Opinion
F061081 Super. Ct. No. VCF126364
08-18-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSE ALFONSO LEYVA, Defendant and Appellant.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Hill, P.J., Cornell, J. and Franson, J.
APPEAL from a judgment of the Superior Court of Tulare County. Valeriano Saucedo, Judge.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
STATEMENT OF THE CASE
A jury convicted appellant Jose Alfonso Leyva of first degree murder in which he personally and intentionally discharged a firearm, causing death. (Pen. Code, §§ 187, 12022.53, subd. (d).) Although Leyva admitted having previously been convicted of a serious felony (§ 667, subd. (a)) that was also a strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(e)), the trial court dismissed the prior strike conviction (§ 1385) and sentenced Leyva to prison for 50 years to life plus five years.
All statutory references are to the Penal Code.
Portions of the statement of the case and facts are taken from our prior opinion in Leyva's case, No. F055581. By previous order, we have taken judicial notice of that opinion.
Leyva appealed and challenged his conviction. The People appealed and challenged dismissal of the strike. We affirmed Leyva's current murder conviction and firearm enhancement, but concluded the trial court erred by dismissing the prior strike conviction (a 1991 conviction for assault with a firearm under § 245, subd. (a)(2)) because it failed to (1) consider the appropriate factors concerning the current offense, together with Leyva's history and personal circumstances (see People v. Williams (1998) 17 Cal.4th 148, 161; People v. McGlothin (1998) 67 Cal.App.4th 468, 474), and (2) set forth its reasons "in an order entered upon the minutes" (§ 1385, subd. (a); see People v. Bonnetta (2009) 46 Cal.4th 143, 145-146; People v. Williams, supra, 17 Cal.4th at p. 162; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 532). Since the record was not developed sufficiently for us to say the trial court could not dismiss the prior strike conviction under any circumstances, we vacated the sentence, reversed the order purporting to dismiss the prior conviction, and remanded the matter for further proceedings, including resentencing. Because the trial court's agreement to dismiss the prior strike conviction clearly influenced Leyva's decision to admit the strike allegation, we ordered that Leyva be given the opportunity to withdraw his admission of that allegation.
We determined that the five-year enhancement under section 667, subdivision (a) was unaffected.
On remand, Leyva, who was represented by the same attorney who had represented him during the original trial and sentencing, filed a motion to dismiss the prior strike allegation pursuant to section 1164, or, alternatively, a request for dismissal of the prior conviction under section 1385. The People opposed the motion/request. Judge Kalashian denied the motion, Leyva withdrew his admission, and the matter was set for trial on the prior conviction allegation.
Prior to trial, Leyva filed another request for dismissal of the prior conviction allegation under section 1385. In part, Leyva pointed out that his prior conviction had been expunged. (§ 1203.4.) The People noted the motion was premature, but opposed it on the merits. Observing that Leyva had had convictions since the strike conviction, Judge Kalashian denied the request for dismissal.
Trial on the truth of the prior strike conviction allegation was held on September 14, 2010. After the presentation of fingerprint and documentary evidence, Judge Saucedo found that Leyva was the person who suffered the prior conviction. In addition, he excluded an exhibit reflecting that the prior conviction had been dismissed under section 1203.4, in light of that statute's provision that such a prior conviction can be pleaded, proved, and given effect in a subsequent prosecution. A jury was then empanelled. Documentary evidence was presented, and the jury found true the allegation that Leyva was previously convicted of a violation of section 245, subdivision (a)(2).
The questions whether the defendant is the person who suffered the prior conviction and whether the prior conviction qualified as a strike are for the court, not the jury. (People v. Garcia (2003) 107 Cal.App.4th 1159, 1164-1165.) Assault with a firearm in violation of section 245, subdivision (a)(2) is a serious felony (§ 1192.7, subd. (c)(23)) and, hence, a strike (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1)) when the defendant personally used the firearm (see People v. Sinclair (2008) 166 Cal.App.4th 848, 856). The documentary evidence here showed the requisite personal use, and no question was raised in this regard.
Leyva subsequently renewed his request that the court dismiss the prior conviction, and he submitted the matter on all of his previous motions, points and authorities, and argument. Defense counsel specifically noted that the prior conviction was expunged, it was almost 20 years old and was incurred before enactment of the Three Strikes Law, Leyva suffered no felony convictions between it and the current conviction, and Leyva would still receive a lengthy sentence if the prior conviction were dismissed. The prosecutor opposed the requested dismissal, arguing that Leyva did not fall outside the spirit of the Three Strikes Law. The prosecutor reviewed the circumstances of Leyva's current offense, and observed that he suffered five convictions between that offense and the strike prior. He also noted that, at the time the present offense was committed, the prior conviction was only 11 years old.
Judge Saucedo reviewed the record and denied the request to dismiss the prior conviction. He then sentenced Leyva 50 years to life for murder (25 years to life doubled due to the strike), plus 25 years to life for the firearm use, plus five years for the prior serious felony conviction; ordered him to pay restitution as well as various fees, fines, and assessments; and awarded custody credits. Leyva filed a timely notice of appeal.
FACTS
Sometime before January 15, 2004, Leyva told Sonia Ramos that he had robbed Julian Reyes or Reyes's father. Leyva said he "charged rent" to Reyes and Reyes's father - meaning he sought money or drugs to refrain from perpetrating violence against them -because they sold drugs. Reyes told Ramos that Leyva would kill Reyes if Reyes talked about having been robbed.
On the night of January 15, 2004, Leyva and another man went to Ramon Sanchez's house in Ivanhoe, where Reyes and several other people, including some children, were present. When Leyva's companion asked if Reyes was there, Reyes went outside. He and Leyva argued for a minute or two, then Leyva fatally shot Reyes in the head from almost point-blank range. Leyva remained at large until 2007.
APPELLATE COURT REVIEW
Leyva's appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) The opening brief also includes the declaration of appellate counsel, stating that Leyva was advised he could file his own brief with this court. By letter of February 4, 2011, we invited Leyva to submit additional briefing.
Leyva replied in a letter and raised a number of claims. We address each in turn.
1. Leyva says no hearing was held, with regard to his prior strike conviction, in order to consider matters such as whether he was abused, had mental issues, and the like; after his appeal, he was simply given a longer sentence. Alternatively, Leyva says trial counsel was ineffective for failing to request such a hearing.
The record does not support Leyva's claim. Instead, it shows he received three hearings on whether his prior conviction should be dismissed. Prior to the first two such hearings, defense counsel included the factors relevant to such a determination (see, e.g., People v. Carmony (2004) 33 Cal.4th 367, 377-378; People v. Williams, supra, 17 Cal.4th at p. 160) in written pleadings submitted to the court. At the third hearing, defense counsel submitted the motion on those prior pleadings, as well as oral argument.
2. Leyva says appellate counsel failed to inquire into and research the matter, saying instead that Leyva had a hearing, and if trial counsel failed to present favorable information, Leyva should file a petition for writ of habeas corpus. Leyva argues this shifted the burden to him, when appellate counsel could have filed an ineffective assistance of counsel claim with the appellate court; accordingly, appellate counsel was ineffective for failing to investigate and raise the claim.
We see nothing wrong with what Leyva says appellate counsel told him. As we have stated, the record belies Leyva's claim that he did not receive a hearing on dismissal of his prior strike conviction. If trial counsel failed to present pertinent information, the appropriate remedy is a petition for writ of habeas corpus. Although this court has jurisdiction to entertain such a petition in the first instance, we also have discretion to deny such a petition on the ground that it was not presented first to the trial court. We will exercise that discretion and deny the petition where, as here, no extraordinary reason appears why the petition should not first be presented in the superior court. (In re Kler (2010) 188 Cal.App.4th 1399, 1403; In re Hillery (1962) 202 Cal.App.2d 293, 294.)
3. Leyva asserts that, in the course of his prior appeal, appellate counsel told trial counsel that Leyva was guilty and a liar. Leyva says such conduct is wrong and prejudicial.
This claim is not properly before us because it is not shown by the record on appeal. "Appellate jurisdiction is limited to the four corners of the record on appeal [citations] - which, in this case, does not include the evidence of [any such statements]." (In re Carpenter (1995) 9 Cal.4th 634, 646.)
4. Leyva claims appellate counsel failed to investigate how the trial court said that, if Leyva would admit having suffered the prior conviction, the court would strike the conviction at sentencing, then broke the agreement. Leyva further claims his trial attorney was ineffective for failing to raise the issue at resentencing.
Leyva appears to be confused about what happened in, and as a result of, his prior appeal. In that appeal, we determined that the trial court improperly dismissed Leyva's prior conviction, but we also permitted Leyva to withdraw his admission of that conviction. This is why Leyva had a jury trial on the prior conviction allegation upon remand. There was nothing in this regard for appellate counsel to investigate or raise on the present appeal, or for trial counsel to raise at resentencing, since any breach of the agreement had already been remedied.
5. Leyva complains that the prison mail system lost transcripts and legal materials he sent to his mother. This issue is not properly before us on this appeal, even assuming it somehow presents a claim of ineffective assistance of counsel. (See In re Carpenter, supra, 9 Cal.4th at p. 646.)
6. Leyva challenges the use of his prior conviction, because it was expunged under section 1203.4. He further claims trial counsel was ineffective for advising him that the conviction could not be used in the future, and that appellate counsel was ineffective for failing to obtain the transcripts and investigate the matter.
Section 1203.4, subdivision (a) provides, in pertinent part: "However, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed." (Italics added.) Given the clear language of the statute, convictions that have been expunged or dismissed pursuant to section 1203.4 can be used as strikes. (People v. Diaz (1996) 41 Cal.App.4th 1424, 1429-1430; see also People v. Barro (2001) 93 Cal.App.4th 62, 66-67 [contrasting effect of dismissal of prior conviction under § 1203.4 with dismissal under § 1385].) What trial counsel may have told Leyva is not properly before us on this appeal (see In re Carpenter, supra, 9 Cal.4th at p. 646), and appellate counsel was not ineffective for failing to raise a futile claim of error (see People v. Robinson (1989) 209 Cal.App.3d 1047, 1056).
7. Leyva raises a claim of cumulative error. Since we have found no errors properly before us on appeal, there is nothing to accumulate.
8. Leyva seeks to obtain his complete transcripts and legal materials under California Rules of Court, rule 35. Former rule 35 is now rule 8.616, and provides for transmission of the record to trial counsel. Leyva's request is not properly directed to this court in the first instance.
All references to rules are to the California Rules of Court.
9. Leyva expresses concern that, by filing a supplemental brief, he will not receive a full Wende review. Such is not the case.
After independent review of the record, we conclude there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.