Opinion
C085436
06-25-2018
THE PEOPLE, Plaintiff and Respondent, v. WALTER RICHARD DECKERT, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F02674)
Appointed counsel for defendant Walter Richard Deckert asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.
I
In August of 2005, a wife, husband and two children came to live with defendant after they were displaced by Hurricane Katrina. In early 2006, the wife and husband left to start jobs in Colorado, but they allowed their two children to remain with defendant to finish the school year. One of the children, the victim, was seven years old at the time. Many years later the victim reported that defendant molested her numerous times, including forced sexual intercourse, placing his mouth on her vagina, and placing his fingers in her vagina.
Defendant pleaded guilty to sexual intercourse by force, violence, duress, menace or fear (Pen. Code, § 261, subd. (a)(2) -- count 2) and lewd or lascivious conduct upon a child under the age of 14 years (Pen. Code, § 288, subd. (a) -- counts 4 and 10), in exchange for a sentencing lid of 18 years and the dismissal of remaining counts with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754.
Prior to sentencing, the trial court read and considered the probation report, defendant's statement in mitigation, and the victim impact statements. At sentencing defense counsel argued defendant had an insignificant prior record, his performance on probation was exceptional, and defense counsel discussed defendant's Static 99 scores with the trial court. He argued defendant had been through extensive counseling and other therapy, had successfully completed a sex offender program in 2014 after a prior conviction, and was considered a low risk to reoffend. He further argued an 18-year sentence would be a life sentence given that defendant was 66 years old.
The victim's mother then made a statement, claiming defendant was a master manipulator. She said that when she was 13 years of age, defendant showed her pornographic magazines. She claimed he raped her. The mother claimed defendant violated probation conditions which prohibited him from being around children, and that defendant had abused at least four children. She asked for the full sentence for defendant to reflect his heinous behaviors and actions.
The prosecutor read the victim's statement which had been provided to the prosecutor's office by mother. The victim requested that the trial court impose the maximum sentence because defendant deserved it for ruining lives.
Consistent with the plea agreement, the trial court sentenced defendant to an aggregate state prison term of 18 years (the upper term of eight years on count 4, a full consecutive upper term of eight years on count 2, and a consecutive one-third the midterm or two years on count 10), ordered victim restitution in an amount to be determined, awarded 915 days of presentence credit (796 actual days and 119 conduct days), and denied defendant's request for a certificate of probable cause. (Pen. Code, § 1237.5.) The trial court found that defendant took advantage of a position of trust in committing the offenses, that his conduct demonstrated a serious danger to society, and added that the number of aggravating factors and the lack of any significant mitigating factors made the 18-year term appropriate.
II
Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing the opening brief.
Defendant filed a supplemental brief, claiming (1) defense counsel rendered ineffective assistance, and (2) the victim impact statement by the victim's mother contained unsubstantiated and uncharged information. We will address each contention in turn.
A
Ineffective assistance of counsel is established if counsel's performance was deficient, that is, below an objective standard of reasonableness under prevailing professional norms, and if defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) Regarding deficient performance, the California Supreme Court has repeatedly stated that if the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, the claim on appeal must be rejected 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, 266-267.) And regarding prejudice, it is not enough that errors had some conceivable effect on the outcome of the proceeding. (Harrington v. Richter (2011) 562 U.S. 86, 104 [178 L.Ed.2d 624, 642].) There must be a reasonable probability that defendant would have received a more favorable result had counsel's performance not been deficient. (Strickland, at pp. 693-694; Ledesma, at pp. 217-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694; accord, Ledesma, at p. 218.) We need not determine whether counsel's performance was deficient if we can dispose of an ineffective assistance of counsel claim on the ground of lack of prejudice. (Strickland, at p. 697; In re Fields (1990) 51 Cal.3d 1063, 1079.)
Defendant claims his attorney ignored his instructions that he would not accept a plea in excess of eight years, assured him that a sentencing lid of 18 years was "the same thing," and that he anticipated a sentence of five years. But his claim is an attack on the validity of the plea, which we do not consider because the trial court denied defendant's request for a certificate of probable cause. (Pen. Code, § 1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1092, 1100.)
Defendant further asserts that his attorney failed to inform him of the sentencing date until the night before, that such short notice meant his witnesses who had prepared letters to submit in person were unable to appear, and that his attorney never interviewed them in any event. He says that although one witness did appear, she was not called by his attorney to make a supporting statement. However, the record on appeal does not support defendant's factual representations. Defendant entered his plea on January 31, 2017, and sentencing was set for April 21, 2017. On April 21, 2017, and again on June 16, 2017, sentencing was continued at defense counsel's request. At sentencing on July 21, 2017, defendant voiced no concerns in his oral statement to the trial court about the lack of defense witnesses.
Defendant next asserts that his attorney failed to emphasize defendant's military record and disabilities, to mention defendant's work record, to rebut the prosecutor's challenge to defendant's Static 99 score, and to point out that an 18-year sentence was equivalent to a life term given defendant's age. But again, the record does not support defendant's assertions, does not show that counsel was deficient, and does not show that defendant suffered prejudice. The judge noted that defendant was in a wheelchair, and the probation report mentioned defendant's military service and his PTSD diagnosis. Defendant's military record was recounted in the Monterey County's probation report attached to defendant's statement in mitigation. It reported that defendant retired in 1993 after 25 years in the Navy. Defendant claims there is additional information about his military record, including medals and medical issues he faces due to his combat duty, but counsel was not asked to explain why he did not present the information. The same is true with respect to defendant's work record. Defense counsel also addressed defendant's Static 99 scores. In addition, defense counsel pointed out that an 18-year sentence was the equivalent to a life term based on defendant's age, and defendant himself echoed that statement.
Citing Bosse v. Oklahoma (2016) ___ U.S. ___ , People v. Ervine (2009) 47 Cal.4th 745, and United States v. Con-ui (M.D.Pa. Mar. 1, 2017, No. 3:13-CR-123) 2017 U.S. Dist. Lexis 28644, defendant complains the statement at sentencing by the victim's mother included improper information in violation of the Eighth Amendment. But those cases involved capital cases and are inapposite. Penal Code sections 1191.1 and 1191.15 set forth the victim's right, which includes her mother, to have their written and oral statements considered by the sentencing judge in imposing sentence on defendant. "[A] defendant who fails to object to the contents of a victim's statement pursuant to [Penal Code] section 1191.1 has waived any objection to it on appeal. [Citations.]" (People v. Jones (1992) 10 Cal.App.4th 1566, 1574.) Defendant's complaint that mother's statement was improper is forfeited. In any event, much of the information contained in mother's statement about defendant's prior sexual misconduct was already contained in the probation report. Defendant had a copy of the probation report and the written statements of the victim and mother prior to the sentencing hearing and had an opportunity to respond.
Defendant also complains that the prosecutor emphasized certain words in reading the victim's statement which was actually written by mother, increasing the emotional impact upon the judge. But his suggestion that the victim's statement was written by mother is not supported by the record on appeal. The record shows only that mother gave the victim's statement to the prosecutor. Moreover, there is no evidence the judge was inappropriately swayed by the manner in which the statement was read, or that the trial court did not properly perform its duty.
Accordingly, based on our review of the record, defendant's contentions lack merit. However, we note an error in the abstract of judgment. For count 10, the abstract indicates the low term with a consecutive one-third to be served, or two years. The trial court imposed a consecutive one-third the midterm, or two years. We will direct the trial court to correct the abstract.
Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment reflecting that the trial court imposed a consecutive one-third the midterm, or two years, on count 10, and to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.
/S/_________
MAURO, J. We concur: /S/_________
RAYE, P. J. /S/_________
DUARTE, J.