People v. Delgado CA6 ( 2023 )

Filed 6/28/23 P. v. Delgado 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H049947
(Monterey County
Plaintiff and Respondent, Super. Ct. Nos. 18CR006836,
18CR007311)
v.
JOSE IGNACIO DELGADO,
Defendant and Appellant.
THE COURT1
Defendant Jose Ignacio Delgado appeals from the judgment imposed after he
admitted to violations of probation. For the reasons set forth below, we affirm the
judgment.
I. PROCEDURAL BACKGROUND2
On August 2, 2018, the Monterey County District Attorney filed a criminal
complaint in case number 18CR007311 charging Delgado with dissuading a witness by
force (Penal Code, § 136.1, subd. (c)(1)3; count 1), battery on a cohabitant (§ 243, subd.
(e)(1)); count 2), violation of criminal protective order (§ 166, subd. (c)(1)); count 3), and
1
Before Greenwood, P. J., Grover, J. and Lie, J.
2
The facts of the offense are not relevant to the analysis and disposition of the
appeal and therefore we have omitted them.
3
Undesignated statutory references are to the Penal Code.
resisting a peace officer (§ 148, subd. (a)(1)); count 4). The complaint also contained a
special allegation that Delgado committed count 1 while on bail (§ 12022.1, subd. (b)).
On August 3, 2018, the Monterey County District Attorney filed an information in
case number 18CR006836 charging Delgado with corporal injury to a cohabitant
(§ 273.5, subd. (a); count 1), criminal threats (§ 422, subd. (a); count 2), resisting a peace
officer (§ 148, subd. (a)(1); count 3), and vandalism under $400 (§ 594, subd. (b)(2)(A);
count 4).
On October 3, 2018, in case number 18CR006836, Delgado pleaded no contest to
counts 1 through 3. On the same day, in case number 18CR007311, Delgado pleaded no
contest to counts 1, 2, and 4, and he admitted the special allegation as to count 1.
Delgado entered into the pleas with the agreement that he would receive felony probation
and that the remaining counts would be dismissed at sentencing. Delgado was
interviewed by the probation department on November 5, 2018, without his lawyer
present. On November 28, 2018, the trial court suspended imposition of sentence for
both cases and placed Delgado on formal probation for three years.
On May 13, 2021, the probation department filed notices of violation of probation
in both cases. Delgado admitted the probation violations on January 14, 2022. At the
January 14, 2022 hearing, Delgado also entered a no contest plea in a new case, case
number 21CR008602, to a misdemeanor charge of obstructing or resisting a police
officer, in violation of section 148, subdivision (a)(1). On February 2, 2022, a probation
officer interviewed Delgado. His lawyer was not present at the interview.
On March 9, 2022, the court terminated probation in both 2018 cases. In case
number 18CR007311, the court imposed the midterm of three years on count 1, plus a
consecutive term of two years for the special allegation. In case number 18CR006836,
the court imposed at term of two years on count 1, for a total aggregate term of seven
years on the two cases. The court also imposed a sentence of time served in case number
21CR008602.
2
Delgado filed a timely notice of appeal and request for certificate of probable
cause in cases number 18CR006836 and 18CR007311. The court denied the request for
a certificate of probable cause.
II. DISCUSSION
Delgado raises three sets of claims in his appeal. We address them in turn below.
A. Counsel’s Failure to Attend Presentence Interviews
Delgado argues that his Sixth Amendment right to counsel and his Fifth
Amendment right against self-incrimination were violated because his counsel was not
present at the presentence interviews with the probation department. The Attorney
General contends that no constitutional violations occurred because there is no Sixth
Amendment right to counsel at a presentence interview, and because Delgado did not
invoke his Fifth Amendment right at the interviews. We agree with the Attorney General
as to both of these contentions.
Regarding the Sixth Amendment claim, the denial of counsel at a critical stage of
proceedings amounts to an unconstitutional deprivation of a fair trial that warrants a
reversal of the conviction. (United States v. Cronic (2016) 466 U.S. 648, 659 (Cronic).)
The term “ ‘critical stage’ ” was used in Cronic “to denote a step of a criminal
proceeding, such as arraignment, that held significant consequences for the accused.”
(Bell v. Cone (2002) 535 U.S. 685, 695-696, fn. omitted.) Delgado points to no
California or federal case that holds that a presentence interview after a plea or admission
constitutes a critical stage of the criminal process requiring presence of counsel. Instead,
in Brown v. Superior Court (2002) 101 Cal.App.4th 313, 320 (Brown), the California
Court of Appeal held that there is no right to counsel in a probation interview. Similarly,
in Baumann v. United States (9th Cir. 1982) 692 F.2d 565, 578 (Baumann), the Ninth
Circuit Court of Appeals held that a presentence interview in a non-capital case does not
constitute a critical stage of the adversary proceeding at which consultation with counsel
is guaranteed by the Sixth Amendment. (See also Brown v. Butler (5th Cir. 1987) 811
3
F.2d 938, 941[citing Baumann and determining that a probation presentence interview is
not a critical stage].)
Delgado maintains in the alternative that to the extent that his contention of Sixth
Amendment error is contrary to the court’s decision in Brown, there is a good faith basis
for changing the law, citing to United States v. Herrera-Figueroa (9th Cir. 1991) 918
F.2d 1430, 1433 (Herrera-Figueroa). At issue in Herrera-Figueroa was the probation
department’s refusal to grant defendant’s request to have counsel present at the
presentence interview. (Id. at p. 1432.) The Ninth Circuit vacated and remanded
Herrera-Figueroa’s sentence and, citing its “supervisory power over the orderly
administration of justice,” stated that when a federal defendant requests that counsel
accompany him to a presentence interview, “the probation officer must honor that
request.” (Id. at p. 1431.) But the court in Herrera-Figueroa did not hold that the
defendant’s constitutional right to counsel was violated due to counsel’s absence from the
presentence interview, and we are not persuaded that we should depart from the well-
established law that post-conviction, presentencing interviews do not implicate the Sixth
Amendment right to counsel based on this authority. Further, nothing in the record here
reflects that Delgado requested that his attorney be present at the interviews or that the
attorney was denied permission to attend, distinguishing Delgado’s circumstances from
those considered by the Ninth Circuit Court of Appeals in Herrera-Figueroa.
As to Delgado’s Fifth Amendment claim, the court held in Brown that the
privilege against self-incrimination “is not self-executing; rather it must be claimed.”
(Brown, supra, 101 Cal.App.4th at p. 320.) The court in Brown stated that “unless
[defendant] specially invokes the privilege, shows he faces a realistic threat of self-
incrimination and nevertheless is made to answer the question or questions, no violation
of his privilege against self-incrimination is suffered. [Citations]” (Ibid.) Here, Delgado
has not asserted that he invoked the privilege, let alone satisfied the two other
4
requirements. Therefore, he has not demonstrated that the presentence interviews
violated his Fifth Amendment right against self-incrimination.
B. Ineffective Assistance of Counsel
Delgado next contends that he was deprived of his Sixth Amendment right to
effective assistance of counsel when trial counsel failed to attend his presentence
interview. To establish a claim of ineffective assistance of counsel, a defendant must
show that counsel’s performance was deficient, and that he or she was prejudiced by that
deficient representation. (Strickland v. Washington (1984) 466 U.S. 668, 687-688)
(Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) As to the first prong of
the Strickland test, a defendant must show that counsel’s performance fell below an
objective standard of reasonableness under prevailing professional norms. (People v.
Williams (1997) 16 Cal.4th 153, 215.)
Counsel’s failure to attend the presentence interviews was not a violation of
Delgado’s Fifth or Sixth Amendment rights, therefore his lawyer’s performance did not
fall below prevailing professional norms when he was not present at the probation
interviews. Because Delgado has not shown that counsel’s performance was deficient,
we need not reach the prejudice prong of his ineffective assistance of counsel claim.
C. Voluntariness of January 14, 2022 Admissions and No Contest Plea
Delgado argues that his admissions on January 14, 2022, to probation violations in
cases number 18CR006836 and No. 18CR007311, as well as his no contest plea on that
same day to resisting a police officer in case number 21CR008602, were not knowing
and voluntary because the judge at the hearing did not advise him of the applicable
standard of proof that would apply at a contested violation hearing or at a trial on the
criminal charge.
Delgado did not file a notice of appeal in case number 21CR008602, therefore we
do not have jurisdiction to reach his claim with respect to his no contest plea in that case.
5
As to his claim that his admissions to probation violations were not knowing and
voluntary, the superior court denied Delgado’s request for a certificate of probable cause
to challenge the validity of his pleas in cases number 18CR006836 and No. 18CR007311.
Accordingly, we may not reach this claim. (See § 1237.5 [no appeal may be taken from a
revocation of probation following an admission of violation except where trial court has
signed a certificate of probable cause]; Cal. Rules of Court, rule 8.304(b)(2) [certificate
of probable cause is required after an admission of probation violation except for, as
relevant here, appeals based on the sentence or other matters occurring after the
admission that do not affect the validity of the admission].) We have no authority to
waive any of the requirements for issuance of a certificate of probable cause. (People v.
Thurman (2007) 157 Cal.App.4th 36, 42.) Delgado’s remedy for the trial court’s denial
of the certificate of probable cause was to file a petition for writ relief. “[W]here, as here,
a certificate of probable cause has been denied, the appeal is not operative and the denial
of the certificate must be reviewed by writ of mandate. . . . [¶] . . . ‘When an appellate
court considers an appeal on its merits in spite of the appellant’s noncompliance with
section 1237.5 and rule 31(d), it arrogates to itself the screening which should have taken
place at the county level.’ ” (People v. Castelan (1995) 32 Cal.App.4th 1185, 1188,
italics omitted.)
III. DISPOSITION
The March 9, 2022 judgment in cases number 18CR006836 and number
18CR007311 is affirmed.
6