Opinion
H036737
01-12-2012
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO VASQUEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. EE906964)
After a night of heavy drinking at a local bar, Defendant Francisco Vasquez left the bar and pushed himself into the victim's parked car while she was sitting in the driver's seat. They struggled over control of the car, but when she was unable to push the defendant out of the car, she reached for the passenger door and attempted to flee. According to the victim, defendant reached over and pulled the door shut and held it shut. When the defendant put the car in gear and began to drive, the victim pulled the emergency break and grabbed the keys out of the ignition and ran away. Defendant fled the scene.
Defendant was apprehended at a nearby home owned by his friend and charged with one count of carjacking (Pen. Code, § 215), and one count of kidnapping during a carjacking. (Pen. Code, § 209.5.) It was further alleged that he had one strike prior (Pen. Code, §§ 667, subd. (b)-(i), 1170.12), and one prior serious felony conviction. (Pen. Code, § 667, subd. (a).) A jury found defendant guilty of the carjacking count. The jury found him not guilty of the kidnapping, but instead found him guilty of the lesser included charge of attempted kidnapping during a carjacking. (Pen. Code, §§ 664, 209.5.) Defendant admitted the prior conviction allegations, but moved to strike his strike prior pursuant to Penal Code section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
The trial court dismissed the carjacking count as a lesser included offense of attempted kidnapping during a carjacking pursuant to People v. Ortiz (2002) 101 Cal.App.4th 412 and Penal Code section 654, but denied the Romero motion. The court sentenced defendant to a total of 19 years and ordered him to pay a variety of restitution, fees and fines. This timely appeal ensued.
On appeal, appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. On September 14, 2011 we received and filed a handwritten letter from defendant.
In his letter, defendant contends that on the day of the incident he was smoking marijuana and drinking alcohol in large quantities the entire day. He claims that he experienced a "black-out" and does not recall the incident or any event leading up to the incident. Defendant's various contentions can be summarized as claims of ineffective assistance of trial counsel. He points out that no toxicologist was retained to evaluate his blood alcohol level or testify on his behalf at trial. He further complains that trial counsel failed to bring certain facts about his prior serious injuries and resulting drug abuse to the attention of the jury. Finally, defendant contends that the alcohol and drug induced black-out he suffered precluded him from forming the requisite intent for the crime of which he was convicted.
" 'The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant. The proof . . . must be a demonstrable reality and not a speculative matter.' [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 656.) There is a presumption the challenged action " 'might be considered sound trial strategy' " under the circumstances. (Strickland v. Washington (1984) 466 U.S.668, 689, 694; accord, People v. Dennis (1998) 17 Cal.4th 468, 541.) "On a direct appeal, a conviction will be reversed for ineffective assistance of counsel only when the record demonstrates there could have been no rational tactical purpose for counsel's challenged act or omission. [Citations.]" (People v. Mesa (2006) 144 Cal.App.4th 1000, 1007-1008.) In reviewing effective assistance of counsel claims, therefore, we bound by the record before us. The record here does not support defendant's claim that he suffered a "black-out," suffered injuries which he was self-medicating, or was addicted to drugs and alcohol. Without such evidence, we are unable to evaluate whether trial counsel had a tactical reason for not raising these issues or was ineffective in failing to raise them in defense.
Pursuant to our obligation as set forth in People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record on appeal. We conclude that there are no arguable issues. Therefore, we will affirm the judgment.
DISPOSITION
The judgment is affirmed.
RUSHING, P.J.
WE CONCUR:
PREMO, J.
ELIA, J.