Opinion
F049615
5-30-2007
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY GOVEA, Defendant and Appellant.
Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Defendant Johnny Govea was convicted of two counts of molesting a child under 14; he was sentenced to 10 years in prison. On appeal, he makes three arguments. First, he contends that, because his trial counsel incorrectly advised him that the statute of limitations had expired, he rejected the prosecutions offer of a six-year sentence in exchange for his guilty plea. We hold that defendant has not shown a violation of his right to effective counsel because the record (including the record of the proceedings on his petition to this court for a writ of habeas corpus, of which we take judicial notice) fails to establish that he would have accepted the offer if advised correctly.
Second, defendant contends that his right to due process of law and his right to counsel were violated when, without any discussion on the record and without informing counsel, the trial judge permitted defendant to be shackled with leg irons during trial. Due to the fact that trial counsel did not notice this until the end of the trial, and there is nothing in the record to indicate that the jury ever noticed it, we hold that defendant has not shown he was prejudiced by the shackling.
Third, defendant argues that the trial court imposed an upper term and consecutive sentences in reliance on facts not found by the jury, contravening Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) ___ U.S. ___ (Cunningham). We hold that any error the trial court committed in this regard was harmless.
The judgment is affirmed.
FACTUAL AND PROCEDURAL HISTORIES
In September 2005, the victim, defendants teenage daughter, told her mother that defendant had molested her seven years before, when she was eight. The victim made the report because she was concerned that her father might molest her younger sister, who was then about eight.
The mother contacted the sheriffs department. The next day, deputies arranged for the victim to make a recorded pretext call to defendant. During the call, defendant made many incriminating statements:
"[Defendant]: Whats up, baby.
"[Victim]: I dont know, um, I just wanted to talk to you about something.
"[Defendant]: About what?
"[Victim]: Um,
"[Defendant]: What happened?
"[Victim]: Do you, do you remember, um, uh, just I dont know (unintelligible) somethings bothering me, it[]s just making me worry about [the sister].
"[Defendant]: What?
"[Victim]: But, a while ago when um, you made me touch you.
"[Defendant]: Um-huh.
"[Victim]: Um,
"[Defendant]: Im sorry about that, baby. And I told you, I was drunk and I never did it again. Or, but, whats going on with [the sister]?
"[Victim]: I just wanna, I wanna make sure that you dont do that to her.
"[Defendant]: No, baby. You dont gotta worry about that sweetheart.
"[Victim]: You, you t—, you tried to make me
"[Defendant]: Huh?
"[Victim]: Give you a blow job.
"[Defendant]: Well, yeah, I remember sweetheart, I was, and I, and I felt real bad and I talked to you about that and I told you Im, I was sorry and I would never touch you again and I never did, like that. [¶] ... [¶] ... But I know, I know somehow that, you know, bad things that happen and hurt gets in our hearts and we forget the good things. But we had a lot of good times. I mean, we were close. Thats why it hurts me and I get upset and I get mad, but not at you. Because Im the one who did things to make me go away. You know. Not you.... Cause the same thing happened to me when I was little.... I never even attempted to touch you again in any other way after that day, you know, Im s— , Im, I apologize. [¶] ... [¶]
"[Victim]: You said not to let anybody else do that except for you.
"[Defendant]: I said that?
"[Victim]: Yeah.
"[Defendant]: I dont remember saying that. I mean, when I woke up the next day sweetheart I didnt hardly remember nothing but I remember parts of it. [¶] ... [¶] [U]m, why were the police at your house last night?
"[Victim]: That
"[Defendant]: Huh?
"[Victim]: Thats not important.
"[Defendant]: Yes it is. Why were they there? Huh?
"[Victim]: Its not important.
"[Defendant]: Yes it is. Im asking you a question sweetheart, and I want you to answer me.
"[Victim]: I dont want to answer it. [¶] ... [¶]
"[Defendant]: ... I had to learn to forgive the person who did it to me because if you dont itll just continue to be like a generational curse thatll just keep happening after family, after family, after family. [¶] ... [¶]
"[Victim]: Is, was that why you did it?
"[Defendant]: What?
"[Victim]: Because
"[Defendant]: I dont know babe.
"[Victim]: —it happened to you?
"[Defendant]: I dont know why. I cant say thats why but I mean, obviously if, if I had would never have been exposed to it I would have never done it, you know what I mean? [¶]... [¶] ... Im not gonna tell you his name who did it to me but I wrote him a letter and I, and I went and confronted him, just like youre doing to me right now .... I told him you know what when you did this to me man, you, you, messed me up man. [¶] ... [¶] You confused me. I was confused sexually. I, I didnt know how to treat people I didnt know how to treat women and it made me treat, mistreat my wife. Made me mistreat my kids. I mean, you did something to me. You hurt me.
"[Victim]: What, what did he do to you?
"[Defendant]: He made me do what I tried to make you do to me.
"[Victim]: Give you a blow job? [¶] ... [¶]
"[Defendant]: Look, if you want to have this conversation in person I would rather, I feel more comfortable having it in person.
"[Victim]: No. I dont feel, I wouldnt feel comfortable talking— [¶] ... [¶]
"[Defendant]: Listen. Listen. I dont trust your mother and really from your behavior ... I dont trust you. Um, Im gonna be very open with you right now. I dont trust you. Okay? I mean what were discussing right now can put me in jail for a long time.... Im s—, like I said, Im sorry. And if you feel you need some counseling, if you, I cant do nothing about the past, baby. I mean, they did it to me why not do it to them. Okay. Im not, Im not justifying what I did, but what Im saying is my mind was fucked up. My brain was men—, my brain was twisted. I was mentally fucked up. [¶] ... [¶]
"[Victim]: [T]his conversation Im having
"[Defendant]: Li—, lis—, lis—, listen to me.
"[Victim]: with you right now is about something about something that you did
"[Defendant]: No.
"[Victim]: —to me, not something that my mom
"[Defendant]: Well, like, like I was explaining something to you. Okay? Now if you dont want to talk to me then dont. Okay? Because you just dont know how much you hurt me, you along with your mother.
"[Victim]: I hurt you?
"[Defendant]: And Im tired of it. Yeah. Y—, and that, that, see thats the problem with you, your brother and your mother. You guys only think about your fucking self, and your feelings and how you hurt. But do you give a fuck about mine? No. You dont. You dont care about how I feel. You dont care about me or my feelings. You dont. You, your mother and your big brother. [¶] ... [¶]
"[Victim]: —kay, well y—, youre trying to come over here and make me feel bad when youre
"[Defendant]: I, I did not
"[Victim]: I know when I was talking right now
"[Defendant]: I did not try to make you feel bad.
"[Victim]: From something that you did to me.
"[Defendant]: Well, I understand, and we discussed it and I told you and I apologize, if you want to hold [onto] it, then fine. I mean, if you cant forgive me and let it go then thats, its not, its no longer my problem.... I mean, like I said, I apologize and thats all I can do. And like if its continue to bothering you, then we can go get you some counseling, get you some help, where it wont bother you no more, maybe. But its not up to counseling, its not up to a counselor, its not, its always gonna bother you unless you learn to let it go and forgive.
"[Victim]: Well, can we keep this a secret then? [¶] ... [¶]
"[Defendant]: It shouldnt be a secret, sweetheart. I tell everybody now that Im not ashamed of what happened to me. It wasnt my fault. Do you understand what Im saying? And I tell people today openly, you know, I was molested when I was a little kid, because people keep this secret. If you want to, fine. If you dont want let, anybody to know, and if its not going to bother you, fine. If you want to. I mean, I dont got no problem with it. I mean me, myself personally as a man, I feel very ashamed of what I did and I wouldnt want nobody to know.
"[Victim]: Okay.
"[Defendant]: Okay. I mean I, I probably sure you probably have the same feeling. Im sorry, baby. I know I hurt you, man. I know I did. I know exactly how you feel. But it didnt happen one time to me, it happened repeatedly over and over again. So, I know exactly what I did. And Im sorry. Im sorry."
The District Attorney filed an information charging defendant with two counts of committing a lewd act on a child under 14. (Pen. Code, § 288, subd. (a).) The information alleged that the two acts took place between June 1, 1998 and September 1, 1998.
Subsequent statutory references are to the Penal Code unless stated otherwise.
Defendant appeared with his appointed counsel at a pre-preliminary hearing. The court said, "The offer in this case was a plea to Count 1 for no more than the low term[,] three years. The Court indicated it was not willing to take anything less than the midterm[,] six years, which is going to be rejected by the defendant." Defense counsel confirmed this was true. The court noted that defendants maximum exposure was 10 years.
Defendant appeared with new appointed counsel at a pretrial readiness hearing. He again rejected a plea bargain. The terms of this offer do not appear in the transcript of the hearing or in the courts minutes.
Shortly before trial, defendant made a motion to relieve his appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118. He told the court that he was confused during conversations with his counsel. The court denied the motion.
During the Marsden hearing, counsel discussed the advice he gave defendant about the strength of the prosecutions case and of his defense. He said he told defendant that "his actual defense is not strong at all" because of the pretext call. He told defendant that "youre going to be confronted with obviously the tape, and I dont think your defense is very strong." He also said he advised defendant about a possible statute-of-limitations defense. He told the court, "I think it is good, certainly at least as to one count, depending on how things work out at the trial." At the same time, he told defendant "this is certainly a gamble on this defense." Counsel told the court that, for these reasons, he explained to defendant "that this trial is one of two things, its either, one, a statute of limitations case or its, two, simply a long sentencing hearing, because I dont think in light of the tape that his chances are very good." Counsel explained all this to defendant "in the context of the deal that was being offered to him, you can take the six years, if thats what you want to do."
We do not improperly breach confidentiality by describing the contents of and quoting from the sealed Marsden transcript. By challenging the verdict on grounds of ineffective assistance of counsel, defendant waives his attorney-client privilege with respect to the facts he places in issue. (People v. Dennis (1986) 177 Cal.App.3d 863, 873.) He may, however, be entitled to use immunity with respect to the disclosures at the Marsden hearing if the conviction is ever reversed and he is retried. (Id. at p. 874.)
According to counsel, defendant "was clear" in saying "I dont want to do that. In fact, his position was, I would like a year max, I should be getting probation." Counsel further told the court: "And I agree with much of what he says there. Heres a guy that supposedly touched somebody once in 1998 and never repeated. Everyone agrees pretty much in the case that he said he was sorry to the daughter, never repeated the conduct, and has even since overcome drug and alcohol problems." It was " all in light of that" that defendant rejected the plea bargain. Counsel claimed that defendant "definitely understood what the offer was and what the parameters were, what the risks were, what the maximum was" when he rejected the offer.
The victim testified at trial. She described a number of events that took place in the summer of 1998. One day, defendant entered her room while she was sleeping and got into bed with her. He took her hand and rubbed his exposed penis with it. Then he lifted her on top of him and rubbed his penis on the area of her vagina, over her pajamas. Next, he pushed her head under the blanket and pushed his penis against her mouth. She kept her mouth closed and cried. He finally stopped, saying he was sorry and not to let anyone except him touch her like that. On two or three other occasions either before or after this incident, defendant rubbed the victims foot on his penis while they were sitting together on a couch. In addition to the victims testimony, the jury heard the recording of the pretext call.
After the parties finished presenting their evidence, defendant made a motion to dismiss the charges on statute-of-limitations grounds. He contended that a six-year statute applied and had expired. He relied on section 800, which provides a six-year limitations period for offenses that are punishable by imprisonment for eight years or more. In reality, however, a 10-year statute applied and had not expired. In 2000, the Legislature enacted former section 803, subdivision (h)(1), establishing a limitations period of 10 years for violations of section 288 for which the previous six-year period had not expired as of January 1, 2001. (Former § 803, subd. (h)(1); Stats. 2000, ch. 235, § 1.) This 10-year period is now found in section 801.1, to which it was moved by the Legislature in 2004. (Stats. 2004, ch. 368, § 1.) The trial court denied the motion to dismiss.
Just before closing arguments were to begin, defense counsel informed the court that defendant wanted to testify. The People objected. During a discussion about this outside the presence of the jury, the court and parties discovered that defendant was shackled:
"THE COURT: I think given the—I think I have the discretion to allow the evidence to be reopened.... Im going to allow him to testify. But what I want him to do is come up. Apparently the bailiff left the leg irons on him. Mr. Eyherabide [defense counsel], you are sitting right next to him.
"[DEFENSE COUNSEL]: I did not know that. He is sitting down. I dont look under there to see if he is shackled under there. My assumption was he wasnt.
"THE COURT: The jurors wouldnt have known. The bailiff indicated to us that the defendant, because they thought he was not going to testify and that through his conduct, they felt it was for safety reasons. However, now that he is going to have to walk up here, they are going to have to be taken off, but we can certainly sit him up here. But Ill ask the bailiffs if they feel it would be any safety concerns if he sat up here without leg irons.
"THE BAILIFF: Thats fine.
"THE COURT: Go ahead and take them off.
"[DEFENSE COUNSEL]: For the record, Judge, I didnt know he was shackled in front of the jury, and I would be objecting to him shackling with the jury absent some kind of a hearing.
"THE COURT: Well, I think
"[DEFENSE COUNSEL]: Im not making any motions for mistrial. Im just saying from this [point] forward, I would ask that he not be shackled while the jury is present.
"THE COURT: Ill ask the bailiff if they think he should be shackled. Let me know ahead of time."
Immediately after this, defendant decided not to testify, citing his counsels advice. The jury was brought back in and closing arguments proceeded.
During his closing argument, defense counsel conceded that the evidence proved one of the informations two counts. There was no question of lesser-included offenses. Defense counsel did not request instructions on these; the court asked defendant if he agreed with his counsels tactical decision and he said yes. The verdict form included only the charged offenses. Later, the trial judge stated that, while he did not believe counsel could waive instructions on lesser-included offenses, they were not appropriate in this case because the evidence did not warrant them. Counsel explained that a guilty verdict with respect to any count required the jury to agree unanimously about what act constituted the offense. Then he argued that the evidence showed only one act:
"So its in that background that Im really asking you to find only one count true. And its pretty obvious why Im saying that, because we have a tape-recording. And on the tape-recording, Mr. Govea does acknowledge doing inappropriate touching of his daughter. Okay? We know that something happened. What Im saying to you is the only thing they have proved beyond a reasonable doubt is that an act occurred. There was an inappropriate act of touching. Go beyond that, I think we are running kind of a risk here when we ask somebody who came out with an accusation seven years ago and we have to go back and look at could the person be mistaken about some task of their memory, even though they are honestly trying to remember something. [¶] ... I think we can say from the evidence, yeah, they proved at least one act. When we go beyond that, its getting a little bit iffy to say beyond a reasonable doubt for sure."
At 1:48 p.m. the court completed its final instructions and the jury retired to deliberate. At 2:25 p.m., the jury sent the judge a note stating that it had reached a verdict. It found defendant guilty as charged.
At the sentencing hearing, defense counsel argued that probation should be considered. Among other reasons, he contended that defendant never denied the conduct and only went to trial to litigate the statute-of-limitations defense: "[A]s the Court knows, the defense never was this didnt happen. The only reason it went to trial was there was a statute of limitations issue that needed to get litigated. Thats really it." The court imposed a prison term of 10 years. This consisted of the upper term of eight years for count one and a consecutive term of two years (one-third of the middle term) for count two.
Before filing his opening brief, defendants appellate counsel filed a motion to expand his appointment to cover the preparation of a petition for a writ of habeas corpus. The motion stated that trial counsel rendered ineffective assistance by advising defendant that he had a viable statute-of-limitations defense and that this caused defendant to reject the plea bargain. This issue, the motion contended, was an appropriate subject for a habeas petition. We denied the motion.
After the appellate briefs were filed, defendants appellate counsel filed a second motion to expand his appointment for the purpose of filing a habeas petition. He pointed out that the Peoples brief contended that facts necessary to support the ineffective-assistance claim were not in the record on appeal. Habeas proceedings would be an appropriate means of creating a record of these facts, he argued. We denied the motion without prejudice, ruling that counsel failed to show why defendant could not file a habeas petition on his own by using the appropriate Judicial Council form.
Defendant then filed a habeas petition, supported by a counsel-drafted memorandum of points and authorities. Defendant also filed a motion to consolidate the petition with the appeal. The petition argued that defendant was denied his constitutional right to effective counsel when his trial counsel "misadvised [him] about the viability of a statute of limitations defense to the charged offenses."
Defendants declaration was attached to the habeas petition. It stated that the offer he rejected at the pretrial readiness conference was to plead guilty to one count and receive a six-year sentence in exchange for dismissal of the other count. It further stated:
"I turned down [this offer] and took my case to trial because my public defender told me I had a very good chance of having all charges dismissed because the charges were filed against me after the six-year statute of limitations had expired. That was why I took my case to trial.... [Counsel] did not think it was a good idea to make the motion [to dismiss] before trial because he was concerned my daughter might change her statement about when the alleged acts took place [thus defeating the statute of limitations argument].... [¶] ... If [counsel] had given me correct advice about the statute of limitations I would have accepted the plea bargain offered by the prosecutor and the judge prior to trial. When I rejected the offer before trial I incorrectly thought I had a statute of limitations defense that gave me a good chance of having both charges against me dismissed. I had no other defense to the charges because I made statements to my daughter during a telephone call that was secretly recorded by the police in which I generally admitted the truth of her allegations against me. I knew that recording would be used as evidence against me at trial. If [counsel] had given me correct advice before trial about the statute of limitations I would have known I had no defense to the charges and would have accepted the plea bargain."
A declaration by trial counsel is also attached to the petition. Trial counsel confirms that the plea bargain rejected at the pretrial readiness hearing was for dismissal of one count if defendant pleaded guilty to the other and accepted either a stipulated six-year sentence or a six-year lid (trial counsel could not remember which). This declaration says nothing about the advice trial counsel gave regarding the statute-of-limitations issue.
Appellate counsel attached his own declaration to the petition. It states that trial counsel declined to sign a declaration explaining the advice he gave defendant about the statute of limitations. Trial counsel told appellate counsel he "believed [such a declaration] would be inappropriate given the current posture of the case."
We denied the petition without prejudice to its being refiled in the superior court. The motion to consolidate was denied as moot.
DISCUSSION
I. Trial counsels advice regarding the statute of limitations
Defendant argues that his trial counsel rendered ineffective assistance when he advised him regarding the statute of limitations and that this resulted in defendants rejection of the offered plea bargain with its six-year term. As a consequence, he went to trial with no effective defense and received a 10-year term. We agree that trial counsel should have represented the weakness of the statute-of-limitations defense to defendant in more vivid terms than, apparently, he did. While the question is close, however, we conclude that the record fails to establish that defendant would have accepted the plea bargain if trial counsel had been more pointed. The record does not sufficiently corroborate defendants self-serving declaration that he would have accepted the plea bargain, as required by In re Alvernaz (1992) 2 Cal.4th 924, 938 (Alvernaz).
Alvernaz is the controlling authority on the issue of ineffective assistance of counsel resulting in a defendants rejection of an offered plea bargain. Agreeing with "all federal and state courts presented with this issue," our Supreme Court held that "counsels ineffective representation result[ing] in a defendants rejection of an offered plea bargain, and in the defendants decision to proceed to trial ... give[s] rise to a claim of ineffective assistance of counsel." (Alvernaz, supra, 2 Cal.4th at p. 934.) Applying Strickland v. Washington (1984) 466 U.S. 668, the court stated that proof of this kind of claim requires a defendant to show that (1) counsels representation fell below an objective standard of professional reasonableness and (2) the defendant was prejudiced, i.e., there is a reasonable probability that he would have obtained a more favorable result absent counsels unreasonable performance. (Alvernaz, supra, 2 Cal.4th at p. 937.)
For assistance in applying the first element, reasonable professional performance, the Alvernaz court turned to the State Bar Rules of Professional Conduct and the American Bar Associations Standards for Criminal Justice. (Alvernaz, supra, 2 Cal.4th at p. 937.) "Under these guidelines, defense counsel must communicate accurately to a defendant the terms of any offer made by the prosecution, and inform the defendant of the consequences of rejecting it, including the maximum and minimum sentences which may be imposed in the event of a conviction." (Ibid.) Further, the analysis depends not on whether we "`would retrospectively consider counsels advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases." (Ibid. )
In this case, it is undisputed that the offer was communicated to defendant and that he knew he could face 10 years if he turned it down and was convicted at trial. The question is whether counsel gave professionally reasonable advice about the statute-of-limitations defense. The record shows that counsel advised defendant that he had a chance of prevailing by arguing that a six-year statute of limitations applied. At the Marsden hearing, counsel said he told defendant there was a "good" argument on this, "at least as to one count," but that the strategy was "certainly a gamble." According to the version of the story in defendants declaration, counsel said there was "a very good chance of having all charges dismissed" on statute-of-limitations grounds.
Defendant now argues that his trial counsel made a professionally unreasonable mistake about the law. His counsels argument during trial was that section 800 provides for a six-year statute of limitations for crimes punishable by sentences of eight years or more. When the court asked whether any of the various exceptions to section 800 were applicable, defense counsel said, "Im not here to research the case for the prosecution," and "[i]f they can come up with some other theory, Ill respond to them." In fact, as we have noted, the Legislature enacted a statute in 2000 extending to 10 years the limitations period for all violations of section 288 for which the six-year period had not expired as of January 1, 2001. (Former § 803, subd. (h)(1); Stats. 2000, ch. 235, § 1.)
Due to a complex series of amendments, described in materials submitted with defendants request for judicial notice filed September 18, 2006, which we grant, the applicability of the 10-year statute to this case would not have been obvious to an attorney who, in 2005, consulted only a 2005 edition of the Penal Code. An attorney in this position would have found the 10-year statute in section 801.1, which was added by a 2004 amendment. (Stats. 2004, ch. 368, § 1.) Section 801.1 omitted the statement in former section 803, subdivision (h)(1), that the 10-year statute applied to offenses for which the former six-year statute had not expired as of January 1, 2001. The attorney might conclude that the 10-year statute did not apply if the six-year statute had expired before an effective date in 2004 or 2005, since he would not know that a 10-year statute had been in effect at all times since January 1, 2001.
In light of this, was counsels advice professionally unreasonable, or merely mistaken in hindsight? Since defendant has not demonstrated prejudice, we need not answer that question.
The prejudice inquiry is whether "there is a reasonable probability that, but for counsels deficient performance, the defendant would have accepted the proffered plea bargain and that in turn it would have been approved by the trial court." (Alvernaz, supra, 2 Cal.4th at p. 937.) It appears from the records of the pre-preliminary and pretrial readiness hearings that the court was prepared to approve a six-year sentence in exchange for a guilty plea. The only question, then, is whether the record shows a reasonable probability that defendant would have accepted this offer had he received more realistic advice about the statute-of-limitations defense. Our Supreme Court held in Alvernaz that "a court should scrutinize closely whether a defendant has established" this, due to "the ease with which a defendant, after trial, may claim that he or she received inaccurate information from counsel concerning the consequences of rejecting an offered plea bargain." (Id. at p. 938.)
Defendants declaration states that he would have accepted the six-year offer if not for counsels statute-of-limitations advice, but Alvernaz held that this is not enough. "[A] defendants self-serving statement—after trial, conviction, and sentence—that with competent advice he or she would have accepted a proffered plea bargain, is insufficient in and of itself to sustain the defendants burden of proof as to prejudice, and must be corroborated independently by objective evidence. A contrary holding would lead to an unchecked flow of easily fabricated claims." (Alvernaz, supra, 2 Cal.4th at p. 938.)
Corroborating factors the court mentioned included "the advice, if any, given by counsel; the disparity between the terms of the proposed plea bargain and the probable consequences of proceeding to trial, as viewed at the time of the offer; and whether the defendant indicated he or she was amenable to negotiating a plea bargain." (Alvernaz, supra, 2 Cal.4th at p. 938.) An "additional ... pertinent (although not dispositive)" factor is "the defendants stance at trial," such as his claim of innocence. (Id. at p. 940.) This stance "may detract from the credibility of a hindsight claim that a rejected plea bargain would have been accepted had a single variable," such as counsels advice, "been different." (Ibid.)
In Alvernaz, the Supreme Court concluded that the defendant failed to show prejudice. The offered plea bargain was for a four- or five-year term, with an actual term of two or two and a half years after deduction of work-time credits. The defendant claimed, and the court assumed for the sake of argument, that defendants trial counsel advised him not to take the offer because he had a 70 to 80 percent chance of winning, and a loss would still result in a sentence of only about four years after deduction of work-time credits. (Alvernaz, supra, 2 Cal.4th at pp. 930-931, 945.) In fact, after being found guilty, the defendant received a life sentence; he calculated that, under regulations then in effect, he would likely not receive parole for more than 16 years. (Id. at p. 929.) The defendants own declaration stated that he would have accepted a plea bargain but for his counsels incorrect advice about the maximum sentence he faced if convicted at trial, but this was a self-serving statement and therefore not sufficient. The large difference between counsels alleged estimate and the sentence actually imposed was "some corroborating evidence," but not enough in light of other evidence. The other evidence included defendants statements indicating that he acted in large part on the basis of his counsels view that he had a strong case and on his own powerful belief in his innocence. His counsel declared that the defendant insisted on his innocence adamantly. At trial, the defendant testified that he was innocent and presented an alibi defense. The Supreme Court concluded that his "decision to reject the plea offer was motivated primarily by a persistent, strong, and informed hope for exoneration at trial" and that "any evaluation of precise sentencing options was secondary in his thinking." On this basis, the court held that the defendant "has failed to establish a credible, independently corroborated prima facie showing of a reasonable probability that he would have accepted the plea offer but for his trial counsels alleged inaccurate advice as to sentencing." (Alvernaz, supra, 2 Cal.4th at pp. 945-946.)
In this case, similarly, the record presents some evidence to corroborate defendants claim that he would have accepted the plea bargain if counsel had given correct advice, but this evidence is not sufficient to establish prejudice. Defendants stance at trial provides only ambiguous support for his claim. His counsel admitted the truth of one count, which exposed him to a sentence equal to the sentence offered in the plea bargain (the middle term for a violation of section 288, subdivision (a), is six years) and then asserted the statute-of-limitations defense. These events might suggest that defendant went to trial solely on the basis of counsels advice about the statute of limitations, since he would get, at best, the same sentence as that offered in exchange for his guilty plea if the statute-of-limitations defense failed. As we have noted, defense counsel asserted at the sentencing hearing that "the only reason [the case] went to trial was there was a statute of limitations issue that needed to get litigated." The record is at least equally consistent, however, with a scenario in which defendant insisted on going to trial in a belief, in spite of the evidence and in spite of the known risk of losing on the statute-of-limitations issue, that he had not engaged in significant wrongdoing.
That scenario is supported by trial counsels comments at the Marsden hearing. In addition to the comments quoted above (to the effect that defendant thought he should get probation or a one-year sentence), trial counsel told the court that before he, counsel, listened to the recorded pretext call, defendant made an ambiguous claim of innocence, said he did not remember molesting his daughter, and blamed his ex-wife, the victims mother, for the situation:
"[Defense counsel]: ... The defendant essentially at the beginning told me he was innocent. He went through a long history with me.
"This is the summary of what he told me in our first interview: That he separated from the wife ... in 2000 or 2001. Prior to that, he admits he was hard to live with. He was drinking to excess, doing drugs. There were times when family members told him things he did not recall. One time he urinated on the floor inside his residence.
"He since went through a divorce, and after the divorce, the kids spent a lot of time with him. He admits he was lax with the kids, so was [their mother].
"In 2003 he went to a recovery program and then to a program called Free Indeed, which is a church program. He described that as an intense church program to overcome problems.
"At that point he was still getting the kids a lot. Now he is strict with the kids. [The mother] is still very lax with the kids. His son basically tells the mother what to do, not the other way around. He feels that the kids dont have any rules. [The victim], who is the daughter making the accusations, is also having some problems.... Shes doing pot, and she did not like dads rules.
"He told me more about his recovery.
"THE COURT: Which is, I guess, all good and well except for this, I guess, conversation that he had that was tape-recorded ....
"[Defense counsel]: Yeah. Right. And then as far as [the victim] bringing up the molest, he told me that he told her at that time he did not remember having done that to her. He told me he did not recall molesting [her] and that he was not admitting that he did. He wonders if he could have done it and just not remembered it.
"He said if the accusations are not true, he feels that [the mother] is responsible for putting her up to it. He says [the mother] has made other false reports against him, domestic violence type of things.
"That was essentially what he was telling me. He was telling me that at times he apparently has been told he did things unconsciously but wasnt actually denying that he did it. Thats where we had left it."
Counsels concession at trial that defendant was guilty of one count is not incompatible with the possibility that defendant went to trial because he did not believe he engaged in significant wrongdoing. Finding defendant unwilling to concede that the evidence against him was overwhelming and accept the plea bargain, counsel might have concluded that admitting one count was the only way he could hope to retain any credibility with the jury and avoid the worst outcome.
The difference between the offered plea bargain and the sentence actually imposed also provides little support for defendants claim. The difference was four years. The much larger difference in Alvernaz did not persuade the Supreme Court that the defendant would have accepted the plea bargain if properly advised.
Taking all these circumstances into account, we conclude that defendant has not made a sufficient showing that he would not have gone to trial if his counsel had not raised the possibility of a statute-of-limitations defense or had said that this defense had a very low probability of succeeding. Like the defendant in Alvernaz, he has not established a "credible, independently corroborated prima facie showing" of a reasonable probability that he would have accepted the plea bargain but for counsels advice. (Alvernaz, supra, 2 Cal.4th at pp. 945-946.) Therefore, he has not shown that counsels performance prejudiced him.
II. Use of shackles
Defendant argues that when the trial court allowed him to be seated in the courtroom wearing leg irons, it committed two distinct errors. First, it violated the rule that a defendant can only be shackled in front of a jury after the People make a showing, and the trial court makes a finding, of a manifest need to restrain him. (People v. Hill (1998) 17 Cal.4th 800, 841; People v. Cox (1991) 53 Cal.3d 618, 651; People v. Duran (1976) 16 Cal.3d 282, 290-291.) Second, the court "interfere[d] with" defendants right to counsel by failing to inform defense counsel that defendant was shackled.
Assuming for the sake of argument that defendant should not have been shackled absent appropriate findings, we conclude that any error of this kind was harmless. The Court of Appeal recently reiterated the rule that "unjustified shackling is considered harmless error `where there was no evidence it was seen by the jury." (People v. Fisher (2006) 136 Cal.App.4th 76, 80 [quoting People v. Tuilaepa (1992) 4 Cal.4th 569, 583-584].) There is no evidence in the record that the jury saw it in this case. In fact, the record supports a contrary conclusion. Defense counsel, seated beside defendant, did not even notice the shackles. When, outside the presence of the jury, counsel first saw them, the trial court said, "The jurors wouldnt have known."
With respect to his separate contention that the courts action interfered with his right to counsel, defendant argues that error of this kind is reversible per se. He takes the position that it should be fatal to the judgment without consideration of prejudice, even if the violation of the rule regarding shackling is itself harmless. He relies on Perry v. Leeke (1989) 488 U.S. 272, in which the United States Supreme Court held that a prejudice analysis like that required by Strickland v. Washington, supra, 466 U.S. 668 is not appropriate where a trial courts action results in `"[a]ctual or constructive denial of the assistance of counsel altogether ...." (Perry v. Leeke, supra, 488 U.S. at p. 280.) An example of an action constituting this kind of denial is a trial judges order forbidding defense counsel to speak to a defendant during an overnight recess—the facts in Geders v. United States (1976) 425 U.S. 80. (Perry v. Leeke, supra, 488 U.S. at pp. 278-279.) An example of an action not constituting this kind of denial is a trial judges order forbidding defense counsel to speak to a defendant during a 15-minute break between direct and cross-examination—the facts in Perry v. Leeke itself. (Id. at pp. 280-281.)
In Perry v. Leeke, the high court held that the bar on attorney-client communication during the 15-minute break did not affect the constitutional right to counsel at all. (Perry v. Leeke, supra, 488 U.S. at p. 281.) We need not go that far to affirm the conviction here. It will suffice to say that, assuming the trial courts failure to inform counsel of the shackles infringed on defendants right to counsel, the burden was not comparable to an overnight ban on attorney-client communication and had more in common with the infringement of the same right that arises from ineffective assistance. The courts failure to mention the shackles did not prevent attorney-client communication for any period of time. It did not even prevent counsel from learning of the shackles. Counsel could have observed them himself and defendant could have told counsel about them. We conclude that a showing of prejudice is necessary to prevail on a claim that the court violated defendants right to counsel and that no such showing has been made here.
III. Sentencing
A. Upper term
Defendants sentence included the eight-year upper term for count one. Doubled upper terms for the other counts were imposed and stayed. Defendant argues that the imposition of the upper term violated the Sixth Amendment as interpreted in Blakely, supra, 542 U.S. 296.
In Blakely, the Supreme Court held that a sentence for kidnapping imposed under the Washington sentencing scheme violated the defendants Sixth Amendment right to a jury trial. (Blakely, supra, 542 U.S. at pp. 298, 304.) Under Washington law, the trial court could impose a sentence longer than 53 months only if it found substantial and compelling reasons to do so. (Id. at p. 299.) The judge found that the crime was committed with "deliberate cruelty" and imposed a sentence of 90 months. (Id. at p. 298.) The Supreme Court held that this violated the Sixth Amendment as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466, 490: "`Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Blakely, supra, 542 U.S. at p. 301.) It did not matter that the offense was a class B felony, and that class B felonies carried a maximum sentence of 10 years, because the states sentencing law did not allow the sentence to exceed 53 months without judicial factfinding. "Our precedents make clear ... that the `statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." (Id. at p. 303.) The court continued:
"In other words, the relevant `statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jurys verdict alone does not allow, the jury has not found all the facts `which the law makes essential to the punishment, [citation], and the judge exceeds his proper authority." (Blakely, supra, 542 U.S. at pp. 303-304.)
After briefing was completed in this case, the United States Supreme Court issued its decision in Cunningham, supra, ___ U.S. ___ , overruling People v. Black (2005) 35 Cal.4th 1238 and holding that Blakely applies to the imposition of upper terms under California law. (Cunningham, supra, ___ U.S. ___ [127 S.Ct. at pp. 860, 871].) The imposition of an upper term under California law is unconstitutional, therefore, unless it is based on prior convictions, facts found by the jury, or facts admitted by the defendant.
We need not decide whether the imposition of the upper term ran afoul of the Supreme Courts precedents in this case. Any error was harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18), as we will explain now.
The courts findings in support of imposing the upper term were these:
"[F]actors in mitigation, there are none.
"Circumstances in aggravation, the defendant took advantage of a position of trust or confidence to commit this offense in that the defendant was the father of the victim. The defendants prior convictions as an adult and sustained petitions in juvenile delinquency proceedings are numerous. This happened in 98, summer of 98. Certainly he had a bad record after that, too, but even looking at his record before, he had numerous convictions. I think most were misdemeanors. The 487 in 1984 may have been a felony out in juvenile court, but the other ones, even though theyre misdemeanors, they are numerous.
"And at the time this crime was committed, he was on three grants of misdemeanor probation. His prior performance on misdemeanor and felony probation has been unsatisfactory in that he has violated the terms of and conditions of his probation and has reoffended."
According to the probation report, defendants juvenile record consisted of one sustained petition for grand theft in 1984. (Former § 487, subd. (3).) His adult record consisted of a total of 26 offenses committed between 1993 and 2005: one conviction of willful infliction of corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)); one conviction of petty theft (§ 488); one conviction of trafficking in a controlled substance (Health & Saf. Code, § 11379); one conviction of using a controlled substance (Health & Saf. Code, § 11550, subd. (a)); four convictions of driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a)); 12 convictions of driving on a suspended or revoked license (Veh. Code, §§ 14601.1, subd. (a), 14601.5); two convictions of speeding (Veh. Code, §§ 22349, 22350); and one conviction each of driving an unregistered vehicle (Veh. Code, § 4000, subd. (a)), possessing an open container of alcohol while driving (Veh. Code, § 23222, subd. (a)), driving with a child who was not wearing a seat belt (Veh. Code, § 27315, subd. (d)), and failure to appear in court (Veh. Code, § 40508, subd. (a)).
In making its findings, the court applied several of the aggravating factors set forth in California Rules of Court, rule 4.421: "[t]he defendant took advantage of a position of trust or confidence to commit the offense" (rule 4.421(a)(11)); "[t]he defendants prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness" (rule 4.421(b)(2)); "[t]he defendant was on probation or parole when the crime was committed" (rule 4.421(b)(4)); and "[t]he defendants prior performance on probation or parole was unsatisfactory" (rule 4.421(b)(5)).
We have no doubt that the first factor the court mentioned—taking advantage of a position of trust—would have been found true by the jury if it had been submitted to them. Uncontradicted evidence showed that defendant was the victims father and that the crimes took place while she was a young child living with him. The courts reliance on this factor therefore was harmless beyond a reasonable doubt.
The situation with respect to this factor is comparable to the situation in Washington v. Recuenco (2006) ___ U.S. ___ . There, after hearing evidence that the defendant threatened his wife with a gun, the jury found him guilty of assault with a deadly weapon. The trial court committed Blakely error by imposing an increased sentence based on its own finding that the weapon was a gun. (Washington v. Recuenco, supra, at p. 2549.) The United States Supreme Court held that the state Supreme Court erred in holding that this was structural error requiring automatic reversal. A harmless-error analysis was appropriate to determine whether the failure to submit the sentencing factor (gun use) to the jury was prejudicial. (Id. at pp. 2550, 2551, 2553.)
As for the remaining factors, defendants criminal history was in the background of all of these: his prior convictions were numerous; he was on probation when he committed the current offenses; and his performance on probation was unsatisfactory. At least one of these—"the defendants prior convictions as an adult ... are numerous"—cannot meaningfully be distinguished from Blakelys formulation, approving the use of "`the fact of a prior conviction" (Blakely, supra, 542 U.S. at p. 301) to increase a sentence. It would not make sense to say that the trial court is entitled to rely on one prior conviction but not on several. In light of this, there is no likelihood that the court would have imposed a different sentence if it had been directed that it could rely only on "`the fact of a prior conviction" (ibid.) in imposing the upper term.
In sum, the sentence in this case would surely have been compliant with Blakely and Cunningham if two things had happened: (1) the question of whether defendant violated a position of trust was submitted to the jury, and (2) the trial judge believed he could rely on "`the fact of a prior conviction" (Blakely, supra, 542 U.S. at p. 301) but not on other facts related to prior convictions, such as poor performance on probation. We are confident, beyond a reasonable doubt, that the same sentence would have been imposed if these things had happened.
B. Consecutive sentences
Defendant also contends that the imposition of consecutive sentences violated the rules of Blakely and Cunningham. The Cunningham decision overruled People v. Black, supra, 35 Cal.4th 1238, on the issue of upper terms. Black, however, also held that Californias scheme for imposing consecutive sentences was valid in spite of Blakely. (People v. Black, supra, at pp. 1261-1264.) That ruling is not mentioned in the Cunningham opinion. The issue of the applicability of Cunningham to consecutive sentences is now pending before the California Supreme Court, which has asked the parties in Black to brief this question for purposes of disposing of Black on remand from the United States Supreme Court. In the meantime, we believe we are bound by the portion of Black that has not clearly been overruled. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed. Defendants motion requesting judicial notice, filed September 18, 2006, is granted.
We concur:
Harris, Acting P.J.
Kane, J.