Filed 12/23/13 P. v. Valdovinos CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----


THE PEOPLE,

                   Plaintiff and Respondent,                                                  C073142

         v.                                                                      (Super. Ct. No. 11F05067)

JOSE LUIS VALDOVINOS,

                   Defendant and Appellant.


         Appointed counsel for defendant Jose Luis Valdovinos asked this court to review
the record to determine whether there are any arguable issues on appeal. (People v.
Wende (1979) 25 Cal.3d 436.) Defendant filed a supplemental brief contending he
received ineffective assistance of trial counsel. We address this issue, in addition to
undertaking a review of the record as required by Wende, and affirm the judgment.
                                                  BACKGROUND
         On July 21, 2011, defendant, victim Tyler McEssy, Susan McEssy, and another
male drove to Robert Gomez’s house for Tyler to borrow some money. 1 Susan stated




1      Because Tyler McEssy and his daughter Susan McEssy share a surname, we refer
to them by their first names.

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that while Tyler was out of the car, she heard gunshots and she ducked. When she raised
her head, she saw defendant standing over Tyler with a gun in his hand. Susan saw
defendant take off running northbound on High Street. Tyler died, having sustained
multiple gunshot wounds to his head and body.
       Defendant was apprehended by police after a short chase. A revolver with seven
expended casings was found along the route where defendant had been running.
Defendant admitted to police that he shot Tyler, explaining, due to his drug use, he heard
voices telling him to kill Tyler.
       Defendant was charged with first degree murder, by personal and intentional
discharge of a firearm. (Pen. Code, §§ 187, 189 subd. (a), 12022.53, subd. (d).)2 On
November 6, 2012, defendant withdrew his not guilty plea and pled guilty to second
degree murder and admitted a section 12022.53, subdivision (b), firearm enhancement. It
was agreed defendant would serve 15 years to life in prison, plus 10 years for the
enhancement.
       On December 12, 2012, the trial court sentenced defendant to serve 15 years to life
in prison, plus 10 years for the enhancement, in accordance with the plea agreement. The
trial court ordered defendant to pay various fines and fees including a $5,000 restitution
fine and victim restitution in the amount of $3,525, that may be modified upon
application for additional restitution. Defendant was awarded 511 days of presentence
custody credit.
       Defendant appeals. The trial court issued a certificate of probable cause.
(§ 1237.5.)




2      Undesignated statutory references are to the Penal Code.

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                                       DISCUSSION
       Defendant contends he was not effectively assisted by trial counsel because his
counsel failed to present a defense at the preliminary hearing. Specifically, he argues
counsel failed to utilize expert witness testimony from a forensic psychologist or
toxicologist to establish an affirmative defense of diminished capacity.
       To establish ineffective assistance of counsel, defendant must demonstrate that
counsel's performance fell below professional standards and, but for counsel’s failings,
there is a reasonable probability defendant could have obtained a more favorable result.
(Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693,
696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) We will reverse a conviction
on the ground of inadequate counsel only if the record on appeal affirmatively shows
counsel had no rational tactical purpose for his or her act or omission; in all other cases
the defendant is relegated to seeking habeas corpus relief. (People v. Fosselman (1983)
33 Cal.3d 572, 581-582.)
       Defendant argues that, because his attorney failed to retain the services of an
expert witness, such as a forensic psychologist and/or a toxicologist, he was unable to
present a defense at the preliminary hearing. To demonstrate deficient performance,
however, defendant must show counsel “failed to act in a manner to be expected of
reasonably competent attorneys acting as diligent advocates.” (People v. Pope (1979)
23 Cal.3d 412, 425.)
       Presenting affirmative defenses at a preliminary hearing would provide the
prosecution with a preview of potential defenses at trial. Accordingly, defense counsel’s
decision not to present an affirmative defense at the preliminary hearing is easily viewed
as a reasonable tactical decision that cannot support a claim of ineffective assistance on
appeal. (People v. Fosselman, supra, 33 Cal.3d at pp. 581-582.)
       Having also undertaken an examination of the entire record, we find no arguable
error that would result in a disposition more favorable to defendant.

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                                 DISPOSITION
     The judgment is affirmed.



                                               HOCH   , J.



We concur:



     RAYE      , P. J.



    BLEASE     , J.




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