Opinion
C043773.
11-26-2003
THE PEOPLE, Plaintiff and Respondent, v. JAMES WESLEY THOMAS ADAMS, Defendant and Appellant.
Defendant James Wesley Thomas Adams pleaded guilty to willfully inflicting corporal injury resulting in a traumatic condition to a spouse. (Pen. Code, § 273.5, subd. (a).) The trial court sentenced him to state prison for the four-year upper term.
On appeal, defendant claims his counsel was ineffective at sentencing. We disagree and affirm the judgment.
FACTS
A. Underlying Offense
Defendant was intoxicated when he arrived home on July 20, 2002, and he was initially unable to get into the house. He became angry, punched in the living room window, and, according to his wife, kicked in the front door. He grabbed her by the neck, choking her, and repeatedly hit her in the face and head. He slapped his adult stepdaughter, and he twice warned his elderly mother-in-law not to call the police. He also pushed and hit his 14-year-old stepdaughter and knocked a phone away from her when she attempted to call 911. The girl reported that defendant said "he was going to fuck her with his dick, and he was going to fuck her up, and fuck her everywhere."
Police were dispatched to the scene. The investigating officer found no evidence that defendant kicked in the front door. But he was injured from punching in the window, his right arm was covered with blood, and there was blood on the floor. Defendants wife had scratches on the back of her neck, a large scratch behind her ear, and a reddish "swelling" mark on her forehead; however, there was no noticeable blood on her or evidence of choking. There were no noticeable injuries to defendants stepdaughters.
Defendant was charged with: willfully inflicting corporal injury resulting in a traumatic condition to a spouse (§ 273.5, subd. (a)), criminal threats (§ 422), child abuse (§ 273a), battery (§ 242), dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)), and prior prison term enhancements for three earlier convictions (§ 667.5, subd. (b)). The criminal threats and child abuse charges involved defendants 14-year-old stepdaughter, the battery involved his adult stepdaughter, and the dissuading a witness charge involved his elderly mother-in-law. When defendant entered his negotiated plea to the section 273.5, subdivision (a) charge, the remaining charges and allegations were dismissed with a Harvey waiver. (See People v. Harvey (1979) 25 Cal.3d 754.)
B. Defendants Record and Probation Report
Defendant has a lengthy adult criminal record, including five prior felony convictions and nine misdemeanor convictions. The prior felonies include two burglaries in 1979 (§ 459), attempted burglary in 1985 (§§ 459, 664), resisting or attempting to deter or prevent an officer from discharging his or her duty in 1987 (§ 69), and possession of a controlled substance or drug paraphernalia in a detention facility in 1992 (§ 4573.6). Four of defendants misdemeanor convictions were for battery. (§ 242.) Defendant violated probation on two occasions, and he committed many parole violations, including six violations in the period from 1996 until 1999.
According to the probation report, defendant had been drinking on a daily basis and regularly using marijuana at the time of his arrest in this case, and he had an earlier history of methamphetamine use. Defendant told the officer who prepared the report that he thought he had a drinking problem and wanted to be placed on probation so that he could attend anger management classes and Alcoholics Anonymous. However, he also disputed most of the allegations against him.
The probation officer noted that defendant was ineligible for probation absent unusual circumstances and asserted that he was not a suitable candidate for probation in any case. (See § 1203, subd. (e)(4).) The officer recommended the upper term, emphasizing the circumstances of the crime, the danger defendant presented to the community, and his prior record and poor performance on probation and parole.
C. Sentencing
At sentencing, the trial court said it was inclined to impose the upper term and invited comments by counsel. Defense counsel said that defendant had asked him to make some comments on his behalf but first noted: "Certainly because of his prior record, notwithstanding his wishes and desires, I understand that probation is not an option, and I wont make any pitch or argument in favor of probation." Counsel commented that he had understood defendant would be sent to prison if convicted and thought "the disposition ultimately reached in this matter was appropriate . . . ." Counsel said that defendant should understand he was going to prison.
Counsel then said he wanted to comment on the victims allegations. He emphasized that the front door was not off its hinges even though the victim had said defendant kicked in the door. Counsel noted there was no noticeable redness to the victims face or neck to show defendant had choked and beaten her in the manner she indicated. Counsel noted there was no blood on her, which he asserted was inconsistent with her having been struck or grabbed by someone who had been cut severely.
Counsel characterized defendants relationship with his wife as dysfunctional and hoped they would end it; otherwise, counsel suggested that defendant would have trouble with the law. Counsel also hoped defendant would remain sober. Counsel concluded, "Alcohol and [defendant] dont mix and match. Whenever he consumes and gets around [his wife], trouble brews. I would hope that his time, whatever time the court sentences him to, [defendant] takes this opportunity for self reflection, and upon getting out, makes the right decision in terms of alcohol and his relationships. Thank you."
The court found no unusual circumstances justifying a grant of probation and imposed the upper term, finding the aggravating circumstances outweighed the mitigating circumstances. The court noted defendant had previously been convicted of five separate felonies, he had sustained multiple probation and parole violations, and he had been previously sentenced to state prison.
DISCUSSION
To show ineffective assistance of counsel, defendant must demonstrate that counsels conduct fell below an objective standard of reasonableness and there was a reasonable probability of a different result if not for the error. (See Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 [80 L.Ed.2d 674, 693, 697-698]; People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) "[T]here is a `strong presumption that counsels conduct falls within the wide range of reasonable professional assistance [citations], and we accord great deference to counsels tactical decisions." (People v. Frye (1998) 18 Cal.4th 894, 979.) Further, a claim of ineffective assistance of counsel must be rejected on direct appeal if "`"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," . . ." (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
Defendant claims his counsel was so ineffective at sentencing that he was effectively unrepresented. He claims his counsel acted against his interests by conceding probation was not an option and the disposition was appropriate rather than arguing for a lesser sentence. Defendant notes that his counsel tried to downplay the underlying facts, but he claims this was an inappropriate tactic in light of the plea. Defendant suggests he would have been better served if counsel had emphasized other factors, such as his willingness to comply with the terms of probation, the fact that he had entered a plea, his drug and alcohol problems, and other circumstances suggesting diminished culpability and his need for and amenability to treatment. Defendant claims the instant case is analogous to People v. Cropper (1979) 89 Cal.App.3d 716, 718, in which defense counsel initially stated he had "`nothing to offer" because his views coincided "`with the evaluation of the probation department." We disagree.
First, counsels statement recognizing probation was not an option here did not constitute an argument against defendants interests. Defendant was in fact ineligible for probation absent unusual circumstances. (See § 1203, subd. (e)(4).) Moreover, if counsel wanted to maintain credibility with the court, he could not ignore the fact that defendant was a recidivist offender who had repeatedly demonstrated his inability to succeed on parole or probation. It is important to remember that "[t]rial counsel is not required to make futile objections, advance meritless arguments or undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel." (People v. Jones (1979) 96 Cal.App.3d 820, 827.)
Further, counsel did not concede that the upper term was the appropriate term, as defendant suggests. Counsel emphasized that the disposition that had ultimately been reached, i.e., the negotiated plea, was appropriate. And defendants plea, while necessitating an admission of guilt to the offense, did not preclude challenging the seriousness of the underlying circumstances. Although counsel did not explicitly argue for a lesser sentence, he made an obvious attempt to sway the court in defendants favor. As the People argue, "By downplaying the factual allegations against [defendant], counsel attempted to mitigate the severity of the allegations and provide adequate justification for the court to impose a reduced prison term. That was, under the difficult facts of this case, a sound, reasonable tactic." Counsels decision to emphasize certain points and not others was a reasonable tactical decision since the trial court was otherwise apprised of the relevant circumstances.
DISPOSITION
The judgment is affirmed.
We concur, BLEASE, Acting P.J. and DAVIS, J. --------------- Notes: All further statutory references are to the Penal Code.