Opinion
Case No. A151600
06-14-2018
THE PEOPLE, Plaintiff and Respondent, v. CHARLES WALLACE REYNOLDS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUK-CRCR-2016-87-138)
Defendant Charles Reynolds was convicted of assault with force likely to produce great bodily injury after he killed Kenneth Fisher by punching him. The jury also found true an enhancement allegation that Reynolds personally inflicted great bodily injury. On appeal, Reynolds claims that his trial counsel rendered ineffective assistance by not objecting when the trial court remarked that it could use the jury's finding that Reynolds inflicted great bodily injury as an aggravating factor to impose the upper term for the assault conviction. Although the remark reflected a misunderstanding of the law, it had no impact on the proceedings because the court ultimately did not impose the upper term for that conviction. Reynolds's counsel was not ineffective by failing to object to an inconsequential sentencing remark. Accordingly, we affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
A. The Confrontation at Boomer's Bar.
The assault occurred on the evening of August 28th, 2016, outside of Boomer's Bar in Laytonville. Reynolds was socializing at the bar when Fisher approached Reynolds's group, and Reynolds pushed him. Reynolds and an acquaintance, Matthias Marsh, then walked out of the bar. Once outside, Reynolds complained to Marsh that Fisher had cost him an opportunity to make five thousand dollars. As Reynolds said this, Fisher came outside. Marsh testified that he went back into the bar when Fisher came out because he did not want to be involved in a dispute between Reynolds and Fisher.
B. The Assault.
Meanwhile, Christopher Bradley was sitting in his vehicle after having just finished his dinner at a restaurant in the same building as Boomer's. He observed Reynolds and Fisher talking as they walked side by side. Eventually, Reynolds and Fisher stopped, and Reynolds punched Fisher on the side of the head. Bradley described the punch as being unprovoked and catching Fisher off guard. Fisher fell to the ground, and Reynolds leaned over him before returning to the bar.
When Reynolds reentered the bar, someone asked him where Fisher was. Marsh overheard Reynolds respond that Fisher was "outside sleeping." Meanwhile, Bradley exited his vehicle and approached Fisher. Bradley rolled Fisher onto his side and noticed an abrasion on the side of Fisher's head. As Bradley was monitoring Fisher's pulse, it became weak and eventually stopped. Bradley performed CPR until an ambulance arrived and paramedics took over.
Fisher was pronounced dead at the hospital later that night. An autopsy revealed that Fisher's cause of death was a subarachnoid hemorrhage due to an artery laceration caused by a blow to the head.
C. The Verdict and Sentencing.
The jury convicted Reynolds of one count of assault with force likely to produce great bodily injury. It also found true the enhancement allegation that he personally inflicted great bodily injury, which requires a penalty of "an additional and consecutive term of imprisonment in the state prison for three years." (§ 12022.7, subd. (a).) During sentencing, the trial court remarked that, while it was "loathe" to do so, it could "probably" rely on the jury's finding that Reynolds personally inflicted great bodily injury not only to impose the three-year sentencing enhancement, but also to impose the upper term for the assault. The court went on to say, "I am not sure that under all the circumstances that is the appropriate thing to do, because I am using the fact that [Reynolds] inflicted such horrible injury on Mr. Fisher to add three years [as an enhancement] to the term that I choose." In the end, the court declined to impose the upper term for the assault. Instead, it ruled, "So having thought about this quite a bit, I am going to choose the middle term of three years, but I am going to add three years for the [enhancement,] which will result in a six-year term in state prison." Thus, Reynolds was sentenced to six years in state prison, consisting of the middle term of three years for the assault and a consecutive term of three years for the enhancement.
Assault with force likely to produce great bodily injury is unlawful under Penal Code section 245, subdivision (a)(4). All further statutory references are to the Penal Code.
Assault with force likely to produce great bodily injury is punishable by a term of two, three, or four years in prison. (§ 245, subd. (a)(4).) --------
II.
DISCUSSION
A. General Legal Standards.
The law governing claims of ineffective assistance of counsel is well-settled. The federal and state Constitutions guarantee criminal defendants the right to adequate representation by counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People v. Vines (2011) 51 Cal.4th 830, 875.) To prevail on a claim of ineffective assistance of counsel, a defendant must show both "that counsel's performance was deficient," such that "counsel was not functioning as the 'counsel' [constitutionally] guaranteed," and "that the deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); People v. Centeno (2014) 60 Cal.4th 659, 674.)
To establish the first Strickland prong, a defendant must show that "counsel's performance . . . fell below an objective standard of reasonableness under prevailing professional norms." (People v. Mai (2013) 57 Cal.4th 986, 1009.) In evaluating this prong, "a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (Ibid.) Because the presumption of counsel's competence can typically be rebutted only with evidence outside the record, a reversal on direct appeal is not warranted unless "(1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (Ibid.)
To establish the second Strickland prong, a defendant must demonstrate "resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (People v. Mai, supra, 57 Cal.4th at p. 1009.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at p. 694.) "A defendant must prove prejudice that is a ' "demonstrable reality," not simply speculation.' " (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
B. Defense Counsel Did Not Render Ineffective Assistance by Failing to Object to the Trial Court's Inconsequential Remark.
Reynolds contends that his trial counsel rendered ineffective assistance by failing to object to the trial court's remark that it could rely on the jury's finding that Reynolds inflicted great bodily injury to impose the upper term for the assault conviction. We disagree.
Section 1170, subdivision (b) provides that when a defendant is sentenced to prison for a crime that has three possible terms, the choice of the appropriate term is within the discretion of the trial court. To select the term that best serves the interests of justice, the court may consider the probation report, statements in aggravation or mitigation, and any further evidence introduced at the sentencing hearing. (§ 1170, subd. (b).) The court is required to state its reasons for imposing the term it selects and "may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law." (Ibid., italics added.)
We agree with Reynolds that the trial court was mistaken when it suggested that it could use the jury's finding that he personally inflicted great bodily injury as an aggravating factor to impose the upper term for assault in addition to using it to impose the three-year sentencing enhancement. But the mistake had no bearing on the proceedings for at least two reasons. First, the prohibition contained in section 1170, subdivision (b) was inapplicable because it bars the use of an enhancement only when a court imposes an upper term, which the court here did not do. Second, the record fails to show that the court used the jury's finding that Reynolds personally inflicted great bodily injury at all in sentencing him for the assault conviction. Rather, the court suggested that it found the additional three years imposed as a result of the enhancement to be sufficient punishment. Thus, the failure by Reynolds's counsel to object to the court's mistaken remark did not constitute ineffective assistance. An attorney does not render ineffective assistance by failing to make a pointless objection. (See People v. Anderson (2001) 25 Cal.4th 543, 587.)
III.
DISPOSITION
The judgment is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Dondero, J.