Opinion
G044855 Super. Ct. No. 10HF0070
10-18-2011
THE PEOPLE, Plaintiff and Respondent, v. HAMID AHMAD BARITZ, Defendant and Appellant.
Hamid Ahmad Baritz, in pro. per.; and Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed.
Hamid Ahmad Baritz, in pro. per.; and Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Introduction
Following a jury trial, defendant Hamid Ahmad Baritz was found guilty of driving under the influence of alcohol and causing injury; driving with a blood alcohol concentration (BAC) of 0.08 percent or more and causing injury; and making an unsafe turning movement. As to the former two offenses, the jury found true the allegation that defendant unlawfully had a BAC of 0.15 percent or more, and defendant admitted he had suffered two prior convictions within the meaning of Vehicle Code section 23566. (All further statutory references are to the Vehicle Code unless otherwise specified.)
We appointed counsel to represent defendant on appeal. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts of the case and requesting that we review the entire record. Pursuant to Anders v. California (1967) 386 U.S. 738, appointed counsel suggested we consider the following possible issue—whether defendant received ineffective assistance of counsel because his trial counsel conceded defendant's guilt in part during closing argument. We have examined the entire record and counsel's Wende brief, and find no arguable issue. (Wende, supra, 25 Cal.3d 436.)
Defendant was given the opportunity to file written argument on his own behalf and he filed a supplemental brief on July 27, 2011. We have reviewed and considered defendant's supplemental brief but find nothing in it to suggest a reasonably arguable issue. We therefore affirm.
Background
On January 15, 2010, defendant drove his car through a red light and "c[a]me up on the right" of a car, driven by 17-year-old Andrew Johnson, "really quickly" before swerving in front of Johnson's car. Although Johnson slammed on the brakes of his car, defendant's car clipped Johnson's car. Defendant's car also collided with the back of a car driven by Mohammad Zandfarid; Zandfarid had been stopped in a left-turn lane at the time of the collision.
Zandfarid was taken to the hospital after he complained of headache and pains in his neck, back, chest, and abdomen. He remained in the hospital for a few days and was then required to wear a back brace for one month and participate in physical therapy two or three times a week for six weeks.
Deputy sheriff David McCormick was dispatched to the scene of the collision where he contacted defendant who was in an ambulance. McCormick smelled a slight odor of an alcoholic beverage on defendant's breath and person, and observed defendant's eyes to be bloodshot and watery. Defendant admitted to McCormick that he drank two Vodka shots at 4:35 p.m. that day. Defendant's blood was drawn at 7:49 p.m.; testing of defendant's blood sample showed a BAC of 0.19 percent.
Defendant was charged in an information with two felony offenses: one count of driving under the influence and causing injury, in violation of section 23153, subdivision (a), and one count of driving with a BAC of 0.08 percent or more causing bodily injury, in violation of section 23153, subdivision (b). Defendant was also charged with committing the infraction of making an unsafe lane change in violation of section 22107.
The information alleged defendant committed the felony offenses while having a BAC of 0.15 percent and more within the meaning of Vehicle Code section 23578, and, in so doing, defendant personally inflicted great bodily injury on Zandfarid within the meaning of Penal Code section 12022.7, subdivision (a). As to the felony offenses, the information further alleged defendant suffered two prior convictions within the meaning of Vehicle Code section 23566.
A jury found defendant guilty of all three charged offenses and found true that defendant had a BAC of 0.15 percent or more at the time of the commission of the felony offenses. The jury found not true that defendant personally inflicted great bodily injury on Zandfarid in the commission of the felony offenses. Defendant admitted the prior conviction enhancement allegations. The trial court imposed a four-year prison term for the offense of driving under the influence and causing injury, a four-year prison term for the offense of driving with a BAC of 0.08 percent or more, which the court stayed under Penal Code section 654, and a concurrent three-day jail term for the unsafe turning movement infraction, which the court deemed served. Defendant appealed.
Analysis of Potential Issue
Appointed counsel suggested we consider whether defendant was provided ineffective assistance of counsel at trial because his counsel conceded defendant's guilt in part. Appointed counsel's Wende brief states: "It has been held that an inquiry into the effectiveness of counsel may be in order if, against the express wishes of the defendant, counsel concedes guilt or culpability on a given crime or issue."
To prevail on a claim of ineffective assistance of counsel, defendant must prove both (1) his attorney's representation was deficient in that it fell below an objective standard of reasonableness under prevailing professional standards; and (2) his attorney's deficient representation subjected him to prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Cain (1995) 10 Cal.4th 1, 28.)
"Unless a defendant establishes the contrary, we shall presume that 'counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy.' [Citation.] If the record 'sheds no light on why counsel acted or failed to act in the manner challenged,' an appellate claim of ineffective assistance of counsel must be rejected 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.' [Citations.]" (People v. Ledesma (2006) 39 Cal.4th 641, 746.) We reverse on direct appeal for ineffective assistance of counsel only when "the record on appeal demonstrates there could be no rational tactical purpose for counsel's omissions." (People v. Lucas (1995) 12 Cal.4th 415, 442.)
If a defendant establishes his or her counsel's performance was deficient, prejudice must then be established. Prejudice means a "reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different." (Strickland v. Washington, supra, 466 U.S. at p. 694.) A reasonable probability means a "probability sufficient to undermine confidence in the outcome." (Ibid.)
During trial, the prosecution produced undisputed evidence defendant drove with a BAC of over two times the legal limit and caused two collisions. Witnesses testified that defendant ran a red light before swerving into Johnson's car and then slamming into the back of Zandfarid's car. Defendant smelled like alcohol and had bloodshot, watery eyes after the collisions. He admitted to McCormick that he had been drinking Vodka earlier that day. Defendant did not testify and no other evidence suggested defendant's innocence of the charged offenses.
In the face of the overwhelming and unchallenged evidence of defendant's guilt, the record shows defendant's counsel made the tactical decision in her closing argument to concede defendant drove while under the influence of alcohol, in order to focus the jury's attention on the issue of the great bodily injury enhancement. The great bodily injury enhancement carried a consecutive three-year prison term and, if found true by the jury, would have rendered the felony offenses serious and violent offenses within the meaning of Penal Code sections 1192.7 and 667.5. Defendant's counsel's tactic apparently worked because, notwithstanding evidence Zandfarid stayed in the hospital for a few days, had to wear a back brace for one month, and had to undergo physical therapy two or three times a week for six weeks as a result of the collision, the jury found the great bodily injury enhancement allegation not true as to the felony offenses. Furthermore, the record does not show defendant's counsel's tactical decision was made over defendant's objection.
Our review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the possible issue referred to by appointed counsel, has disclosed no reasonably arguable appellate issue. Competent counsel has represented defendant in this appeal.
Disposition
The judgment is affirmed.
FYBEL, J. WE CONCUR: O'LEARY, ACTING P. J. IKOLA, J.