Opinion
NOT TO BE PUBLISHED
On remand by U.S. Supreme Court
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA052214, John Vernon Meigs, Judge. Affirmed.
PETITION for writ of habeas corpus. Writ denied.
Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ALDRICH, J.
INTRODUCTION
Defendant and appellant Nicolas David Andreas appeals from the judgment entered following a jury trial that resulted in his convictions for three counts of committing a lewd act upon a child. Andreas was sentenced to a prison term of 30 years. In our original nonpublished opinion, filed November 30, 2005, we affirmed Andreas’s convictions and sentence. We also concurrently considered and denied Andreas’s petition for a writ of habeas corpus. (People v. Andreas (Nov. 30, 2005, B171847 [nonpub. opn.].)
On February 20, 2007, the United States Supreme Court vacated the judgment and remanded to us for further consideration in light of Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856, 127 S.Ct. 856].) We requested and received further briefing from the parties on the effect of Cunningham on Andreas’s sentence. We again affirm the judgment and deny the writ.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence relevant to the issues presented on appeal established the following. Over the weekend of June 15, 2002, siblings R. and R.G. stayed at the home of their aunt M. and her husband, appellant Andreas.
Andreas entered the bathroom while eight-year-old R. was taking a bath. Andreas had R., who was nude, sit on his lap, with R.’s buttocks touching Andreas’s clothed genital area. Andreas also rubbed lotion on R.’s body. In a second incident, Andreas woke R., who was sleeping on the living room couch, and made R. sit on his “private.” In a third incident, Andreas approached R. while he was playing a video game and told R. he was going to give him a massage. Andreas pulled down R.’s pants and made R. bend over the bed. Andreas then digitally penetrated R.’s anus with his thumb.
It was undisputed that R. suffered from chronically dry skin.
R. alerted his mother to the molestation. When R.’s mother confronted Andreas with the allegations in a telephone call, Andreas denied them. R. spoke to Andreas on the telephone and stated, “You know you did that to me.”
R. described the molestations to a forensic nurse and two police officers. R.’s trial testimony, preliminary hearing testimony, and out of court account of the molestations were consistent in certain respects, and contradictory in others.
For example, R.’s statements were inconsistent regarding which incidents occurred on which days, whether the bathtub or digital penetration incident occurred first, whether Andreas inserted his penis or his thumb into R.’s anus, whether he was required to touch Andreas’s penis, and whether there were two or three incidences of molestation.
During the same weekend, Andreas also placed his hand inside six-year-old R.G.’s pajamas and touched R.G.’s genital area.
2. Procedure.
Trial was by jury. Andreas was convicted of four counts of committing a lewd act upon a child (Pen. Code, § 288, subd. (a)). The trial court granted a motion for a new trial on count 4, commission of a lewd act on R.G. Count four was subsequently dismissed on the People’s motion.
All further undesignated statutory references are to the Penal Code.
In a bifurcated proceeding, the trial court found true allegations that Andreas had suffered a prior serious felony conviction (§§ 667, subd. (a)(1); 667, subds. (b) - (i); 1170.12, subds. (a) – (d)) and had served a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced Andreas to a term of 30 years in prison, configured as follows: on count 1, the high term of eight years, doubled pursuant to the Three Strikes law; on counts 2 and 3, consecutive sentences of two years, one-third the midterm, doubled pursuant to the three strikes law; a consecutive 5-year section 667, subdivision (a) serious felony enhancement; and a consecutive 1-year prior prison term enhancement (§ 667.5, subd. (b)). It further imposed a restitution fine, a suspended parole revocation fine, and a court security surcharge.
Andreas appealed. As noted, in a nonpublished opinion we affirmed Andreas’s convictions and sentence. (People v. Andreas, supra, B171847.) On February 20, 2007, the United States Supreme Court vacated the judgment and remanded to us for further consideration in light of Cunningham v. California, supra, 127 S.Ct. 856.
DISCUSSION
1. Instruction with CALJIC No. 2.20.1 was not error.
Over defense counsel’s objection, and as required by section 1127f, the trial court instructed the jury with the standard version of CALJIC No. 2.20.1, as follows: “In evaluating the testimony of a child [ten years of age or younger] you should consider all of the factors surrounding the child’s testimony, including the age of the child and any evidence regarding the child’s level of cognitive development. A child, because of age and level of cognitive development, may perform differently than an adult as a witness, but that does not mean that a child is any more or less believable than an adult. You should not discount or distrust the testimony of a child solely because he or she is a child. [¶] ‘Cognitive’ means the child’s ability to perceive, to understand, to remember, and to communicate any matter about which the child has knowledge.”
Section 1127f provides: “In any criminal trial or proceeding in which a child 10 years of age or younger testifies as a witness, upon the request of a party, the court shall instruct the jury” with essentially the same language as that contained in CALJIC No. 2.20.1.
Andreas challenges the trial court’s use of this instruction, urging that it unfairly bolstered R.’s and R.G.’s credibility, unconstitutionally lessening the People’s burden of proof. Andreas complains that the portion of the instruction stating a child may perform differently than an adult because of age and cognitive development impermissibly invaded the jury’s role of assessing witness credibility, in that it purportedly removed evidence relevant to credibility assessment from the jury’s purview. Accordingly, Andreas argues, his ability to impeach R.’s and R.G.’s testimony was impaired in violation of his right to present a defense. These contentions lack merit.
Andreas objected to CALJIC No. 2.20.1 on the grounds it violated his due process and equal protection rights. The People contend Andreas has waived his other constitutional claims because he did not specifically object on the additional constitutional grounds below. However, any error in giving the instruction may be reviewed on appeal if it affects Andreas’s substantial rights. (People v. Slaughter (2002) 27 Cal.4th 1187, 1199; § 1259.) Accordingly, we address the merits of Andreas’s claims.
As Andreas recognizes, CALJIC No. 2.20.1 has been repeatedly upheld against similar attacks. (See People v. Jones (1992) 10 Cal.App.4th 1566, 1572-1574; People v. Gilbert (1992) 5 Cal.App.4th 1372, 1392-1394; People v. Harlan (1990) 222 Cal.App.3d 439, 455-457.)
People v. Harlan, supra, 222 Cal.App.3d at page 457,for example, concluded the use of CALJIC No. 2.20.1 was not error. It explained that the second sentence of the instruction did not tell jurors to disregard a child’s age and cognitive abilities; to the contrary, the use of the word “perform” implied nonverbal action. (Id. at p. 455.) “This sentence merely advises the jury that due to the age and level of cognitive development, a child may act differently on the witness stand than an adult. It does not relate to the truth or falsity of the content of the child’s testimony. The language refers to one of many factors to be applied by a jury in determining a witness’s credibility, namely, the demeanor and manner of the witness while testifying.” (Ibid.) Moreover, the cautionary aspect of the second sentence was neutral. It advised only that the jury should not consider aspects of the child’s performance on the witness stand, which are attributable to age or cognitive ability, as evidence the child was more or less credible than an adult. (Ibid.) The third sentence of the instruction was likewise neutral; it did not give more credibility to a child than to an adult. (Id. at pp. 455-456.) Finally, Harlan concluded the instruction did not usurp the jury’s role to make findings on the child witness’s credibility. The instruction “simply requires jurors not to find child witnesses unreliable solely because of their age. Rather, they are to consider the child witness’s testimony in light of evidence of his or her cognitive development and other factors[,]” i.e., to focus on factors other than the witness’s youth. (Id. at p. 456; see also People v. Gilbert, supra, 5 Cal.App.4th at p. 1393 [CALJIC No. 2.20.1 did not impermissibly lessen People’s burden of proof; instead it “provide[d] sound and rational guidance to the jury in assessing the credibility of a class of witnesses as to whom ‘ “traditional assumptions” ’ may previously have biased the factfinding process.”]; People v. Jones, supra, 10 Cal.App.4th at p. 1574 [instruction did not remove issue of credibility from the jury].)
Contrary to Andreas’s argument, we believe the reasoning in the foregoing authorities is sound. As explained in People v. Jones, supra, 10 Cal.App.4th at pages 1573-1574, CALJIC No. 2.20.1 does not instruct the jury that a child witness is more credible than a nonchild witness. “[I]n fact, it presupposes that the jury must make a determination of credibility, but only after considering all the factors related to a child’s testimony, including his demeanor, i.e., how he or she testifies on the stand . . . .” (Id. at p. 1574.)
Moreover, whether jury instructions are correct and adequate must be determined by consideration of the instructions as a whole. (People v. Holt (1997) 15 Cal.4th 619, 677.) The jury was instructed with CALJIC No. 2.20, which listed a variety of factors relevant to the evaluation of witness credibility. Reasonable jurors would not have understood CALJIC No. 2.20.1 to require or suggest that they ignore the factors listed in CALJIC No. 2.20. Accordingly, we discern no infirmity in the trial court’s use of CALJIC No. 2.20.1.
2. Sentencing issues.
As noted, the trial court imposed the upper term of 8 years on count 1, the base count. It explained the basis for its decision as follows: “[T]he court finds factors in aggravation in this case to be the fact that based on the victim’s age and the relationship to the defendant, he was particularly vulnerable. The court further finds an additional factor in aggravation to be the fact that [Andreas] had served a prior prison term. Additional factor in aggravation is that his prior convictions are numerous and of increasing seriousness.” The court further found Andreas, a repeated pedophile, was a danger to society.
In addition to imposing the upper term on count 1, the trial court imposed consecutive sentences on counts 2 and 3, plus a one-year prison term enhancement (§ 667.5, subd. (b)) and a five-year serious felony enhancement (§ 667, subd. (a)). Sentence on all counts was doubled pursuant to the Three Strikes law. Andreas contends that imposition of consecutive sentences and the upper term violated his constitutional right to a jury trial (Cunningham v. California, supra, 127 S.Ct. 856; Blakely v. Washington (2004) 542 U.S. 296; Apprendi v. New Jersey (2000) 530 U.S. 466.)
a. Waiver.
As a preliminary matter, we reject the People’s contention that Andreas has waived these contentions by failing to object on constitutional grounds at sentencing. The issue was recently decided adversely to the People in People v. Black (2007) 41 Cal.4th 799, 810-812 and People v. Sandoval (2007) 41 Cal.4th 825, 837. Andreas was sentenced on November 13, 2003, prior to the United States Supreme Court’s decisions in both Blakely and Cunningham. The rule of forfeiture does not apply when the pertinent law changed so unforeseeably that it would be unreasonable to expect trial counsel to have anticipated the change. (People v. Black, supra, 41 Cal.4th at p. 810.) Prior to Blakely, “it was widely assumed that for the purposes of the rule established in Apprendi, the maximum term authorized by the jury’s verdict was the upper term.” (People v. Black, supra, at p. 811.) Thus, where the sentencing proceeding preceded Blakely, “a claim of sentencing error premised upon the principles established in Blakely and Cunningham is not forfeited on appeal by counsel’s failure to object at trial.” (People v. Black, supra, at p. 812; see also People v. Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.) Andreas’s challenge to his sentence has not been forfeited.
b. Imposition of upper term sentence.
We therefore address the merits of Andreas’s claim. In Apprendi v. New Jersey, supra, 530 U.S. 466, 490, the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be tried to a jury and proved beyond a reasonable doubt. In Cunningham, the Court held that California’s determinate sentencing law violated a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments by assigning to the trial judge, rather than the jury, the authority to make factual findings that subject a defendant to the possibility of an upper term sentence. (Cunningham v. California, supra, 127 S.Ct. at p. 871; People v. Black, supra, 41 Cal.4th at pp. 805, 808-809; People v. Sandoval, supra, 41 Cal.4th at pp. 831-832.)
However, imposition of an upper term sentence “does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black, supra, 41 Cal.4th at p. 816.) Under California law, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for imposition of the upper term. (People v. Black, supra, at p. 813; People v. Osband (1996) 13 Cal.4th 622, 728.) Therefore, “[a]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (People v. Black, supra, at p. 812.) In other words, “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (People v. Black, supra, at p. 813.)
Here, the trial court relied upon four aggravating factors: (1) Andreas had served a prior prison term; (2) Andreas’s convictions were numerous and of increasing severity; (3) the victim was particularly vulnerable due to his age and his relationship with Andreas; and (4) Andreas was a danger to society.
As noted, imposition of an upper term sentence is permissible when based upon the aggravating circumstance of the defendant’s criminal history. (See People v. Black, supra, 41 Cal.4th at p. 818; People v. Sandoval, supra, 41 Cal.4th at pp. 836-837 [“the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction”].) This recidivism exception applies not only to the fact of the prior conviction, but also to “other related issues that may be determined by examining the records of the prior convictions,” including the question of whether the defendant’s convictions are numerous or increasingly serious. (People v. Black, supra, 41 Cal.4th at p. 819.) However, under California law, the court may not consider as an aggravating factor any fact charged and found true as an enhancement unless it strikes the punishment for that enhancement. (People v. Black, supra, 41 Cal.4th at pp. 808-809; § 1170, subd. (b); Cal. Rules of Court, rule 4.420(c).)
Andreas waived a jury trial on various prior conviction allegations. After a bench trial, the court found Andreas had suffered a 1981 conviction for sodomy with a person under 14 years of age and a 1998 conviction for grand theft. Andreas argues that because the court imposed a section 667.5, subdivision (b) prior prison term enhancement based on the grand theft conviction, and a section 667(a) serious felony enhancement for the prior sodomy conviction, the trial court’s reliance on factors (1) and (2) above was improper under California law. (See § 1170.)
We disagree. Andreas’s probation report indicates the existence of two other convictions which were not used to enhance his sentence, i.e., a 1989 conviction for making a false financial statement, and a 1992 conviction for receiving stolen property. Thus, the trial court properly could rely on the fact that Andreas’s convictions were numerous and increasing in seriousness without running afoul of either the principles announced in Blakely and Cunningham, or of California’s prohibition against dual use of a prior conviction. (See People v. Black, supra, 41 Cal.4th at p. 818.)
Even assuming arguendo that the court’s reliance on Andreas’s recidivism was improper, we would still conclude no prejudicial error occurred. The denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18, 24. (People v. Sandoval, supra, 41 Cal.3d at p. 838; see Washington v. Recuenco (2006) 548 U.S. ___ [165 L.Ed.2d 466, 126 S.Ct. 2546, 2553].) In making this determination, “we must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.” (People v. Sandoval, supra, at p. 838.) “[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” (Id. at p. 839.) Sandoval observed that, in making this determination, a reviewing court cannot necessarily assume that the record reflects all of the evidence that would have been presented had aggravating circumstances been submitted to the jury. A defendant at trial does not necessarily have the reason or opportunity to challenge the evidence supporting aggravating circumstances unless such a challenge would also have tended to undermine proof of an element of the offense. (Ibid.)
Here, it is clear beyond a reasonable doubt that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true the aggravating circumstance that victim R. was particularly vulnerable due to his age and Andreas’s relationship with him. It was undisputed that victim R. was eight years old and that R. was Andreas’s wife’s nephew. R. was staying with his aunt and Andreas when the molestation occurred. The molestations occurred when R. was taking a bath, sleeping, and playing a video game. The jury clearly credited the People’s evidence, in that it found Andreas guilty. R. was very young, was away from his mother, and was in the care of Andreas and his wife when the crimes occurred. It is difficult to imagine a situation in which a victim would have been more vulnerable than the facts presented by this case. Under these circumstances, it is clear beyond a reasonable doubt that the jury, applying the reasonable doubt standard, would have found the victim was especially vulnerable. Accordingly, any Sixth Amendment error was harmless. (See People v. Sandoval, supra, 41 Cal.4th at p. 838.)
c. Imposition of consecutive sentences.
Andreas asserts that the imposition of consecutive terms violated his Sixth Amendment rights. This contention has recently been rejected by our Supreme Court. (People v. Black, supra, 41 Cal.4th at pp. 820-823.) Black explained that Cunningham did not undermine the previous conclusion in People v. Black (2005) 35 Cal.4th 1238 (Black I), vacated sub nom. Black v. California (2007) __ U.S. __ [167 L.Ed.2d 36, 127 S.Ct. 1210], that imposition of consecutive terms under section 669 does not implicate a defendant’s Sixth Amendment rights. (People v. Black, supra, 41 Cal.4th at p. 821.) Blakely’s underlying rationale is inapplicable to the decision to impose consecutive or concurrent sentences. (Ibid.) Blakely “treats the crime together with a fact that is a prerequisite to eligibility for a greater punishment as the functional equivalent of a greater crime.” (Ibid.) In deciding whether to impose consecutive or concurrent terms, a trial court may consider aggravating and mitigating factors, but is not required to justify the imposition of consecutive terms by reference to an aggravating circumstance. (Id. at p. 822.) “The determination whether two or more sentences should be served in this manner is a ‘sentencing decision[ ] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ and does not ‘implicate[ ] the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.’ [Citation.]” (People v. Black, supra, 41 Cal.4that p. 823.) Cunningham thus does not call into question the California Supreme Court’s conclusion that imposition of consecutive sentences does not implicate a defendant’s Sixth Amendment rights.
3. Petition for writ of habeas corpus.
Andreas filed a letter brief alleging numerous claims, which we construed as a petition for a writ of habeas corpus. In that document, Andreas asserts numerous trial errors, including ineffectiveness of trial counsel, prosecutorial misconduct, judicial misconduct, juror bias and misconduct, and “witness tampering.” However, these issues could have been, but were not, raised on direct appeal. “[H]abeas corpus cannot serve as a substitute for an appeal, and, in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction.” (In re Dixon (1953) 41 Cal.2d 756, 759; In re Walker (1974) 10 Cal.3d 764, 773.)
Therefore, we construe Andreas’s petition to argue that his appellate counsel was ineffective for failing to raise the issues on direct appeal. So viewed, the petition nonetheless lacks merit.
a. Failure to present exculpatory evidence.
Andreas asserts, in his petition and accompanying documents, that defense counsel failed to present exculpatory evidence, including: (1) the opinion of the victim’s grandmother that the victim was lying; (2) cellular telephone records demonstrating Andreas was not at home at the time the molestations were alleged to have occurred; and (3) a K-Mart video showing Andreas and the victim pleasantly interacting during the weekend when the molestations were alleged to have occurred. Andreas’s contentions are not corroborated by any reliable, independent evidence. (In re Alvernaz (1992) 2 Cal.4th 924, 945.)
Moreover, “A meritorious claim of constitutionally ineffective assistance must establish both: ‘(1) that counsel’s representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails.’ ” (People v. Holt, supra, 15 Cal.4th at p. 703; People v. Carter (2003)30 Cal.4th 1166, 1211; Strickland v. Washington (1984) 466 U.S. 668, 687.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (People v. Bolin (1998)18 Cal.4th 297, 333.) “ ‘ “Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ ” ’ [Citations.]” (People v. Jones (2003) 29 Cal.4th 1229, 1254.) Where counsel’s strategic reasons for challenged decisions do not appear in the record, we will not find ineffective assistance unless there could be no conceivable reason for counsel’s acts or omissions. (Ibid.) “Were it otherwise, appellate courts would be required to engage in the ‘ “perilous process” ’ of second-guessing counsel’s trial strategy.” (People v. Frye (1998) 18 Cal.4th 894, 979.) Andreas’s petition contains nothing in addition to the record on appeal, and does not demonstrate that counsel’s failure to present the cited evidence was anything other than a reasonable tactical decision.
b. Failure to exploit weaknesses in the People’s case.
Andreas also contends defense counsel failed to effectively exploit weakness in the People’s case, including that the victims’ testimony was uncorroborated and contradictory; R. was unable to specify the precise times and dates of the molestations; other persons were at home at the time the molestations were alleged to have occurred, making the victims’ allegations improbable; and the medical records did not support a finding of guilt. Our review of the record suggests that, in fact, defense counsel performed adequately in regard to pointing out the weaknesses in the People’s case. Andreas provides no authority or evidence suggesting otherwise. Andreas’s petition contains nothing in addition to the record on appeal, and does not demonstrate that counsel’s conduct of the trial was based upon anything other than reasonable tactical decisions.
c. Failure to challenge biased jurors.
Likewise, Andreas’s contention that defense counsel failed to challenge biased jurors fails. Andreas’s petition contains no citations to the record, hampering this court’s ability to determine which juror statements Andreas intends to reference. Moreover, Andreas’s petition contains nothing in addition to the record on appeal, and does not demonstrate that counsel’s failure to challenge jurors was not a reasonable tactical decision or fell below an objective standard of reasonableness.
d. Other allegations.
Andreas raises a plethora of other allegations, including that: defense counsel failed to challenge his bail; the trial judge was biased against him; the prosecutor improperly coached witnesses; defense counsel and the trial court told jurors that Andreas was guilty; “witness tampering” occurred; counsel improvidently advised Andreas not to be present for readback of testimony and not to testify; the jury instructions were “illegal”; a defense witness was not allowed to sit in on testimony, whereas the investigating detective was; a juror was asleep during a portion of the trial; and trial counsel mistakenly called Andreas’s son by the wrong last name on one occasion. These contentions variously fail because Andreas has failed to demonstrate prejudice, the absence of a tactical basis for counsel’s decision, or objectively unreasonable performance (People v. Carter, supra, 30 Cal.4th at p. 1211; Strickland v. Washington, supra, 466 U.S. at p. 687); has not stated facts sufficient to support relief (see generally In re Clark (1993) 5 Cal.4th 750, 763-767; In re Swain (1949) 34 Cal.2d 300, 303-304); has stated allegations too vague to allow meaningful review (People v. Box (2000) 23 Cal.4th 1153, 1190, fn. 8); has mischaracterized the record; has not submitted a record adequate for review (Sherwood v. Superior Court (1979) 24 Cal.3d 183, 186-187); or has not provided corroboration for his assertions (In re Alvernaz, supra, 2 Cal.4th at p. 945).
DISPOSITION
The judgment is affirmed. The petition for writ of habeas corpus is denied.
We concur: CROSKEY, Acting P.J., KITCHING, J.