Opinion
F076134
05-23-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA DANIEL MOON, Defendant and Appellant.
Michael L. Pinkerton, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13CM2377)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kings County. Robert S. Burns, Judge. Michael L. Pinkerton, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Peña, J. and Meehan, J.
-ooOoo-
Appointed counsel for defendant Joshua Daniel Moon asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We sent a letter to defendant, advising him of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. He responded, arguing he was given no accommodation or consideration for his disabilities at trial, sentencing, or resentencing. We affirm.
BACKGROUND
We provide the following brief history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
Defendant was convicted by jury trial of seven counts of various sexual and abusive offenses against his two minor children. The trial court sentenced him to seven years, plus 15 years to life in prison.
On appeal, we concluded the evidence was insufficient to support the finding that count 5 was committed under circumstances likely to produce great bodily harm or death, and thus count 5 constituted a misdemeanor (Pen. Code, § 273a, subds. (a) & (b)). We also concluded the substantial sexual conduct finding (§ 1203.066, subd. (a)(1)) on count 6 (§ 288, subd. (b)(1)) needed to be stricken. We remanded for the court to resentence count 5 as a misdemeanor and strike the finding on count 6.
Our nonpublished opinion in People v. Moon (F069168, Jan. 9, 2017) is part of the record on appeal.
All statutory references are to the Penal Code. --------
On June 29, 2017, the trial court resentenced defendant to one year in jail on count 5 and stayed the term pursuant to section 654. The court also struck the substantial sexual conduct finding on count 6. In all other respects, the previous judgment was adopted.
On August 14, 2017, defendant filed a notice of appeal from the resentencing.
DISCUSSION
We begin with defendant's claims regarding the trial and sentencing. The time has passed to appeal these issues. Defendant has already appealed from his judgment, and any issues regarding the trial needed to be raised in that appeal, which defendant seems to acknowledge.
As for defendant's resentencing following remand from this court, we consider defendant's claim that he suffered from dissociative disorder, post-traumatic stress disorder, and sleep apnea, as diagnosed by the United States Navy. He asserts that the judge, prosecutor, and his defense attorneys all knew he suffered from these disabilities, but "nothing was done by any of them."
Defendant's argument raises a claim of ineffective assistance of counsel. To establish ineffective assistance of counsel, a defendant must show (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and (2) counsel's deficient performance was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) On review, we can adjudicate an ineffective assistance claim solely on the issue of prejudice, without determining the reasonableness of counsel's performance. (Strickland, at p. 697; Ledesma, at pp. 216-217; People v. Hester (2000) 22 Cal.4th 290, 296-297.)
To establish prejudice, the defendant must make a showing "sufficient to undermine confidence in the outcome" that but for counsel's deficient performance there was a "reasonable probability" that "the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694; Ledesma, supra, 43 Cal.3d at pp. 217-218.) "It is not sufficient to show the alleged errors may have had some conceivable effect on the trial's outcome; the defendant must demonstrate a 'reasonable probability' that absent the errors the result would have been different." (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.)
Thus, even if we assume defense counsel erred in failing to alert the resentencing court to defendant's disabilities and pursue accommodations for defendant, defendant still must show that he was harmed by counsel's failure—that is, he must show a reasonable probability that the resentencing would have been more favorable to him had counsel not failed in this regard. Defendant makes no such showing. He does not explain what accommodations he needed or wanted and how those accommodations would have changed the outcome of the resentencing. Under these circumstances, we have nothing upon which to conclude defense counsel was ineffective.
We see no other arguable issues on appeal.
DISPOSITION
The judgment is affirmed.