Filed 5/13/16 P. v. Dillard CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA


THE PEOPLE,                                                         D068007

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD259924)

DAMION RAY DILLARD,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Timothy

R. Walsh, Judge. Affirmed.

         Law Offices of Simon & Pizarro and David A. Simon, Antony R. Pizarro for

Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland,

Assistant Attorneys General, Scott C. Taylor and Junichi P. Semitsu, Deputy Attorneys

General, for Plaintiff and Respondent.
       Damion Ray Dillard pleaded guilty to assault by means likely to produce great

bodily injury (Pen. Code,1 § 245, subd. (a)(4); count 1), cruelty to a child by inflicting

injury (§ 273a, subd. (b); count 2), and possession of a controlled substance (Health &

Saf. Code, § 11350, subd. (a); count 3). The trial court sentenced Dillard to the two-year

lower prison term on count 1.

       On appeal, Dillard contends the rule of In re Williamson (1954) 43 Cal.2d 651,

654 (Williamson),2 barring prosecution under a general statute if a specific statute

applies, precludes his prosecution under count 1 because section 243, subdivision (e)(1)

is a specific statute for misdemeanor battery of a spouse that applies to his case. He also

asserts violation of the Williamson rule deprived him of equal protection under the law

and his trial counsel rendered ineffective assistance by failing to raise the Williamson rule

and equal protection issues below. We affirm the judgment.

                  FACTUAL AND PROCEDURAL BACKGROUND3

       On July 4, 2014, at 10:00 p.m., Dillard was driving home from a fireworks show

with his wife, Cora Sandoval, and their son. While waiting in traffic, Dillard and

Sandoval got into an argument after Sandoval accused Dillard of looking at other women.


1      All statutory references are to the Penal Code unless otherwise stated.
2      Dillard refers to the rule as the "Swann-Gilbert rule." (People v. Gilbert (1969) 1
Cal.3d 475, 479; People v. Swann (1963) 213 Cal.App.2d 447, 449.) The California
Supreme Court has referred to this rule as the "Williamson rule." (People v. Murphy
(2011) 52 Cal.4th 81, 86, citing In re Williamson, supra, 43 Cal.2d at p. 654.) We do so
as well, to conform our analysis of the issue to the Supreme Court's usage.

3     The facts are derived from the February 2015 preliminary hearing, at which both
Sandoval and their son denied that Dillard struck Sandoval.
                                              2
Their son saw the argument from the back seat and asked his mother to stop arguing and

yelling. Witnesses waiting in traffic called 911 after seeing Dillard hit Sandoval in the

head four or five times, and also reach back to hit someone in the back seat. Officers

detained Dillard and searched him, revealing a cigarette package containing a small bag

of cocaine. Sandoval neither spoke to police nor allowed police speak to their son.

       In March 2015, Dillard pleaded guilty to all counts. The court accepted Dillard's

plea and imposed an order requiring him to stay away from Sandoval and their son. At

the sentencing hearing, the court denied probation and sentenced Dillard to the lower

two-year prison term on count 1. Dillard timely appealed.

                                       DISCUSSION

                      I. Dillard's Appeal is Not Procedurally Barred

       As a threshold matter, we address the People's contentions that Dillard's appeal is

procedurally barred because (1) his certificate of probable cause did not specify the issues

raised in his opening brief and (2) he waived his appellate rights as part of his plea

bargain.

A. Certificate of Probable Cause

       The People contend Dillard's claims regarding the Williamson rule, equal

protection, and ineffective assistance of counsel are not cognizable on appeal because he

did not specify those issues in his statement supporting his request for certificate of

probable cause.

       Dillard timely filed a pro se notice of appeal challenging the validity of the plea

and included a request for certificate of probable cause. Dillard based his request for

                                              3
certificate of probable cause solely on the ground he did not agree to a prison term: "I

signed a plea [bargain] for probation and county time but was sentenced to 2 years with

half to state prison. I did not sign for prison." The trial court found Dillard showed

"reasonable constitutional, jurisdictional, or other grounds for appeal relating to the

legality of the proceedings" and certified there was probable cause to appeal.

          Section 1237.5 provides in part that "[n]o appeal shall be taken by the defendant

from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation

of probation following an admission of violation, except where both of the following are

met: [¶] (a) The defendant has filed with the trial court a written statement, executed

under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or

other grounds going to the legality of the proceedings. [¶] (b) The trial court has

executed and filed a certificate of probable cause for such appeal with the clerk of the

court."

          In general, a defendant may not appeal a judgment of conviction based on a guilty

plea unless the defendant has sought and obtained a certificate of probable cause from the

trial court. (§ 1237.5; Cal. Rules of Court, rule 8.304(b); People v. Arriaga (2014) 58

Cal.4th 950, 958; People v. Johnson (2009) 47 Cal.4th 668, 678.) The purpose of this

requirement is to preclude appeals that do not raise issues cognizable after a guilty plea or

those that are "wholly frivolous" (In re Chavez (2003) 30 Cal.4th 643, 649-651) or

vexatious. (People v. Buttram (2003) 30 Cal.4th 773, 781.) If the defendant obtains a

certificate of probable cause they may raise issues concerning the jurisdiction of the court

or the legality of the plea proceedings. (People v. Hoffard (1995) 10 Cal.4th 1170, 1178.)

                                               4
       Dillard's failure to specify the claims in his statement does not necessarily

preclude appellate review. "The trial court must issue the certificate if the defendant's

statement under section 1237.5 presents 'any cognizable issue for appeal which is not

clearly frivolous and vexatious . . . .' [Citation.] The defendant's statement need not list

every potential issue; if the trial court issues the certificate based on even a single

nonfrivolous claim, the defendant may raise all of his or her claims on appeal—those that

require a certificate as well as those that do not—even if they were not identified in the

statement filed with the trial court." (People v. Johnson, supra, 47 Cal.4th at p. 676,

italics added.) Because the trial court was satisfied that Dillard's statement raised

cognizable issues warranting issuance of a certificate of probable of cause, all of Dillard's

cognizable claims may be heard on appeal. (See ibid.)

B. Waiver of Appellate Rights

       The People assert Dillard "waived all appellate rights pertaining to his plea."

(Italics added.) The contention is without merit. Dillard initialed a limited waiver of

appeal rights that stated in part: "I give up my right to appeal the following: 1) denial of

my [section] 1538.5 motion, 2) issues related to strike priors (under . . . sections 667(b)-

(i) and 1170.12), and 3) any sentence stipulated herein." Here, Dillard neither challenges

a ruling on a section 1538.5 motion nor issues relating to strike priors. Despite Dillard's

statement in his request for certificate of probable cause that he bargained for "probation

and county time," there is nothing in the plea form indicating an agreement that he would

receive a certain sentence or that he would not dispute a sentence within a certain range.

Rather, the form only acknowledged that Dillard faced a maximum sentence of four

                                               5
years. Furthermore, the trial court orally advised Dillard he did not make any deals with

the People and could face the maximum punishment.

       Finally, Dillard's challenge under Williamson involves his charges and

prosecution, not sentencing. Dillard's waiver of his right to appeal from any stipulated

sentence does not prevent him from raising his Williamson or equal protection arguments.

        II. Dillard's Prosecution on Count 1 Did Not Violate the Williamson Rule

       Dillard's defense counsel orally moved to reduce count 1 to a misdemeanor under

Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 128, but nothing in the record indicates

counsel raised the issues Dillard seeks to challenge on appeal. The People argue Dillard

failed to raise the Williamson and equal protection issues in the trial court, forfeiting

those challenges. Dillard concedes his counsel's omissions, and argues the absence of a

proper motion, as well as his counsel's advice that he plead guilty, amounted to

constitutionally ineffective assistance. Though Dillard's failure to raise these matters in

the trial court arguably forfeits them,4 we address them on the merits so as to evaluate

Dillard's ineffective assistance of counsel claim.




4       A motion to dismiss is the proper method for a defendant to challenge prosecution
under a general statute if a more specific statute is factually applicable. (See e.g., People
v. Jenkins (1980) 28 Cal.3d 494, 499; People v. York (1998) 60 Cal.App.4th 1499, 1502-
1503.) Failure to file the motion at trial forfeits the issue on appeal. (See generally In re
S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2 ["[A] person who fails to preserve a claim
forfeits that claim"], superseded by statute on other grounds as noted in In re T.G. (2015)
242 Cal.App.4th 976, 984.) Similarly, a defendant may forfeit an equal protection claim
by failing to raise or develop it in the trial court. (See People v. Alexander (2010) 49
Cal.4th 846, 880, fn. 14; People v. Hartshorn (2012) 202 Cal.App.4th 1145, 1151; but
see Wallace v. Miller (1983) 140 Cal.App.3d 636, 645; People v. Miranda (2011) 199
                                              6
       Dillard contends that under Williamson, the statute proscribing spousal battery,

section 243, subdivision (e)(1), precluded prosecution in this case for assault by means

likely to produce great bodily injury (otherwise referred to as aggravated assault, see

People v. Andrews (2015) 234 Cal.App.4th 590, 598) proscribed by section 245,

subdivision (a)(4).5 According to Dillard, the Legislature intended misdemeanor spousal

battery, which Dillard asserts is a far more specific offense with a "special relationship"

requirement, to apply to defendants that engage in domestic violence but do not cause

physical or "traumatic" injury. The People respond that the Williamson rule did not

preclude Dillard's conviction because the statutes are distinct, cover different acts, and

serve different legislative purposes. They point out that all of the elements of each statute

do not correspond with the other and a violation of the spousal battery statute does not

necessarily or commonly result in a violation of the aggravated assault statute.




Cal.App.4th 1403, 1426 [addressing merits of equal protection argument raised for the
first time on appeal].)

5      "An assault is an unlawful attempt, coupled with a present ability, to commit a
violent injury on the person of another." (§ 240.) "Any person who commits an assault
upon the person of another by any means of force likely to produce great bodily injury
shall be punished by imprisonment in the state prison for two, three or four years, or in
a county jail for not exceeding one year, or by a fine not exceeding ten thousand
dollars . . . , or by both the fine and imprisonment." (§ 245, subd. (a)(4).) "A battery is
any willful and unlawful use of force or violence upon the person of another." (§ 242.)
When a battery is committed against a spouse, "the battery is punishable by a fine not
exceeding two thousand dollars . . . , or by imprisonment in a county jail for a period of
not more than one year, or by both that fine and imprisonment." (§ 243, subd. (e)(1).)
                                              7
A. Legal Principles

       In Williamson, the court held that "where [a] general statute standing alone would

include the same matter as [a] special act, and thus conflict with it, the special act will be

considered as an exception to the general statute whether it was passed before or after

such general enactment." (Williamson, supra, 43 Cal.2d at p. 654; see People v.

Cockburn (2003) 109 Cal.App.4th 1151, 1158.) "Under the Williamson rule, if a general

statute includes the same conduct as a special statute, the court infers that the Legislature

intended that conduct to be prosecuted exclusively under the special statute. In effect, the

special statute is interpreted as creating an exception to the general statute for conduct

that otherwise could be prosecuted under either statute." (People v. Murphy, supra, 52

Cal.4th at p. 86.)

       "Absent some indication of legislative intent to the contrary, the Williamson rule

applies when (1) 'each element of the general statute corresponds to an element on the

face of the special statute' or (2) when 'it appears from the statutory context that a

violation of the special statute will necessarily or commonly result in a violation of the

general statute.' [Citation.] In its clearest application, the rule is triggered when a

violation of a provision of the special statute would inevitably constitute a violation of the

general statute." (People v. Murphy, supra, 52 Cal.4th at p. 86.) " 'The fact that the

Legislature has enacted a specific statute covering much the same ground as a more

general law is a powerful indication that the Legislature intended the specific provision

alone to apply. Indeed, in most instances, an overlap of provisions is determinative of

the issue of legislative intent and "requires us to give effect to the special provision alone

                                               8
in the face of the dual applicability of the general provision . . . and the special

provision . . . ." ' " (Ibid., quoting People v. Jenkins (1980) 28 Cal.3d 494, 505-506.)

"On the other hand, if the more general statute contains an element that is not contained

in the special statute and that element would not commonly occur in the context of a

violation of the special statute, we do not assume that the Legislature intended to

preclude prosecution under the general statute. In such situations, because the general

statute contemplates more culpable conduct, it is reasonable to infer that the Legislature

intended to punish such conduct more severely." (Murphy, at p. 87.)

       The fact that the general statute contains an element not within the special statute

does not necessarily preclude application of the Williamson rule. (People v. Murphy,

supra, 52 Cal.4th at p. 87.) " 'It is not correct to assume that the [Williamson] rule is

inapplicable whenever the general statute contains an element not found within the four

corners of the "special" law. Rather, the courts must consider the context in which the

statutes are placed. If it appears from the entire context that a violation of the "special"

statute will necessarily or commonly result in a violation of the "general" statute, the

Williamson rule may apply even though the elements of the general statute are not

mirrored on the face of the special statute.' " (Murphy, at p. 87.)

B. Analysis

       We do not ascertain the Legislature's intent to have the spousal abuse statute

supplant the aggravated assault statute in cases where a defendant batters his wife without

causing significant injury. Although there is some overlap between the conduct

proscribed in the two sections, each element does not have a counterpart. A violation of

                                               9
section 245, subdivision (a)(4) can occur without actual physical contact with the victim.

(People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) It requires only that the defendant

commit an assault "by means of force likely to produce great bodily injury." The

aggravated assault statute is " 'directed at the force used, and it is immaterial whether

the force actually results in any injury. The focus is on force likely to produce great

bodily injury.' " (People v. White (2015) 241 Cal.App.4th 881, 884; see also Aguilar, at

p. 1028.) Inversely, section 243, subdivision (e)(3) requires harmful or physical contact,

but does not consider whether the force used was likely to produce great bodily injury.

" ' "Any harmful or offensive touching constitutes an unlawful use of force or violence"

under this statute. "It has long been established that 'the least touching' may constitute

battery. In other words, force against the person is enough; it need not be violent or

severe, it need not cause bodily harm or even pain, and it need not leave a mark." ' "

(People v. Dealba (2015) 242 Cal.App.4th 1142, 1149, citing People v. Shockley (2013)

58 Cal.4th 400, 404-405.) Further, an element of section 243, subdivision (e)(1) not

present in the aggravated assault statute is the requirement of a specific relationship with

the victim. (See People v. Upsher (2007) 155 Cal.App.4th 1311, 1324.) An assault with

force likely to produce great bodily injury may be committed without committing spousal

battery, and vice versa, thus the statutes, with respect to their elements, do not conflict.

(See, e.g., People v. Yeats (1977) 66 Cal.App.3d 874, 878 [undertaking lesser included

offense analysis, battery is not an offense necessarily included within assault by means of

force likely to produce great bodily injury].) Because each element of the aggravated



                                              10
assault statute does not correspond to an element on the face of the spousal battery

statute, Dillard cannot meet the first prong of the Williamson rule.

       Turning to the second prong of the Williamson rule, we cannot say a violation of

the spousal battery statute necessarily or commonly also violates the aggravated assault

statute. As stated, a violation of section 243, subdivision (e)(1) requires unlawful use of

force or violence, which can be manifested by " '[a]ny harmful or offensive touching' "

(People v. Shockley, supra, 58 Cal.4th at p. 404) against a spouse or other person with

whom the defendant holds a special relationship. Spousal battery may be committed

directly or indirectly (People v. Dealba, supra, 242 Cal.App.4th at p. 1150, 1151); it may

occur from a forceful grab, a push to the ground, causing another object to touch the

victim, or even a slight touching, if done in a " ' "rude or angry way." ' " (James v. State

(2014) 229 Cal.App.4th 130, 138.) Nonviolent force suffices. (Id. at p. 137; Shirey v.

Los Angeles County Civil Service Commission (2013) 216 Cal.App.4th 1, 14.) The

Legislature has found "these specified crimes merit special consideration when imposing

a sentence so as to display society's condemnation for these crimes of violence upon

victims with whom a close relationship has been formed." (§ 243, subd. (e)(4).) In

contrast, an aggravated assault must be committed by the use of force likely to produce

great bodily injury, regardless of the nature of the relationship between the defendant and

the victim. " ' "The gravamen of the crime defined by . . . section 245 is the likelihood

that the force applied or attempted to be applied will result in great bodily injury." ' "

(People v. Hall (2000) 83 Cal.App.4th 1084, 1089, overruled on another ground in

People v. Correa (2012) 54 Cal.4th 331, 343-344.)

                                              11
       At bottom, the question is one of Legislative intent (People v. Cockburn, supra,

109 Cal.App.4th at p. 1160), and Dillard has not shown, and we see no indication, that

when the Legislature enacted section 243, subdivision (e)(4), it contemplated that spousal

battery would commonly be accomplished by force likely to produce great bodily injury,

barring a conviction under the general aggravated assault statute. The statutes have

different purposes and requirements, one designed to protect those who share a home or

child with another, making them uniquely vulnerable, and the other protecting people

from others who seek to cause substantial bodily injury. We conclude this is a situation

where the aggravated assault statute "contains an element that is not contained in the

[spousal battery] statute," which "would not commonly occur in the context of a violation

of the [spousal battery] statute" (People v. Murphy, supra, 52 Cal.4th at p. 87),

preventing us from assuming the Legislature intended to preclude Dillard's prosecution

for aggravated assault. The aggravated assault statute contemplates more culpable

conduct, thus it is reasonable to infer that the Legislature intended to punish it more

severely. (Ibid.) Because the Williamson rule does not apply, section 243, subdivision

(e)(1) does not preclude prosecution under section 245, subdivision (a)(4).

  III. Dillard's Conviction and Sentence Did Not Violate His Right to Equal Protection

                                         of the Law

       Dillard asserts the People violated his right to equal protection by treating him

differently from similarly situated defendants who committed domestic violence but

did not physically injure the victim. He maintains that by prosecuting



                                             12
him for aggravated assault under section 245, subdivision (a)(4) rather than corporal

injury to a spouse resulting in a traumatic condition (§ 273.5) or spousal battery

(§ 243, subd. (e)(1)), the People deprived him of both a defense (i.e. the absence of a

traumatic condition for purposes of section 273.5) and subjected him to a harsher

punishment than similarly situated defendants charged under section 243, subdivision

(e)(1).

A. Legal Principles

          The right to equal protection of the laws is guaranteed by the Fourteenth

Amendment to the federal Constitution and article I, section 7 of the California

Constitution. "It is a fundamental principle that, '[t]o succeed on [a] claim under the

equal protection clause, [a defendant] first must show that the state has adopted a

classification that affects two or more similarly situated groups in an unequal manner.' "

(People v. Wilkinson (2004) 33 Cal.4th 821, 836.) " 'Equal protection applies to ensure

that persons similarly situated with respect to the legitimate purpose of the law receive

like treatment; equal protection does not require identical treatment.' " (People v.

Superior Court (Manuel G.) (2002) 104 Cal.App.4th 915, 933.) The defendant must then

show the challenged classification does not bear a rational relationship to a legitimate

state purpose. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199, 1200, overruled on

other grounds in Johnson v. Department of Justice (2015) 60 Cal.4th 871, 875.)

          In People v. Parrish (1985) 170 Cal.App.3d 336, the defendant argued his

punishment under section 245, subdivision (a), combined with imposition of an

enhancement for inflicting great bodily under section 12022.7, constituted double

                                               13
punishment, because the former punished attempted aggravated battery while the latter

punished a completed aggravated battery. (Id. at p. 343.) The defendant also maintained

his punishment violated his equal protection rights because his punishment under section

245, subdivision (a) exceeded the maximum sentence for battery with great bodily injury

under section 243, subdivision (d)6 despite the fact those two sections were functionally

equivalent. (Id. at p. 345.)

       In rejecting the defendant's double punishment argument, the appellate court

recognized section 245, subdivision (a) "defines a crime which is separate and distinct

from the battery crimes contained in Penal Code section 243." (People v. Parrish, supra,

170 Cal.App.4th at p. 343.) "Punishment under section 245, subdivision (a), is directed

at the force used, and it is immaterial whether the force actually results in any injury.

The focus is on force likely to produce great bodily injury. [Citation.] [¶] Infliction of

great bodily injury is not an element of assault by means likely to produce great bodily

injury. The penalty for assault does not contemplate punishment for the infliction of

great bodily injury. [Citation.] Where assault by means of force likely to produce great

bodily injury has occurred, the assault itself represents a completed crime due to the use

of the force. [Citation.] [¶] Thus, when one is convicted under Penal Code section 245,

subdivision (a), he may also be convicted of battery." (Ibid.)




6     Section 243, subdivision (d) provides: "When a battery is committed against any
person and serious bodily injury is inflicted on the person, the battery is punishable by
imprisonment in a county jail not exceeding one year or imprisonment pursuant to
subdivision (h) of Section 1170 for two, three, or four years."
                                             14
       The court concluded the defendant's equal protection challenged lacked merit on

similar grounds. (People v. Parrish, supra, 170 Cal.App.4th at p. 345.) "[T]he two

statutes do not constitute punishment for the same offense and differ in their essential

purpose. Section 245, subdivision (a), punishes conduct where extreme force is used,

while section 243 punishes the consequences. The fact that actual injury does occur in

the course of an assault by means of force likely to produce serious injury, and thus may

also be punished under Penal Code section 12022.7, does not alter the basic difference

between sections 243 and 245, subdivision (a). [Citation.] [¶] Thus, while a violation of

Penal Code section 245, subdivision (a), and battery both include elements of simple

assault, a violation of Penal Code section 245, subdivision (a), is a greater offense than

and separate and distinct from either simple assault or battery. . . . [¶] Because [those

two sections] do not proscribe conduct which is functionally equivalent, persons charged

with violations of these statutes are not similarly situated. Thus, appellant's equal

protection challenge must fail." (Parrish, at p. 345.)

B. Analysis

       Assault by means likely to produce great bodily injury under section 245,

subdivision (a)(4) is separate and distinct from battery crimes under section 243. (People

v. Parrish, supra, 170 Cal.App.3d at p. 343.) Section 245, subdivision (a)(4) focuses on

conduct against another person likely to produce great bodily injury regardless of actual

contact or injury, while section 243, subdivision (e) focuses on harmful or offensive

contact against a person with whom the defendant shares a special relationship.

Moreover, a defendant can be convicted under both statutes in the same case. (Parrish, at

                                             15
p. 343 [sections 243 and 245, subdivision (a)(4) are separate offenses]; see also People v.

Morgan (1997) 58 Cal.App.4th 1210, 1211 [defendant convicted of two counts under

section 245, subdivision (a)(1) and one count under section 243, subdivision (e)].) We

conclude a defendant charged under section 245, subdivision (a) and a defendant charged

under section 243, subdivision (e) are not similarly situated.

       Dillard also asserts the People's decision not to prosecute him under section 273.5

deprived him of the "traumatic condition" defense available to those accused of that

crime, and he speculates the People considered his two prior criminal convictions

involving domestic violence in treating him differently from similarly situated

defendants. Even if Dillard's conduct fell under section 273.5, the United States Supreme

Court "has long recognized that when an act violates more than one criminal statute, the

Government may prosecute under either so long as it does not discriminate against any

class of defendants." (United States v. Batchelder (1979) 442 U.S. 114, 123-124.) In the

absence of any showing that the prosecutor's exercise of discretion is based on any

unjustifiable standard such as race, religion or other arbitrary classification, and Dillard

made no such showing here, the existence of prosecutorial discretion does not violate

either due process or equal protection principles. (Davis v. Municipal Court (1988) 46

Cal.3d 64, 87-88, quoting Batchelder, at p. 125, fn. 9 ["The Equal Protection Clause

prohibits selective enforcement 'based upon an unjustifiable standard such as race,

religion, or other arbitrary classification' "].) Even if the People charged Dillard under

section 245, subdivision (a) to pursue the greater punishment, Dillard's argument fails

because although "[t]he prosecutor may be influenced by the penalties available upon

                                              16
conviction . . . this fact, standing alone, does not give rise to a violation of the Equal

Protection or Due Process Clause." (Id. at p. 125.) "Just as a defendant has no

constitutional right to elect which of two applicable . . . statutes shall be the basis of his

indictment and prosecution, neither is he entitled to choose the penalty scheme under

which he will be sentenced." (Ibid.) "Prosecutors have great discretion in filing criminal

charges. [Citation.] This discretion includes the choice of maximizing the available

sentence (including charging of enhancements) to which a defendant might be exposed in

the event of conviction [citations] and the timing of filing unrelated charges [citations].

Such discretion does not violate equal protection." (People v. Gonzales (2001) 87

Cal.App.4th 1, 15, overruling recognized in In re Johnson (2016) ___ Cal.App.4th ___

[2016 WL 1587254 *7].) For the foregoing reasons, we conclude Dillard's equal

protection argument lacks merit.

        IV. Dillard Has Not Shown His Counsel Rendered Ineffective Assistance

A. Legal Principles

       The applicable standards are well settled: " 'An ineffective assistance claim has

two components: A defendant must show that counsel's performance was deficient, and

that the deficiency prejudiced the defense.' [Citations.] [¶] . . . [¶] 'To establish

deficient performance, a petitioner must demonstrate that counsel's representation "fell

below an objective standard of reasonableness." ' " (In re Welch (2015) 61 Cal.4th 489,

514.) In evaluating counsel's conduct, "a court must indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable professional assistance; that

is, the defendant must overcome the presumption that, under the circumstances, the

                                               17
challenged action 'might be considered sound trial strategy.' " (Strickland v. Washington

(1984) 466 U.S. 668, 689.) "In order to establish prejudice, a defendant 'must show that

there is a reasonable probability that, but for counsel's unprofessional errors, the result of

the proceeding would have been different.' [Citation.] A defendant 'need not show that

counsel's deficient conduct more likely than not altered the outcome in the case.'

[Citation.] Rather, he must show 'a probability sufficient to undermine confidence in the

outcome.' " (In re Welch, at p. 517; see also People v. Kipp (1998) 18 Cal.4th 349, 366

[prejudice shown if counsel's deficient performance " 'so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having

produced a just result' "].)

       Rarely will an appellate record establish ineffective assistance of counsel. (People

v. Thompson (2010) 49 Cal.4th 79, 122; see also People v. Montiel (1993) 5 Cal.4th 877,

911 [to resolve such a claim on direct appeal, the record must make clear the challenged

act was outside the range of reasonable competence].) Where " ' " 'the record on appeal

sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless

counsel was asked for an explanation and failed to provide one, or unless there simply

could be no satisfactory explanation,' the claim on appeal must be rejected." ' " (People

v. Carrasco (2014) 59 Cal.4th 924, 982.) "Further, 'a court need not determine whether

counsel's performance was deficient before examining the prejudice suffered by the

defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will



                                               18
often be so, that course should be followed.' " (Ibid., quoting Strickland v. Washington,

supra, 466 U.S. at p. 697.)



B. Analysis

       Having concluded the People did not violate the Williamson rule and Dillard's

equal protection challenge lacks merit, Dillard cannot show his defense counsel rendered

ineffective assistance by failing to raise those issues below. "Failure to raise a meritless

objection is not ineffective assistance of counsel." (People v. Bradley (2012) 208

Cal.App.4th 64, 90; see also People v. Jones (1998) 17 Cal.4th 279, 309.)

       We find no other bases to conclude Dillard's counsel was constitutionally deficient

for advising him to plead guilty. On that point, Dillard contends that the evidence was

insufficient to prove he committed aggravated assault, and he was deprived of the

opportunity to present a defense (i.e., that his position in the vehicle prevented him from

having a present ability to inflict great bodily injury to Sandoval) or an expert to testify

about the fallibility of eyewitness testimony. But "[a] defense attorney's simple

misjudgment as to the strength of the prosecution's case, the chances of acquittal, or the

sentence a defendant is likely to receive upon conviction, among other matters involving

the exercise of counsel's judgment, will not, without more, give rise to a claim of

ineffective assistance of counsel." (In re Alvernaz (1992) 2 Cal.4th 924, 937.)

       Finally, we agree with the People that Dillard has made no attempt to show

prejudice resulting from his guilty plea. A defendant's "self-serving" assertion that he or

she would not have pleaded guilty had he or she received adequate representation and

                                              19
advice "is insufficient in and of itself to sustain the defendant's burden of proof as to

prejudice, and must be corroborated independently by objective evidence. A contrary

holding would lead to an unchecked flow of easily fabricated claims." (In re Alvernaz,

supra, 2 Cal.4th at p. 938.) Because Dillard presents no independent evidence to

establish he would not have taken the plea deal, he has not shown prejudice. For that

reason alone, Dillard's ineffective assistance claim fails.

                                       DISPOSITION

       The judgment is affirmed.




                                                                              O'ROURKE, J.

WE CONCUR:


McCONNELL, P. J.


HUFFMAN, J.




                                              20
