Filed 5/2/13 P. v. Tovar CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO


THE PEOPLE,

         Plaintiff and Respondent,                                       E056301

v.                                                                       (Super.Ct.No. RIF10002636)

JOE TALEVERA TOVAR,                                                      OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. John M. Davis, Judge.

Affirmed with directions.

         Maureen M. Bodo, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

                                                INTRODUCTION

         On September 22, 2010, an information charged defendant and appellant Joe

Talevera Tovar and codefendants Duane Jaramillo and Anthony Rios, inmates in state

prison, with one count of assault with a deadly weapon by means of force likely to cause
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great bodily injury. (Pen. Code, § 4501.) The information also alleged one special prior

offense. (Pen. Code, §§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).) The information

also alleged multiple prior offenses as to the codefendants.

        After a four-day jury trial, the jury found defendant guilty as to count 1. The trial

court set a sentencing hearing, as well as a court trial regarding the prior offense.

        At the hearing on April 01, 2011, defendant admitted the special prior and also

entered a plea in case No. RIF10005536. In the instant case, the trial court sentenced

defendant to two years eight months in state prison, with 102 days of credit for time

served, to run consecutive with case No. RIF10005536.

        However, the April 1, 2011, minute order states that the “[s]pecification of plea” is

“[s]tate [p]rison 2 years 8 months,” and “[d]efendant is arraigned for pronouncement of

judgment.” Also, the abstract of judgment shows that defendant was “convicted by”

“plea”—not by a jury. We will direct the superior court to correct its April 1, 2011

minute order and the abstract of judgment to reflect that defendant was found guilty by a

jury.

        Defendant filed a timely notice of appeal.

                                STATEMENT OF FACTS

        On January 30, 2010, Officers Gonzales and Ochoa were working as correctional

officers at the California Rehabilitation Center in Norco. Officer Gonzales was

supervising the “Facility 3 mini yard.” Around 1:30 p.m., he heard a grunting noise and

someone shouting, “CO, CO, CO.” When he turned around, he saw four inmates

fighting. One, later identified as the victim, was on the ground, while three other inmates

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were assaulting him. The officer was standing about 30 to 40 feet from the fight. Officer

Gonzales called a “Code 1” and ran toward the fight. There were approximately 200 to

300 inmates in the area. Once the fight began, those inmates scattered.

       When Officer Gonzales was within six to 10 feet of the four inmates, he ordered

them to stop fighting and to “get down” on the ground. When the inmates failed to

comply, the officer used pepper spray twice; neither burst of the spray stopped the fight.

       Officer Ochoa was in the main yard, which is about 30 to 40 feet away from where

the fight was taking place. When Officer Ochoa heard the shouting, he ran toward the

fight and told the inmates to get down. He also used pepper spray on them. Officer

Gonzalez then drew his baton and struck inmate Rios on the wrist. At that time, the other

two inmates, identified as Jaramillo and defendant, got down on the ground.

       Neither Officer Gonzales nor Officer Ochoa saw the victim strike the other three

inmates or fight back. Officer Gonzales did not know how or why the fight began. The

assault lasted approximately 40 to 50 seconds and consisted of a “barrage” of rapid

punches. Both officers testified that all three inmates kicked the victim, although neither

officer had mentioned kicking in their reports.

       All of the inmates, including the victim, were searched for weapons. No weapons

were found.

       The victim was bleeding, and he had numerous cuts and scratches on his face and

arms. He was escorted to the infirmary, where he was examined and treated by Nurse

Vuong. Nurse Vuong reported that the victim had numerous facial injuries, a swollen

ear, and abrasions to his knees and elbows. The nurse did not see any bleeding or dried

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blood or injuries to the victim’s torso. The nurse then had the victim transferred to an

outside hospital for further evaluation and treatment.

       Defendant and the other two inmates were each escorted, by a separate officers, to

the shower area of the infirmary for decontamination because they had been exposed to

pepper spray.

       After the decontamination process, Nurse Arthur examined the three inmates. He

saw no redness on inmate Jaramillo’s hands and no swelling on inmate’s Rios’s wrists.

He did testify that he saw redness and swelling on defendant’s hands. He also saw

reddened areas on defendant’s face, back, and torso, but he did not see any scratches or

abrasions on defendant.

                                       ANALYSIS

       After defendant appealed, and upon his request, this court appointed counsel to

represent him. Counsel has filed a brief under the authority of People v. Wende (1979)

25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of

the case, a summary of the facts and potential arguable issues, and requesting this court to

undertake a review of the entire record.

       We offered defendant an opportunity to file a personal supplemental brief, and he

has done so. On February 5, 2013, defendant submitted a one-page handwritten brief. In

his supplemental brief, defendant essentially argues that his counsel rendered ineffective

assistance of counsel (IAC). Pursuant to the mandate of People v. Kelly (2006) 40

Cal.4th 106, we have independently reviewed the record for potential error.



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       We hereby address defendant’s IAC claim. In order to establish a claim of IAC,

defendant must demonstrate, “(1) counsel’s performance was deficient in that it fell

below an objective standard of reasonableness under prevailing professional norms, and

(2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable

probability’ that, but for counsel’s failings, defendant would have obtained a more

favorable result. [Citations.] A ‘reasonable probability’ is one that is enough to

undermine confidence in the outcome. [Citations.]” (People v. Dennis (1998) 17 Cal.4th

468, 540-541, citing, among other cases, Strickland v. Washington (1984) 466 U.S. 668;

accord, People v. Boyette (2002) 29 Cal.4th 381, 430.) Hence, an IAC claim has two

components: deficient performance and prejudice. (Strickland v. Washington, at

pp. 687-688, 693-694; People v. Williams (1997) 16 Cal.4th 153, 214-215; People v.

Davis (1995) 10 Cal.4th 463, 503; People v. Ledesma (1987) 43 Cal.3d 171, 217.) If

defendant fails to establish either component, his claim fails.

       When a claim of ineffective assistance is made on direct appeal, and the record

does not show the reason for counsel’s challenged actions or omissions, the conviction

must be affirmed unless there could be no satisfactory explanation. (People v. Pope

(1979) 23 Cal.3d 412, 426.)

       After reviewing the reporter’s transcript, we note that defendant’s counsel actively

engaged in cross-examination of the witnesses and advocated for defendant. Moreover,

after the trial but prior to sentencing, defendant requested that the court remove his

defense counsel and appoint a new one. At that hearing, defendant informed the court as

to why he felt his counsel was ineffective. After hearing defendant’s arguments, the

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court stated: “I believe that I watched [defense counsel] during the trial. He was

prepared. He asked good cross-examination questions of the witnesses. He made good

arguments on your behalf. We just met in chambers this morning. He was doing a good

job wanting to get you the best deal that you could get that would wrap up all of your

cases together, and wouldn’t—and you wouldn’t have to be sentenced to such a long

sentence as you might have been otherwise. [¶] He talked the D.A. into trying to

combine everything and get you a reasonable number of years, and I thought he did a

good job in representing you.” We agree with the trial court’s assessment of defense

counsel’s representation of defendant.

       Based on the above, we find that defense counsel did not render assistance below

an objective standard of reasonableness under prevailing professional norms.

       In his supplemental brief, defendant also argues, in one sentence, that he “was

denied the right to cross examine the victim on the case.” In this case, however, the

victim did not testify and no statements made by the victim were admitted into evidence.

Evidence of the assault and resulting injuries to the victim was presented by the officers

who witnessed the assault and by the nurses who had examined the victim and inmates.

Defendant was free to cross-examine those witnesses. The transcript shows that defense

counsel actively represented defendant.

       We have conducted an independent review of the record and find no arguable

issues. However, as noted ante, the minute order and abstract of judgment incorrectly

reflect that defendant was convicted via a plea and not by a jury. We have the inherent

power to correct clerical errors to make records reflect the true facts. (People v. Mitchell

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(2001) 26 Cal.4th 181, 185.) Therefore, the minute order and abstract of judgment

should be corrected.

                                     DISPOSITION

       The superior court clerk is directed to correct the minute order dated April 1, 2011,

and the abstract of judgment filed on April 13, 2011, to accurately reflect that defendant

was convicted by a jury, and to forward copies of the corrected documents to the

Department of Corrections and Rehabilitation. In all other respects, the judgment is

affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                               McKINSTER
                                                                                             J.
We concur:


HOLLENHORST
          Acting P. J.


KING
                          J.




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