Opinion
E067412
01-03-2018
THE PEOPLE, Plaintiff and Respondent, v. RICKY RAMON CASTRO, Defendant and Appellant.
Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Steve Oetting and Warren J. Williams, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF127285) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed. Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant, Ricky Ramon Castro, filed a petition pursuant to Penal Code section 1170.18 for reclassification of his second degree burglary conviction, which the court denied. On appeal, defendant contends the public defender who filed the petition rendered constitutionally ineffective assistance of counsel when filing the petition by failing to adduce evidence that the value of the crime defendant intended to commit was $950 or less. We affirm.
All further statutory references are to the Penal Code.
I. PROCEDURAL HISTORY
On December 1, 2005, the People charged defendant by felony complaint with second degree felony burglary (count 1; § 459), "in that on or about May 20, 2005, . . . he did wilfully and unlawfully enter a certain building at MARCH COMMUNITY CREDIT UNION . . . with intent to commit theft and a felony." The People additionally alleged defendant was ineligible for probation due to his five prior convictions pursuant to section 1203, subdivision (e)(4).
On the same date, defendant entered a plea of guilty to the count 1 offense. Defendant initialed a provision on the plea form reading: "Factual Basis: I agree that I did the things that are stated in the charges that I am admitting." The minute order reflects the court found a factual basis for the plea. In return for his plea, the court sentenced defendant to the low term of 16 months of incarceration concurrent "to all cases."
The reporter's transcript of the entry of the plea is not included in the record. The reporter included an affidavit reflecting that she had no notes in this case from the date of defendant's entry of the plea.
On September 21, 2016, a public defender filed a section 1170.18 petition on behalf of defendant seeking reclassification of the offense from a felony to a misdemeanor. Counsel checked the box indicating defendant believed the value of the property did not exceed $950. In their response dated September 30, 2016, the People contended defendant was ineligible for relief due to "[u]nknown facts/circs/value. [Defendant] failed to meet burden [and] prove shoplifting under [sic] $950." On November 2, 2016, the court denied the petition, noting defendant "has produced no evidence that he is eligible. Images [of] police r[epor]t says [defendant] tried to access ATM machine at credit union with a stolen ATM card. Not qualifying."
II. DISCUSSION
Defendant contends the public defender rendered constitutionally ineffective assistance of counsel by failing to adduce "readily available evidence" that the intended theft was valued at $950 or less. We hold that defendant's reliance on incompetent hearsay to prove that the value of the intended theft was less than $950 is impermissible. As such, defendant has failed to show that counsel rendered prejudicial ineffective assistance of counsel.
On January 19, 2017, defendant filed a motion to augment the record on appeal to include "[a]ll of the police reports, probation reports, or other investigatory reports, prepared in Riverside County Superior Court case no. RIF127285." On January 20, 2017, we granted the request ordering the superior court clerk to file a supplemental clerk's transcript of the documents described in defendant's request. On January 23, 2017, we filed a supplemental clerk's transcript submitted by the superior court clerk containing a confidential incident report and confidential declaration in support of the arrest warrant.
On the continuation sheet of the incident report dated August 2, 2005, the officer wrote that he responded on July 30, 2005, at the lobby of the police station, to the victim who reported that on July 18, 2005, she realized her ATM card was missing. She called the bank and requested a printed copy of her account statements to check for fraudulent charges. Upon receipt of the bank statements, the victim found four transactions she had not authorized, totaling $93.69. On July 25, 2005, a bank representative showed the victim footage taken from the bank surveillance camera depicting the last person who attempted to use her ATM card. The victim positively identified the individual as her sister's boyfriend, defendant. The fraudulent charges included debit purchases of $15.09 at an ExxonMobil in Moreno Valley, $8.92 at a Chevron in Loma Linda, $60.00 at the same Chevron in Loma Linda on the same date, and $9.68 at a Union 76 in Riverside.
The incident report also reflects that on September 27, 2005, an officer spoke with a representative of March Community Credit Union who sent the officer a black and white photograph of defendant attempting to access an ATM machine. The representative was able to obtain the photograph by tracking the victim's ATM history. The representative informed the officer that defendant was unable to obtain any money from the ATM machine because he did not have the correct access code. The incident report later reflects, via checked boxes, that the crime involved the use of a credit card at a "Gas Vendor Service Station."
Bank/Savings & Loan was one of the available boxes on the report which was not checked.
The bank statements reflect that on the dates defendant used the victim's card, the account balanced ranged from $329.34 to $235.65. However, the statements reflect that the balance of the account between the time the defendant first attempted to use the card and when the victim discovered her card had been stolen, ranged from a low of $235.65 to a high of $1,201.22. The declaration in support of the arrest warrant reflects that on May 20, 2005, defendant attempted to access the victim's bank account by using the victim's ATM card. The victim positively identified the suspect as defendant.
"'On November 4, 2014, the voters enacted Proposition 47, "the Safe Neighborhoods and Schools Act" (hereafter Proposition 47), which went into effect the next day. [Citation.]' [Citation.] Section 1170.18 'was enacted as part of Proposition 47.' [Citation.]" (T.W. v. Superior Court (2015) 236 Cal.App.4th 646, 649, fn. 2.) Section 1170.18, subdivision (f), provides a mechanism by which a person who has completed his sentence for a felony offense may petition for reclassification of the offense as a misdemeanor in accordance with the statutes added or amended by Proposition 47.
The petitioner bears the burden of proof to show eligibility for reclassification under section 1170.18. This includes, in cases of theft, that the value of the property stolen did not exceed $950. (People v. Sherow (2015) 239 Cal.App.4th 875, 880 [the defendant failed his burden to establish eligibility for resentencing under § 1170.18 by failing to prove the value of the items he was convicted of taking did not exceed $950]; accord, People v. Perkins (2016) 244 Cal.App.4th 129, 136-137.)
"'"'In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was "deficient" because his "representation fell below an objective standard of reasonableness . . . under prevailing professional norms." [Citations.] Second, he must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown when there is 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."'" [Citation.] [¶] Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." [Citation.] Defendant's burden is difficult to carry on direct appeal, as we have observed: "'Reviewing courts will reverse convictions [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission.'" [Citation.]' [Citation.] 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,' the claim on appeal must be rejected,"' and the 'claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding.' [Citation.]" (People v. Vines (2011) 51 Cal.4th 830, 875-876.)
Here, defendant did not satisfy his burden of proving in the court below that the value of the theft defendant intended to commit was $950 or less. Thus, the court properly denied the petition on the record before it.
On appeal, however, defendant contends that defense counsel could easily have brought to the court's attention the documents he augmented to the record on appeal, which he argues amply satisfy his burden of proving the value of the intended theft was $950 or less. Hence, he maintains defense counsel was constitutionally ineffective. We disagree.
First, only where the defendant has stipulated that an officer's statements in a report could be used to demonstrate the factual basis of a conviction may the officer's hearsay statements be used to establish the conduct underlying the conviction. (People v. Saez (2015) 237 Cal.App.4th 1177, 1197.) A later court "'is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented'" when addressing any issue of disputed fact. (People v. McGee (2006) 38 Cal.4th 682, 707, quoting Shepard v. United States (2005) 544 U.S. 13, 16.)
Here, the incident report and declaration in support of the arrest warrant lie outside the normal record on appeal unless defendant stipulated to those documents as the factual bases for his plea. However, nothing in the felony plea form or the minute order of defendant's plea reflect that defendant stipulated to those documents as the factual bases for the plea. Thus, without anything further, such as the reporter's transcript of the plea, the augmented documents are unreliable, incompetent hearsay and cannot be used by this court or the court below to determine an issue of disputed fact, i.e., the value of the property defendant intended to steal. (People v. Carter (2010) 182 Cal.App.4th 522, 531, fn. 6 ["It is, of course, appellant's burden on appeal to present an adequate record for review and affirmatively to demonstrate error."].) Therefore, defendant's counsel below cannot be held to have committed ineffective assistance of counsel because there is a reasonable explanation for his failure to attach the incident report and declaration in support of the arrest warrant: those documents were inadmissible hearsay.
Second, even if we could rely on the augmented documents to determine the value of the property defendant intended to steal, those documents would be insufficient for such a determination. Defendant argues that we should hold that the value of the ATM card had little or no intrinsic value and, as such, we should hold that defendant was prejudiced because he would be eligible for reclassification of his offense. However, the People did not charge defendant with theft of the ATM card; they charged him with second degree burglary. Thus, the value of the ATM card was irrelevant for reclassification purposes.
The true determination to be made in this situation is the amount defendant intended to steal. (See People v. Pak (2016) 3 Cal.App.5th 1111, 1114.) However, the augmented documents do not inform us of the amount defendant intended to steal. Defendant argues that we should ascribe to defendant the intent to take, at most, the balance of the victim's account on the day defendant attempted to access the ATM machine, $329.34. However, defendant presumably did not know how much money was in the victim's account when he attempted to access it; thus, he could have intended to withdraw much more than the balance. Moreover, many banks provide their customers with overdraft protection which may allow them to withdraw more than the account balance. Thus, if the victim had overdraft protection on her account, it is at least possible that defendant could have withdrawn more than $950 on the day he attempted to access the account. Finally, we note that during the period between which defendant first attempted to access the victim's account and the date the victim discovered her ATM card was missing, the account had a maximum balance in excess of $950. Thus, the court properly denied the petition and defense counsel was not constitutionally ineffective for declining to provide documents which would have been inadmissible.
It is curious here that the People did not also charge defendant with additional charges for the four times defendant successfully used the card to make purchases and withdraw money. It is also odd that defendant was not able to access the victim's ATM card on May 20, 2005, but was able to use the card to make subsequent purchases and a withdrawal which would usually require the access code. --------
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.