Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. JW121287-00, Louie L. Vega, Judge.
Law Offices of Jilbert Tahmazian and Jilbert Tahmazian for Defendant and Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Cornell, J. and Poochigian, J.
INTRODUCTION
Appellant Peter B. challenges his adjudication as a ward of the state and his commitment to the California Department of Corrections, Division of Juvenile Justice on the grounds his counsel rendered ineffective assistance. We reject his contention and affirm the order.
FACTUAL AND PROCEDURAL SUMMARY
During January of 2008, the victim, then 11 years of age, frequently visited the home of her friend, C. Peter is C.’s older brother. On one occasion, the victim, C., and then 15-year-old Peter were playing hide and seek. The victim went to use the bathroom. As the victim was standing at the sink washing her hands, Peter stepped out from behind the shower curtain, grabbed the victim, and tried to pull down her pants and touch her between her legs. The victim asked Peter to stop; Peter threatened the victim if she told anyone what had happened.
On May 28, 2008, the victim was at the local library when she received a text message from C.’s cell phone asking her to come outside. The victim went outside to find Peter waiting for her, not C. Peter grabbed the victim, pushed her into a nearby trailer and removed the victim’s clothes. Peter removed his own clothing and at various points tried to penetrate the victim’s vagina with his penis, licked the victim’s vagina and anus, put his finger in her vagina and anus, penetrated her anus with his penis, and then ejaculated. The victim was telling Peter to stop; Peter told her he would kill her or her mother and burn down their house if the victim told anyone what had happened.
In July 2008, the victim told a cousin what had happened. The cousin told the victim’s mother and the incidents were reported to the police.
On November 7, 2008, then 16-year-old Peter was interviewed at his high school by Deputy Sheriff James Newell. With respect to the bathroom incident, Peter claimed he and the victim had been playing hide and seek and he jumped out from behind the shower curtain and scared the victim. They hugged and kissed for a few minutes.
With respect to the trailer incident, Peter told Newell he and the victim “[m]essed around” but claimed he “didn’t fuck her.” Peter then went on to state that he and the victim removed their clothes, rubbed each other, and Peter fingered the victim’s vagina and put his penis into her vagina. Peter acknowledged putting his finger into the victim’s anus and orally copulating her. He ejaculated, but was not sure if he was inside the victim at the time.
Peter said his sister had told him the victim was 13. Peter denied making any threats against the victim or her mother.
About 48 hours after this interview, Peter and his mother were at the police station. Peter’s mother claimed Newell pressured Peter into making the statements he made. Peter claimed he did not “fuck” the victim and attempted to recant his statement.
Newell later learned that the victim had sent a text message to Peter after his interview by Newell. Newell confronted the victim about the text message. The victim denied sending a text to Peter. Later, the victim admitted to her mother that she had sent the text.
On July 2, 2009, a juvenile wardship petition was filed charging Peter with committing a lewd or lascivious act on a child under 14 years of age (Pen. Code, § 288, subd. (a), count 1); committing an act of oral copulation with a minor (§ 288a, subd. (b)(1), count 2); committing an act of sexual penetration with a minor (§ 289, subd. (h), count 3); and unlawful sexual intercourse with a minor (§ 261.5, subd. (c), count 4).
All further statutory references are to the Penal Code unless otherwise specified.
On November 4, 2009, a contested jurisdictional commenced. The victim testified at the hearing. On cross-examination by defense counsel, the victim admitted she had sent written notes to Peter telling him she loved him and wanted him as her boyfriend. She also admitted that after she was interviewed by law enforcement, she sent a text message to Peter saying she was sorry and she missed him, asking if they could go out again, signing it “love.” She admitted lying to law enforcement about the text.
When confronted by defense counsel with e-mails from her MySpace account indicating that she was in love with Peter, the victim denied sending them and indicated people had hacked into her account. An e-mail produced in court showed that the victim had given Peter her passwords to her MySpace and e-mail accounts. When asked if she had told a classmate that she made up the accusations against Peter, the victim denied making any such comment.
C. testified and identified several notes that the victim wrote to Peter. C. stated that the victim asked her to deliver them to Peter. She also stated that the victim told her at one point that Peter did not rape her.
On November 5, 2009, the juvenile court found all charges to be true. At the April 27, 2010, dispositional hearing, Peter was adjudged a ward of the court and a maximum period of confinement of 10 years was fixed. The juvenile court determined counts 2, 3, and 4 were felonies, not misdemeanors. Peter was committed to the Department of Corrections, Division of Juvenile Justice. Upon parole or discharge, Peter is to register as a sex offender pursuant to section 290.
DISCUSSION
Peter alleges his counsel rendered ineffective assistance by failing to present impeachment evidence or investigate logical defenses. Specifically, he contends defense counsel should have (1) called the victim’s mother to testify because she orchestrated the charges against him; (2) called a classmate of the victim’s to testify that the victim made up the accusations against him; (3) presented evidence that his statements to police were coerced; and (4) presented an alternative version of the events.
We conclude ineffective assistance of counsel is not apparent from the record on appeal and Peter’s claim of ineffective assistance of counsel must be brought, if at all, by way of a petition for a writ of habeas corpus.
A juvenile has the right to effective assistance of counsel in Welfare and Institutions Code section 602 proceedings. (In re Vicki H. (1979) 99 Cal.App.3d 484, 498.) This right “entitles him to ‘the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.’ [Citations.]” (People v. Ledesma (1987) 43 Cal.3d 171, 215.)
“Where the record does not illuminate the basis for the challenged acts or omissions, a claim of ineffective assistance is more appropriately made in a petition for habeas corpus. In habeas corpus proceedings, there is an opportunity in an evidentiary hearing to have trial counsel fully describe his or her reasons for acting or failing to act in the manner complained of. [Citations.]” (People v. Pope (1979) 23 Cal.3d 412, 426, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
Peter cites as prejudicial ineffective assistance of counsel the failure to present impeachment evidence or to investigate defenses. This contention assumes that defense counsel did not investigate defenses or potential impeachment evidence, assumes such evidence and defenses existed, and assumes counsel was not making deliberate tactical decisions on how to best present a defense.
The record on appeal does not contain (1) information on the extent of the investigation conducted by defense counsel, (2) information on whether there was any potential for impeaching the victim other than that which was presented by defense counsel at the jurisdictional hearing, or (3) information that there was any alternative version of events, in light of Peter’s statements to police officers.
The record does establish that defense counsel challenged the admissibility of Peter’s statements to Newell on the grounds that the statements were obtained in violation of Peter’s rights under Miranda v. Arizona (1966) 384 U.S. 436. The juvenile court overruled that objection to admissibility. The record also discloses that defense counsel sought to impeach the victim’s testimony by presenting the e-mails and text messages that the victim sent Peter, as well as bringing out that the victim lied to law enforcement about a text she sent Peter.
Defense counsel had the task of defending Peter after Peter made very incriminating statements to law enforcement, which the juvenile court ruled were admissible. We note that “While judging counsel’s performance, we must keep in mind the circumstances he faced, and particularly the fact that his client had already confessed fully.… [Citation.] These circumstances did not bode well for a successful defense and may have justified tactical decisions that might seem unreasonable under other circumstances.” (People v. Scott (1997) 15 Cal.4th 1188, 1212.)
Furthermore, the recurring theme underlying Peter’s claim of ineffective assistance is defense counsel’s tactical decisions, including the decision to not call Peter to testify. Tactical decisions are counsel’s prerogative. We presume that counsel’s conduct falls within the wide range of reasonable professional assistance, and we accord great deference to counsel’s tactical decisions. “Were it otherwise, appellate courts would be required to engage in the ‘“perilous process”’ of second-guessing counsel’s trial strategy. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 979.) Tactical errors generally are not deemed reversible and counsel’s decisions must be evaluated in the context of the available facts. (People v. Bolin (1998) 18 Cal.4th 297, 333.)
When “‘the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged … unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal. [Citation.]’” (People v. Avena (1996) 13 Cal.4th 394, 418.) “A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding. [Citations.]” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
There are legitimate reasons that can be posited to justify defense counsel’s failure to call Peter to testify, as well as other decisions made by defense counsel. It is not our function to engage in the perilous process of second-guessing trial counsel.
Peter bears the burden of establishing, on the basis of the record on appeal and by means of “‘facts, not speculation, ’ that ‘counsel rendered ineffective assistance.’ [Citation.]” (People v. Ashmus (1991) 54 Cal.3d 932, 1011, fn. 29.) Peter has failed to meet his burden, since his contentions on appeal are based on speculation and supposition.
Peter must bring any claim of ineffective assistance of counsel by way of a petition for a writ of habeas corpus because no ineffective assistance is apparent in the record on appeal.
DISPOSITION
The order is affirmed.