stolen property. He contends that because this conviction is subject to reduction to a misdemeanor under Proposition 47, the trial court should have stricken the sentence enhancement in the present case. The Attorney General argues that the issue is moot because the trial court denied Vargas' petition.
The enhancement for a prior prison term requires a previous felony conviction. Section 667.5, subdivision (b), requires imposition of a one-year enhancement for each of a defendant's prior felony convictions that resulted in a separate term of imprisonment, when the defendant commits another felony within five years of release from custody. (See People v. Abdallah (2016) 246 Cal.App.4th 736, 740 (Abdallah).) "Imposition of a sentence enhancement under Penal Code section 667.5 requires proof that the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction." (People v. Tenner (1993) 6 Cal.4th 559, 563.)
The recent case of Abdallah, supra, 246 Cal.App.4th 736, addresses the issue of whether a prior felony that has been designated a misdemeanor pursuant to Proposition 47 may be used to enhance a subsequent felony sentence under section 667.5, subdivision (b). In Abdallah, the court held that in light of section 1170.18, subdivision (k), "where . . . a prior conviction is no longer a felony at the time the court imposes a sentence enhancement under section 667.5, Proposition 47 precludes the court from using that conviction as a felony merely because it was a felony at the time the defendant committed the offenses. (Abdallah, supra, at p. 747, fn. omitted.)
This issue is currently pending before the Supreme Court. (People v. Valenzuela (2016) 244 Cal.App.4th 692, review granted March 30, 2016, S232900 (Valenzuela); People v. Carrea (2016) 244 Cal.App.4th 966, review granted April 27, 2016, S233011; People v. Ruff (2016) 244 Cal.App.4th 935, review granted May 11, 2016, S233201; People v. Williams (2016) 245 Cal.App.4th 458, review granted May 11, 2016, S233539.) Valenzuela presents the following issue: "Is defendant eligible for resentencing on the penalty enhancement for serving a prior prison term on a felony conviction after the superior court had reclassified the underlying felony as a misdemeanor under the provisions of Proposition 47?" (<http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=2135098&doc_no=S232900>[as of Jan. 25, 2017].)
In reaching that conclusion, the Abdallah court relied largely on People v. Park (2013) 56 Cal.4th 782 (Park), in which the Supreme Court considered whether a court order reducing a wobbler to a misdemeanor precluded its later use as the basis for a felony sentence enhancement. The court held that it did, explaining "when the court in the prior proceeding properly exercised its discretion by reducing the [felony] conviction to a misdemeanor, that offense no longer qualified as a prior serious felony within the meaning of section 667, subdivision (a), and could not be used, under that provision, to enhance defendant's sentence." (Id. at p. 787.)
In People v. Flores (1979) 92 Cal.App.3d 461 (Flores), the court of appeal reached a similar conclusion regarding legislation that re-designated the defendant's prior felony as a misdemeanor. The Flores court held that a defendant's prior felony conviction for an offense (specifically, possession of marijuana) that had been re-designated a misdemeanor by subsequent legislation could not be used as the basis for a felony sentencing enhancement. (Id. at pp. 470-471) "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (Id. at p. 471.) Although the marijuana legislation in Flores did not expressly provide for the reduction of prior felony convictions to misdemeanor status, the court concluded that the legislation's clear language—including a requirement that all records pertaining to such convictions be destroyed—demonstrated it "intended to prohibit the use of the specified records for the purpose of imposing any collateral sanctions." (Id. at p. 472.) Thus, pursuant to Flores and Park, when a felony is reduced to a misdemeanor, whether by legislation or court order, it cannot thereafter be used to support a felony sentence enhancement.
Since briefing was completed in this appeal, the trial court denied Vargas' petition to redesignate his 2009 conviction to a misdemeanor, and he appealed separately from that order. In a nonpublished decision, this court affirmed the trial court's order denying his petition, albeit without prejudice to him refiling it to present evidence of the value of the property at issue. (People v. Vargas (Jan. 3, 2017, H042828.)
Accordingly, because Vargas has not (yet) obtained redesignation of his 2009 conviction, the trial court properly imposed the prison prior enhancement. If Vargas successfully petitions for redesignation, however, that enhancement would no longer apply. In an effort to streamline the process, we will reverse the judgment and remand the matter to the trial court pending its consideration of any subsequent petition filed by Vargas. If no petition is filed or the petition is denied, the trial court should enter the same sentence as before, except it shall stay the sentence on count 5 pursuant to section 654. If Vargas' petition is successful, the trial court shall strike the prison prior enhancement as well as staying the sentence on count 5.
D. Martinez's counsel did not render ineffective assistance
Martinez argues her trial counsel provided ineffective assistance by conceding Martinez's guilt on the vandalism charge. This argument is premised almost entirely on her claim that there was insufficient evidence to support a conviction for vandalism, a claim we have already rejected. In the face of the evidence, Martinez's counsel made a reasonable tactical choice to concede guilt on this particular charge and instead focus her efforts on the more serious charges.
1. Applicable legal standards
A cognizable claim of ineffective assistance of counsel requires a showing "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) "[T]he performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." (Id. at p. 688.) To prevail on an ineffective assistance of counsel claim, a defendant must also establish counsel's performance prejudiced his defense. (Id. at p. 687.) To establish prejudice, a defendant must demonstrate "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." (Id. at p. 694.)
2. Relevant background facts
During closing arguments, Martinez's counsel argued that the jury should find Martinez not guilty on the charge of witness dissuasion and also find that her assault on Montes was not likely to have caused great bodily injury. Thereafter, counsel conceded to the jury that Martinez was guilty of vandalism, in these words: "And then we have the vandalism and we know she didn't hit the window . . . but she is prepared to take responsibility for the damage to the house as well, because she did run up those stairs to assault . . . Grajeda. And it's reasonable that when people realized what she was going to do, that people . . . would go and try to stop what was happening. And I think it's probably reasonable that in the process of doing that, when you've entered someone's home to assault them, that things are going to get damaged, that something might break, including a window; so she will take responsibility for the vandalism, even though she didn't directly do the vandalism." ~(RT 718-719)~
3. Analysis
Contrary to Martinez's argument, conceding liability for vandalism was a reasonable litigation tactic. It is a well-recognized strategy to concede guilt on one charge—particularly one which carries a lighter sentence—in an effort to build goodwill with the jury and concentrate one's fire on more serious charges. (People v. Gurule (2002) 28 Cal.4th 557, 612.) The California Supreme Court has rejected ineffective assistance of counsel claims in similar cases, holding that partial concessions of culpability may be a legitimate tactical choice by defense counsel where the incriminating evidence is strong. (See People v. Hart (1999) 20 Cal.4th 546, 631; People v. Bolin (1998) 18 Cal.4th 297, 334-335; People v. McPeters (1992) 2 Cal.4th 1148, 1186-1187; People v. Wade (1988) 44 Cal.3d 975, 988; People v. Ratliff (1986) 41 Cal.3d 675, 697; People v. Jackson (1980) 28 Cal.3d 264, 292-293.)
Here, Martinez's counsel reasonably decided to focus on the more serious charges—burglary, assault, and witness dissuasion. Ultimately, this tactical decision paid off. The jury acquitted Martinez of witness dissuasion and convicted her of the lesser-included offense of simple assault on count 4.
Had the jury convicted Martinez on the charge of witness dissuasion and also found it was connected to gang activity, she faced a possible indeterminate life term. (See § 186.22, subd. (b)(4)(C).) --------
The crux of Martinez's argument is that trial counsel's decision could not be reasonable because, as she previously asserted, there was insufficient evidence to support her conviction for vandalism. As we have rejected that position, in detail, above, we will not address it further. Suffice to say there was sufficient evidence to support the vandalism conviction, and trial counsel's concession of that point remains a sound tactical choice. (People v. Gurule, supra, 28 Cal.4th at p. 612.) For the same reasons, Martinez cannot show prejudice from counsel's decision and she is not entitled to relief. (See Strickland, supra, 466 U.S. at pp. 693-696.)
III. DISPOSITION
The judgment as to Martinez is affirmed.
The judgment as to Vargas is reversed. The matter is remanded to the trial court pending its consideration of any subsequent petition filed by Vargas seeking redesignation of his 2009 conviction for receiving stolen property pursuant to Penal Code section 1170.18, subdivision (k). If no such petition is filed or the petition is denied, the trial court shall reimpose the same sentence as before, with the exception of staying the sentence on count 5 pursuant to Penal Code section 654. If the trial court grants the petition, the trial court shall reimpose the same sentence, with two exceptions: (1) the trial court shall strike the prison prior enhancement imposed under Penal Code section 667.5, subdivision (b); and (2) the trial court shall stay the sentence on count 5 pursuant to Penal Code section 654.
/s/_________
Premo, J.
WE CONCUR: /s/_________
Rushing, P.J. /s/_________
Grover, J.