Opinion
B161272.
7-24-2003
THE PEOPLE, Plaintiff and Respondent, v. ALAN J. VASQUEZ, Defendant and Appellant.
William Flenniken, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
Alan J. Vasquez appeals from the judgment entered following his conviction after a jury trial for attempted willful, deliberate and premeditated murder, assault with a firearm and mayhem, with findings as to each count that he intentionally discharged a firearm causing great bodily injury. Vasquez was sentenced to state prison for a term of life with the possibility of parole, enhanced by an additional term of 25 years to life for intentionally discharging a firearm causing great bodily injury. The court stayed the sentences imposed for aggravated assault and mayhem pursuant to Penal Code section 654.
On Vasquezs initial appeal we concluded in an unpublished opinion that the trial court was unaware of its discretion to strike the finding of premeditation under Penal Code section 1385 and remanded the cause for resentencing. (People v. Vasquez (Oct. 23, 2001, B144865) [nonpub. opn.].) Because we had returned the matter to the trial court for resentencing, we did not reach Vasquezs contention his sentence constituted cruel and unusual punishment. We suggested, however, that Vasquez could raise the issue of cruel and unusual punishment in the trial court.
At resentencing the trial court denied probation and, expressly acknowledging its discretion under Penal Code section 1385, nonetheless declined to strike the finding of premeditation. The court reimposed a sentence of life with the possibility of parole, with an additional consecutive term of 25 years to life for the firearm use/great bodily injury enhancement. The terms imposed on the remaining offenses were again stayed pursuant to Penal Code section 654. Defense counsel did not raise a cruel and unusual punishment claim.
In this second appeal Vasquez contends he was denied the effective assistance of counsel by virtue of his defense lawyers failure to investigate and raise the issue of cruel and unusual punishment in the trial court on resentencing. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Vasquez, then age 14, and Christian Zepeda, age 18, were friends and lived across the street from one another. On March 22, 1999 they saw a rusty bicycle near some trash. Zepeda said, "Lets take it," and picked up the bicycle. Later, the youths argued over who was entitled to the bicycle. Angered, Vasquez obtained a handgun from a fellow gang member, returned to his front yard and shot Zepeda in the face from six feet away. Someone beat or kicked Zepeda after he fell on the ground unconscious. Vasquez fled.
Zepeda spent six weeks in the hospital. He lost one eye; and two bullet fragments were lodged in the back of his skull and his temple. Zepeda was readmitted to the hospital several times following his initial release. He suffered repeated seizures and headaches and was taking a variety of medications for his injuries.
While hospitalized Zepeda made no statement to the police because he initially could not recall the shooting. When he returned home, he spoke to the Long Beach Police Departments juvenile officers. The officers apparently told Zepeda he needed to give them the license plate number of Vasquezs family car. When Zepeda went to Vasquezs apartment complex to write down the license number, Vasquez threatened to hurt him again and reached to his waistband. Zepeda fled. A neighbor saw Vasquez enter his apartment and emerge with a handgun after Zepeda had gone.
Immediately after leaving the apartment complex, Zepeda stopped a police car patrolling the area and reported that Vasquez was his assailant. Vasquez was arrested several days later.
Testifying in his own defense, Vasquez claimed to be afraid of Zepeda due to the difference in their sizes and said Zepeda had previously bullied him. Vasquez acknowledged he and Zepeda had a dispute over who was entitled to the bicycle. However, Vasquez said he pointed the gun at Zepeda only to scare him and to prevent Zepeda from bullying him and testified the gun accidentally discharged during the confrontation, hitting Zepeda in the eye. Vasquez denied he threatened Zepeda or had a handgun on the day Zepeda attempted to record his car license number.
DISCUSSION
Vasquez contends he was denied the effective assistance of counsel at resentencing because defense counsel failed to investigate and advance the argument his enhanced sentence constituted cruel and unusual punishment. Specifically, Vasquez maintains defense counsel failed to request the appointment of appropriate experts to evaluate Vasquezs emotional maturity and individual circumstances or to file a new sentencing memorandum discussing the experts opinion in terms of the Eighth Amendment. To establish prejudice, Vasquez repeats the argument asserted in his first appeal that "placing a sixteen year old youth in Californias main line adult prison population for twenty-five years plus two life terms for a crime he committed when he was fourteen years old constituted cruel punishment in violation of the Eighth Amendment."
To prevail on his claim of ineffective assistance of counsel, Vasquez must establish his representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsels deficient performance, the outcome of the resentencing hearing would have been different. Strickland v. Washington (1984) 466 U.S. 668, 686-687 [104 S. Ct. 2052, 80 L. Ed. 2d 674]; People v. Cunningham (2001) 25 Cal.4th 926, 1003.) Vasquezs claim faces two insurmountable problems on this direct appeal.
First, there is a presumption the challenged action "might be considered sound trial strategy" under the circumstances. (Strickland v. Washington, supra, 466 U.S. at p. 689; accord, People v. Dennis (1998) 17 Cal.4th 468, 541, 950 P.2d 1035.) On a direct appeal a conviction will only be reversed for ineffective assistance of counsel where the record affirmatively demonstrates there could have been no rational tactical purpose for counsels challenged act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 442, 907 P.2d 373.) Because the record in this case suggests counsel, as a matter of tactics, may have decided to focus his resentencing argument on urging leniency by the trial court, rather than presenting a more formalistic, legal argument, we cannot say there was no rational purpose for what occurred. " Where the record does not illuminate the basis for the challenged acts or omissions, a claim of ineffective assistance is more appropriately made in a petition for habeas corpus. [Citations.]" (People v. Avena (1996) 13 Cal.4th 394, 419, 916 P.2d 1000, italics omitted.)
Second, in his original appeal Vasquez had argued imposition of a life sentence and a consecutive sentence of 25 years to life violated the Eighth Amendment in light of his age. (Vasquez was 14 years old when he committed the offense and 16 years old when he was sentenced.) In our earlier opinion we stated, "There is too little personal information on the record as it stands to conclude appellants personal situation beyond his age is mitigating." (People v. Vasquez, supra, B144865, at p. 6.) In light of that conclusion, absent development of an adequate record demonstrating what further additional evidence and argument might have been presented to the court on resentencing, Vasquez has failed to meet his burden of showing a reasonable probability he would have obtained a better result if counsel had requested and obtained appointment of experts and prepared a new sentencing memorandum directed to his Eighth Amendment argument. (Strickland v. Washington, supra, 466 U.S. at p. 694.)
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., and MUNOZ (AURELIO), J. --------------- Notes: Vasquezs birth date is May 22, 1984. 2. Vasquezs argument is predicated on the statement in our earlier opinion that any further cruel and unusual punishment claim should be supported "with factual information about his criminal history, as well as with information regarding his emotional maturity and individual circumstances." (People v. Vasquez, supra, B144865, at p. 6.) * Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.