Opinion
D072030
01-17-2018
THE PEOPLE, Plaintiff and Respondent, v. JOHN RYAN WEBB, Defendant and Appellant.
Sarah Garrick for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD264171) APPEAL from a judgment of the Superior Court of San Diego County, Michael S. Groch, Judge. Affirmed. Sarah Garrick for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
This case arises from a guilty plea to several offenses. The People did not enter into a plea agreement with the defendant, rather the trial judge indicated the sentence to be imposed in this case and the trailing probation revocations would be four years. The defendant pleaded "to the sheet," i.e., he pleaded guilty to all counts and admitted all allegations. He was sentenced in accordance with the trial court's "indication." In this appeal counsel argues that trial counsel was ineffective for failing to bring a motion to strike the serious/violent felony prior conviction, or to seek mitigation of the indicated sentence.
As we will explain, the record in this case is wholly inadequate for this court to determine if counsel's performance was defective, nor can we determine if appellant was prejudiced by the alleged failure. The remedy for the claimed deficiency in trial counsel's performance, if any, is by way of a petition for writ of habeas corpus filed in the trial court, not by this direct appeal.
FACTUAL AND PROCEDURAL BACKGROUND
John Webb was arrested after driving at excessive speeds on El Cajon Boulevard. Police pursued Webb in his vehicle for about one mile, at speeds over 90 miles per hour. The pursuit ended when Webb collided into another vehicle. Webb fled the scene on foot and officers found him hiding behind a gas station. Officers arrested Webb. During the arrest, officers employed maximum restraints because Webb was physically resisting the officers.
Before the preliminary hearing, Webb's counsel asked for a continuance for an opportunity to obtain Webb's medical information. Counsel believed the medical information could present a possible defense. The court denied a continuance because the court thought Webb posed a danger to the public.
Webb pled guilty to evading an officer with reckless driving (Veh. Code, § 2800.2, subd. (a); count 1), hit and run driving with injury (Veh. Code, §§ 20001, subd. (a), 20002, subd. (a); counts 2, 3), and resisting an executive officer (Pen. Code, § 148, subd. (a)(1); count 4). The trial court revoked probation and indicated the sentence would be four years in prison. After pleading guilty, Webb informed the trial court of his medical needs and prescribed medications.
During the sentencing hearing, Webb's counsel asked if the court would reconsider giving probation. The court responded that probation "will not be appropriate in light of the seriousness of the conduct." Webb's trial counsel then presented the court with medical documentation to be included in Webb's prison packet.
Webb appeals, arguing he was prejudiced from ineffective assistance of counsel.
DISCUSSION
On an appeal for ineffective counsel, the appellant must prove the trial counsel's assistance "fell below an objective standard of reasonableness" and that the assistance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 688, 692.) However, the California Supreme Court has "repeatedly stressed" that when the record offers no explanation for counsel's behavior, unless counsel failed to provide an explanation when asked or unless there is no possible explanation, " 'the claim on appeal must be rejected.' " (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266 (Mendoza Tello), quoting People v. Wilson (1992) 3 Cal.4th 926, 936.) The more appropriate action is a petition for writ of habeas corpus in the trial court. (Mendoza Tello, supra, at pp. 266-267.)
Webb contends his counsel was ineffective for failing to argue to strike Webb's prior conviction and failing to argue for sentencing mitigation based on Webb's medical history. Webb argues counsel's alleged failures resulted in prejudice.
Here, the record lacks any explanation or support for why Webb's counsel did or did not pursue striking the serious prior or mitigating the sentence. We cannot say there was no possible explanation for counsel's behavior. The record also does not indicate Webb's counsel was asked and failed to explain the conduct. We note from the probation report that Webb has performed poorly on probation, has been in continuous conflict with the law since 2009, and has engaged in dangerous driving and threatening behavior. He was on probation for his strike prior when he engaged in highly dangerous driving and fought with police. It is certainly not clear that a motion to strike the "strike" prior even had a remote chance of success. Therefore, this court cannot determine whether Webb's counsel acted unreasonably or whether the alleged ineffective counsel resulted in prejudice.
For example, one possible explanation could be that trial counsel reasonably believed any argument to strike the prior or mitigate the sentence would be futile. (Cf. People v. Price (1991) 1 Cal.4th 324, 387 ["Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile."].) --------
The appropriate action in this case, consistent with Mendoza Tello, supra, 15 Cal.4th 264, is a petition for writ of habeas corpus. In general, "ineffective assistance of counsel claims are properly decided in a habeas corpus proceeding rather than on appeal." (People v. Carrasco (2014) 59 Cal.4th 924, 980-981.) Further, the petition would not be barred because, "the rules generally prohibiting raising an issue on habeas corpus that was, or could have been, raised on appeal [citations] would not bar an ineffective assistance claim on habeas corpus." (Mendoza Tello, supra, at p. 267.) Accordingly, we affirm the judgment.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: NARES, J. DATO, J.