Filed 1/27/14 P. v. Rodriguez CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039238
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                  Super. Ct. No. C1095258)

         v.

GILDARDO RODRIGUEZ,

         Defendant and Appellant.



         Defendant Gildardo Rodriguez pleaded no contest to attempted murder in
exchange for a sentence of 12 years. (§§ 664, subd. (a), 187.)1 He also admitted two
enhancements: personal infliction of great bodily injury, and that he committed the
offense for the benefit of a criminal street gang. (§§ 12022.7, subd. (a), 186.22, subd.
(b)(l)(C).) Defendant moved to withdraw his plea before he was sentenced. The trial
court denied his motion and sentenced him to the negotiated term of 12 years.
         Defendant appeals from the denial of his motion to withdraw his plea.2 He also
claims his sentence was disproportionate to his offense, and he raises several claims of
ineffective assistance of counsel. We find defendant’s claims without merit, and we will
affirm the judgment.
         1
             All undesignated statutory references are to the Penal Code.
         2
             The trial court granted defendant’s request for a certificate of probable cause.
                        I. FACTUAL AND PROCEDURAL BACKGROUND
         A. Facts of the Offense
         On the evening of May 7, 2010, the victim, Steven Johnson, was in San José
visiting with his girlfriend. After they parked at her apartment complex, a group of about
five persons, including defendant, spotted the couple walking away from their van. One
of the five, a Sureño gang member known as “Lil Shadow,” asked Johnson, “Do you
bang?” Johnson, unaware he was in a Sureño-dominated neighborhood, responded,
“Norte.” Lil Shadow responded, “Fuck Norte.”
         Johnson ran away, and the group of five, including defendant, ran after him.
Johnson tripped, struck a car, and fell to the ground, whereupon the group beat him and
kicked him. Defendant, by his own admission, kicked Johnson in the head at least twice.
Defendant heard the other attackers say “Fuck Norte” as they were hitting Johnson. After
about 30 seconds, defendant heard a car honk, and he left the scene, while others
remained behind. As he was running away, defendant saw one of the other attackers
thrusting towards the victim. Defendant later testified he had seen Lil Shadow with a
knife.
         Johnson suffered several lacerations to his head, a laceration to each forearm, a
stab wound to his thigh, and nine stab wounds to his back. One of his kidneys had been
cut, and he suffered bleeding around his lungs.
         Based on a witness’s tip, police went to defendant’s family home at around 2:00
a.m. the morning after the attack. About six or seven armed officers entered and searched
the apartment. Four or five officers found defendant asleep in his bedroom and took him
outside for questioning. Defendant was barefoot and dressed in his pajamas, but he was
not handcuffed. Police told him he was not under arrest. Police kept defendant’s family
members in the living room and told them not to move. Defendant was not allowed to
speak with his parents.


                                               2
       When he was questioned outside the apartment, defendant admitted he was
involved in the attack, and he admitted kicking the victim in the head. At that point,
police formally arrested defendant and advised him of his rights under Miranda v.
Arizona (1966) 384 U.S. 436 (Miranda). Defendant said he understood his rights and
continued to talk to police. He then reaffirmed that he had attacked the victim. Police
recorded defendant’s statements, but the record contains no transcript of the recordings.
       Police then took defendant to the Juvenile Pre-Processing Center at the San José
Police Department. After booking defendant, police again advised him of his Miranda
rights, and he agreed to talk to them. Defendant again admitted to the facts of his
involvement. He admitted that the other attackers were members of a Sureño gang, and
he handwrote a note of apology.
       B. Pretrial Proceedings and Defendant’s Motion to Withdraw His Plea
       Although defendant was a minor at the time of the offense,3 the court found him
not fit for juvenile court under Welfare and Institutions Code section 707(c). The
prosecutor charged defendant with attempted murder. (§§ 187, 664, subd. (a).) The
complaint further alleged defendant personally inflicted great bodily injury and that he
committed the offense for the benefit of, at the direction of, or in association with, a
criminal street gang. (§§ 187, 12022.7, subd. (a), 1203, subd. (e)(3), 186.22, subd.
(b)(l)(C).) Based on the charge and the enhancement allegations in the complaint,
defendant faced a maximum sentence of 22 years.
       At the preliminary hearing, the prosecutor offered a plea settlement for a term of
15 years, but defendant rejected the offer. The court, finding the evidence sufficient to
support the complaint, held defendant to answer. The prosecutor charged defendant by
information identical to the complaint in all relevant respects.


       3
           Defendant was 17 years old when the incident occurred.

                                              3
       Defendant changed his plea on September 26, 2011, the day the case was set for
trial. He pleaded no contest to attempted murder and admitted the enhancement
allegations in exchange for a term of 12 years, consisting of the aggravated term of nine
years for attempted murder plus three years for infliction of great bodily injury. The
parties agreed the additional 10-year gang enhancement penalty would be stricken.
       At the plea hearing, the court fully admonished defendant about his rights and the
terms of the plea agreement. Defendant personally stated that he understood his rights
and that his plea was free and voluntary. He also waived his right to appeal. The
prosecutor and counsel for defendant stipulated to a factual basis for the plea based on the
police reports and the transcript of the preliminary hearing. The court found defendant
fully informed of his rights, and the court found he knowingly, intelligently, freely, and
voluntarily waived his rights.
       On March 2, 2012, before sentencing, defendant substituted new counsel and
moved to withdraw his plea under section 1018. He argued that his prior attorney, Cary
Lindstrom, provided ineffective assistance of counsel and failed to inform him of
potentially meritorious defenses. Defendant, his mother, and his sister all testified at a
hearing as to their interactions with Mr. Lindstrom, the circumstances of the police
search, and defendant’s interrogation.
       Regarding the police search of the home, defendant, his mother, and his sister all
testified that the police did not have a warrant. Defendant’s mother gave conflicting
testimony about whether she or anyone else consented to the search of their home.
Initially, she testified that she gave permission to the police to enter the apartment. She
then testified that her husband had opened the door, and that police pushed him out of the
way before entering. She stated that police entered the home without permission. On
cross examination, she testified that they gave permission to the police, but she added that
she never personally spoke to the police and that “they just came in.” She again stated


                                              4
that it was her husband who opened the door, and that the police “just came in” without
permission.
       Defendant, his mother, and his sister all testified that Lindstrom told them the case
would be easier and defendant would get out of custody sooner if he were prosecuted as
an adult rather than a juvenile. Defendant’s mother gave conflicting testimony about
whether she ever discussed the circumstances of the police search with Lindstrom. First,
she testified that she never discussed the police entry with Lindstrom, and he never asked
her about it. On cross examination, however, she testified that she told Lindstrom about
how police entered the apartment.
       In describing defendant’s demeanor at the plea hearing, defendant’s mother
testified that he was emotionally upset and crying before he entered his plea. She said he
appeared indecisive, desperate, and under pressure to enter the plea. She testified that a
bailiff told defendant it was time for him to make a decision. Defendant’s sister gave
similar testimony describing defendant as upset and not wanting to enter the plea.
       Defendant testified that he did not feel prepared for trial. He testified that
Lindstrom had not adequately discussed the case with him and had not given him copies
of the police reports or the transcript of the preliminary hearing. He testified that at the
time of his plea, he wanted to seek a continuance to give him more time to study the
evidence, but he was pressured into pleading no contest. When cross examined about the
waivers and admissions he made in his plea colloquy, defendant denied that his answers
to the court were truthful. He also testified concerning his decision to accept the plea
agreement. He conceded that he did so because he was concerned he would lose at trial,
and he believed the offer from the prosecutor was the lowest sentence he could achieve
otherwise.
       Lindstrom testified for the prosecution and signed a declaration in support of the
prosecution’s opposition to the motion to withdraw. He denied telling defendant or the
family that the case would be easier if defendant were prosecuted as an adult. Lindstrom
                                              5
testified that he reviewed the police reports with defendant, but he could not recall giving
any copies to defendant. Lindstrom admitted he had a policy of not giving police reports
to clients in custody because other inmates would see them. Lindstrom testified that he
explained any possible defenses to defendant on multiple occasions.
       Lindstrom conceded that he did not file any motions or discovery requests. He did
not hire an investigator or do any investigation. He never attempted to interview the
victim, even though the victim was in custody and available to him. Although the case
was set to go to trial on the day defendant entered his plea, Lindstrom had filed no
motions in limine, and the record shows no opposition or reply to the prosecutor’s
motions in limine.
       Lindstrom gave equivocal statements about whether he interviewed the family to
determine whether the search of defendant’s home was consensual. Lindstrom’s
declaration stated, “In discussions with Gi[l]dardo Rodriguez’s family they never stated
there was any forced entry into the home.” At the hearing, he testified that he discussed
the possibility of filing a pretrial motion with the family, but the family never told him
the police entry was nonconsensual. On cross examination, however, Lindstrom admitted
that he never did any investigation with the family concerning the police entry.
       Lindstrom’s declaration stated that he had listened to the police recordings of
defendant’s statements. However, at the hearing, Lindstrom could not recall whether
there were any such recordings until the prosecutor refreshed Lindstrom’s recollection of
his declaration, whereupon he testified that he had listened to the recordings.
       Lindstrom testified that after the preliminary hearing, the prosecution provided
him with an email from a physician who had examined the victim’s injuries. The
physician told the prosecutor he could not testify with any certainty that the injuries to the
victim’s head were “kick-specific,” and were equally likely to have been caused by the
victim’s head hitting the curb. Lindstrom testified that the issue of great bodily injury
had thereby been resolved in defendant’s favor. Furthermore, the prosecutor told
                                              6
Lindstrom that, in all likelihood, the prosecutor would dismiss that allegation. Lindstrom
testified that he informed defendant of this development but the parties nonetheless used
the allegation as a way “to get to a certain number” in negotiating a disposition.
Lindstrom also admitted that the allegation of great bodily injury was a factor that
resulted in defendant’s case being transferred to adult court.
       Lindstrom disputed that defendant was emotionally upset prior to entering his
plea. He did not recall defendant crying at the hearing, and instead described defendant’s
demeanor as “resolved.” At one point, defendant told Lindstrom, “Yeah, I’m ready to do
this. Let’s do this.” Lindstrom believed that most of the anxiety concerning the plea
originated with defendant’s family, not defendant himself. Lindstrom testified that
defendant had come to understand the seriousness of the charges. Lindstrom had
explained to him the weakness of their defense given the strength of the evidence and
defendant’s own admissions to police.
       At the conclusion of a hearing on December 19, 2012, the trial court found no
ineffective assistance of counsel by Lindstrom, but the court did not address any specific
alleged failures such as the failure to conduct investigation or file any motions. As to the
entry of plea, the court found defendant did so voluntarily, knowingly, intelligently, and
without undue pressure from the court or any party. Accordingly, the court denied
defendant’s motion to withdraw his plea, and sentenced him to a term of 12 years in
accord with the terms of the plea agreement.
                                        II. DISCUSSION
       Defendant raises three categories of claims on appeal. First, he contends the trial
court erred in denying his motion to withdraw his plea because he did not knowingly and
intelligently enter the plea. Second, he claims his sentence is disproportionate to his
crime in violation of the California Constitution. Finally, he raises several claims of
ineffective assistance of counsel.


                                             7
       A. Standard of Review
       A denial of a motion to withdraw a guilty or no contest plea rests in the sound
discretion of the trial court and is final unless the defendant can show a clear abuse of
discretion. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) A reviewing court must
adopt the trial court’s factual findings if substantial evidence supports them. (Ibid.)
       “To prevail on a claim of ineffective assistance of counsel, a defendant must show
both that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. [Citations.] Counsel’s performance was deficient if the
representation fell below an objective standard of reasonableness under prevailing
professional norms. [Citation.] Prejudice exists where there is a reasonable probability
that, but for counsel’s errors, the result of the proceeding would have been different.”
(People v. Benavides (2005) 35 Cal.4th 69, 92-93, citing Strickland v. Washington (1984)
466 U.S. 668, 687-688, 693-694 (Strickland).) “ ‘Finally, prejudice must be affirmatively
proved; the record must demonstrate “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” ’ ” (Id. at p. 624.) “It is the defendant’s burden on appeal [. . .] to show that
he or she was denied effective assistance of counsel and is entitled to relief. [Citations.]
‘[T]he burden of proof that the defendant must meet in order to establish his [or her]
entitlement to relief on an ineffective-assistance claim is preponderance of the evidence.’
[Citation.]” (In re Hill (2011) 198 Cal.App.4th 1008, 1016.)
       B. The Denial of Defendant’s Motion to Withdraw His Plea
       Under state law, a defendant may move the trial court to set aside a guilty plea for
“good cause” at any time before the entry of judgment. (§ 1018.) “Good cause” means
mistake, ignorance, fraud, duress or any other factor that overcomes the exercise of free
judgment and must be shown by clear and convincing evidence. (People v. Ravaux
(2006) 142 Cal.App.4th 914, 917.) The standard for determining the validity of a guilty
                                              8
plea is set forth in Boykin v. Alabama (1969) 395 U.S. 238. A defendant must be
informed of his rights and he must be given an opportunity to make an intelligent choice
to plead guilty. (In re Ibarra (1983) 34 Cal.3d. 277 [overuled on other grounds in People
v. Howard (1992) 1 Cal.4th 1132].) Before a defendant may enter a plea of guilty, he
must knowingly and intelligently waive certain constitutional rights: the privilege against
self incrimination, the right to trial by jury, and the right to confront his accusers.
(Boykin v. Alabama, supra, at p. 243.) Furthermore, “the record must contain on its face
direct evidence that the accused was aware, or made aware, of his right to confrontation,
to a jury trial, and against self-incrimination, as well as the nature of the charge and the
consequences of his plea.” (In re Tahl (1969) 1 Cal.3d 122, 132 [disavowed on other
grounds].)
       Defendant argues that his plea was not knowing and intelligent because he was
emotionally unstable and under duress when he entered it. Defendant’s mother and sister
testified that he was crying and emotionally upset at the plea hearing. Lindstrom testified
to the contrary, stating that defendant was “resolved” and made the decision knowing the
seriousness of the charges and the risk of losing at trial. At the hearing on the motion to
withdraw, defendant testified that he understood the charges and allegations against him.
He admitted again to the facts of his involvement in the attack. But when the prosecutor
questioned him as to whether the evidence was thereby sufficient to support the charged
offense, defendant testified that he did not believe the evidence supported a charge of
attempted murder, and that Lindstrom had never explained the theory of aiding and
abetting to him. However, Lindstrom testified that he explained the theories of liability
to defendant, and Lindstrom believed that defendant eventually came to understand his
liability. Furthermore, defendant admitted that he accepted the plea agreement because
he was concerned about the consequences of a verdict against him, and he believed the
offer was the lowest sentence he could achieve. This testimony constitutes substantial
evidence for the trial court’s finding that defendant’s plea was knowing and intelligent.
                                               9
       Defendant also contends he did not want to enter into the plea, and that he did so
because of coercion by his attorney. Lindstrom agreed that he advised defendant to
accept the plea offer. However, “[t]he fact that [defendant] may have been persuaded, or
was reluctant, to accept the plea is not sufficient to warrant the plea being withdrawn.”
(People v. Ravaux, supra, 142 Cal.App.4th at p. 919.) “Guilty pleas resulting from a
bargain should not be set aside lightly and finality of proceedings should be encouraged.”
(People v. Hunt (1985) 174 Cal.App.3d 95, 103.)
       Finally, defendant asserts that Lindstrom failed to inform him of the email from
the expert physician stating he could not testify with certainty that the victim’s injuries
were caused by defendant’s kicks to the head. Although defendant testified that
Lindstrom had given him a stack of documents about an inch thick, defendant could not
recall exactly what was included in these documents. Lindstrom, however, testified that
he informed defendant of the likelihood the prosecutor would dismiss the great bodily
injury allegation based on the email from the doctor. This constitutes substantial
evidence to support a finding that defendant was aware of these circumstances at the time
of his plea.
       Accordingly, we find no abuse of discretion by the trial court in denying
defendant’s motion to withdraw his plea.
       C. Proportionality of the Sentence
       Defendant contends his sentence is disproportionate to his offense in violation of
the California Constitution. He argues that his participation in the attack on the victim
was limited to kicking the victim twice in the head, which did not result in “serious
injuries,” whereas another person inflicted the knife wounds. The Attorney General
contends defendant waived this claim on appeal under the terms of his plea agreement.
       The record shows that defendant expressly waived his appellate rights under the
terms of his plea agreement after the trial court admonished him as to his right to appeal
and questioned him as to his understanding of it. Having rejected defendant’s challenge
                                             10
to the validity of his plea, we must enforce its terms. (People v. Panizzon (1996) 13
Cal.4th 68, 84 [waiver of right to appeal on basis of disproportionate sentence found
enforceable where defendant entered it knowingly, intelligently, and voluntarily].)
Furthermore, defendant’s acceptance of the plea arrangement constituted an implicit
waiver of his appeal on this ground. “ ‘When a defendant maintains that the trial court’s
sentence violates rules which would have required the imposition of a more lenient
sentence, yet the defendant avoided a potentially harsher sentence by entering into the
plea bargain, it may be implied that the defendant waived any rights under such rules by
choosing to accept the plea bargain.’ ” (People v. Hester (2000) 22 Cal.4th 290, 295
[quoting People v. Couch (1996) 48 Cal.App.4th 1053, 1057].) Accordingly, we find
defendant has waived appellate review of his claim that he received a disproportionate
sentence.
       D. Ineffective Assistance of Counsel
       Defendant raises numerous claims of ineffective assistance of counsel by
Lindstrom. The Attorney General characterizes Lindstrom’s conduct as tactically
motivated and contends his representation was reasonable. We agree with defendant that
Lindstrom’s representation fell below professional standards in some respects, but on the
record before us, defendant does not show a reasonable likelihood he would have
obtained a more favorable outcome absent counsel’s deficiencies.
       Generally, defendant alleges Lindstrom failed to investigate the facts of the
offense and present a viable defense. Specifically, defendant claims Lindstrom (1) failed
to challenge the allegations of great bodily injury and that the offense was committed for
the benefit of a criminal street gang, resulting in his case being transferred to adult court,
(2) failed to investigate the facts of the search and to file a motion to suppress based on
the unlawful police entry into his home and the circumstances of his interrogation,
(3) failed to file a motion to dismiss under section 995, (4) failed to seek discovery with
respect to his alleged gang membership, (5) failed to seek discovery showing the victim
                                              11
was a gang member, and (6) stipulated to the testimony of a gang expert at the
preliminary hearing. Most of these claims are not supported by evidence in the record.
But several of defendant’s complaints regarding the deficiency of Lindstrom’s
representation have merit.
       First, Lindstrom admitted he did no investigation of the facts and circumstances of
the alleged offense, filed no motions, and made no discovery requests. He also did not
interview defendant’s family members regarding the police entry into the apartment and,
more critically, the record indicates he never attempted to interview defendant’s mother’s
husband, who initially answered the door when police knocked. Lindstrom claimed he
reviewed the police reports with defendant with respect to the police entry, but defendant
was asleep upstairs when the police entered his home, so defendant likely would not have
known whether their entry was consensual.
       Second, Lindstrom admitted he made no attempt to interview the victim or any
other witness, even though Lindstrom conceded that the victim was in custody and
available to him. Lindstrom claimed the victim’s testimony at the preliminary
examination was helpful, and therefore there was no need to interview him. But the
preliminary hearing occurred long after defendant was found not fit for juvenile court,
and Lindstrom did no investigation and filed no motions attempting to keep defendant in
juvenile court. Conducting a basic investigation, such as attempting to interview the
victim, might have yielded evidence that defendant was not responsible for the serious
injuries suffered by the victim––evidence that counsel discovered only after defendant
was removed from juvenile proceedings. Lindstrom admitted that the allegation of great
bodily injury was a factor in the hearing to determine whether defendant’s case should be
transferred to adult court, yet he made no attempt to investigate the facts of those injuries
or his client’s role in causing them.
       Lindstrom’s failure to investigate any of the facts and circumstances of the offense
constituted deficient performance. “Criminal defense counsel has the duty to investigate
                                             12
carefully all defenses of fact and of law that may be available to the defendant.” (In re
Hill (2011) 198 Cal.App.4th 1008, 1016.) “[A] defense attorney who fails to investigate
potentially exculpatory evidence […] renders deficient representation.” (In re Edward S.
(2009) 173 Cal.App.4th 387, 407.) “In any ineffectiveness case, a particular decision not
to investigate must be directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s judgments.” (Strickland, supra, 466
U.S. at p. 691.)
       Here, there was no reasonable or tactical explanation for counsel’s failure to
conduct a basic investigation. Although Lindstrom testified that he saw no basis for
filing motions or a written opposition to the fitness determination, he could not have
made a reasonable decision about whether to do so without first investigating the relevant
facts. A defendant “can reasonably expect that in the course of representation his counsel
will undertake only those actions that a reasonably competent attorney would undertake.
But he can also reasonably expect that before counsel undertakes to act at all he will
make a rational and informed decision on strategy and tactics founded on adequate
investigation and preparation.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) (Italics
added.) Based on the facts in the record, a reasonably competent attorney would have
conducted some investigation to determine whether grounds existed for suppression of
defendant’s statements or other evidence. This is particularly important when a
defendant faces charges as serious as the attempted murder charges defendant faced here.
(In re Hill, supra, 198 Cal.App.4th at p. 1017) [“[W]e must consider the seriousness of
the charges against the defendant in assessing counsel’s performance.”].)
       For example, defendant faced a three-year enhancement for personally inflicting
great bodily injury on the victim, but Lindstrom conducted no independent investigation
to determine the extent to which defendant in fact was responsible for inflicting injuries
to the victim’s head. The record, including an email produced by the prosecutor from an
expert physician expressing doubt about whether the victim’s injuries to the head were
                                            13
caused by defendant, suggests defendant may not have personally inflicted great bodily
injury on the victim. Counsel offered no explanation or justification for his failure to
investigate these facts independently or at an earlier stage of the proceedings.
       Second, Lindstrom made no motion to suppress defendant’s statements to the
police, and the record does not suggest any tactical justification for the failure to do so.
As Lindstrom acknowledged, defendant’s own statements constituted the strongest
evidence against him. The record holds no statements from any eyewitnesses to his
involvement in the attack. At the preliminary hearing, the victim testified that he could
not identify any of his attackers. The victim’s girlfriend testified that she could identify
Lil Shadow, but she could not identify any of the other attackers. Nor does the record
contain any forensic evidence connecting defendant to the offense. Defendant’s
statements are the only evidence of his involvement in the attack found in the record.
       The record shows a motion to suppress some or all of defendant’s statements to
the police would not have been frivolous. First, had Lindstrom been able to show the
police entry into the apartment was nonconsensual, or that the police detained defendant
without probable cause or reasonable suspicion, at least some portion of defendant’s
statements may have been suppressed under Kaupp v. Texas (2003) 538 U.S. 626, 632
(per curiam) (illegal detention under Fourth Amendment requires exclusion of subsequent
statement given after Miranda warnings unless the confession was an act of free will
sufficient to purge the taint of the unlawful invasion). There is no dispute that police
entered defendant’s home without a warrant. The evidence holds conflicting evidence as
to whether the police had consent to enter, but even if they did, it is not clear they had
probable cause or reasonable suspicion to detain defendant. At the preliminary hearing,
the testifying officer stated only that police had “developed information” about defendant
prior to searching his apartment. A police report states only that a neighbor saw
defendant standing in the park when Lil Shadow came to her door seeking shelter. We
cannot determine from this record whether police had sufficient probable cause or
                                              14
reasonable suspicion to detain defendant for questioning, but a competent and diligent
defense attorney would have sought to investigate these facts.
       As to whether defendant was detained or in custody at the time of his questioning,
he was awakened by four or five police officers in his bedroom at around 2:00 a.m., and
he was taken outside the apartment in his bare feet and pajamas while his family
members were detained inside. A reasonable person in these circumstances would not
have felt free “to disregard the police and go about his business.” (California v. Hodari
D. (1991) 499 U.S. 621, 628.) We think these circumstances, especially because
defendant was a minor, suggest defendant was detained for purposes of the Fourth
Amendment, and that he was in custody for purposes of the Fifth Amendment. (United
States v. Mendenhall (1980) 446 U.S. 544, 554 [a person has been “seized” within the
meaning of the Fourth Amendment if a reasonable person would have believed that he
was not free to leave]; People v. Arnold (1967) 66 Cal.2d 438, 448 [“[C]ustody occurs if
the suspect is physically deprived of his freedom of action in any significant way or is led
to believe, as a reasonable person, that he is so deprived.”] [disapproved on other grounds
in Walker v. Superior Court (1988) 47 Cal.3d 112, 123]; People v. Lewis (2001) 26
Cal.4th 334, 383 [“To determine whether a minor’s confession is voluntary, a court must
look at the totality of circumstances, including the minor’s age, intelligence, education,
experience, and capacity to understand the meaning and consequences of the given
statement.”].) Furthermore, according to police testimony, defendant admitted his
involvement in the attack before he was admonished under Miranda. A motion to
exclude the pre-Mirandized portion of defendant’s statements would not have been
frivolous, and a motion to exclude defendant’s statements made after he was given his
Miranda warnings could also have been made.4

       4
         The United States Supreme Court in Missouri v. Seibert (2004) 542 U.S. 600
(Seibert), for example, suppressed a defendant’s postwarning statement when police first
                                                                             (Cont.)
                                             15
       Even if a motion to suppress should have been made, defendant has not shown a
reasonable probability that he would have obtained a more favorable outcome as a result.
The record does not sufficiently set forth the facts and circumstances of the interrogations
and detention of defendant.5 For example, it is not clear what police said to defendant
prior to taking him outside the apartment, and what caused defendant to make inculpatory
statements before the police gave him a Miranda warning. (See Rhode Island v. Innis
(1980) 446 U.S. 291, 301 [“interrogation” under Miranda refers not only to express
questioning, but also to any words or actions that the police should know are reasonably
likely to elicit an incriminating response].) It is not clear what defendant told police
immediately after his formal arrest and initial Miranda warning. Nor can we determine
the extent to which defendant’s postwarning statements were mere repetitions of his
initial, unwarned statement, or to what extent he may have provided additional detail.
Finally, defendant points to nothing to show that his post-Mirandized statements should
be suppressed under Seibert. Accordingly, the record here does not show that a motion to
suppress would have yielded a reasonable probability of a more favorable outcome absent
counsel’s deficient conduct. Because, under Strickland, the burden is on defendant to
demonstrate prejudice, we find that defendant has not shown ineffective assistance of
counsel arising out of the failure to file a motion to suppress. 6 (In re Hill, supra, 198
Cal.App.4th 1008.)
       Defendant also complains of Lindstrom’s failure to seek dismissal under section
995. Based on Lindstrom’s testimony, it is likely he could have moved for dismissal of

deliberately elicited a confession before providing the defendant with a Miranda warning,
then warned the defendant and conducted the interrogation anew.
       5
         Critical to this analysis would be the recordings of defendant’s statements, which
neither party has made part of the record.
       6
         Based on the incomplete nature of the record concerning these circumstances, a
writ of habeas corpus would be a more appropriate forum for adjudication of these
claims.


                                              16
the great bodily injury allegation, but it is also clear he made a tactical decision not to do
so in the interest of obtaining a more favorable settlement. 7 “Reviewing courts will
reverse convictions on the ground of inadequate counsel only if the record on appeal
affirmatively discloses that counsel had no rational tactical purpose for his act or
omission.” (People v. Fosselman (1983) 33 Cal.3d 572, 581.) We do not second-guess
the wisdom of counsel’s tactical choice in this regard. Moreover, while it is
hypothetically possible defendant would have enjoyed a stronger bargaining position had
counsel obtained dismissal of the great bodily injury allegation at an earlier stage in the
proceedings, the facts in the record do not demonstrate that such an outcome was
reasonably probable.
       Defendant further complains of Lindstrom’s conduct with respect to evidence of
defendant’s gang membership. Defendant contends he is not a gang member, and he
complains of Lindstrom’s stipulation to the gang expert testimony at the preliminary
hearing in which the expert opined defendant was a gang member. However, whether
defendant was a gang member was not a matter of great import with respect to the
charges against him. Defendant need not be a gang member to be liable for the
enhancement under section 186.22, subdivision (b)(l)(C) (applying to “any person who is
convicted of a felony committed for the benefit of, at the direction of, or in association
with any criminal street gang, with the specific intent to promote, further, or assist in any
criminal conduct by gang member [. . . .]”.) Defendant does not dispute that he
participated in the attack “for the benefit of” or “in association with” a group of Sureño
gang members. Nor does he dispute that attacking a Norteño gang member in territory
dominated by a Sureño gang amounted to “promot[ing], further[ing], or assist[ing]” the

       7
         Regarding Lindstrom’s testimony to the effect that the enhancement for great
bodily injury was nothing more than a bargaining chip in settlement negotiations, we find
counsel’s statements troubling. While we are aware of the realities of plea bargaining, no
attorney may advise his client to admit an allegation having no basis in fact.

                                              17
latter gang’s criminal conduct. In light of these facts, it is not reasonably probable that
the issue of defendant’s membership in the gang would have affected the outcome of the
proceedings.
       Finally, regarding the issue of prejudice generally, much of the evidence against
defendant pertaining to the charge of attempted murder and the alleged gang
enhancement was not in dispute. Absent a successful motion to suppress his statements,
it is not reasonably probable that defendant would have enjoyed a more favorable
outcome had counsel employed the various tactics defendant now contends he should
have undertaken. For example, defendant has not shown that competent investigation or
other more diligent efforts by counsel could have overcome the evidentiary hurdles he
faced. Defendant admitted to the police that he kicked the victim at least twice in the
head. While defendant denies that he was a gang member, he admitted that he attacked
the victim in concert with Sureño gang members after the victim revealed he was a
member of a rival Norteño gang. It is not reasonably likely that a jury would have
ignored or overlooked such evidence in assessing the charges against defendant. Given
the possibility of a 10-year gang enhancement penalty, and defendant’s undisputed
cooperation with gang members in mounting the attack, it is not reasonably probable
defense counsel could have obtained a more favorable plea bargain absent his deficient
conduct. While a successful motion to suppress defendant’s statements might have
shifted the balance of the evidence in defendant’s favor, for the reasons above, we find
defendant has not demonstrated a reasonable probability that such a motion would have
been successful.
       In sum, given the state of the evidence in the record, defendant has not shown a
reasonable probability that defense counsel, absent deficient conduct, could have
obtained a more favorable outcome. Accordingly, defendant has failed to establish
prejudice under the Strickland standard. We therefore find defendant’s claims of
ineffective assistance of counsel without merit.
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                             III.   DISPOSITION
The judgment is affirmed.


                            _______________________________
                            Márquez, J.




WE CONCUR:




_____________________________________
 Rushing, P. J.




______________________________________
 Premo, J.




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