Opinion
H043961
05-10-2017
THE PEOPLE, Plaintiff and Respondent, v. LEO SAMUEL HILL , Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 208258)
In 1998, defendant Leo Samuel Hill pleaded guilty to two counts of assault by means of force likely to produce great bodily injury. (Pen. Code, former § 245, subd. (a)(1); counts 1 & 4), false imprisonment (§§ 236/237; count 2), and inflicting corporal injury on a cohabitant (§ 273.5, subd. (a); count 3.) Defendant admitted that he personally used a deadly weapon in the commission of counts 3 and 4. (§§ 667, 1192.7, 12022, subd. (b)(1).) Defendant also admitted two strike priors. (§§ 667, subds. (b)-(I), 1170.12.) The trial court sentenced appellant to 55 years to life, which included consecutive sentences of 25 years to life for the assault charged in count 1 and the infliction or corporal injury on a spouse charged in count 3. This court affirmed his conviction.
Unless otherwise indicated, all further statutory references are to the Penal Code.
On the court's own motion, we will take judicial notice of People v. Hill (Jan. 18, 2002, H022185) [nonpub. opn].
On February 11, 2013, appellant filed a petition for resentencing pursuant to Penal Code section 1170.126. The trial court denied that petition. In People v. Hill (Mar. 30, 2016, H040009) [nonpub. opn.], this court determined that petitioner was eligible for resentencing and remanded the matter to the Superior Court for further proceedings. On July 25, 2016, the trial court granted the petition and re-sentenced appellant to a total term of 11 years plus 25 years to life. He was sentenced to the mid-term of three years doubled to six years for assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)), to a concurrent term of four years for false imprisonment (§§ 236/237), 25 years to life for spousal abuse (§273.5, subd. (a)), and to a second term of 25 years to life for assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)), which was then stayed pursuant to Penal Code section 654. The court imposed additional five-year term pursuant to Penal Code section 667, subd. (a). Appellant was awarded 1359 days of pre-sentence credit and 5800 actual days of post-sentence credit.
Appellant's request for judicial notice of People v. Hill, supra, H040009 is granted. A full recitation of the factual and procedural history of the underlying proceedings and prior appeals can be found in that opinion. --------
The trial court also imposed a criminal conviction assessment of $120 pursuant to Government Code section 70373 and a Court Security Fee in the amount of $120 pursuant to Penal Code section 1465.8. Both of these sections became effective well after the date of appellant's conviction 1998. Because these statutes only apply to convictions that occurred after their effective dates, appellant wrote to the trial court pursuant to Penal Code section 1237.2 informing it of these erroneous assessments. (People v. Phillips (2010) 186 Cal.App.4th 475, 478; People v. Davis (2010) 185 Cal.App.4th 998, 1001.) On February 14, 2017, the trial court filed an amended abstract of judgment striking these two assessments. Appellant filed a timely notice of appeal on September 19, 2016.
We appointed counsel to represent appellant in this court. Appointed counsel filed an opening brief pursuant to People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano), which states the case and the facts but raises no specific issues. Pursuant to Serrano, on March 15, 2017, we notified appellant of his right to submit written argument in his own behalf within 30 days. On March 30, 2017, we received a supplemental brief from appellant. In his supplemental brief, appellant contends that his trial attorney wrongly withdrew a petition for habeas corpus that could have shortened his sentence further. Trial counsel's withdrawal of a petition for habeas corpus is not properly raised in this appeal from an order resentencing the appellant pursuant to Proposition 36. To the extent appellant is attempting to assert an ineffective assistance of trial counsel, the record does not support this claim on appeal. To show ineffective assistance of counsel on appeal, the record must show that counsel's performance was deficient and that appellant was prejudiced thereby. (Strickland v. Washington (1984) 466 U.S. 668, 687.) In conjunction with reversing the trial court's order denying the resentencing petition, we denied a habeas petition filed in this court, without prejudice to refiling it in the trial court. Thereafter, trial counsel filed a petition for habeas corpus in the trial court on May 5, 2016. The petition stated that it was being filed "in the alternative," to the remanded petition for resentencing. Trial counsel withdrew the petition at the July 25th resentencing hearing without stating his reason for doing so. Where counsel makes a strategic choice, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (Id.at p. 689; see also People v. Ledesma (1987) 43 Cal.3d 171, 222.) It appears that counsel filed the habeas petition in the alternative to the resentencing petition, and withdrew it when the trial court resentenced appellant pursuant to our instructions on remand. On the record before us, we cannot overcome the presumption that counsel's decision to withdraw the habeas petition was reasonable. Therefore, there is no arguable issue on appeal regarding ineffective assistance of counsel.
As nothing in appellant's supplemental letter brief raises an arguable issue on appeal from the order resentencing appellant pursuant to Proposition 36, we must dismiss the appeal. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.)
DISPOSITION
The appeal is dismissed.
/s/_________
RUSHING, P.J. WE CONCUR: /s/_________
PREMO, J. /s/_________
ELIA, J.