Filed 10/7/13 P. v. Giles CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B244724

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. PA073718)
         v.

ROBERT THOMAS GILES,

         Defendant and Appellant.




                   APPEAL from a judgment of the Superior Court of Los Angeles County.
Dalila C. Lyons, Judge. Affirmed.


                   Armand Tinkerian, under appointment by the Court of Appeal, for
Defendant and Appellant.


                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Eric E. Reynolds
and Ana R. Durate, Deputy Attorneys General, for Plaintiff and Respondent.


                               ____________________________________
       Appellant Robert Thomas Giles appeals from the judgment upon his conviction
for grand theft after he pled no contest to the charge. Appellant argues that he did not
receive effective assistance of counsel during the negotiation phase of his plea deal.
More specifically, appellant contends that his counsel: (1) failed to challenge the
sufficiency of the charges; (2) failed to present evidence that could have mitigated his
sentence and could have possibly resulted in a reduction of the charges against him; (3)
did not file a written discovery motion; and (4) failed to file a motion to exclude
appellant‟s incriminating statement to police. As we shall explain, there is no evidence in
the record on appeal as to why counsel acted (or failed to act) in the manner which
appellant complains about on appeal. Appellant has thus failed to carry his burden to
prove ineffectiveness of his trial counsel. Accordingly, we affirm the judgment.
                        FACTS AND PROCEDURAL HISTORY
       The Crime.
       In 2012 appellant was arrested for theft of copper wire from the Los Angeles
Department of Water and Power (DWP) and damage to DWP power lines located near
San Francisquito Road. DWP estimated that the total value of damage to the power lines,
on the low end, was approximately $687,700 – $354,000 for labor and equipment to
repair all the damage; $182,400 to replace the copper wire; $6,800 to replace the
insulators; and $13,000 for megawatt hours lost due to relays on the circuit.
       The Charges and Appellant’s Plea.
       Appellant was charged with grand theft of personal property in violation of Penal
Code section 487, subdivision (a) in count (1), vandalism causing damaging over $400 in
violation of Penal Code section 594, subdivision (a) in count (2), and cutting a utility line
in violation of Penal Code section 591, in count 3.
       Prior to the preliminary hearing the prosecutor made a plea offer to appellant for a
five-year term (to the charge in count 1) with victim restitution to be determined based on
the evidence – at that point it appeared that it would be close to $1 million dollars.
Appellant‟s counsel communicated the offer to appellant, who stated that he would plead



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to a term of three years with no restitution. Appellant‟s counter offer was presented to
the prosecution at the beginning of the preliminary hearing, but was not accepted.
       At the preliminary hearing, appellant‟s counsel made a motion to suppress
appellant‟s incriminating statements during his interview with Detective Marino as
violating his rights under Miranda v. Arizona (1966) 384 U.S. 436. Counsel argued that
appellant invoked his right to counsel while making his incriminating statements to the
Detective, and thus the statements should be suppressed. The court denied the motion
finding that appellant‟s invocation of right to counsel was made after his incriminating
statements, and therefore the admission of his statement would not violate Miranda.
       At the end of the preliminary hearing, the court denied appellant‟s motion to
dismiss, finding there was “sufficient cause to believe the following defendant guilty
thereof, to wit, Robert Thomas Giles, count one, violation of Penal Code section 487
subsection (a) . . . [and] held to answer on the Penal Code section 12022.6(a)(2) . . . as to
count two, violation of 594(a) and also special allegation Penal Code section 12022.6(a);
also count three, violation of 591, and also special allegation of 12022.6 (a)(2) . . . .”
       At a hearing on September 5, 2012, the prosecutor offered another plea deal to
appellant, which the parties discussed in court. Appellant was offered five years:
consisting of a guilty plea to count 1 for a high term of three years, plus two years (one
year each) for admitting two of the prison term enhancements, and a $60,000 cap on
victim restitution. The prosecutor offered to dismiss the remaining charges and
allegations. This offer would be five years with 50 percent time and local custody time,
and would be served in county jail as opposed to state prison. The prosecutor also noted
in the present case his maximum exposure was approximately 12 years in state prison.
       Appellant‟s counsel indicated that appellant might not accept the offer. The court
stated that it believed that given the possible sentence, it was a good offer. Appellant‟s
counsel pointed out that he had made two counter offers to the People which had been
rejected: (1) “waive back time, and one-year residential live-in program” and (2) the plea
to count 1 for three years in state prison. Appellant‟s counsel pointed out that although
appellant had an extensive criminal record, his priors were not serious nor involved a

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history of violence, and that his prior criminal conduct was related to his “drug use.”
Counsel argued that appellant would benefit from some type of residential drug treatment
program.
       The court asked appellant if he wanted to speak to his attorney more about the
bargain, so that he would understand the consequences of not accepting the plea offer.
The court reminded appellant of his criminal history and his possible maximum 12 year
sentence if he were to go to trial and be convicted. Appellant asked if it would be
possible for the term to go down to four years, but the prosecutor said based on
appellant‟s extensive criminal history the offer was five years.
       The court again asked appellant if he wanted to speak to his attorney to make sure
that he understood the matter and had sufficient time to speak with him about the
consequences and benefits of accepting the plea. The court continued the proceedings so
that appellant could consult with his attorney.
       When the proceedings resumed, appellant‟s counsel indicted that appellant was
willing to accept the prosecution‟s offer. Counsel expressed a concern about whether
appellant‟s admission to prison priors might make him ineligible to serve his time in a
local facility. Counsel stated that if he were sent to state prison he would withdraw his
agreement to the plea. The court and the prosecutor agreed that it appeared that none of
the priors excluded appellant from serving his time in county jail. The court then asked
appellant if he understood the terms of the agreement, and if he had sufficient time to
speak to counsel about the case, and the terms of the agreement. Appellant responded
affirmatively, and proceeded to plead no contest to the grand theft count, and sign a
felony advisement of rights, waiver and plea forms.
       Appellant filed a timely notice of appeal and sought a certificate of probable
cause, which was granted by the trial court.
                                      DISCUSSION
       In this court appellant asserts that the judgment should be reversed because he
received ineffective assistance of counsel. Appellant argues that counsel was ineffective
during the plea negotiations.

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   I. Appellant Failed to Establish Ineffectiveness of Counsel by Evidence
      Demonstrated In the Record.

       Both the Sixth Amendment of the United States Constitution and Article I, Section
15, of the California Constitution guarantee the right of a criminal defendant to the
assistance of counsel. (People v. Ledesma (1987) 43 Cal.App.3d 171, 215.) These rights
grant a defendant effective assistance rather than bare assistance. (Ibid.)
       “Where a defendant has been denied the effective assistance of counsel in entering
a plea of guilty, he is entitled to reversal and an opportunity to withdraw his plea if he so
desires.” (People v. Hunt (1985) 174 Cal.App.3d 95, 104.) A defendant‟s guilty plea
must be based upon his “full awareness of the relevant circumstances and the likely
consequences of his action” to be valid. (Ibid.)
       To prove counsel is ineffective, appellant must first show that counsel‟s
performance fell below an objective level of reasonableness. (Strickland v. Washington
(1984) 466 U.S. 668, 686-687.) In a criminal case, this requires counsel‟s “diligence and
active participation in the full and effective preparation of his client‟s case. (People v.
Pope (1979) 23 Cal.3d 412, 424-425 (Pope).) This includes the “duty to investigate
carefully all defenses of fact and of law that may be available to the defendant . . . .”
(Ibid. quoting In re Williams (1969) 1 Cal.3d 168, 175.)
       Second, appellant must show that the deficient performance by counsel prejudiced
the defense. To prove prejudice, it must be shown that “there is a reasonable probability
that but for counsel‟s unprofessional errors, the result of the proceeding would have been
different.” (Hill v. Lockhart (1985) 474 U.S. 52, 57 quoting Strickland, 466 U.S. at p.
694.) In order to demonstrate prejudice stemming from inadequate representation in
advising a defendant to enter a plea, the defendant must establish a reasonable probability
that but for the improper advice, he or she would not have pled guilty. (In re Resendiz
(2001) 25 Cal.4th 230, 253) or that he could have negotiated a more favorable plea deal.
(People v. Martinez (2013) ___ Cal.4th ___, ___ (2013 WL 4829206, p. 5) [“[B]ecause
the test for prejudice considers what the defendant would have done, not what the effect
of that decision would have been, a court . . . may not deny relief simply by finding it not

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reasonably probable the defendant by rejecting the plea would have obtained a more
favorable outcome”].) This occurs when “counsel‟s acts or omissions adversely affect
defendant‟s ability to knowingly, intelligently and voluntarily decide to enter a plea of
guilty.” (People v. Hunt, supra, 174 Cal.App.3d at p. 105.) Therefore, “[i]f counsel‟s
acts or omissions appear to result in defendant‟s entering a plea under the influence of
„mistake, ignorance or inadvertence or any other factor overreaching defendant‟s free and
clear judgment‟ which would justify withdrawal of his plea, he was ineffectively
represented by counsel.” (Ibid. quoting People v. McCary (1985) 166 Cal.App.3d 1, 10.)
       Appellant has the burden of proving inadequate trial assistance. (Pope, supra, 23
Cal.3d at p. 425.) Moreover, “unless a defendant makes both showings, it cannot be said
that the conviction or death sentence resulted from a breakdown in the adversary process
that renders the result unreliable.” (Ibid.)
       Appellant claims he did not receive effective assistance of trial counsel. Appellant
claims instances of his trial counsel‟s ineffectiveness include: (1) failure to present
mitigating evidence, including appellant‟s status as a veteran, which would have made
him eligible for alternative sentencing or residential treatment; (2) failure to challenge the
evidence supporting the charge of grand theft and failure to argue that he should have
been charged with a lesser offense; (3) failure to file a formal discovery motion; and (4)
failure to file a motion to exclude appellant‟s incriminating statements to police.
       The record before this court on appeal does not demonstrate why appellant‟s trial
counsel did not take the complained of actions.
       When an appellant seeks to establish a claim of ineffectiveness of counsel on
matters not disclosed by the record on appeal, a petition for writ of habeas corpus is the
appropriate procedure. (People v. Pope, supra, 23 Cal.3d at p. 426, fn. 17, see also
Ledesma, supra, 43 Cal.App.3d at pp. 218-219 [holding that although the record raised
serious doubts about counsel‟s competence, it was not sufficient to demonstrate
ineffective assistance, however, a consolidated habeas corpus petition did reveal
inadequate performance.]) A petition for habeas corpus extends far beyond the record on
appeal, while an appeal is limited to the four corners of the underlying record. (People v.

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Waidla (2000) 22 Cal.4th 690, 749, fn. 1.) In habeas proceedings the defendant has an
opportunity to obtain and present evidence from trial counsel outside of the record to
“fully describe his or her reasons for acting or failing to act in the manner complained
of.” (People v. Pope, supra, 23 Cal.3d at p. 426.) Permitting the trial attorney an
opportunity to explain puts courts in a position to “intelligently evaluate whether
counsel‟s acts or omissions were within the range of reasonable competence.” (Ibid.)
Thus, a claim for ineffective assistance of counsel must be rejected when “the record on
appeal sheds no light on why counsel acted or failed to act in the manner challenged.”
(Ibid.) In such cases, “unless counsel was asked for an explanation and failed to provide
one, or unless there simply could be no satisfactory explanation,” the case is affirmed on
appeal. (Ibid.)
       In People v. Mendoza Tello (1997) 15 Cal.4th 264, 266, Mendoza Tello was
convicted for possession of cocaine. A deputy pulled Mendoza Tello over when he saw
him light a marijuana cigarette. (Ibid.) He consented to a search of the car, and the
officer proceeded to do a pat down as he felt this was necessary for officer safety. (Ibid.)
Before the pat down began, a vile of cocaine fell from Mendoza Tello‟s pocket. (Ibid.)
On appeal, he argued that his counsel was ineffective for not making a motion to suppress
the evidence. (Ibid.) The court found nothing in the record to suggest why counsel failed
to move to suppress the evidence, “because the legality of the search was never
challenged or litigated, facts necessary to a determination of that issue are lacking.”
(Ibid. quoting People v. Cudjo (1993) 6 Cal.4th 585, 627.) It concluded that “an
appellate court should not declare that a police officer acted unlawfully, suppress relevant
evidence, set aside a jury verdict, and brand a defense attorney incompetent unless it can
be truly confident all the relevant facts have been developed and the police and
prosecution had a full opportunity to defend the admissibility of the evidence.” (People
v. Mendoza Tello, supra, 15 Cal.4th at p. 268.)
       Similar to the Mendoza Tello case, there is nothing in the record on appeal to show
why counsel did or did not act in the manner appellant complains about on appeal. The
record does reflect that appellant‟s trial counsel did seek to obtain a better plea bargain

                                              7
for appellant by arguing that his prior criminal record was not serious and that his prior
criminal conduct was the result of his drug abuse. He also sought to ensure that appellant
would not serve time in state prison.1 Nonetheless, the record is silent about the alleged
failings of counsel at issue on appeal. Perhaps his counsel took the actions at issue, or
perhaps as a matter of trial strategy counsel decided against pursuing such actions.
Maybe counsel acted without good reason. Because the record on appeal is silent, we
simply do not have sufficient evidence before us to determine these matters one way or
the other, and therefore appellant‟s appeal must be rejected. Appellant failed to carry his
burden of proving his counsel was ineffective on appeal. Appellant‟s ineffective
assistance of counsel claim is more appropriately presented in a habeas corpus
proceeding in which appellant could present any additional evidence outside the record to
establish his claim.2




1
        In addition, as noted elsewhere, at least with respect to the motion to suppress the
incriminating statements to the sheriff‟s detective, it appears that counsel did make an
effort to have that evidence deemed inadmissible. The matter was argued during the
preliminary hearing, and the court rejected appellant‟s assertion that the statements were
obtained in violation of his constitutional rights. Appellant has not presented any
convincing argument as to why his counsel was incompetent for failing to raise the issue
again, as it is not likely he would have obtained a more favorable result as to that matter.
2
        Subsequent to filing the present appeal, appellant filed a separate petition for a
writ of habeas corpus in this court asserting his counsel was ineffective on the same
grounds as asserted on appeal. This court summarily denied the petition because
appellant failed to present any evidence from his trial counsel about his representation of
appellant in the trial court, nor did appellant indicate that he made any effort to contact
his trial counsel to obtain an explanation of his conduct. Moreover, the only evidence
that he did present in support of the petition, specifically his declaration and that of his
girlfriend, did not shed light on why counsel acted or failed to act in the manner
challenged.




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                                   DISPOSITION


      The judgment is affirmed.




                                                                         WOODS, J.


We concur:




             PERLUSS, P. J.                                              SEGAL, J.*




*Judge of the Los Angeles County Superior Court assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.


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