Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. JW111853-01. Peter A. Warmerdam, Judge.
The Law Office of Benjamin R. Green & Associates and Benjamin R. Green and Thomas W. Casa, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Ardaiz, Presiding Justice, Cornell, J., and Kane, J.
Pursuant to a plea bargain, appellant E.M. admitted one count of assault with a deadly weapon (Pen. Code § 245 subd. (a)(1)) with a great bodily injury enhancement (§ 12022.7 subd. (a)). He was adjudged a ward of the court and committed to the California Department of Corrections and Rehabilitation, Division of Juvenile Facilities, for a maximum confinement time of seven years. Appellant filed a notice of appeal claiming his counsel’s performance was so deficient and prejudicial that it resulted in a violation of his constitutional right to effective assistance of counsel. We disagree and will affirm the judgment.
Unless otherwise designated, subsequent statutory references are to the California Penal Code.
Facts and Procedural History
On May 8, 2008, near the East Bakersfield High School campus, 17-year-old appellant and his 16-year-old cousin approached the 15-year-old victim, who was riding his bicycle. When appellant saw the victim, he told his cousin, “That’s V. Get him!” Appellant’s cousin stopped the victim. Appellant pulled a knife and stabbed him in the midsection. The victim flagged down a bystander who took him to Kern Medical Center, where he was treated for several days for a punctured lung.
The probation officer’s report states the victim suffered two stab wounds and was hospitalized for six days. The medical records, attached to appellant’s brief, report one wound and a four-day hospital stay.
On August 28, 2008, pursuant to a negotiated plea agreement, appellant admitted the Count 1 assault with a great bodily injury enhancement and two other counts were dismissed.
DISCUSSION
Ineffective Assistance
Appellant contends his right to effective assistance of counsel was violated because his counsel failed to understand the basics of the plea deal and to investigate essential documentary evidence.
To establish ineffective assistance of counsel, appellant must show: (1) his counsel’s performance was deficient and (2) these deficiencies prejudiced him. (Strickland v. Washington (1984) 466 U.S. 668, 690-693.) The standard for the deficiency prong is whether counsel acted as a reasonably competent attorney. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) Appellant must demonstrate both deficient performance and prejudice. (People v. Lewis (1990) 50 Cal.3d 262, 288.) However, the reviewing court need not address both prongs. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice … that course should be followed.” (Strickland v. Washington, supra, 466 U.S. 668, 697.)
A. Terms of the Plea Agreement
Appellant contends counsel failed to understand whether he was admitting an allegation of assault with a deadly weapon with a great bodily injury enhancement or a battery with force likely to cause serious bodily injury. Further, because counsel was mistaken as to the allegation to be admitted, she was mistaken as to the maximum confinement time appellant faced. He submits, but for his counsel’s mistakes, he would not have admitted Count 1 with the enhancement. We are not persuaded.
Where an appellant claims he would have pled differently had counsel provided competent advice, he must corroborate his claim with objective evidence. (In re Resendiz (2001) 25 Cal.4th 230, 253.) The court must determine whether counsel’s acts or omissions adversely affected appellant’s ability to knowingly, intelligently and voluntarily decide to enter the plea. If it fairly appears appellant entered his plea under the influence of mistake, ignorance or inadvertence or any other factor overreaching his free and clear judgment such as would justify the withdrawal of his plea, he was ineffectively represented by counsel. (People v. Johnson (1995) 36 Cal.App.4th 1351, 1357.)
Initially, defense counsel misunderstood the allegation appellant was admitting pursuant to the plea agreement. The court recessed so counsel could clarify the matter with appellant. In addition, although the maximum confinement time for Count 1 plus the enhancement was seven years, the Advisal and Waiver of Rights form, which appellant initialed, incorrectly stated the maximum confinement time was four years. However, prior to taking appellant’s admission, the trial court advised him that the correct maximum confinement time was seven years.
At the hearing, the court asked appellant if he was admitting Count 1 of the petition with the enhancement. Appellant replied in the affirmative. The court advised appellant, if he admitted these charges, he faced a total confinement time of seven years. Appellant replied he understood this advisement. The following exchange ensued:
“THE COURT: Eddie, it says in the first count of the petition that on or about May 8th, 2008, that you did willfully and unlawfully commit an assault upon V.F. with a deadly weapon, a knife, in violation of [P]enal [C]ode section 245 subdivision (a), subsection (1) a felony with a confinement time of four years. Do you admit that?
“MINOR: Yes.
“THE COURT: It says with an enhancement to that charge that in the attempted commission of that offense that you personally inflicted great bodily injury upon V.F. within the meaning of Penal Code section 12022.7 subdivision (a) adding additional confinement time of three years. Do you admit that?
“MINOR: Yes.”
The record does not support appellant’s claim that he admitted the charges under the influence of a mistake, ignorance or inadvertence. First, the court recessed to allow counsel to confer with appellant when it appeared counsel was confused regarding the offense to be admitted and the resulting confinement time. Second, when the court reconvened, the trial judge ascertained that appellant understood the charges he was admitting and the confinement time they carried. Thus, counsel’s initial confusion regarding the terms of the plea agreement was clarified before appellant admitted the charge. Appellant has shown no prejudice resulting from counsel’s mistake.
B. Failure to Investigate
Appellant next contends counsel provided ineffective assistance by failing to obtain a copy of the victim’s medical records prior to advising him to admit the great bodily injury enhancement. He premises this contention on the fact that a copy of the medical record, which is not part of the appellate record but is attached to his opening brief, indicates it was printed the same day he admitted the enhancement. From this, he argues that counsel was unable to knowingly advise him whether the victim’s injuries constituted great bodily injury. Respondent points out, it is equally reasonable to infer the records were printed that day to assist defense counsel in preparing for the hearing.
Regardless of which position is correct, appellant has not shown prejudice. Although the record is silent as to what information counsel had when appellant admitted the charges, the probation report indicates the victim received two “non-life threatening” stab wounds to the ribs, which punctured a lung. The victim told the probation officer that emergency room staff told him he would have been dead if he arrived two minutes later and that he was hospitalized for six days. Appellant submits the medical records contradict those statements and demonstrate the victim had just one stab wound and was hospitalized three days. Thus, he concludes well-prepared counsel would have argued that the injury did not constitute great bodily injury. Appellant ignores the ample evidence to the contrary in the medical records. The victim arrived at the hospital on May 8, 2008, with respiratory distress and was described as in “moderate-to severe distress.” The stabbing resulted in a pneumothorax (collapsed lung) that required the victim to be anesthetized for insertion of a chest tube in the emergency department of the hospital. The treatment included IV fluids and Fentanyl pain medication. The victim was released from the hospital on May 11, his fourth hospital day.
“‘Great bodily injury’” means a “significant or substantial physical injury.” (§ 12022.7, subd. (f).) “Significant or substantial injury” is 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. (People v. Cross (2008) 45 Cal.4th 58, 66.) Courts have upheld great bodily injury findings for injuries substantially less severe than those suffered by the victim in this case. (People v. Mendias (1993) 17 Cal.App.4th 195, 206 [victim suffered a gunshot wound to the thigh, the bullet was not removed, the victim was released from the hospital the next day]; People v. Farmer (1983) 145 Cal.App.3d948, 950-951 [victim suffered shoulder burn from a hot knife and injuries from being hit with a belt across the back of her legs]; People v. Martinez (1985) 171 Cal.App.3d727, 732, 735 [victim cut tendons in her fingers when she grabbed a knife defendant held at her throat as he robbed her].)
Accordingly, even if we assume defense counsel did not have a copy of the medical records when she advised appellant to admit the great bodily injury enhancement, appellant cannot show prejudice because the medical record amply substantiates his admission that he did inflict great bodily injury within the meaning of section 12022.7.
DISPOSITION
The judgment is affirmed.