Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. BA336090
THE COURT:Ryan William Guinn appeals from the judgment entered following his conviction by jury of unlawful driving or taking a vehicle (Veh. Code, § 10851, subd. (a)). Appellant admitted having suffered a prior felony strike within the meaning of Penal Code sections 1170, subdivisions (a) through (d) and 667, subdivisions (b) through (i), and five prior prison terms within the meaning of section 667.5, subdivision (b).
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant’s conviction was based upon the following facts:
On February 6, 2008, Lucia Rivera’s black Honda Civic was taken from a public parking lot where she had parked it when she went to work. She had locked the car and rolled up the windows. The next night, Officer Jose Arellano and his partner, Officer Menasis, spotted the car in the vicinity of Central and 45th Street. They conducted a warrant check which revealed that the car was stolen. The officers followed the car to a gas station where, with the assistance of backup, they took appellant into custody and searched the vehicle. Inside, they found in the ignition a Nissan key with the grooves shaved off, a tire iron, a set of gloves, pliers and a flashlight. Appellant was searched and five other shaved keys were recovered. When the car was returned to Rivera, a different and better radio had been installed. The ignition was damaged, and two infant seats were missing.
Appellant presented evidence that on February 7, 2008, near 9:00 p.m., someone brought the black Honda to his residence. There were keys on the car floor. The person left the car, and appellant installed a radio in it. He then gave a neighbor’s friend a ride home in the car.
Before sentencing, appellant made a Romero motion in which he sought to have his prior felony strike dismissed on the grounds that (1) his current offense was nonviolent and comparatively minor; (2) even if the prior strike was dismissed he would still have a lengthy sentence; (3) the prior felony strike was from 1991 and therefore too remote; (4) his current offense can be punished as a misdemeanor; and (5) his criminal history involved minimal violence.
People v. Superior Court (Romero)(1996) 13 Cal.4th 497 (Romero).
The trial court denied the motion because, among other reasons, the prior strike involved the use of a gun, appellant had been to prison five times, on three of which occasions, the prior strike was stricken, and he was on parole at the time of this offense. The trial court sentenced appellant to the midterm of two years as the base term, doubled as a second strike, plus one year for the prior prison term enhancement.
We appointed counsel to represent appellant on appeal. After examination of the record, counsel filed an “Opening Brief” in which no issues were raised.
On March 13, 2009, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. On March 23, 2009, appellant filed a letter and on April 1, 2009, a supplemental brief, contending that he suffered ineffective assistance of counsel in numerous respects, including among them that: his attorney (a) would “not allow” him to testify though he wanted to do so; (b) counseled appellant against a court trial, which appellant wanted; (c) failed to file a Pitchess motion; (d) failed to call witnesses; (e) failed to investigate appellant’s alibi defense; (f) failed to file a motion to suppress; and (g) failed to obtain evidence of fingerprints on the keys.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
We reject appellant’s contention. Most of his claims of ineffective assistance of counsel involve strategic or tactical decisions by counsel for which “‘“there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’” [Citation.] “[W]e accord great deference to counsel’s tactical decisions” [citation], and we have explained that “courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight” [citation]. “Tactical errors are generally not deemed reversible, and counsel’s decision making must be evaluated in the context of the available facts.” [Citation.] [¶] In the usual case, where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions. ([Citation]; see also People v. Fosselman (1983) 33 Cal.3d 572, 581 [on appeal, a conviction will be reversed on the ground of ineffective assistance of counsel “only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission”].)’ [Citation.]” (People v. Jones (2003) 29 Cal.4th 1229, 1254.) Decisions not to call certain witnesses are peculiarly matters of trial tactics, unless the decision results from the unreasonable failure to investigate. (People v. Bolin (1998) 18 Cal.4th 297, 334.)
Further, “the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged. In such circumstances, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal.” (People v. Pope (1979) 23 Cal.3d 412, 426, disapproved on other grounds in People v. Berryman (1993)6 Cal.4th 1048, 1081, fn. 10.) In such circumstances, a claim of ineffective assistance of counsel is more appropriately made in a petition for writ of habeas corpus. (People v. Visciotti (1992) 2 Cal.4th 1, 47, fn. 17.)
We have examined the entire record and are satisfied that appellant’s attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)
The judgment is affirmed.