Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR061487
Ruvolo, P. J.
I.
INTRODUCTION
Randall Eugene Ackles (Ackles) appeals from his conviction, following a guilty plea, to one count of committing a lewd act on a child. He maintains that the court erred in imposing the upper term based on aggravating factors not found by a jury. In his petition for writ of habeas corpus, he argues that he was denied the effective assistance of counsel based on his attorney’s failure to investigate whether his juvenile record had been sealed. We affirm the judgment, and deny the petition.
On our own motion, we consolidate the appeal and petition for writ of habeas corpus for purposes of this decision.
II.
PROCEDURAL BACKGROUND
The Humboldt County District Attorney filed a complaint charging Ackles with two counts of committing a lewd or lascivious act on a child of 14 or 15 years of age. (Pen. Code, § 288, subd. (c)(1).) Ackles pleaded not guilty, and underwent a court-ordered psychological assessment. (Pen. Code, § 288.1.) Pursuant to a plea agreement, he pleaded guilty to one count, and the prosecutor dismissed the second count. The court sentenced Ackles to the upper term of three years. His timely appeal followed.
III.
FACTUAL BACKGROUND
The facts are taken from the probation report. On October 30, 2005, Ackles’s then-14-year-old daughter (the minor) spent the night at his home. The following day the minor told her mother, Ackles’s former wife, that Ackles had molested her. The minor explained that Ackles had crawled into bed with her sometime during the night of October 30th. She believed he thought she was asleep. Ackles touched her breasts, slid down her underwear, and touched her genitals. The minor heard him say “Oh shit,” which she believed he said because he had ejaculated on her underwear. Ackles pulled her underwear back up, and she felt a wet spot.
All further undesignated dates are in 2005.
The minor told her mother that she hid her soiled underwear in a dresser drawer with her clean underwear. Police searched Ackles’s home on November 5th. The dresser drawer had been emptied and the bed in which the minor slept had been stripped of its linens. Police found the soiled sheets and underwear in a laundry basket and on top of the washing machine. The underwear and a sheet later tested positive for the presence of semen.
On November 9th, the minor described the molestation in a videotaped interview with a sheriff’s deputy. She expressed concern that Ackles would physically assault her or her brother if he saw the videotape.
V.
DISCUSSION
A. Alleged Sentencing Error
The trial court relied on two aggravating factors in imposing the upper term of three years: “Mr. Ackles did take advantage of a position of trust to commit the offense. And we have [California Rules of Court,] [r]ule 4.421(b)(11), Mr. Ackles has served a prior prison term as an adult in the California Youth Authority [CYA].” Ackles maintains that the court violated his constitutional rights in sentencing him to the upper term based on aggravating factors not found true by a jury beyond a reasonable doubt. He also argues that evidence of the prior prison term aggravating factor was insufficient to support the trial court’s finding.
We note that effective July 1, 2005, the CYA was redesignated the Department of Corrections and Rehabilitation, Division of Juvenile Facilities. (Welf. & Inst. Code, §§ 1710, subd. (a), 1703, subd. (c).) For convenience we will continue to refer to the Division of Juvenile Facilities as the CYA.
Our Supreme Court recently held in People v. Black (2007) 41 Cal.4th 799 (Black II) that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816, italics added.) In Black II, the court concluded the defendant’s recidivism rendered him eligible for the upper-term sentence when the trial court found that the defendant’s prior convictions were numerous and of increasing seriousness. (Id. at pp. 812, 818.) The fact of a prior prison term is an aggravating factor which need not be found true by a jury beyond a reasonable doubt. (Id. at pp. 818-819, citing People v. Thomas (2001) 91 Cal.App.4th 212, 220-223.)
The court relied on the information set forth in the probation report in making its findings. The probation report states Ackles himself told the probation officer that he was arrested for murder when he was 18 years old. He stated that he left home when he turned 18, and was arrested three months later. Ackles also reported that “he was arrested for murder and proceeded to serve three years in the [CYA] pursuant to a conviction for involuntary manslaughter.” Ackles described the homicide as resulting from a spring-loaded gun he rigged to stop repeated burglaries of his residence. The probation report indicates that Ackles “served a prior prison term as an adult, in the [CYA].” Accordingly, the record is adequate under Black II to enable the court to make the finding that Ackles served a prior prison term.
Ackles maintains that the probation report was ambiguous and therefore unreliable because it also stated he was “ ‘convicted of involuntary manslaughter and sentenced to a term in the [CYA].’ ” To the contrary, the report’s use of the word “convicted” rather than stating that a juvenile petition had been sustained, is consistent with the court’s finding that Ackles served a prior prison term as an adult in the CYA.
B. Ineffective Assistance of Counsel
Ackles argues, in his petition for writ of habeas corpus, that he was denied the effective assistance of counsel. He maintains that his trial attorney failed to investigate whether his juvenile record had been sealed or whether the probation report was accurate regarding whether he had served a prior prison term, and failed to have him “testify to the reasons he had to believe that the record of his juvenile adjudication had been sealed.”
In order to demonstrate ineffective assistance of counsel, a defendant must show that counsel’s performance was inadequate when measured against the standard of a “reasonably competent attorney,” and that counsel’s performance prejudiced defendant’s case is such a manner that the representation “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Strickland v. Washington (1984) 466 U.S. 668, 686-687.) “ ‘In determining whether counsel’s performance was deficient, a court must in general exercise deferential scrutiny [citation.]’ . . . ‘Although deference is not abdication . . . courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight.’ [Citation.]” (People v. Brodit (1998) 61 Cal.App.4th 1312, 1335, citing People v. Scott (1997) 15 Cal.4th 1188, 1212.) The defendant also must show “a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” (People v. Staten (2000) 24 Cal.4th 434, 451.)
We evaluate a petition for writ of habeas corpus by asking whether, assuming the petition’s factual allegations are true, the petitioner would be entitled to relief. “If no prima facie case for relief is stated, the court will summarily deny the petition. If, however, the court finds the factual allegations, taken as true, establish a prima facie case for relief, the court will issue an [order to show cause]. [Citations.]” (People v. Duvall (1995) 9 Cal.4th 464, 475.) “Because a petition for a writ of habeas corpus seeks to collaterally attack a presumptively final criminal judgment, the petitioner bears a heavy burden initially to plead sufficient grounds for relief, and then later to prove them. ‘For purposes of collateral attack, all presumptions favor the truth, accuracy, and fairness of the conviction and sentence; defendant thus must undertake the burden of overturning them. Society’s interest in the finality of criminal proceedings so demands, and due process is not thereby offended.’. . .” (Id. at p. 474, italics omitted, citing People v. Gonzalez (1990) 51 Cal.3d 1179, 1260, superseded by statute on other grounds in In re Steele (2004) 32 Cal.4th 682, 690.)
Ackles now maintains that “[t]here is strong evidence that if the material relied on by the probation officer in preparing her report is investigated and presented along with testimony by [Ackles], that evidence will establish that [he] has not served a prior prison term and that the juvenile records of the term he served at the [CYA] have been sealed.” (Fn. omitted.) Ackles’s declaration notably lacks any facts which, if true, would establish a basis for relief. Ackles does not state that his stay at the CYA Youth Training School was the result of a sustained petition as a juvenile; he states only that he was “sent to the [CYA]’s Youth Training School in Ontario” when he was 18 years old. He likewise does not declare that his records were actually sealed, instead relying solely on the hearsay statement of an unnamed attorney hired by his father at an unidentified time that his records had been sealed. Neither of these statements demonstrate that Ackles had suffered a prior juvenile sustained petition, nor that his records had been sealed. Accordingly, Ackles has failed to state a prima facie case for relief.
Ackles concedes that, “[i]n a proper case, a defendant could have been sentenced to the Department of Corrections and then transferred for housing with the CYA. (Welf. & Inst. Code, § 1731.5, subds. (a), (c).)” (See Pen. Code, § 667.5, subd. (j).)
VI.
DISPOSITION
The judgment is affirmed. Ackles’s petition for writ of habeas corpus is denied.
We concur: Reardon, J. Rivera, J.