Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD217420, Robert F. O'Neill, Judge, and petition for writ of habeas corpus.
IRION, J.
A jury convicted Kenneth N. Shaw of one count of offering to sell cocaine base. (Health & Saf. Code, § 11352, subd. (a).) Shaw admitted five prior drug convictions (Health & Saf. Code, § 11370.2, subd. (a)) and eight prison priors (Pen. Code, § 667.5, subd. (b)). On April 24, 2009, the trial court sentenced Shaw to prison for five years: the low term of three years for the conviction plus one additional year each for two of the prison priors. The remainder of the priors and allegations were stricken.
All further statutory references are to the Penal Code.
Shaw appeals, contending trial counsel was ineffective by failing to move for a new trial. Shaw also filed a petition for writ of habeas corpus making the same contention, which we ordered considered with this appeal. In supplemental briefing, Shaw contends he is entitled to a recalculation of his presentence credits under recently amended section 4019. As we explain below, in this consolidated matter we affirm the judgment, but deny without prejudice Shaw's habeas corpus petition and his claim for recalculation of presentence credits to allow the trial court to address those issues in the first instance.
BACKGROUND
Prosecution's Case
In November 2008 San Diego Police Officer Juan Cisneros conducted an undercover narcotics operation in a high drug traffic area in downtown San Diego. Shaw walked toward Officer Cisneros, and Officer Cisneros asked if "they have it down there." Officer Cisneros was referring to cocaine base when he asked Shaw about "it." Shaw replied, "I got it" or "I got it. Come on." Shaw and Officer Cisneros began walking together.
Shaw asked Officer Cisneros how much he wanted, and Officer Cisneros replied "a 20, " meaning $20 worth of cocaine base. Shaw appeared to retrieve something from his waistband area, and then held out his hand and showed Officer Cisneros two pea-sized objects wrapped in black plastic. Shaw said they were "good." When Shaw attempted to remove the objects from the plastic, Officer Cisneros turned toward a third person, Tina Gilbert, and asked her for "a 20." Gilbert then sold Officer Cisneros an off-white substance, later identified as cocaine base. Officer Cisneros signaled to other officers to move in and conduct an arrest.
Officer Cisneros then turned back to Shaw and told him he still wanted "a 20." Shaw turned away and placed the objects into his mouth, or moved as if he were putting something in his mouth. Although Officer Cisneros never saw the objects Shaw had wrapped in plastic, and never gave Shaw any money, he believed Shaw was offering to sell him narcotics. The two pea-sized objects were never recovered.
Section 1118.1 Motion for Acquittal
Near the close of the prosecution's case, the trial judge made several comments regarding the evidence against Shaw, including that he would not have prosecuted the case were he the district attorney. At the close of the prosecution's case, defense counsel moved for a judgment of acquittal under section 1118.1 based on insufficiency of the evidence. The trial court denied the motion without prejudice, concluding there was sufficient evidence at that point in the proceedings, but commented that the evidence was circumstantial and that the case was a jury trial, not a court trial.
Shaw's Defense
Jacqueline Strong testified for Shaw. She stated that she had known Shaw for eight or nine years, and that he is "a very nice man." According to Strong, Shaw was anxious on the day of the arrest because he could not get in touch with a business partner. Two weeks earlier, Shaw had given the partner money to purchase tools, but had been unable to locate him since. Strong testified that Shaw told her he was in the downtown area looking for his missing business partner.
Counsel's closing argument focused on the insufficiency of the evidence, emphasizing the lack of evidence that the pea-sized objects Shaw showed Officer Cisneros were cocaine base or that they were even drugs.
Invitation to File a Motion and Counsel's Failure to Comply
After the defense rested, the trial court stated that if the jury convicted Shaw, "[t]hen it becomes a sentencing case.... Then I have to do something, don't I?" Defense counsel replied: "Well, I don't know. I think you can still bite on the [section] 1118[.1 motion], which would really be the right call, but, yes, you have to do something if there is a conviction." The trial court then stated, "We will have the jury come in at 9:45 [the next morning] and we will go from there. First thing is, you will make your motion, ... and we will go from there." Defense counsel failed to file any motion.
Sentencing
The jury convicted Shaw of the sole count of offering to sell cocaine base. During sentencing, the trial court again expressed his doubts about the strength of the case against Shaw. The trial court noted that there was no "buy money" involved, the woman who sold drugs to Officer Cisneros was "in the wind, " no contraband was recovered, there was no visible evidence that Shaw was under the influence, and no tests were conducted to determine whether Shaw had cocaine in his body. The trial court stated that the prosecutor "successfully pulled a rabbit out of a hat" by obtaining the conviction. The trial court then rejected the prosecutor's suggestion for an upper term determinate sentence given his view of the evidence and concluded the low term of three years was appropriate, and that six of the eight prior prison term enhancements, along with all other allegations, would be stricken. Accordingly, the trial court sentenced Shaw to prison for a total term of five years.
DISCUSSION
I
The Appellate Record Does Not Establish Counsel Was Ineffective for Failing to Move for a New Trial
Shaw contends his trial attorney was ineffective by failing to file a motion for new trial given the trial court's repeated comments on the weakness of the prosecution's case, and because the trial court specifically invited defense counsel to file a motion. Shaw contends a motion for new trial under section 1181, subdivision (6) could have been brought on the basis that the " 'verdict or finding is contrary to law or evidence.' " Shaw further contends that in reviewing such a motion, the trial court is not bound by the jury's determinations as to the credibility of witnesses or to the weight or effect to be accorded to the evidence. Based on this standard, and the trial court's repeated criticisms of the prosecution's case, Shaw contends that by failing to file a new trial motion, defense counsel did not perform in a manner expected of a reasonably competent attorney. Finally, Shaw asserts he was prejudiced by defense counsel's failure because, given the trial court's skeptical view of the evidence, there was a reasonable probability the trial court would have granted a motion for new trial.
Addressing Shaw's ineffective assistance of counsel claim, the Attorney General contends that a motion for new trial would have been denied because the trial court denied a section 1118.1 motion for acquittal at the close of the prosecution's case. The Attorney General also contends that the motion would have been denied because the testimony of a single witness, Officer Cisneros, was sufficient to establish Shaw's guilt.
To obtain relief on the ground of ineffective assistance of counsel, a defendant has the burden of establishing both counsel's deficiency and resulting prejudice, i.e., (1) that " 'counsel's representation fell below an objective standard of reasonableness... under prevailing professional norms' " (In re Fields (1990) 51 Cal.3d 1063, 1069, quoting Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland)); and (2) " 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different' " (In re Fields, at p. 1070, quoting Strickland, at p. 694).
When a claim of ineffective assistance of counsel is raised on direct appeal, reversal is permitted " ' "only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission." ' " (People v. Lucas (1995) 12 Cal.4th 415, 445 (Lucas), alteration in original.) If the "record does not demonstrate there could be no rational tactical reason for [an] omission, " the claim fails. (Id. at p. 442; People v. Anderson (2001) 25 Cal.4th 543, 569 ["When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation."].)
Here, the appellate record does not show the tactical reason for counsel's failure to file a motion for new trial. To decide Shaw's contention on direct appeal would require us to speculate as to the reasons counsel failed to act, which we are prohibited from doing. (People v. Diaz (1992) 3 Cal.4th 495, 557 ["To engage in... speculations [about counsel's failure to act] would involve the reviewing court ' "in the perilous process of second-guessing." ' ") Moreover, we note that on appeal Shaw has not challenged the sufficiency of the evidence against him. We are therefore left with no other avenue for reviewing the judgment on appeal. Under these circumstances, the conviction must be affirmed. (Lucas, supra, 12 Cal.4th at p. 445.)
II
Shaw's Habeas Petition Should Be Refiled in the Trial Court
Shaw filed a habeas petition in this court, which we ordered considered with this appeal. As mentioned above, Shaw repeats the same contention of ineffective assistance of counsel, and includes declarations regarding counsel's purported reasons for failing to file the motion. However, under applicable rules, a prisoner must "ordinarily... file a petition in a lower court first." (Carey v. Saffold (2002) 536 U.S. 214, 221.) This is especially true here, where we must evaluate whether the trial court would have granted a motion for new trial in light of its apparent misgivings regarding the prosecution's case and its invitation to counsel to "make your motion." (Strickland, supra, 466 U.S. at pp. 688, 694.) It would require another speculative leap for us to decide, in the first instance, what the trial court might have done under these circumstances. (People v. Williams (1988) 44 Cal.3d 883, 937 ["to be entitled to reversal of a judgment on grounds that counsel did not provide constitutionally adequate assistance, the petitioner must carry his burden of proving prejudice as a 'demonstrable reality, ' not simply speculation as to the effect of the errors or omissions of counsel"].) We conclude that the trial court is in the best position to address Shaw's habeas argument in the first instance. We therefore deny the petition without prejudice to refiling it in the trial court. (In re Steele (2004) 32 Cal.4th 682, 692 ["both trial and appellate courts have jurisdiction over habeas corpus petitions, but a reviewing court has discretion to deny without prejudice a habeas corpus petition that was not filed first in a proper lower court"]; Carey, at p. 221.)
III
Appellant's Request for Recalculation of Credits Should Also be Directed in the First Instance to the Trial Court
Under section 2900.5, a defendant sentenced to imprisonment is entitled to presentence custody credits calculated by a formula pursuant to section 4019. When Shaw was sentenced in February 2009, the formula provided for one day of work time credit and one day of conduct credit for each six-day period of custody. (Former § 4019, subds. (b), (c).) Effective January 25, 2010, the formula was amended to provide for one day of work time credit and one day of conduct credit for every four-day period of custody. (§ 4019, subds. (b), (c), as amended by Stats. 2009-2010, 3d Ex.Sess., ch. 28, § 50.) Shaw contends he is entitled to a recalculation of his credits under the amendments to section 4019, which would increase his credits award from 231 to a total of 309 credits. The Attorney General asserts Shaw is not entitled to additional credits because the change in the law applies prospectively.
Section 1237.1 provides that "[n]o appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless... the defendant first makes a motion for correction of the record in the trial court." (Ibid.) "If a case is pending on appeal, section 1237.1 vests the trial court with the power to rule on a request for additional credits." (People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8.) Accordingly, counsel should "attempt correction [of presentence custody credits] in the trial court before elevating the issue to the stature of formal appeal. If the dispute cannot be resolved by motion in the superior court, appeal is always available." (People v. Fares (1993) 16 Cal.App.4th 954, 960 (Fares); see also People v. Wrice (1995) 38 Cal.App.4th 767, 772-773.) The trial court's "power to correct its judgment includes corrections required not only by errors of fact (as in the mathematical calculation) but also by errors of law." (Fares, at p. 958.)
Given the Legislative directive that no appeal shall be taken on the ground of an error in the calculation of presentence custody credits, and that such a challenge may be raised at any time, we conclude Shaw should also raise this contention in the trial court in the first instance. (§ 1237.1; Fares, supra, 16 Cal.App.4th at pp. 958-960.)
DISPOSITION
The judgment is affirmed. The petition is denied without prejudice for determination before the Honorable Robert F. O'Neill in the first instance.
WE CONCUR: BENKE, Acting P. J., HALLER, J.