Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BA310059 Marcelita Haynes, Judge.
ORIGINAL PROCEEDING; application for a writ of habeas corpus. Petition denied.
Martin Castillo, in pro. per.; and Mark D. Greenberg, under appointment by the Court of Appeal, for Defendant, Appellant, and Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Zee Rodriguez and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
MALLANO, P. J.
Defendant Martin Castillo appeals from the judgment entered following a court trial in which he was convicted of 17 counts of lewd acts with a child aged 14 or 15 (Pen. Code, § 288, subd. (c)(1); all further statutory references pertain to the Penal Code unless otherwise specified) and 21 of counts unlawful sexual intercourse with a minor (§ 261.5, subd. (d)). Defendant contends the trial court’s evidentiary rulings violated his constitutional rights to present a defense and confront witnesses against him. He further contends that the evidence of the victim’s three pregnancies was insufficient to support great bodily injury findings and that the statutory definition of great bodily injury is so vague it violates due process. We affirm.
In his habeas corpus petition, defendant contends that the attorney who represented him in his first trial rendered ineffective assistance in plea negotiations, and the trial court in his retrial abused its discretion and violated his right to due process by denying his motions for a continuance and to compel an election by the prosecutor. We deny the petition.
BACKGROUND
Defendant was charged with 17 counts of violating section 288, subdivision (c)(1), with one count alleged for each month from August 2003 through December 2004; 21 counts of violating section 261.5, subdivision (c), with one count alleged for each month from January 2005 through September 2006; and one count of possessing a concealed firearm in violation of section 12025, subdivision (a)(2). Six great bodily injury enhancements were also alleged.
The jury at defendant’s first trial convicted him on the firearm count (a misdemeanor) but could not reach a verdict on any of the other charges. The trial court sentenced defendant to 365 days in jail. Appointed counsel was substituted for retained counsel who had represented defendant during his first trial. Prior to his retrial on the remaining 38 counts, the court granted defendant’s motion to represent himself. Immediately before his retrial began, defendant waived his right to a jury, in favor of a court trial.
Defendant had been in a romantic relationship with J.’s mother, R., since J. was about a year old. Defendant was the father of J.’s half sister. In August 2003, defendant moved into R.’s house in Los Angeles, where J., her half sister, and elderly “Uncle Johnny” lived.
J. testified that in the summer of 2003, sometime after defendant moved into the house but no later than sometime in August of 2003, defendant began touching her breasts and her vagina at night, when other members of the household were asleep. He would also place her hand on his penis. This occurred once or twice a week, month after month, and always in the living room. J. was 14 years old and in the ninth grade when defendant began this conduct. J. testified that she began sleeping in the living room when she was in the ninth grade, sometime after defendant began touching her. She did so because the house was being remodeled and her bed was “broken.” Defendant would put “covers” down on the living room floor for her to sleep on. Defendant also slept in the living room, but J. tried to stay on the opposite side of the room from him. Defendant told J. that if she told anyone about what he had done, he would kill her and her mother. She was frightened and believed him because she knew he had several guns in the house, including a handgun she had seen him cleaning.
Around February of 2004, defendant began having sexual intercourse with J. three to four nights each week. J.’s birthday was in January, so she was 15 years old when this started. It always occurred in the living room, and was always at night, while other members of the household were asleep. When defendant worked nights, he would wake her up when he returned home from work to have intercourse with her. Defendant had sexual intercourse with J. during every single month between August of 2003 and September of 2006.
In 2004, when J. was 15 years old, defendant impregnated her, then forced her to have an abortion shortly after her 16th birthday in January of 2005. J. was 14 weeks pregnant, and the procedure occurred over the course of two days. It caused J. physical pain and bleeding. In 2006, defendant again impregnated J., and again forced her to have an abortion in July of 2005, when she was 16. She was 13 weeks pregnant at the time of the second abortion. Defendant impregnated J. again in 2006 and again forced her to have an abortion in September of 2006, when she was 17. She was 13 weeks pregnant at the time of the third abortion. As soon as J. returned from the clinic, her mother asked her if she had undergone an abortion, and J. told her about defendant’s conduct and the three abortions. J.’s mother and aunt took her to the police station. The next day, detectives interviewed J. and recorded the interview. The recording was played at trial.
J. testified that defendant had sexual intercourse with her on September 27, 2006-the night before her third abortion. The parties stipulated that defendant’s DNA was found on the shorts J. had worn on September 27, 2006, and on J.’s wool blanket. They further stipulated that J.’s DNA was found on penile and scrotal swabs taken from defendant on September 29, 2006. The parties also stipulated that a paternity test on a “product of conception” slide preserved from J.’s first abortion established with a 99.99 percent certainty that defendant was the father. The parties also stipulated that J. underwent two other abortions on specified dates in 2005 and 2006.
Defendant called J.’s mother as a witness. She testified that she never saw defendant acting in a sexual manner toward J. During a portion of the time defendant lived in her family’s house, he worked as a security guard and his shift began in the evening and ended during the night. When defendant worked for Bridge Petroleum, he sometimes worked nights and sometimes worked days. He also had a second job. Defendant kept two handguns and two shotguns in the house.
Terrance Mitchell testified that he had known defendant about 15 years and they worked together at Bridge Petroleum. Mitchell further testified that defendant worked night shifts of 12 to 16 hours during the month of October 2005. He testified these shifts began at 6:00 p.m. and ended at 6:00 a.m. (He did not testify regarding the timing of 16-hour shifts.) Mitchell also testified that defendant worked a night shift of at least 12 hours during the months of December 2005, January 2006, and June 2006. He further testified that employees were occasionally on call.
On the prosecutor’s motion after both parties rested, the court amended the information so that every count alleging a violation of section 261.5 alleged a violation of subdivision (d) instead of a violation of subdivision (c). The court convicted defendant on all counts and found true all six great bodily injury enhancement allegations. At sentencing, the court struck three great bodily injury findings that pertained to J.’s three abortions. The three remaining enhancements pertained to J.’s pregnancies and were attached to counts 22 (lewd act in October of 2004), 27 (unlawful sexual intercourse in April 2005), and 40 (unlawful sexual intercourse in June 2006). The court sentenced defendant to a total of 31 years 8 months.
Defendant filed a timely appeal. After appointed appellate counsel filed the opening brief, defendant, acting in propria persona, filed a petition for a writ of habeas corpus. At our request, the Attorney General filed an informal response. Appellate counsel for defendant on appeal filed an informal reply.
DISCUSSION
1. Right to present a defense
Defendant contends that the trial court violated his right to present a defense by erroneously sustaining objections to some of the questions he asked Terrance Mitchell. On appeal, defendant explains that the goal of this testimony was to “narrow[] the window of opportunities that rebutted some of the counts, and cast so significant an aspersion on the complaining witness’s credibility as to undermine other counts as well.”
Proper application of the rules of evidence does not impermissibly infringe upon the defendant’s right to present a defense. (People v. Thornton (2007) 41 Cal.4th 391, 443.) A defendant does not have an unfettered right to introduce evidence that is incompetent, privileged, or otherwise inadmissible under the rules of evidence. (Montana v. Egelhoff (1996) 518 U.S. 37, 42 [116 S.Ct. 2013]; Taylor v. Illinois (1988) 484 U.S. 400, 410 [108 S.Ct. 646].) An error by the trial court in excluding defense evidence is generally just an error of state law that is reviewed under the standard of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Boyette (2002) 29 Cal.4th 381, 428.)
After Mitchell testified that Bridge Petroleum employees were occasionally on call, defendant asked, “While they’re at B.P.? [¶] When an employee worked in day shift and went home, could he be called back within an hour to come back to work?” The court sustained the prosecutor’s relevance objection. This ruling was correct. Evidence is relevant if it has any tendency in reason to prove or disprove any disputed fact of consequence to the determination of an action. (Evid. Code, § 210.) Whether employees could be called back to work had no tendency in reason to establish the points defendant claims he was trying to make: that defendant worked so many nights that he did not have the opportunity to commit some of the counts or that J.’s testimony was not credible. No claim of error can be based upon this ruling by the trial court.
Defendant next asked Mitchell, “After a day shift has been completed, have we-have I ever come back out and seen you there and you’ve known me to be called out to come work nights after that?” The trial court sustained the prosecutor’s relevance objection, adding that the question was vague. The trial court correctly sustained the objection. The question was compound and confusing, which may have been what the court meant when it stated that the question was vague. In any event, we review the propriety of the trial court’s ruling, not its reasoning; if the evidence was inadmissible for a reason other than that cited by the court, we affirm. (People v. Rogers (2009) 46 Cal.4th 1136, 1162, fn. 14; People v. Campbell (1994) 23 Cal.App.4th 1488, 1494.)
Next, defendant asked, “Have you ever come to the refinery during the time frame from-that we’ve discussed and seen the-seen me working at night” “when you’ve come in on days?” The trial court sustained the prosecutor’s vagueness objection. This ruling was correct. Defendant’s reference to a time frame previously discussed was vague. It is unclear whether defendant was referring to a discussion he had had with Mitchell outside of the courtroom or whether he was referring to his attempt to examine Mitchell as a witness. If the latter, the question was further vague because defendant and the court had questioned Mitchell about several different date ranges. Defendant began his examination of Mitchell by asking whether he and Mitchell had “worked together at Bridge Petroleum from July of 2005 to September of 2006.” (Defendant does not challenge the trial court’s ruling sustaining an objection to this question.) Defendant later asked about the month of October 2005, then the period of December 2005 through January 2006. The court then asked about the month of October 2005, and defendant followed by asking about June of 2006. Defendant argues that the court should have assumed that his questions referred to the period of July of 2005 to September of 2006, but any such assumption would have injected tremendous uncertainty into the record and rendered any answers virtually useless because Mitchell may have assumed the question pertained to a different time period. Even if we were to conclude that the trial court erred by sustaining the objection, the error would be harmless. Whether Mitchell had ever seen defendant working nights in some particular interval did not show that defendant worked so many nights that he did not have the opportunity to commit some of the counts or that J.’s testimony was not credible. It was undisputed that defendant sometimes worked nights. But he did not introduce evidence that he worked every night of the week during the time he worked at the refinery. In addition, J. testified that sometimes when defendant returned home after working at night, he awakened her and either touched her sexually or engaged in sexual intercourse with her.
The next ruling challenged on appeal stemmed from the following question: “During September of 2005, Terrance-Mr. Mitchell, are there any times that you have come on to work and seen that I’ve worked nights? July-September 1st to September 30th, 2005?” The trial court sustained the prosecutor’s lack of foundation objection. This ruling was correct. Defendant never asked Mitchell what he did at the refinery. If Mitchell’s job entailed reviewing records of the days and hours employees worked, he may have “seen” records indicating that defendant had “worked nights” during the month of September 2005 and thus have had sufficient personal knowledge to answer the question. But defendant failed to establish any basis for Mitchell’s personal knowledge of defendant’s work schedule in September of 2005. Just before this question, defendant asked Mitchell how he knew defendant worked nights, but the trial court sustained objections to the question after defendant said he was “talking about” time periods “outside” of those he had “already established.” Defendant does not challenge that ruling on appeal. Even if we were to conclude that the trial court erred by sustaining the objection, the error would be harmless for the same reason stated in the preceding paragraph.
Next, defendant asked, “September 30th-September 1st through September 30 of 2005, I’d like for you to, please, if you would, explain how the shifts operate at the refinery.” The trial court sustained the prosecutor’s relevance objection. The trial court did not err. How the “shifts operate[d]” at the refinery was irrelevant to show that defendant worked so many nights that he did not have the opportunity to commit some of the counts or that J.’s testimony was not credible. In addition, defendant has not established a foundation for Mitchell’s knowledge of the refinery’s policies and procedures for scheduling employees’ work shifts.
The next ruling challenged on appeal resulted from defendant asking, “Other than the times we’ve established where I worked nights, in the area that I worked, Sir, are there other times when I might be-I would be out working nights?” The trial court sustained the prosecutor’s vagueness objection. This ruling was correct, although lack of foundation was a better basis for it because defendant failed to establish any basis for Mitchell’s knowledge of defendant’s work schedule. Even if we were to conclude that the trial court erred by sustaining the objection, the error would be harmless because evidence that defendant worked nights at “other times” did not show that defendant worked so many nights that he did not have the opportunity to commit some of the counts or that J.’s testimony was not credible.
Next, defendant asked, “Is there a name for the area of refinery [sic] I worked?” The trial court sustained the prosecutor’s relevance objection. This ruling was correct. The name of the portion of the refinery in which defendant worked had no tendency in reason to prove any disputed fact of consequence in the case.
Next, defendant asked, “During September of 2005-all of September of 2005, did you see me out in the refinery at nights for 15 days?” The court asked, “Straight?” Defendant replied, “No, ma’am. 15 days.” The court sustained the prosecutor’s lack of foundation objection. Although no foundational issue exists, given that the question asked about what Mitchell saw, the relevance of the information sought is questionable. Even if we were to conclude that the trial court erred by sustaining the objection, the error would be harmless because evidence that Mitchell saw defendant “out in the refinery at nights for 15 days” would not establish that defendant worked those nights, worked all night on those nights, or that defendant worked so many nights that he did not have the opportunity to commit some of the counts or that J.’s testimony was not credible.
Defendant then asked, “Did you see me out in the refinery for 15 days straight, Mr. Mitchell?” The trial court sustained the prosecutor’s lack of foundation objection. This ruling was correct, although the correct rationale for it was vagueness and relevance. Defendant failed to specify a time period and his reference to “days, ” not nights, made it irrelevant to his purpose of showing that he worked so many nights that he did not have the opportunity to commit some of the counts or that J.’s testimony was not credible.
The next ruling challenged on appeal followed this question: “Mr. Mitchell, would you please tell the court how the shifts operate at B.P.?” The trial court sustained the prosecutor’s relevance objection. This ruling was correct. As previously explained in regard to a virtually identical question (asking Mitchell to “explain how the shifts operate at the refinery” during September of 2005), the information sought was irrelevant and defendant had not established a foundation for Mitchell’s knowledge of this topic.
Next, defendant asked, “Would you please tell the court how the shift that I worked operates at B.P.?” The trial court sustained the prosecutor’s lack of foundation objection. This ruling was correct. Defendant had not established a foundation for Mitchell’s knowledge of this topic. In addition, how defendant’s shift worked was irrelevant because it pertained to a general procedure or practice and did not establish the particular days and hours that defendant actually worked in any particular time period. If defendant wanted to establish the days and hours he worked, he should have subpoenaed a responsible, appropriate person from his employer to come to court with records reflecting the dates and times he actually worked.
Next, defendant asked, “During all this-all this August of 2005-August 2005-August 1st, August 30th, 2005, did I work nights one week; days the following week?” The trial court sustained the prosecutor’s lack of foundation objection. This ruling was correct. Defendant had not established a foundation for Mitchell’s knowledge of this topic.
Thus, the only arguably erroneous ruling of those challenged on appeal pertained to whether Mitchell saw defendant “out in the refinery at nights for 15 days” during September of 2005. If the trial court erred, the error was one of state law, only. And, as previously addressed, the limited relevance of the information sought rendered it harmless. The trial court did not violate defendant’s right to present a defense. Defendant either called the wrong person to attempt to establish the information he sought or failed to establish the requisite foundation for Mitchell’s knowledge of the days and times defendant actually worked. Even if defendant could have established a foundation, he failed to ask Mitchell about the days and times defendant actually worked. Finally, defendant failed to frame his questions properly. Defendant’s difficulties in this regard are understandable, but a defendant who represents himself must follow all the technical rules of evidence, procedure, and substantive law and is not entitled to special treatment by, or assistance from, the court.
Any error was harmless. Defendant succeeded in eliciting testimony by Mitchell that defendant worked 12- to 16-hour night shifts from 6:00 p.m. to 6:00 a.m. during the month of October 2005, and night shifts of at least 12 hours during the months of December 2005, January 2006, and June 2006. He further testified that employees were occasionally on call. The court’s restriction on testimony regarding 15 days or nights in September of 2005 was harmless because it did not establish that defendant did not have sex with J. when he arrived home in the mornings after working night shifts, as she testified, or on the other 15 days of September 2005.
2. Right of confrontation
Defendant contends that the trial court violated his federal constitutional right of confrontation by sustaining relevance objections to three questions he asked while cross-examining J.
The first ruling challenged on appeal occurred when defendant asked, “How did you come to sleep in the living room?” The trial court sustained the prosecutor’s relevance objection, explaining that J.’s reason for starting to sleep in the living room was irrelevant. The second ruling challenged on appeal stemmed from defendant’s request that J. “describe the dimensions of the bedroom” in which her mother and sister slept. J. replied, “About 40 feet away.” Defendant clarified that he was asking about size, not distance. The trial court sustained the prosecutor’s relevance objection. Defendant then asked, “Is there any room-was there anywhere else you could have slept, [J.]?” The trial court sustained the prosecutor’s relevance objection.
The right of confrontation includes the right to cross-examine adverse witnesses on matters reflecting upon their credibility. (People v. Quartermain (1997) 16 Cal.4th 600, 623.) But the confrontation clause simply “guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent” the defense wishes. (Delaware v. Fensterer (1985) 474 U.S. 15, 20 [106 S.Ct. 292].) Judges retain wide latitude to impose reasonable limits on cross-examination. (Quartermain, at p. 623.) Confrontation rights are not violated unless a defendant shows that the prohibited cross-examination would have produced a significantly different impression of the witness’s credibility. (People v. Frye (1998) 18 Cal.4th 894, 946, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
As a preliminary matter, we note that defendant forfeited the claim by failing to raise it in the trial court. (People v. Hill (1992) 3 Cal.4th 959, 994, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; People v. Stevens (2007) 41 Cal.4th 182, 198–199; People v. Mitcham (1992) 1 Cal.4th 1027, 1044.)
Even if defendant had preserved his confrontation claim, we would reject it because the excluded testimony would not have produced a significantly different impression of J.’s credibility, and thus no confrontation violation occurred. In her statement to the detectives, which was introduced at trial, J. explained that she slept in the living room because “the house was being remodeled and [her] bed was broken, ” and defendant would put “covers” down on the living room floor for her to sleep on. Whether J. testified consistently with her prior statement or testified that she chose to sleep in the living room even though she had other options, such testimony would not have produced a significantly different impression of her credibility. It was undisputed that she began sleeping in the living room after defendant began molesting her and apparently continued to do so throughout the time of all the charged crimes. As defendant notes, this naturally raises questions as to why she did so. But testimony by J. that she chose to sleep in the living room instead of somewhere else in the house would add nothing to the state of the evidence, including nothing to diminish her credibility. Notably, defendant’s briefs fail to explain how answers to the three questions in issue would have affected J.’s credibility. Instead, he simply argues, “The restriction on cross-examination regarding the physical necessity vel non and her motive vel non for staying in the living room was clearly a crucial and relevant topic pertaining to her credibility.” We disagree. Defendant has not explained, and we fail to see, how answers might have produced a significantly different impression of her credibility. Nor would testimony by J. that she chose to sleep in the living room have assisted defendant’s defense because J.’s consent or lack thereof was irrelevant to the charges against defendant. (People v. Hillhouse (2003) 109 Cal.App.4th 1612, 1619–1621.)
3. Cumulative error
Defendant contends that the cumulative effect of the purported restrictions on his right to present a defense and to confront J. warrants reversal. His cumulative error claim has no greater merit than his individual assertions of error, which we have rejected as unfounded or harmless.
4. Sufficiency of evidence of great bodily injury
The trial court found six great bodily injury allegations true-one for each pregnancy and each abortion. Before sentencing, the California Supreme Court decided People v. Cross (2008) 45 Cal.4th 58 (Cross). The trial court struck three of the great bodily injury findings based upon J.’s abortions, but enhanced defendant’s sentence for the three great bodily injury findings based upon the three pregnancies.
Defendant contends that the evidence was insufficient to support the trial court’s findings on the three enhancement allegations. He argues, “[N]o reasonable trier of fact could [find] beyond a reasonable doubt that [J.] indeed suffered great bodily injury....”
To resolve this issue, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable trier of fact could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.) We presume the existence of every fact supporting the judgment that the trier of fact could reasonably deduce from the evidence and make all reasonable inferences that support the judgment. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Catlin (2001) 26 Cal.4th 81, 139.)
Cross, supra, 45 Cal.4th at page 64, noted that it had previously described great bodily injury as “‘substantial injury beyond that inherent in the offense.’” “Proof that a victim’s bodily injury is ‘great’-that is, significant or substantial within the meaning of section 12022.7-is commonly established by evidence of the severity of the victim’s physical injury, the resulting pain, or the medical care required to treat or repair the injury.” (Id. at p. 66.) The court then held, “Thus, when victims of unlawful sexual conduct experience physical injury and accompanying pain beyond that ‘ordinarily experienced’ by victims of like crimes [citation], such additional, ‘gratuitous injury’ will support a finding of great bodily injury [citation].” (Ibid.) The court declined to decide “whether every pregnancy resulting from unlawful sexual conduct, forcible or otherwise, will invariably support a factual determination that the victim has suffered a significant or substantial injury, within the language of section 12022.7.” (Ibid.) But it found that the 22-week long pregnancy of the 13-year-old victim prior to her surgical abortion supported the jury’s great bodily injury finding. (Ibid.)
Viewing the evidence in the light most favorable to the judgment, we conclude that substantial evidence supported the trial court’s findings on the three great bodily injury enhancements. J. was 15 years old when defendant first impregnated her. She had never been pregnant before. She was pregnant for 14 weeks. Under Cross, this “gratuitous injury” amply supported the trial court’s great bodily injury. Similarly, the second and third pregnancies, when J. was 16 and 17, respectively, both lasted 13 weeks. In each case, the pregnancy constituted a significant or substantial injury beyond that inherent in the offense of unlawful sexual intercourse. The evidence thus supported the trial court’s findings that all three pregnancies constituted great bodily injury.
5. Vagueness of great bodily injury statute
Defendant contends that section 12022.7 is unconstitutionally vague as applied in his case. He claims to have difficulty understanding “how a natural physical condition can be a physical injury, ” and argues that “[w]hether or not a pregnancy is an injury at all depends on moral, social, and psychological factors, and Section 12022.7 is confined to physical injury.” He further argues, “The statutory definition of great bodily injury as ‘significant or substantial physical injury’... as applied to pregnancy is one that ‘impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.’”
The Supreme Court’s holding in Cross that pregnancy resulting from unlawful sexual intercourse can support a finding of great bodily injury negates defendant’s theories regarding “a natural physical condition” and dependence upon “moral, social, and psychological factors.”
The remainder of his argument is no different from that of other vagueness challenges to section 12022.7 that have been rejected by courts. For example, in People v. Guest (1986) 181 Cal.App.3d 809, the court rejected a claim “that section 12022.7 is unconstitutionally vague because one cannot tell from instance to instance what injuries will be considered significant or substantial enough to constitute great bodily injury.” (181 Cal.App.3d at p. 811.) The court explained, “The orthodox test under the United States or California constitutions for unconstitutional vagueness is whether the statute ‘“either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application[, ] violat[ing] the first essential of due process of law.”’ [Citations.] However, ‘a statute is sufficiently certain if it employs words of long usage or with a common law meaning, “notwithstanding an element of degree in the definition as to which estimates may differ.”’ [Citations.] As we have stated in People v. Kimbrel (1981) 120 Cal.App.3d 869, 876, ‘We are persuaded by the long acceptance of “great bodily injury” as a term commonly understandable to jurors that it has not acquired a technical legal definition requiring in the absence of special circumstances a clarifying instruction.’ While the defendant may be correct in that an ‘I know it when I see it’ standard is applied to injuries under section 12022.7 [citation], men of common intelligence can apply these words of long usage to discern what injuries they are forbidden to inflict under pain of enhancement.... Section 12022.7 is constitutional.” (181 Cal.App.3d at pp. 811–812.)
Accordingly, we reject defendant’s vagueness challenge.
6. Habeas claims regarding denial of motions
Defendant’s second and third claims in his habeas petition pertain to the trial court’s denial of his motions at the start of the second trial seeking a continuance and a forced election by the prosecutor. These issues could have been raised on appeal but were not. “[A]bsent strong justification, issues that could be raised on appeal must initially be so presented, and not on habeas corpus in the first instance.” (In re Harris (1993) 5 Cal.4th 813, 829.)
Although appellate counsel asks us to either consider these issues on their merits or through the prism of his own alleged ineffective assistance, we decline to do so. If counsel really believed the issues had merit, he should have sought leave to file a supplemental opening appellate brief.
Neither issue has merit. We evaluate the habeas petition “by asking whether, assuming the petition’s factual allegations are true, the petitioner would be entitled to relief.” (People v. Duvall (1995) 9 Cal.4th 464, 474–475.) If no prima facie case for relief is established, we summarily deny the petition. As the informal reply recognizes, the election issue is foreclosed by People v. Jones (1990) 51 Cal.3d 294.
The habeas claim regarding the continuance motion is based upon three factual points, only one of which was contained in defendant’s written continuance motion. The trial court can hardly be deemed to have erred with regard to factual matters not presented to it. In addition, a motion for a continuance requires a showing of good cause (§ 1050, subd. (e)), including a showing of diligence (People v. Jenkins (2000) 22 Cal.4th 900, 1037), and the record undermines the claim of good cause set forth in the written motion. Defendant’s motion reported that Judge Ryan appointed an investigator for him on July 24, 2008, but he was unable to make contact with the investigator until August 5, 2008. But on July 24, 2008, defendant announced that he was ready for trial. On August 1, 2008, he reiterated that he was “absolutely” ready to go to trial and said he did not intend to call any witnesses. On August 6, 2008, when Judge Wesley asked defendant if he was ready for trial, defendant for the first time said he “could use a little more time.” He did not say, “No, ” and did not set forth any explanation. When the parties arrived in the courtroom of Judge Haynes around 10:00 a.m. on August 6, they discussed a number of matters with the court at length, such as the possibility of settlement and having a court trial instead of a jury trial. Sometime after 2:00 p.m.-after defendant announced that he wanted a court trial and waived his right to a jury trial, he filed his motion for a continuance. The record demonstrates that defendant was not diligent. He was “absolutely” ready for trial on August 1, although he had not contacted his investigator, but suddenly not ready on August 6, after he had contacted him. The trial court neither abused its discretion nor violated defendant’s right to due process. Defendant also failed to demonstrate prejudice by supplying declarations of the witnesses he claims he would have called to testify, showing both the substance of their testimony and that they would have been available to testify during the time the trial was held.
7. Ineffective assistance of counsel
Defendant’s first habeas claim contends that the attorney who represented him in the initial trial rendered ineffective assistance with respect to plea negotiations. In particular, defendant argues his attorney gave him inadequate legal advice (including underestimating defendant’s sentencing exposure and erroneously advising him of the risks of proceeding to trial) that caused him not to accept a December 4, 2006 plea offer of six-years, failed to present defendant’s five-year counteroffer to the prosecutor, and failed to inform defendant of a 10-year offer the prosecutor made before the preliminary hearing.
A claim that counsel was ineffective requires a showing, by a preponderance of the evidence, of objectively unreasonable performance by counsel and a reasonable probability that, but for counsel’s errors, the defendant would have obtained a more favorable result. (In re Jones (1996) 13 Cal.4th 552, 561.)
In the specific context of alleged ineffective assistance during plea negotiations, “defense counsel must communicate accurately to a defendant the terms of any offer made by the prosecution, and inform the defendant of the consequences of rejecting it, including the maximum and minimum sentences which may be imposed in the event of a conviction.” (In re Alvernaz (1992) 2 Cal.4th 924, 937 (Alvernaz).) Counsel’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.” (Ibid.) “To establish prejudice, a defendant must prove there is a reasonable probability that, but for counsel’s deficient performance, the defendant would have accepted the proffered plea bargain and that in turn it would have been approved by the trial court.” (Ibid.) Given “the ease with which a defendant, after trial, may claim that he or she received inaccurate information from counsel concerning the consequences of rejecting an offered plea bargain, ” a court reviewing such a claim “should scrutinize closely whether a defendant has established a reasonable probability that, with effective representation, he or she would have accepted the proffered plea bargain.” (Id. at p. 938.)
“In determining whether a defendant, with effective assistance, would have accepted the offer, pertinent factors to be considered include: whether counsel actually and accurately communicated the offer to the defendant; the advice, if any, given by counsel; the disparity between the terms of the proposed plea bargain and the probable consequences of proceeding to trial, as viewed at the time of the offer; and whether the defendant indicated he or she was amenable to negotiating a plea bargain. In this context, a defendant’s self-serving statement-after trial, conviction, and sentence-that with competent advice he or she would have accepted a proffered plea bargain, is insufficient in and of itself to sustain the defendant’s burden of proof as to prejudice, and must be corroborated independently by objective evidence.” (Alvernaz, supra, 2 Cal.4th at p. 938.)
“Finally, an additional factor pertinent (although not dispositive) in determining prejudice may be the defendant’s stance at trial.... [D]epending upon the circumstances of each case, a defendant’s trial stance and particular testimony may be viewed as favorable or unfavorable to his or her habeas corpus claim.” (Alvernaz, supra, 2 Cal.4th at p. 940.)
Defendant has not made a prima facie showing with respect to prejudice for any aspect of his ineffective assistance claim. First, his petition made no attempt to establish a reasonable probability that a five-year, six-year, or ten-year plea agreement would have been approved by the trial court. “[W]e may not simply presume... that the trial court automatically would have approved a plea bargain negotiated by the prosecutor and the defense.” (Alvernaz, supra, 2 Cal.4th at p. 941.)
Second, defendant’s declaration states that he did not want the case to go to trial, that he would have accepted the six-year offer if he had been given adequate advice, and that he would have accepted the ten-year plea offer if his attorney had communicated that offer to him. Defendant’s petition includes declarations from his sister, his son, and Terrance Mitchell. Each of these three declarations states, in essence, that trial counsel told the declarants of a six-year plea offer by the prosecution, and also expressed confidence that he could obtain a lower offer or win the case. The three supporting declarations thus corroborate the existence of the six-year offer and counsel’s disdain for it. But defendant has not submitted any independent, objective evidence showing that he would have accepted the six-year offer. His self-serving statements to that effect in his declaration are insufficient to establish this essential element. Notably, at the time the six-year offer was made, defendant faced only eight counts, most of which do not appear to have been supported by any evidence. Counts 5 through 7 alleged incest, which was inapplicable because defendant is not related to J. The great bodily injury enhancements were attached to the three incest counts only. Count 1 alleged a forcible lewd act upon a child under the age of 14 and count 2 alleged continual sexual abuse of a minor a child under the age of 14, both occurring before defendant moved into J.’s family home. In contrast, the facts set forth in J.’s statement to detectives, as well as her testimony at the preliminary hearing and at trial, indicated that defendant’s sexual misconduct began in 2003, after he moved in to the family home and after she had graduated from middle school, when she was 14 years old. The only three counts that were apparently supported by the facts were two alleged violations of section 288, subdivision (c)(1) and the misdemeanor gun charge. Accordingly, defendant’s realistic sentencing exposure was four years eight months-less than the offer. Thus, defendant cannot rely upon a disparity between the six-year offer and defendant’s maximum sentencing exposure to provide the independent, objective corroborating evidence.
In addition, the trial record presents reason to doubt defendant’s self-serving statements that he would have actually accepted offers of six or ten years by the prosecution. Defendant’s partial alibi defense of working night shifts was, in essence, a claim of innocence. Throughout the proceedings following the original trial, defendant made numerous references indicating that he believed he had other sound defenses to the charges, that J. lied in her testimony, and that specific intent or absence of consent was required to support the great bodily injury enhancements. During the hearing on his Marsden motion, when the court noted that the jury in the first trial hung 11 to 1 for conviction, he said, “They didn’t hear the truth. I mean, if we go forward and we tried to get the truth again, that’s what it takes.” When the case was sent to Judge Haynes for the retrial, defendant said to the prosecutor, “[Y]our theory of the case is far from the truth.” Moments later, he stated, “I simply want her to get up there and tell the truth. That’s it. [¶] I mean, I don’t know if I can count on that. If I could hope for that. That’s all I’m defending.” Shortly before the retrial began, defendant stated, “I’m going to maybe beg her to tell the truth. [¶] I don’t know what’s going to happen. But the point is, if she does decide to tell the truth, it will be substantially different than what we’ve heard before.” After the court reiterated that consent was not a defense, defendant continued, “[I]f I’m going to be going to trial, it is important that I say the truth. And if the truth is consent was what-was my issue, then that’s the truth. If the truth is we consented, that’s the truth.” Finally, on August 1, 2008-just prior to retrial-the court inquired whether there was a settlement offer. The prosecutor stated an offer of 20 years, and the defendant’s counteroffer was time served.
Defendant made no attempt to show that the prosecutor would have accepted his five-year counteroffer. Acceptance seems highly improbably, since the counteroffer was made after the prosecutor had amended the complaint by deleting the incest, continual sexual abuse of a minor a child under the age of 14, and forcible lewd act upon a child under the age of 14 charges, and adding 18 additional charges under section 288, subdivision (c)(1) and 21 charges under section 261.5, subdivision (c).
For all of these reasons, we conclude that defendant failed to make a prima facie showing that he was prejudiced by the allegedly deficient performance of trial counsel regarding plea negotiations.
DISPOSITION
The judgment is affirmed. The petition for a writ of habeas corpus is denied.
We concur: ROTHSCHILD, J., JOHNSON, J.