Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County. No. KA085541Bruce F. Marrs, Judge.
Carol S. Boyk, under appointment by the Court of Appeal, for Defendant and Appellant Oscar Velasquez.
Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant Darlene A. Vargas.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, Acting P. J.
Oscar Velasquez and Darlene A. Vargas appeal from judgments entered after they were convicted of burglary, grand theft, and conspiracy to commit theft. We reject their contention that the judgments were not supported by substantial evidence. We reject Vargas’s contention that an eyewitness photo identification procedure was improper, and that the trial court erred by denying her motion to dismiss a Three Strikes allegation. We modify the judgment to stay their concurrent sentence for grand theft.
In a companion petition for a writ of habeas corpus, Vargas contends she received ineffective assistance of counsel because her trial lawyer did not object to the eyewitness photo identification evidence and did not present the preliminary hearing transcript from her Three Strikes prior conviction case to show that the two offenses involved a single criminal act. We hold that she received ineffective assistance of counsel based on the failure to present the preliminary hearing transcript, and therefore reverse the judgment in regard to sentencing only, and remand for a new sentencing hearing.
FACTS AND PROCEDURAL HISTORY
Around 2:00 p.m. on December 29, 2008, Lynn Burrows returned home to the house in Claremont that she shared with William Alves and their two sons to find it had been ransacked. Numerous items were missing, including computer equipment, cameras, a jewelry bag, cash, checks, a suitcase, a trash can, and a backpack belonging to her son, Spencer. When Claremont police came to investigate, neighbor Gabriela Jimenez told them she saw a man and woman walking nearby sometime between 10:00 a.m. and 11:00 a.m. that day. The woman was rolling a suitcase. Sometime between noon and 1:00 p.m., Jimenez saw the same couple walking down the street. The woman was dragging a large gray trashcan filled with “bags [] of stuff, ” and the man was carrying a large box. Jimenez described the man as either Caucasian or a light-skinned Hispanic, about 5 feet 10 inches tall, with a thin build and short hair. She said the woman was Hispanic, approximately 5 feet 5 inches tall, weighed 150 pounds, and had black hair with bleached stripes running through it.
Around noon the next day, Claremont Police Officer James Hughes was on patrol in the same neighborhood when he saw appellants Darlene Vargas and Oscar Velasquez near the front door of the Chavez house. Because appellants matched the description of the couple Jimenez saw the day before, Hughes called for back-up as he drove past, then made a U-turn and detained appellants, who had begun to walk down the street. Hughes was soon joined by another officer. Hughes knocked on the front door of the Chavez house to speak with the owner. Hughes then noticed a backpack on the ground nearby. When owner John Chavez came to the door, he told Hughes that he did not know appellants, and did not know who owned the backpack by his door. Chavez said he had not seen the backpack there when he went to get his morning newspaper at 6:00 a.m. The other police officer opened the backpack, where he found a blue IKEA bag, a green duffel bag, a knife, a hammer, several gloves, and $31 in change. A search of Velasquez turned up methamphetamine and a glass smoking pipe.
Later that day, Jimenez went to the police station, where she identified appellants from photographic “six-pack” lineups. Jimenez read and signed an admonition that she should not be influenced by the photos and should not assume or guess that the six-packs included photos of the appellants. She had that admonition in mind as she looked at the photos. Jimenez identified appellants because they were the couple she saw the day before. A police officer took the backpack found at the Chavez house and showed it to Spencer Burrows, who identified it as his. He did not immediately recognize the items found inside the pack, however.
Appellants were charged with burglary, grand theft, and receiving stolen property (the backpack) in connection with the break-in at the Alves/Burrows house, and with conspiracy to commit theft based on their presence in front of the Chavez house. The information also alleged that Vargas had convictions for carjacking and robbery from a 1999 case that qualified as “strikes” under the Three Strikes law.
Velasquez was also charged with possession of methamphetamine and a smoking device, while Vargas was also charged with making false statements to the police based on comments she made when stopped by the Chavez house. None of these convictions is at issue on appeal.
At trial, Alves and Spencer identified the backpack as belonging to Spencer. Both also identified the hammer as theirs, even though they had not previously reported it missing. Alves recognized it by not just the model and the amount of rust, but by tape he put on the handle several years earlier. He had written his last name on the tape at the time, and though some of the tape was missing, he could make out the first three letters of his name. Burrows recognized the IKEA bag as one she later found missing from the garage, and also identified as hers a tin box found in the backpack. Jimenez identified appellants at trial, and reconfirmed her earlier photo identification of them. However, she admitted on cross-examination that despite the admonition not to assume the lineups included photos of the people she had seen, because the police were showing her the lineups, Jimenez presumed the six packs included their photos.
The jury convicted appellants of burglary, grand theft, and conspiracy to commit grand theft, but acquitted them of receiving stolen property. Vargas moved to dismiss one of the two Three Strikes allegations on the ground that both convictions arose from a single act. The trial court denied the motion on that basis, but applied both Three Strikes allegations as to only the burglary conviction, and dismissed the strike allegations as to the remaining counts. Because the burglary conviction in this case was Vargas’s third strike, the court imposed a sentence of 25 years to life on that count. She received a combined state prison sentence of 30 years to life. Velasquez received a combined state prison sentence of 6 years.
Appellants contend there was insufficient evidence they committed those crimes, and that the concurrent sentence they received for the grand theft count must be stayed. Vargas contends the photo lineup shown to Jimenez was improperly suggestive, and that she received ineffective assistance of counsel when her trial lawyer failed to object to the evidence. She also contends the trial court erred by refusing to dismiss one of her two Three Strikes prior convictions because both involved the same criminal transaction. In her companion habeas corpus petition, Vargas contends she received ineffective assistance because her lawyer did not object to the photo identification evidence, and because the lawyer did not present the preliminary hearing transcript from Vargas’s Three Strikes convictions, which showed that both convictions arose from the same act.
We will resolve this issue in section 5.A. of our DISCUSSION, post, concerning the habeas corpus petition, which we consolidated with the appeal for purposes of the decision only.
DISCUSSION
1. The Judgment Is Supported By Substantial Evidence
Appellants contend the evidence was insufficient to support the burglary, grand theft, and conspiracy to commit theft convictions because: (1) there was no evidence they possessed the backpack found by the front door of the Chavez house; (2) evidence tying the backpack and its contents to the Alves/Burrows house was weak; (3) none of the items reported missing from the Alves/Burrows house was found at appellants’ residences; (4) many items dusted for fingerprints did not return a match to appellants, and many items were not dusted for fingerprints at all; (5) the trashcan taken from the Alves/Burrows house had wheels, while the trashcan Jimenez observed did not; and (6) Jimenez’s identification was inconsistent and unreliable.
The crime of burglary requires proof that the defendant entered a dwelling with the intent to commit larceny or any felony. (Pen. Code, § 459.) Grand theft is the theft of property worth more than $400. (Pen. Code, § 487, subd. (a).) Conspiracy requires proof that two or more persons shared the specific intent to commit a crime and that one of them committed an overt act in furtherance of their agreement. (Pen. Code, § 182, subd. (a)(1); People v. Vu (2006) 143 Cal.App.4th 1009, 1024.)
When a defendant challenges the sufficiency of the evidence to sustain a judgment, we review the whole record in the light most favorable to the judgment to determine whether there was substantial evidence upon which a trier of fact could find the defendant guilty beyond a reasonable doubt. Evidence is substantial when it is reasonable, credible, and of solid value. (People v. Prince (2007) 40 Cal.4th 1179, 1251 (Prince).) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence, whether it was direct or circumstantial. (Ibid.)
There is no dispute that someone broke into the Alves/Burrows home and stole numerous items worth more than $400. The only issues on appeal are whether there was sufficient evidence that appellants were the thieves, and that they also conspired to commit theft from the Chavez house. The elements of burglary or attempted burglary, including the identity of the perpetrator, may be shown by circumstantial evidence. (Prince, supra, 40 Cal.4th at pp. 1251, 1255-1257; People v. Sanchez (1939) 35 Cal.App.2d 231, 235-236.) The elements of a criminal conspiracy may also be proven with circumstantial evidence. (People v. Vu, supra, 143 Cal.App.4th at p. 1025.)
“Circumstantial evidence is like a chain which link by link binds the defendant to a tenable finding of guilt. The strength of the links is for the trier of fact, but if there has been a conviction notwithstanding a missing link it is the duty of the reviewing court to reverse the conviction.” (People v. Redrick (1961) 55 Cal.2d 282, 290.) If the circumstances, along with reasonable inferences that may be drawn from them, support the jury’s findings, we may not reverse even if the circumstances can be reasonably reconciled with a contrary finding. (People v. Tripp (2007) 151 Cal.App.4th 951, 955-956.)
Jimenez saw appellants walking down the street near the Alves/Burrows house first rolling a suitcase, then carrying a box and dragging a trash can with bags “full of stuff.” Appellants were spotted the next day at around the same time in the same area near the front door of a house owned by people who did not know them. Appellants started to walk off after the patrol car drove by. On the porch of the house was the backpack that Spencer Burrows identified as having been taken from the Alves/Burrows house the day before. Inside the backpack were a hammer and other items that Alves and Burrows identified as theirs. Even though no one actually saw Velasquez in possession of the backpack, it would be a remarkable, and almost incredible, coincidence that someone else took Spencer’s backpack the day before and left it near the front door of the Chavez house sometime after Mr. Chavez got his newspaper at 6:00 a.m. that day, where it lay undetected until the precise moment appellants were spotted there. Instead, it is reasonable to infer, given appellants’ conduct of the day before, that they took the backpack and other items from the Alves/Burrows house, used the backpack to carry items commonly used as burglary tools (see People v. Gibson (1949) 94 Cal.App.2d 468, 470-471), in an attempt to burglarize yet another house in the same area, and simply left it there and walked off when they were spotted by the police. Any conflicts, weaknesses, or inconsistencies in this evidence were for the jury to resolve. (People v. Solomon (2010) 49 Cal.4th 792, 818.) Based on this evidence, the jury could reasonably find that appellants burgled the Alves/Burrows house and conspired to commit theft at the Chavez house.
2. The Photo Lineup Was Not Improperly Suggestive
Vargas contends that evidence of Jimenez’s out-of-court identification based on the photo lineup should not have been admitted because the procedure was improperly suggestive. She rests this contention on two factors: (1) her photo was positioned as the first one in the six pack; and (2) she was the only light-skinned Hispanic in the lineup. As a result, she contends her due process rights were violated.
We first hold that Vargas waived the issue because her trial lawyer did not object to the evidence. (People v. Cunningham (2001) 25 Cal.4th 926, 989 (Cunningham).) We alternatively hold on the merits that the lineup was not improperly suggestive.
In deciding this question, we must determine whether the identification procedure was unduly suggestive and, if so, whether the identification was nevertheless reliable under the totality of the circumstances. These circumstances include: the witness’s opportunity to view the suspect at the time of the offense; the witness’s degree of attention at that time; the accuracy of her prior description of the suspect; the level of certainty shown at the time of the identification; and the amount of time between the offense and the identification. Vargas bears the burden of proof on this issue. (Cunningham, supra, 25 Cal.4th at pp. 989-990.)
Placing Vargas’s photo first in order in the six pack does not, by itself, make the lineup suggestive, because no matter where a defendant’s photo is placed, she can argue that its position is suggestive. (People v. Johnson (1992) 3 Cal.4th 1183, 1217.) As for the photo showing Vargas with a light complexion, we note that although Jimenez described Velasquez as a light-skinned Hispanic, she told the police that the woman she saw was Hispanic, but did not mention skin tone. Thus, the fact that the photo of Vargas was the only one with a light complexion could have just as easily dissuaded Jimenez from selecting it. All six photos show Hispanic women of roughly the same age, weight, and hair length. Having examined the photo lineup for ourselves, we hold that it was not unduly suggestive.
Vargas makes much of Jimenez’s testimony that even though she had been told not to assume the suspects’ photos were included in the lineups, she presumed they were. This does not mean the lineup procedure was suggestive. Instead, it means that Jimenez had her own belief about that issue. At most, the testimony goes to the reliability of her identification, not to whether the lineup was unduly suggestive.
Alternatively, even if the lineup was unduly suggestive, we hold that Jimenez’s identification was nonetheless reliable under the circumstances. Jimenez’s attention was drawn to Vargas twice: first when she rolled a suitcase down the street, then a few hours later when she dragged a loaded trash can while Velasquez carried a box. Jimenez thought appellants looked suspicious and was paying attention to them. Although she disregarded the admonition to not presume the people she saw were in the photo lineups, Jimenez said the reason she selected the photos of appellants was because they were in fact the people she had seen. While Velasquez was three or so inches shorter than the description she gave to the police, we do not believe that is sufficient to undermine confidence in the identification of Vargas.
Finally, any error in admitting the photo identification was harmless beyond a reasonable doubt. Jimenez positively identified Vargas (and Velasquez) at trial. Both were found by the front door of a neighbor’s house with items taken from the Alves/Burrows house the day before. As mentioned above, the jury could easily infer that those items – a hammer, knife, and empty bags – were intended for use as burglary tools. On this evidence, even without the photo identification, we have no doubt the jury would have convicted Vargas.
3. No Error In Partial Denial of Section 1385 (Romero) Motion
A. Applicable Law
Under the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), prior convictions for certain serious or violent felonies qualify as “strikes” that increase the prison sentence of a defendant who has been convicted of another felony. One “strike” will double the ordinary prison term, while two or more strikes will lead to an indeterminate sentence of at least 25 years to life. (Pen. Code, §§ 667, subd. (e)(1), (2); 1170.12, subd. (c)(1), (2).) The information in this case alleged, and the trial court found, that as to the burglary, grand theft, and conspiracy counts, Vargas had two convictions for purposes of the Three Strikes law: for carjacking and robbery in the same case in 1999. Vargas moved to dismiss one of the allegations because both convictions arose from the same act against the same victim. The trial court applied both allegations as to only the burglary count, and dismissed them as to the remaining counts, resulting in a sentence of 25 years to life for the burglary conviction.
Carjacking and robbery are both designated as strike offenses. (People v. Scott (2009) 179 Cal.App.4th 920, 927 (Scott).)
In People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), the Supreme Court held that trial courts have discretion under Penal Code section 1385 to dismiss Three Strikes allegations in the furtherance of justice. In deciding whether to exercise this discretion, the trial court must take into consideration the defendant’s background, the nature of the current offense and other individualized considerations. (Romero, at p. 531.) “Preponderant weight” must be given to factors intrinsic to the Three Strikes scheme, including the nature and circumstances of the defendant’s present felonies and prior serious or violent felony convictions, and the particulars of her background, character, and prospects. (People v. Williams (1998) 17 Cal.4th 148, 161.)
We review the trial court’s decision under the abuse of discretion standard. (People v. Carrasco(2008) 163 Cal.App.4th 978, 992-993.) A trial court abuses its discretion when it refuses to dismiss because of personal antipathy for the defendant while ignoring her background, the nature of her present offenses, and other individualized considerations. When determining whether to dismiss a Three Strikes allegation, the trial court must consider whether, in light of the nature and circumstances of her present felonies and prior serious or violent felony convictions, along with the particulars of her character, background, and prospects, the defendant may be deemed to be outside the Three Strikes scheme in whole or in part. (Id. at p. 993.)
In People v. Benson (1998) 18 Cal.4th 24 (Benson), the Supreme Court held that even where multiple sentences arising from multiple convictions in the same case were stayed under Penal Code section 654, if the stayed sentences qualified as strikes under the Three Strikes law, they could still count as strikes in a later criminal case. In a footnote, however, the Benson court said: “Because the proper exercise of a trial court’s discretion under section 1385 necessarily relates to the circumstances of a particular defendant’s current and past criminal conduct, we need not and do not determine whether there are some circumstances in which two prior felony convictions are so closely connected – for example, when multiple convictions arise out of a single act by the defendant as distinguished from multiple acts committed in an indivisible course of conduct – that a trial court would abuse its discretion under section 1385 if it failed to strike one of the priors.” (Benson, supra, at p. 36, fn. 8.)
In People v. Burgos (2004) 117 Cal.App.4th 1209 (Burgos), Division Two of this court relied on the Benson footnote and held that the trial court abused its discretion by refusing to dismiss a Three Strikes allegation where two prior convictions for attempted carjacking and attempted robbery coming in the same case were based on a single act – the attempt to take the victim’s car. (Burgos, at pp. 1215-1216.) As part of its analysis, the Burgos court looked to the carjacking statute, Penal Code section 215, subdivision (c), which states that even though a defendant may be charged and tried for both carjacking and robbery, no defendant may be punished for both when both crimes are based on the same act. (Burgos, at p. 1216.)
After the trial in this case had ended, the court in Scott, supra, 179 Cal.App.4th 920, rejected the blanket rule apparently announced in Burgos, supra, 117 Cal.App.4th 1209. Instead, when prior convictions that qualify as strikes arose from the same act, the trial court has the discretion to dismiss one of them on that basis, but is not required to do so. (Scott, supra, at pp. 930-931.)
As discussed later, this apparent split in the law does not affect our resolution of either the appeal or Vargas’s habeas petition.
B. The Motion to Dismiss a Strike
Attached to Vargas’s motion to dismiss was the information filed in the 1999 carjacking case, which alleged that Vargas committed the crimes of carjacking and robbery on the same day against the same victim. The prosecutor’s opposition points and authorities included the abstract of judgment from the carjacking case. It showed that Vargas pleaded out to the carjack and robbery charges, and that concurrent three-year sentences were imposed for those crimes. Based on that, the prosecutor in the present case argued that separate criminal acts must have occurred, because otherwise one of the two sentences would have been stayed under Penal Code section 654. As a result, the prosecutor contended, the single-act rule was not applicable. When combined with Vargas’s history as a repeat parole violator, the prosecutor argued that the interests of justice did not require dismissal of a Three Strikes allegation.
The record does not disclose whether she pleaded guilty or no contest.
At the sentencing hearing, defense counsel pointed to Burgos and the language of Penal Code section 215 prohibiting multiple punishments for carjacking and robbery convictions based on the same act. Based on Burgos, defense counsel argued that the trial court had to dismiss one of the Three Strikes allegations because Vargas’s Three Strike priors came from the same case with the same victim. The prosecutor countered that separate acts must have been involved in the carjack case because the abstract of judgment showed that concurrent sentences were imposed for those convictions. Regardless, the prosecutor contended, Burgos and Benson did not hold that a Three Strikes allegation must automatically be dismissed where it arose from the same act as another Three Strikes prior. Instead, anticipating the later holding in Scott, supra, 179 Cal.App.4th 920, same-act strikes was a factor to consider, along with others, when evaluating an individual defendant for purposes of a Penal Code section 1385 motion.
The trial court noted that concurrent sentences had been legally imposed in the carjacking case. However, “[e]ven though [Vargas] did not receive any further or additional time, the further or additional time is not dispositive as to whether or not strikes arising in the same case can be utilized under the Three-Strikes law.” The trial court then denied the motion as to the burglary count, but sustained it as to the others because, based on the probation report and Vargas’s criminal record, the court felt “this is a case where the defendant does not fall totally within the Three-Strikes scheme. And I think that the imposition of 75 years to life on a case of our nature would be, for lack of a better word, overkill.”
C. Based on the Limited Record Before It, the Trial Court Did Not Err
Vargas contends the trial court erred because: (1) its comments at the hearing show it wrongly concluded that because one of the sentences had not been stayed, the two carjacking convictions did not arise from the same act and that it therefore did not have discretion to dismiss a Three Strikes allegation under Scott; or, (2) if the trial court did exercise such discretion, it abused its discretion based on a combination of Vargas’s minimal criminal record and the fact that the strike allegations were based on the same act.
We agree with Vargas that the trial court’s ruling was based in part on a finding that the carjacking and robbery convictions did not arise from a single act. The trial court noted that concurrent sentences had been legally imposed. Such sentences could not have been imposed had the carjack and robbery convictions arisen from the same act. (Pen. Code, §§ 215, 654; People v. Diaz (2002) 95 Cal.App.4th 695, 708.) We read the trial court’s follow-up comment that it did not matter whether Vargas had received additional prison time as a reference to the Three Strikes law provision that the “suspension or imposition of judgment or sentence” shall have no affect on “the determination that a prior conviction is a prior felony for purposes” of that law. (Pen. Code, § 667, subd. (d)(1)(A); Benson, supra, 18 Cal.4th at pp. 29-32 [even where sentences for multiple convictions are stayed, each separate conviction qualifies as a strike].)
The record before the trial court supports its finding. The information from Vargas’s 1999 carjacking and robbery trial alleged three counts: (1) carjacking by taking a car by force from the named victim; (2) second degree robbery, by taking “personal property” by force from that victim; and (3) unlawful driving or taking of a vehicle from the same victim. Because the robbery count listed only unspecified personal property, while the other two counts specifically referred to the victim’s vehicle, the information does not unambiguously show that the robbery count was based on the car theft, leaving open the possibility that some other property had been taken. The abstract of judgment showed that concurrent sentences were imposed for the carjack and robbery counts and, as noted, had they arisen from the same act, concurrent sentences would have been improper, absent a plea agreement by Vargas that such sentences could be imposed. (People v. Cole (2001) 88 Cal.App.4th 850, 872-873.) In short, there was sufficient evidence that the carjack and robbery convictions were based on separate acts. As a result, under either Burgos, supra, 117 Cal.App.4th 1209 (blanket rule requiring dismissal whenever multiple strike convictions arise from a single act) or Scott, supra, 179 Cal.App.4th 920 (that multiple strike convictions arose from a single act is simply one more factor to consider) the trial court did not err.
We reiterate that for appeal purposes we are limited to a review of the facts presented to the trial court. The preliminary hearing transcript of 1999 conviction was not before the court. We may not consider the additional facts in the transcript that suggest no other personal property was in fact stolen in the 1999 crime. We address the preliminary transcript in the companion habeas petition in context of Vargas’s claim that her attorney rendered ineffective assistance of counsel in not submitting the 1999 transcript at the sentencing hearing below.
We also consider the applicability of these decisions in our discussion of Vargas’s habeas petition.
We next consider whether based on Vargas’s criminal history, the trial court abused its discretion by failing to dismiss one of the Three Strikes allegations. Vargas points to her absence of a juvenile record and her only other conviction, for misdemeanor trespass in 2007, as proof that she fell outside the Three Strikes scheme. She forgets that her prison records show her to be a multiple parole violator. She also forgets the convictions in this case. She broke into the Alves/Burrows house and stole numerous items, including computers, cameras, jewelry and cash. She came back to the same neighborhood the next day and conspired with Velasquez to burglarize another house. Had she not been caught, it is fair to presume she would have completed that offense and gone on to commit others. In short, she was on her way to committing more crimes than ever before. Even so, the trial court mitigated the effects of the Three Strikes law by dismissing the allegations as to the other two counts. On this record, we hold that the failure to dismiss one of those allegations entirely was not an abuse of discretion.
She also points to the supposedly indivisible nature of her two 1999 convictions in the carjacking case. However, at least for purposes of her appeal, we affirm the trial court’s implicit finding that the convictions arose from separate acts.
4. The Concurrent Sentence for Grand Theft Must Be Stayed
The trial court gave appellants concurrent sentences for the grand theft conviction. Appellants contend, and respondent concedes, that their sentences should have been stayed instead under Penal Code section 654. As part of our disposition, we will order that the abstracts of judgment be modified to that effect.
5. The Habeas Corpus Petition
A. Ineffective Assistance of Counsel as to Photo Lineup Identification
In her habeas corpus petition (and her appellate brief) Vargas contends she received ineffective assistance of counsel because her trial lawyer did not object to evidence of Jimenez’s photo lineup identification. In order to prevail on this claim, Vargas must show: (1) her lawyer’s performance was deficient, meaning it fell below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance prejudiced her, meaning that without counsel’s errors, a different outcome was reasonably probable. (People v. Montoya (2007) 149 Cal.App.4th 1139, 1146-1147.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (In re Thomas (2006) 37 Cal.4th 1249, 1256.)
As discussed above, we hold that the photo lineup was not unduly suggestive. Therefore, defense counsel’s failure to object to the lineup was not an example of deficient performance. (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836 [failure to make futile or unmeritorious objection is not ineffective assistance of counsel].)
Even if an objection should have been made and the lineup was impermissibly suggestive, we have also already held that the admission of the photo lineup was harmless beyond a reasonable doubt. Therefore even if deficient performance occurred, it did not prejudice Vargas. To the extent her habeas corpus petition is based on this contention, we deny the petition.
B. Failure to Introduce Preliminary Hearing Transcript
Vargas’s habeas corpus petition includes the preliminary hearing testimony from the victim in her 1999 carjacking/robbery conviction. In it, the victim describes how Vargas and a male companion entered his car. The man held a knife to his neck, while Vargas told the victim she had a gun. The victim testified that they pulled him from his car and drove off with it. No other criminal acts are described. Based on this, Vargas contends there is no doubt that the two convictions arose from a single act – the armed theft of the victim’s car. Vargas contends she received ineffective assistance of counsel because her trial lawyer did not supply a copy of that transcript as part of the motion to dismiss a Three Strikes allegation.
We agree with Vargas that the transcript shows that the carjacking and robbery convictions were based on the same act – taking the victim’s car by force. Instead of providing the trial court with that transcript, defense counsel supplied the information, which, as previously noted, was ambiguous on this point. We can think of no sound tactical reason why reasonably competent counsel would choose to forego such evidence. (People v. Montoya, supra, 149 Cal.App.4th at pp. 1146-1147.)
Turning to the next prong of our inquiry, we examine whether Vargas was prejudiced by counsel’s omission. Vargas’s trial lawyer said in a letter that she argued that the two convictions arose from a single act, that the court had the information, abstract of judgment, and other documents from that trial, that the prosecutor “conceded the issue that it was the same victim, ” and that the trial court never “questioned the veracity of my statement that it was the same act, same victim or same case. What the court did was to disregard my argument as a whole and used [its] discretion not to strike the prior.” Based on this evidence, respondent contends a different result was not reasonably probable, especially when, if the court were to follow the rule in Scott, supra, 179 Cal.App.4th 920, the fact that a single act was involved is only a factor to consider and the trial court considered all the other factors.
We disagree with respondent’s (and defense trial counsel’s) characterization of the record. Although the prosecutor did not contend that multiple victims were involved, he pointed to the concurrent sentences for the two crimes as proof that in addition to the victim’s car, some other property had been taken. After hearing argument, the trial court said the concurrent sentences had been “legally imposed, ” and that it made no difference whether Vargas received additional prison time when deciding whether to dismiss a Three Strikes allegation.
The prosecutor’s argument on this point was as follows:
As discussed in connection with Vargas’s appeal, we construe this to mean that the trial court found that the carjack and robbery convictions had not been based on a single act and that the court in sentencing Vargas in 1999 simply exercised its discretion in imposing concurrent, rather than consecutive, sentences. Although we affirmed the judgment on appeal because the evidence before the trial court justified its ruling, we conclude a different outcome was reasonably probable had the trial court known that a single act was involved, especially given its decision to show Vargas some leniency because it believed she was at least partly outside the Three Strikes scheme. We therefore grant the petition.
Even so, we do not mean to suggest how the trial court should rule at the new sentencing hearing, and we recognize that the trial court retains its full legal discretion when fashioning an appropriate sentence. As discussed above, there appears to be a split of authority concerning the trial court’s discretion when considering whether to dismiss Three Strikes convictions that arose from the same act as other alleged strike convictions. We choose not to weigh in on that issue at this time. Instead, it is more appropriate for the trial court to decide the issue for itself in the first instance based on a complete record, something it was denied because trial counsel did not provide the preliminary hearing transcript from Vargas’s 1999 convictions.
We also recognize that the prosecutor at the new sentencing hearing may present additional evidence to counter Vargas’s claim that the 1999 convictions arose from the same act.
DISPOSITION
Case No. B215690 (Appeal):
The judgments as to appellants Velasquez and Vargas are modified to stay their concurrent sentences on the grand theft conviction under Penal Code section 654. In all other respects, the judgments are affirmed.
Case No. B219896 (Petition for Habeas Corpus):
The petition for writ of habeas corpus filed by Vargas is granted in part, and the trial court shall conduct a new sentencing hearing in which the court shall consider the additional facts relating to Vargas’s 1999 conviction. In all other respects, the petition is denied. At the conclusion of sentencing the trial court shall prepare a new abstract of judgment reflecting, among other things that her grand theft conviction is stayed under Penal Code section 654.
WE CONCUR: FLIER, J. GRIMES, J.
“We don’t even have that [single act] situation here. If the court takes a look at People’s 2 from the sentence – or from the priors trial today, in the abstract of judgment it was actually – the robbery count was actually – she was actually sentenced on it with concurrent time. It was not [Penal Code section] 654. It was not stayed. So there was some other property that was stolen beyond the car, so she actually pled to and was sentenced to both crimes.”