Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. BA 297708. Michael S. Luros, Judge.
Law Offices of Fuire & Shapiro for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Robert F. Katz, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
Heidy Flores, an undocumented immigrant from Guatemala, appeals from the judgment entered following a plea agreement under which she pleaded guilty to grand theft of personal property in violation of Penal Code section 487, subdivision (a), and admitted two prior felony convictions pursuant to section 667.5, subdivision (b). She contends that she received ineffective assistance of counsel because her trial counsel did not investigate her immigration status, how her sentence might affect that status, or how different sentencing alternatives might help her avoid negative immigration consequences. We affirm.
All undesignated statutory references are to the Penal Code.
BACKGROUND
On February 7, 2006, Grace Kim was working in a shoe store near downtown Los Angeles. While she was helping customers, she saw Flores walk into the store with nothing in her hands, then leave a short while later carrying something black. Kim checked where she had left her black handbag and found it missing. The bag contained $270 in cash and glasses purchased for $300. Kim ran after Flores, calling for help. A security officer apprehended and detained Flores. Kim recovered her bag with its original contents, from the police.
The Los Angeles County District Attorney filed a one-count information charging Flores with grand theft of personal property in violation of section 487, subdivision (a), and alleging that Flores had suffered two prior felony convictions for transporting or selling a controlled substance (Health & Saf. Code, § 11352), and thereafter had not been free of prison custody for at least five years as described in section 667.5, subdivision (b). Flores faced up to four years in prison. Initially, she pleaded not guilty and denied the allegations, but thereafter she accepted a plea bargain pursuant to which she pleaded guilty to the charge and admitted the prior conviction allegations. The prosecutor fully admonished Flores regarding her rights and the penal consequences of her plea agreement, including that “[i]f you’re not a citizen of the United States, your plea here today will result in deportation, denial of naturalization, and exclusion from admission.” Flores waived her trial rights, pleaded guilty, and admitted the prior conviction allegations. The court denied probation, sentenced Flores to two years in prison, stayed imposition of the enhanced sentence for the prior convictions, imposed restitution and parole revocation fines pursuant to sections 1202.4, subdivision (b) and 1202.45, and granted Flores 138 days of custody credit.
The prosecution objected to the court’s plea offer.
Two months later, Flores filed a request for a certificate of probable cause pursuant to section 1237.5, contending that her counsel was ineffective because he had not asked her about her immigration status, discussed with her the immigration ramifications of accepting the plea agreement, or pursued alternate sentencing schemes that could have helped her avoid mandatory deportation. The court granted this request, and Flores timely appealed.
DISCUSSION
“An appellant claiming ineffective assistance of counsel has the burden to show: (1) counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice.” (People v. Montoya (2007) 149 Cal.App.4th 1139, 1146-1147; see also Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Ledesma (1987) 43 Cal.3d 171, 216.) To establish prejudice, the defendant must show that there is a reasonable probability, sufficient to undermine confidence in the outcome, that the result of the proceeding would have been different but for counsel’s unprofessional errors. (People v. Montoya, at p. 1147.) The appellant must prove prejudice as a demonstrable reality, not merely by speculation as to the effect of counsel’s errors or omissions. (People v. Williams (1988) 44 Cal.3d 883, 937.)
On appeal, there is a strong presumption that counsel’s conduct falls within the wide range of adequate professional assistance. (People v. Stanley (2006) 39 Cal.4th 913, 954.) A reviewing court may reverse on the ground of inadequate assistance only if the record affirmatively discloses that counsel’s performance was less than professional. (See People v. Lucas (1995) 12 Cal.4th 415, 437; People v. Osband (1996) 13 Cal.4th 622, 700-701.) As our Supreme Court has observed, in most cases, the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged; thus a claim of ineffective assistance of counsel usually is more appropriately decided in a habeas proceeding. (People v. Jones (2003) 30 Cal.4th 1084, 1105.)
The brief record in this case sheds no light on what Flores’ trial counsel did or did not say to Flores regarding her immigration status, or why. As is typical, the record does not indicate whether or not counsel investigated her immigration status, how her sentence might affect that status, different sentencing alternatives, or what communication there was between Flores and her counsel regarding these matters. Although Flores’ claim that there was no such investigation or communication might help her in a habeas corpus proceeding, it is irrelevant to this appeal. Flores’ invocation of People v. Soriano (1987) 194 Cal.App.3d 1470, a case involving a habeas corpus petition in which the record affirmatively showed that counsel had not investigated federal immigration law or properly advised her client, also does not aid her. (Id. at pp. 1478-1480.) Here, where the record is silent as to the errors Flores alleges, it does not and cannot affirmatively disclose inadequate performance by counsel.
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, Acting P.J. JACKSON, J.
(Judge of the L. A. S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)