Filed 12/11/14 P. v. Delacruz CA6
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039109 & H039282
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. Nos. SS120582 &
                                                                     SS120567)
             v.

WILLIAM DELACRUZ,

         Defendant and Appellant.



         Defendant William Delacruz brings two appeals to this court. In case number
H039109, defendant asserts there was insufficient evidence to support the jury’s finding
that his prior conviction for battery with serious bodily injury, pursuant to Penal Code
section 243, subdivision (d),1 was a serious felony pursuant to section 1170.2,
subdivision (c)(1).
         In H039282, defendant argues he was denied effective assistance of counsel
because his counsel advised him to admit that his prior conviction for battery with serious
bodily injury was a serious felony pursuant to section 1170.2, subdivision (c)(1).
Defendant asserts he was prejudiced by the admission, because there was insufficient
evidence that his prior was a serious felony.




         1
             All further unspecified statutory references are to the Penal Code.
         In conjunction with two appeals, defendant filed a petition for writ of habeas
corpus in case number H040287. In the petition, defendant argued his prior conviction
did not constitute a serious felony. We issued an order to show cause, returnable to the
trial court. We stayed the two appeals pending the outcome of the hearing in superior
court.
         The Monterey Superior Court held a hearing on the petition for habeas corpus on
July 2, 2014, and found defendant’s 1993 prior conviction for battery with serious bodily
injury was not a serious felony within the meaning of section 1170.12, subdivision (c)(1).
                                   STATEMENT OF THE CASE2
         Case Number H039282
         On March 21, 2012, defendant was charged by information with possession of
heroin for sale, in violation of Health and Safety Code section 11351. The information
also alleged defendant had a prior conviction of a serious felony (§ 1170.12, subd. (c)(1).)
         In September 2012, defendant filed a Romero motion to strike the prior serious
felony allegation. The court denied the motion. In October 2012, defendant pleaded no
contest to possession for sale of heroin and admitted that his prior conviction for battery
with serious bodily injury constituted a strike.
         Case Number H039109
         On March 30, 2012, defendant was charged by information with possession of
heroin for sale in violation of Health and Safety Code section 11351. The information
also alleged defendant was on probation when he committed the offense (§ 12022.1), and
that he had a prior conviction of a serious felony (§ 1170.12, subd. (c)(1)).
         Defendant filed a motion pursuant to section 1385 requesting that the court
dismiss his prior serious felony conviction, which the court denied.


         2
             The underlying facts are omitted because they are not relevant to the issues on
appeal.
                                                2
       Defendant’s case proceeded to jury trial, and the court granted defendant’s request
to bifurcate the trial of his prior serious felony conviction, and his on-bail enhancement
allegation. The jury convicted defendant of possessing heroin for sale. Immediately
thereafter, during the bifurcated trial on the enhancements, the jury found both the prior
serious felony and the on-bail allegation to be true.
       A sentencing hearing for both the jury trial case and the plea was held on
December 5, 2012. The court denied defendant probation, and sentenced him to prison
for the lower two-year term for possession for sale of heroin, doubled pursuant to the
strike, plus a two-year term for the on-bail enhancement, for a total sentence of six years.
                                         DISCUSSION
       The issue of whether defendant’s prior conviction for battery with serious bodily
injury constitutes a serious felony within the meaning of section 1170.2,
subdivision (c)(1) has already been considered in the trial court following this court’s
issuance of an order to show cause on defendant’s petition for writ of habeas corpus. We
take judicial notice of the trial court’s finding that defendant’s prior is not a strike.
       Moreover, following our issuance of an order to show cause, the People filed a
memorandum in the trial court stating that there was insufficient evidence to support the
finding that defendant’s prior conviction for battery with serious bodily injury was a
strike. We accept the People’s argument on the order to show cause in the trial court as a
concession on the issue.
       Therefore, the only remaining issue for our consideration is defendant’s argument
that he was denied effective assistance of counsel during his plea when he admitted that
his prior conviction was a strike. Defendant does not seek to withdraw his plea to the
crimes charged; rather, he seeks to vacate his admission that the prior conviction
constituted a strike.



                                               3
       Defendant’s argument that he was denied effective assistance of counsel is not
asserted in his two appeals; rather, it was made in his petition of habeas corpus.
Defendant requests that we incorporate these arguments from the habeas petition into his
appeals. We consider these arguments for the purpose of his appeals, without reference
to additional evidence accompanying the habeas petition.
       We apply the two-part Strickland v. Washington3 test to defendant’s challenge to
his admission based on ineffective assistance of counsel. (Hill v. Lockhart (1985) 474
U.S. 52, 58.) To prevail on an ineffective assistance claim under Strickland, supra, 466
U.S. 668, a defendant must show deficient performance of counsel and prejudice. (Id. at
p. 687.) To establish deficient performance of counsel, “the defendant must show that
counsel’s representation fell below an objective standard of reasonableness.” (Id. at
p. 688.)
       In order to establish he was prejudiced by counsel’s mistake, defendant must show
that is counsel’s ineffective performance “affected the outcome of the plea process.”
(Hill v. Lockhart, supra, 474 U.S. at p. 59.) “In other words, in order to satisfy the
‘prejudice’ requirement, the defendant must show that there is a reasonable probability
that, but for counsel’s errors, he would not have pleaded guilty . . . .” (Ibid., fn. omitted.)
       Here, there is no question defendant suffered ineffective assistance of counsel at
the time of his plea. Defendant’s counsel’s performance fell below “an objective
standard of reasonableness,” because she advised him to admit that his prior conviction
for battery with serious bodily injury was a serious felony within the meaning of section
1170.1, subdivision (c)(1) when there was insufficient evidence to support that finding
(Strickland, supra, 466 U.S. at pp. 687-688.) Had defendant’s trial counsel properly
reviewed the evidence and conducted adequate legal research, she would have



               3
                   Strickland v. Washington (1984) 466 U.S. 668 (Strickland).
                                               4
determined that the prior was not in fact a strike, and would not have advised defendant
to admit the prior as part of his plea.
       Moreover, defendant’s admission to the strike was prejudicial to him, because but
for counsel’s error in advising him to admit the prior, defendant would not have made
such admission.
       Because defendant suffered ineffective assistance of counsel in admitting his prior
conviction for battery with serious bodily injury was a strike, his strike conviction must
be vacated, and the matter must be remanded to the trial court for resentencing.
                                          DISPOSITION
       The judgment is reversed.
       In case number H039282, defendant’s admission that his prior conviction for
battery with serious bodily injury was a serious felony within the meaning of
section 1170.12, subdivision (c)(1) is vacated. The matter is remanded to the trial court
for resentencing.
       In case number H039109, the jury’s finding that defendant’s conviction for battery
with serious bodily injury was a serious felony within the meaning of section 1170.12,
subdivision (c)(1) is stricken. The matter is remanded to the trial court for resentencing.




                                              5
                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA, J.




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