Filed 9/16/13 In re Carlos L. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re CARLOS L., a Person Coming Under
the Juvenile Court Law.
                                                                 D063267
THE PEOPLE,

         Plaintiff and Respondent,                               (Super. Ct. No. J230624)

         v.

CARLOS L.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Richard R.

Monroy, Judge. Affirmed.

         Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting and Michael T.

Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
       This appeal arises from a dispositional order after Carlos L. (the Minor) admitted

having committed an attempted murder for the benefit of a street gang. In his admission

of attempted murder, the Minor accepted as a factual basis that he aided and abetted the

commission of the offense. The probation officer's report for the dispositional hearing

noted witness statements that claimed the Minor was the person with the gun and the one

who fired a shot at a rival gang member. The juvenile court considered that information

together with other data in the probation officer's report and ordered the Minor be

committed to the Department of Juvenile Justice (DJJ). The Minor appeals contending

the court erred in considering the witness statements in the probation officer's report, and

that his trial counsel was ineffective for failing to object to such statements. The Minor

has also filed a companion petition for writ of habeas corpus (In re Carlos L., D064067)

repeating his allegations that trial counsel was ineffective.

       We will find no error by the court or the prosecution in referring to the witness

statements which identified the Minor as the person who used the firearm. We will also

find the Minor has failed to establish ineffective assistance by trial counsel. Accordingly,

we will affirm the judgment. We will deny the petition for writ of habeas corpus by

separate order.

       Before we begin the discussion of the issues raised in this appeal, we pause to note

what is not at issue. The Minor does not challenge his admission of the offense and the

gang enhancement. Nor does the Minor challenge the juvenile court's exercise of

discretion in rejecting his request for placement in a residential treatment facility and


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instead choosing to commit him to DJJ. With those limitations in mind, we will omit a

statement of facts of the underlying offense since it is not necessary for the discussion of

the issues on appeal.

                            PROCEDURAL BACKGROUND

       The Minor was charged by petition filed in juvenile court with one count of

attempted murder (Pen. Code,1 §§ 664 & 187) and two counts of assault with a firearm

(§ 245, subd. (a)(2)). It was also alleged the offenses were committed for the benefit of a

street gang (§ 186.22, subd. (b)(1)); that the attempted murder was premeditated (§ 189);

and that the Minor personally discharged a firearm (§§ 12022.5, subd. (a)(1) & 12202.53,

subd. (c)).

       The Minor was on probation at the time of the offenses in this case.

       The Minor reached a negotiated settlement under the terms of which he admitted

the commission of the attempted murder and admitted the offense was committed for the

benefit of a criminal street gang. The prosecution dismissed the remaining charges and

allegations and stipulated that the Minor was suitable for treatment as a juvenile. The

dismissal of the remaining charges and allegations was accompanied by a Harvey2

waiver by the Minor.

       At the dispositional hearing the court set the maximum term for the offense at

19 years 8 months. At the conclusion of the hearing the Minor was committed to DJJ.


1      All further statutory references are to the Penal Code unless otherwise specified.
2      People v. Harvey (1979) 25 Cal.3d 754, 758.

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                                       DISCUSSION

                                              I

                            ALLEGED EVIDENTIARY ERROR

       The Minor contends the court erred in considering "evidence" from the probation

officer's report. Specifically, the Minor complains that the prosecution referred to

witness statements contained in the report that identified the Minor as the member of the

gang who possessed the firearm and as the person who fired the shot at the victim. The

Minor contends that since the factual basis, which was accepted for his admission was

that he aided and abetted the shooting, considered witness statements identifying him as

the "shooter" violated his plea agreement in some manner.

       At the outset we note several points. First, there is no agreement expressed in this

record that guaranteed, or even hinted that a disposition excluding a DJJ commitment

would occur. Further, the Minor's admission of the attempted murder offense, even as an

aider and abettor, still made him a principal in that offense. (§ 31.)

                                      A. Background

       The Minor negotiated an agreement under which he admitted the offense of

attempted murder as an aider and abettor and admitted the gang allegation. In return the

prosecution stipulated the Minor was suitable for treatment as a juvenile and dismissed

the remaining counts and allegations with a Harvey waiver.

       The social study submitted by the probation officer for the disposition hearing

referred to police reports which contained statements from the parents of the victim, rival


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gang members, that identified the Minor as the person who possessed the gun and fired

the shot at the victim, striking the victim's mother. The probation officer recommended

that given the Minor's gang affiliation, substance abuse, poor performance on probation

and his need for the appropriate level of services, that the court should commit the Minor

to DJJ and not to a residential treatment facility.

       During the disposition hearing the juvenile court said:

           "I do think that the recommendation from probation for DJJ is
           appropriate, given the offense that's in front of me, the information
           that I have, and the fact that I am considering, as well as the
           agreement with the People, which was a very beneficial agreement
           for Carlos to limit his exposure in the manner that he did. And as
           such, I think that the recommendation presented by probation, and
           argued for by the People, is the appropriate one, and I will be
           following it."

       The Minor's counsel did not object to the court's consideration of witness

statements in the social study, nor did counsel move to strike such statements and did not

object to the prosecutor's comments. Thus the issue now raised was never presented to

the trial court.

                                     B. Legal Principles

       It appears that Minor's appellate counsel contends the factual statement given as

part of the admission constitutes some form of plea agreement. It is difficult to discern

the nature of the plea agreement here, other than agreement to admit attempted murder

with the gang enhancement, stipulate to juvenile status and dismiss the balance of the

petition with a Harvey waiver. Beyond that, we find no direct or implied agreement on



                                               5
disposition contained in the record. However, we will briefly review applicable

principles regarding plea agreements.

       It is possible for a plea agreement to set forth limitations on the court's sentencing

power. (§ 1192.5; People v. Cruz (1988) 44 Cal.3d 1247, 1249.) The factual basis for a

plea is required to allow the trial court to satisfy itself that the offender understands the

offense to which the plea is entered and to assist in the determination of voluntariness.

(People v. French (2008) 43 Cal.4th 36, 50; In re Jermaine B. (1999) 69 Cal.App.4th

634, 640.)

       Where a plea agreement is based on promises from the prosecution or the court,

those promises must be honored. (Santobello v. New York (1971) 404 U.S. 257, 262.)

Where the plea agreement includes the so-called "Harvey waiver," the sentencing court

may consider the dismissed counts and allegations in determining the appropriate

sentence for the offense(s) admitted. Failure to object to an alleged violation of the

principles of People v. Harvey, supra, 25 Cal.3d 754, will result in forfeiture of that

issue. (People v. Beagle (2004) 125 Cal.App.4th 415, 420.)

                                         C. Analysis

       As we have noted it is a bit difficult to discern the precise error at issue in this

case. Clearly the Minor complains about the reference to witnesses who describe him as

the shooter in this case. Somehow, the court's consideration of the social study and the

facts surrounding the events, has been characterized as a violation of a plea agreement.

The difficulty with such contention, however, is there simply was no agreement regarding


                                               6
disposition, except to the extent charges and allegations were dismissed and the Minor

would be treated as a juvenile, all of which were of great benefit to the Minor.

Otherwise, neither the court nor the prosecution made any direct or implied concessions

as to the ultimate disposition of the case. Apparently, appellate counsel is of the view

that the reference to witness statements somehow changed an agreed upon disposition,

but there is no support for that position in the record.

         In any event, the court was clearly entitled to consider the facts surrounding the

offense. And, as we have noted, the Minor admitted the offense of attempted murder as a

principal, whether the given factual basis was as a perpetrator or aider and abettor.

Further, the probation officer independently recommended DJJ commitment for the

Minor for numerous reasons, in addition to the manner of the commission of the offense.

         In short, the record does not support the claim of breach of some form of

agreement regarding disposition that might have been based on the difference between

the factual statement and the statements of witnesses that were contained in the social

study.

                                               II

                        INEFFECTIVE ASSISTANCE OF COUNSEL

         The Minor contends trial counsel was ineffective for failing to object to the

witness statements contained in the social study and for failing to have such statements

removed. At the outset, we note appellate counsel has not cited any authority for the

proposition that trial counsel could have successfully challenged factually accurate


                                               7
information in the social study. Indeed, there has never been any contention that the

witness statements reported were inaccurate. Instead, appellate counsel merely asserts

that any statements contrary to the factual basis of the Minor's admission must be

stricken. Understandably, no authority has been cited for such position, because it has no

basis in law or logic.

                                     A. Legal Principles

       When a defendant contends trial counsel has been ineffective, such defendant

bears the burden of showing that trial counsel's performance fell below the prevailing

standard of care, and that but for such error, it is reasonably probable there would have

been a different outcome for the defendant. (Strickland v. Washington (1984) 466 U.S.

668, 694 (Strickland); In re Valdez (2010) 49 Cal.4th 715, 729.)

       Where there is no explanation for trial counsel's action, or inaction, we will not

assume error unless there can be no reasonable explanation for such action. (People v.

Camino (2010) 188 Cal.App.4th 1359, 1377.) Under the Strickland standard we give

deference to trial counsel's tactical decisions, unless such decisions are clearly in error, or

there can be no sound reason for counsel's tactical choice.

       In a juvenile case the probation officer must submit a social study prior to the

disposition hearing, which study must discuss the minor's criminal history and the

circumstances and gravity of the offense among other issues. (Welf. & Inst. Code,

§§ 706 & 725.5.)




                                               8
                                        B. Analysis

       This record does not contain any information from which we could infer

ineffective assistance of trial counsel. On the contrary, counsel negotiated a very

favorable outcome for the Minor, given his history and the very serious nature of his

criminal conduct. Not only did counsel get serious charges and allegations dismissed, but

she also was able to keep the Minor out of adult court.

       Trial counsel also conducted a vigorous effort to avoid a DJJ commitment for the

Minor. She argued strongly for a residential treatment facility for her client. That

counsel was not able to persuade the trial court to ignore the probation officer's

recommendation does not demonstrate ineffective assistance. Rather, given the client's

history and current offense the trial court reasonably rejected counsel's proposal. We also

note appellate counsel has not challenged the trial court's decision on the merits. The

only challenge made to the choice of a DJJ commitment is based on the specious claim

that the court could not consider anything that contradicts the factual basis for the Minor's

admission. As we have already stated, there is no legal support for appellate counsel's

argument in this regard.

       Accordingly, we find the Minor has not met his burden on either prong of the

Strickland test and therefore find he has not shown trial counsel was ineffective in any

regard.




                                             9
                                DISPOSITION

    The judgment is affirmed.


                                              HUFFMAN, J.

WE CONCUR:



          McCONNELL, P. J.


                   BENKE, J.




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