Opinion
B232551
11-21-2011
THE PEOPLE, Plaintiff and Respondent, v. ALLYSHA CALDERA, Defendant and Appellant.
William W. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Susan Sullivan Pithey and Michael J. Wise, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. Nos. VA113023 & VA113532)
APPEAL from a judgment of the Superior Court of Los Angeles County, Judith L. Champagne, Judge. Affirmed.
William W. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Susan Sullivan Pithey and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Allysha Caldera was charged in two cases with 15 felonies. On January 26, 2010, she entered into an agreement under which she pled guilty to five charges (Pen. Code, §§ 487, subd. (a) [grand theft], 530.5, subd. (c)(2) [identity theft]) in return for a suspended four-year state prison sentence conditioned on a grant of probation. The terms of probation required that defendant obey all laws.
On September 2, 2010, the prosecution filed a request to revoke probation, alleging defendant had committed theft, in violation of Penal Code section 666 (petty theft with a prior theft related conviction). The trial court found defendant in violation of probation at a formal probation violation hearing. Defendant was sentenced to state prison on the previously stayed four-year prison term. This timely appeal followed.
Defendant argues she received constitutionally deficient representation of counsel at the probation violation hearing because defense counsel failed to object on hearsay grounds to certain testimony and exhibits. We reject the contention and affirm, as the record does not (1) reflect why counsel chose not to object to the challenged testimony and exhibits, (2) demonstrate that counsel performed below a reasonably objective standard of care because there was a sound tactical basis for failure to object, and (3) defendant cannot establish prejudice.
I. The Probation Violation Hearing
A. Prosecution Evidence
Joshua Steinberg sa w an advertisement on Craig's List for tickets to a rock concert. He called the number on the advertisement, spoke to a woman who identified herself as Kathy, and told her he was interested in two tickets. She said the tickets cost $200 each. Steinberg met defendant, who identified herself as Kathy, at a prearranged location in Los Angeles. Steinberg paid her $400 for the tickets. He went to the concert and was told the ticket was fraudulent. "VOID" was stamped on the ticket. The tickets Steinberg purchased had the same serial numbers on the back as those on the back of other tickets that had been rejected at the concert.
The majority of the cross-examination of Steinberg and a subsequent witness, Ken Alker, focused on the accuracy of their identifications of defendant. The trial court ultimately resolved the identification issues in favor of the prosecution.
Ken Alker met with defendant on August 11, 2010, to buy a concert ticket. Defendant, identifying herself as Julie Lopez, sold him a ticket to the Rush concert for $175. When he arrived at the concert, he was told the ticket was void and there were already 10 to 15 others who had his seat.
Detective Nadine Hernandez went to 1616 South 3rd Street, Unit D, in Alhambra on August 31, 2010. She knocked on the door, which defendant answered after a five- to seven-minute delay. Defendant said she had been asleep. Detective Hernandez saw a computer inside the apartment displaying a ticketing website other than Craig's List. Defendant said she had just been on the computer. Defendant asked why she was being arrested, and Detective Hernandez explained it was for manufacturing false tickets. Defendant said, "I don't make the tickets and print them out. I buy them from someone else and sale them."
B. Defense Evidence
Detective Bernard Romero testified regarding the differences between the descriptions given by Steinberg and Alker and defendant's appearance. The search of the Alhambra apartment did not turn up any phones matching the number in the Craig's List ad or material for blank tickets.
Defendant's mother testified defendant was at work on August 4, 2010. On August 11, 2010, defendant was with her mother at a swimming practice for defendant's brother in Whittier. A swimming coach, James Reynolds, confirmed defendant's presence at her brother's practice.
Defendant testified she worked on August 4, 2010. She denied selling tickets to Steinberg or Alker. She was selling valid vouchers for Dodgers' games. Although she was at work on August 11, 2010, she admitted telling Detective Romero she was at Raging Waters on that date with her brother and sister.
II. Discussion
Defendant contends that defense counsel's failure to object to admission of hearsay evidence at the formal probation violation hearing demonstrates ineffective assistance of counsel. Specifically, defendant argues counsel should have objected to: (1) Steinberg's testimony that he was told at the concert that his ticket was fraudulent; (2) Alker's testimony that he was told his ticket was void, and that 10 to 15 others already had his seat; and (3) evidence that the word "VOID" was stamped on Steinberg's ticket.
"The standard for showing ineffective assistance of counsel is well settled. 'In assessing claims of ineffective assistance of trial counsel, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Ledesma (1987) 43 Cal.3d 171, 217.) A reviewing court will indulge in a presumption 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. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. (Strickland v. Washington, supra, at p. 687; In re Andrews (2002) 28 Cal.4th 1234, 1253.) If the record on appeal 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 there simply could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus.' (People v. Carter (2003) 30 Cal.4th 1166, 1211.) 'Failure to object rarely constitutes constitutionally ineffective legal representation.' (People v. Boyette [(2002)] 29 Cal.4th [381,] 424.)" (People v. Gray (2005) 37 Cal.4th 168, 206-207.)
Defendant cannot demonstrate constitutionally deficient representation at the probation hearing on direct appeal, because the record is silent on the issue of why defense counsel did not object to the evidence. Counsel could have concluded that the challenged evidence was merely corroborative circumstantial evidence that the tickets were fraudulent, and that a hearsay objection would be futile. Defense counsel could have reasonably concluded as a tactical matter that hearsay objections would not be beneficial, as there is no real dispute the tickets were invalid and had objections been sustained, the prosecution would have simply called a witness to verify the falsity of the tickets. The settled rule is that the decision to object is reserved for the discretion of counsel. (See People v. Riel (2000) 22 Cal.4th 1153, 1202.)
The only issue defendant had any realistic hope of prevailing on at the probation violation hearing was mistaken identity. Defense counsel zealously advocated that issue through aggressive cross-examination of Steinberg and Alker, the presentation of an affirmative defense of alibi, and argument to the trial court. Counsel ably fulfilled his constitutional duties by vigorously presenting this issue to the court.
Even if defendant is correct that the challenged evidence constituted inadmissible hearsay, he cannot establish prejudice. "Defendant must establish not only that there was ineffective representation that fell below an objective standard of reasonableness, but also that prejudice resulted. (People v. Lucero (2000) 23 Cal.4th 692, 728; People v. Hart [(1999)] 20 Cal.4th 546, 634.) Prejudice is established when the record demonstrates 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' (Strickland v. Washington, supra, 466 U.S. [at p.] 694.)" (People v. Cunningham (2001) 25 Cal.4th 926, 1030-1031.)
The objections defendant claims should have been made were to testimony relating to the issue of whether the tickets were fraudulent. The evidence is undisputed that the tickets were invalid. Using two distinctly different names, defendant sold concert tickets to Steinberg and Alker. Both purchasers presented the tickets and were refused admission. In response to being told she was being arrested for manufacturing fraudulent tickets, defendant admitted she sold tickets, but denied being the manufacturer. The back of all the tickets bore the same serial number. Given this evidence, a finding that the tickets were not legitimate was a foregone conclusion, without regard to the evidence defendant maintains was objectionable.
DISPOSITION
The judgment is affirmed.
KRIEGLER, J. We concur:
TURNER, P. J.
MOSK, J.