Opinion
F079747
03-12-2021
THE PEOPLE, Plaintiff and Respondent, v. KRISTOPHER WILLIAMS LAWLESS, Defendant and Appellant.
J. Edward Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF162059A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge. J. Edward Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Appellant.
Before Poochigian, Acting P.J., Detjen, J. and Peña, J.
-ooOoo-
In a prior opinion (People v. Lawless (Feb. 13, 2019, F075203) [nonpub. opn.] (F075203)), this court affirmed a judgment of conviction against Kristopher Williams Lawless (defendant) but remanded the matter for further proceedings. This appeal is taken from the judgment entered on remand. Defendant's appellate counsel makes no claims of error and requests our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
We incorporate by reference the factual and procedural background set forth in F075203. To briefly summarize, defendant was convicted of false imprisonment (Pen. Code, § 236), making criminal threats (§ 422), domestic violence (§ 273.5, subd. (a)), and child endangerment (§ 273a, subd. (a)). He was sentenced to 17 years in prison, i.e., the upper term of six years for child endangerment, doubled because of a prior strike, plus a five-year enhancement for a prior serious felony conviction (§ 667, subd. (a)). Concurrent upper term sentences were imposed on the remaining counts.
All undesignated statutory references are to the Penal Code. --------
In F075203, it was determined that Senate Bill No. 1393 (2017-2018 Reg. Sess.) applied retroactively to defendant's case. The legislation gave trial courts discretion to strike the five-year enhancement prescribed by section 667, subdivision (a). Imposition of the enhancement had previously been mandatory. Therefore, the matter was remanded to give the trial court an opportunity to exercise its discretion under the new law.
On July 25, 2019, the trial court held a "resentencing" hearing. Both sides presented argument, and defendant read a prepared statement. Defendant claimed to have devoted himself to rehabilitation in the years since the original pronouncement of judgment. Those efforts included mental health counseling, voluntary participation in "Alcoholics Anonymous, Narcotics Anonymous, and criminal thinking recovery groups," and enrollment in a community college (presumably as a distance learner). Defendant also apologized and expressed remorse for having committed the underlying offenses.
The trial court declined to strike the enhancement and imposed the same sentence as before. The trial court noted that it had not followed the probation department's recommendation of a lengthier aggregate prison term of 21 years 8 months. Defendant filed a timely notice of appeal and requested the appointment of counsel, which was granted.
In March 2020, appointed counsel filed an opening brief pursuant to Wende, supra, 25 Cal.3d 436, requesting independent review of the record for arguable issues. Counsel gave the required notice to defendant, provided a copy of the Wende brief, and informed defendant he had 30 days to submit his own supplemental brief. (See People v. Kelly (2006) 40 Cal.4th 106, 124.) On March 26, 2020, this court provided separate notice to defendant of his right to file a supplemental brief. We later granted a continuance, but no further briefing was filed by the extended deadline of September 18, 2020.
Defendant has advised us of his desire/intention to file a petition for writ of habeas corpus based on alleged ineffective assistance of counsel by the attorney who represented him on remand. In a letter filed January 22, 2021, defendant seemed to indicate that he had wanted his appellate attorney to argue ineffective assistance of counsel in this appeal. To the best of our understanding, defendant believes he received inadequate representation on remand because the lawyer did not proffer supporting documents to corroborate defendant's claimed efforts toward rehabilitation.
To prevail on an ineffective assistance claim, a defendant must establish (1) the attorney's performance fell below an objective standard of reasonableness, and (2) prejudice occurred as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Anderson (2001) 25 Cal.4th 543, 569.) "On direct appeal, a [judgment] will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Even if defendant could establish deficient performance, he would need to show the trial court might have otherwise decided to strike the five-year enhancement. (See People v. Anderson, supra, 25 Cal.4th at p. 569 [prejudice means "'"'but for counsel's unprofessional errors, the result of the proceeding would have been different'"'"].) There is no indication the trial court disbelieved defendant's statements about his rehabilitative efforts. The judge expressly considered "all the circumstances before the Court, including the testimony [defendant] gave today." The judge also told defendant, "I am encouraged to hear that you feel you are making progress. You are changing your goals. You understand some of the issues you have to work on."
There is no basis upon which to conclude further evidence of defendant's rehabilitative programming would have changed the outcome of the sentencing hearing. In other words, the record does not support a claim of ineffective assistance of counsel.
We have independently reviewed the entire record and are satisfied no arguable issues exist and defendant's appointed appellate counsel has fully satisfied his responsibilities under Wende.
DISPOSITION
The judgment is affirmed.