Opinion
D078519
05-25-2021
In re LISA SIDNEY on Habeas Corpus.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD266565) THE COURT:
HALLER, Acting P. J., GUERRERO, J., and DO, J.
The petition for writ of habeas corpus has been read and considered by Justices Haller, Guerrero, and Do. Judicial notice is taken of the record and opinion filed in appeal No. D077136.
Lisa Sidney pleaded guilty to three counts of theft of more than $950 from an elder (Pen. Code, § 368, subd. (d)), one count of grand theft (id., § 487, subd. (a)), and admitted certain enhancement allegations (id., former § 12022.6, subd. (a)(1)-(2)). The trial court placed Sidney on formal probation for five years, with the condition that she serve 365 days in local custody (120 days in jail, and the balance under house arrest). The court also ordered Sidney to pay victim restitution of $2,553,934.95.
The trial court revoked Sidney's probation in August 2019, finding she violated her obey-all-laws probation condition by (1) concealing property to avoid paying restitution; (2) making a willful misstatement of material fact on her statement of assets; and (3) concealing income to evade taxes. The court reinstated Sidney's original five-year probation term, with the new condition that she serve 365 days in actual custody.
On direct appeal, Sidney argued the trial court erred by revoking her probation. In the concurrently filed opinion in appeal No. D077136, we rejected this claim. We incorporate by reference the factual and procedural background set forth in that opinion, and will assume the reader is familiar with that background (and the terms defined in it).
By the present petition, Sidney complains that the public defender who represented her at the revocation hearing, Abram Genser, provided ineffective assistance by failing to: (1) rebut the Property ownership issue by asserting Sidney relied in good faith on the advice of her prior counsel (Michael Berg) such that she did not willfully conceal her interest in the Property to avoid paying restitution; (2) rebut evidence that suggested Sidney falsified Mellmanor LLC's meeting minutes to reflect a change in ownership; (3) adequately trace the disposition of the sale proceeds to show that Sidney used them to care for Mother, instead of for her own use; and (4) present evidence showing she did not willfully fail to file taxes. Sidney asks this court to vacate the custodial condition of her reinstated probation, and remand for the trial court to consider the additional facts presented in her petition.
Sidney's petition fails to state a prima facie case for ineffective assistance of counsel. To obtain habeas corpus relief on that ground, the petitioner must show that (1) "counsel's performance was deficient," and (2) "the deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); accord, People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) To satisfy the first requirement, the petitioner "must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." (Strickland, at p. 690.) To satisfy the second requirement, the petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Ibid.) To plead a prima facie claim of ineffective assistance, the petitioner must allege with specificity the facts on which the claim is based and must submit declarations, pertinent trial transcripts, and other reasonably available documents supporting the claim. (People v. Duvall (1995) 9 Cal.4th 464, 474.) Sidney has not sustained her burden on any of her asserted grounds.
Sidney bases her advice-of-counsel claim on an email Berg wrote to the prosecutor after the prosecutor emailed an escrow company requesting he be notified before the Property's sales proceeds were released so that he might obtain a court order applying the funds toward restitution. Berg wrote to the prosecutor:
"[I]t is my opinion that you should not be interfering with this sale for the following reasons:
"1. Unless you are able to p[r]ove otherwise, the property is her mother's and has nothing to do with [Sidney]; [and]
"2. Even if this were not the case, and [Sidney] were selling her own property, there is nothing about the restitution agreement we entered into requiring [Sidney] to use the proceeds from this sale to immediately go to restitution . . . ."
This sale did not go through, but the Property sold the following month. At the next status hearing, the prosecutor did not raise the issue of using the sales proceeds to satisfy restitution. After this, Berg withdrew from representation (he was appointed to the federal judiciary), and Genser eventually assumed Sidney's defense.
Sidney maintains Genser provided ineffective assistance by failing to assert this sequence of events to show she "had the good faith belief that the property was her mother's and could not be used to make restitution." Sidney has not established a prima facie case on either prong.
Emails between Sidney and Genser show he made a tactical decision to attempt to prove that Mother actually owned the Property, rather than attempt to show Sidney merely believed that Mother owned it. When evaluating tactical decisions, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance"; to establish deficient performance, "the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " (Strickland, supra, 466 U.S. at p. 689; see People v. Bolin (1998) 18 Cal.4th 297, 333 ["Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts."]; People v. Cruz (1980) 26 Cal.3d 233, 255-256 ["[E]xcept in rare cases, an appellate court should not attempt to second-guess trial counsel as to tactics."].) Sidney has not shown Genser performed deficiently because he could reasonably have decided to focus on what appeared to be a clear-cut dispositive issue.
For example, Genser emailed Sidney in a related context that his "strategy [for the revocation hearing] has changed . . . because you provided me with documents which seemed to prove you were not the owner of Mellmanor."
Nor has Sidney made a prima facie showing of prejudice. It appears her claim that Mother owned the Property is based on the purported minutes of Mellmanor LLC's 2016 annual meeting at which Sidney and Husband supposedly transferred their entire interests in the LLC (and thus, by extension, in the Property) to Mother. But the trial court twice stated it found "troubling" the abundant evidence suggesting these minutes were fabricated. Given this suspicion, it is not reasonably probable the trial court would have found Sidney had a good faith belief that she had transferred her ownership interest to Mother.
Sidney has not identified any other information on which Berg might have based the claim in his email that Mother owned the Property.
In a related claim, Sidney asserts Genser provided ineffective assistance by failing to rebut the evidence suggesting the meeting minutes were fabricated. She maintains Genser could have done so by presenting an invoice from accountant Ibarra's firm showing he billed her for "Updat[ing] minutes and/or bylaws." However, this invoice is dated January 2018—over a year and a half after the purported May 2016 meeting. And Sidney has not supported her petition with any other evidence impeaching or clarifying Ibarra's assertions that his memory and business records confirm that his first contact with Sidney or Husband was in October 2017. We thus conclude it is not reasonably probable the trial court would have reached a different conclusion had Genser presented the invoice from 2018.
Sidney next contends Genser provided ineffective assistance by failing in several ways to adequately trace the disposition of the sale proceeds to show that Sidney used them to care for Mother, thereby suggesting Mother (and not Sidney) owned the Property. For example, Sidney complains that Genser should have obtained and presented her banking records to show she used the majority of the sales proceeds on Mother. Sidney has not shown deficient performance because numerous emails from Genser to her show he made a tactical decision to focus on proving Mother's ownership of the Property, rather than how Sidney used its sales proceeds. Indeed, Genser and the prosecutor stipulated at the outset of the revocation hearing that they would focus on the ownership issue because "[o]nce we figure that out, that will likely resolve everything else." Genser also argued at the hearing that it was not necessary to show how Sidney disposed of the sales proceeds "because if it turns out that [Mother] owns [the Property], . . . [a]ll the money would be" hers and there would be no need to show how it was spent.
In one email, Genser wrote: "The DA will present evidence using mostly bank statements about how you have moved money around. Our defense will be you are entitled to move your mom's money around."
In an email he sent after the revocation hearing, Genser wrote: "With those documents [showing Mother owned the Property] we did not need to prove how the money was spent."
Nor has Sidney shown prejudice on this claim. She argues the financial records would have innocently explained why her statement of assets understated the number and balances of her bank accounts. But Sidney has not shown prejudice because understating those accounts was just one of many misstatements on her statement of assets. She also failed to disclose rental income from the Property; the sale of the Property; $500 in monthly VA benefits; about $120,000 in outstanding cashier's checks; $9,000 that she deposited into Husband's inmate accounts; and $74,600 that she cycled through one of her accounts the month before she filed her statement of assets. Thus, it is not reasonably probable the trial court would have reached a different conclusion had Genser reconciled the undisclosed bank accounts.
Additionally, Sidney's claim that she misstated the balances because she based them on bank statements dated weeks before she filed the statement of assets (on October 2, 2018) is factually suspect. She handwrote "10/1/18" above the "Balance" column on the statement of assets, implying she was providing the balances as of that date.
Sidney further contends Genser provided ineffective assistance by failing to prepare her to testify about the disposition of the sales proceeds. However, Genser made clear to Sidney in an email that he had tactical reasons for not preparing her to testify.
Genser wrote: "After having talked to you many[,] many times I believe that no amount of preparation will change the way you think and answer questions. The good news is that I believe we have the truth on our side. The nice thing about the truth is that you don't have to get 'ready' to tell it—you just tell it. Also, I'm concerned that if we spent time 'coaching' you, you[r] answers would not sound truthful—especially since at this point the judge is familiar with both you and your husband. I don't want to create that impression. Though I have spent time preparing client[s] in the past, in this particular situation I don't believe it will be beneficial." --------
Finally, Sidney faults Genser for not rebutting the prosecution's showing that she willfully failed to file tax returns. She maintains he could have done so by showing that she hired Ibarra to bring her tax returns current, but that he was unable to complete them because the prosecutor seized her records. However, the trial court was aware Sidney had retained Ibarra, and Sidney herself told the court her records were unavailable. The trial court apparently found this claim unpersuasive. Thus, Sidney has not shown prejudice.
The petition is denied.
HALLER, Acting P. J. Copies to: All parties