People v. Lucero CA3 ( 2023 )

Filed 8/21/23 P. v. Lucero CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, C097595
Plaintiff and Respondent, (Super. Ct. No. 12F2037)
v.
DOLORES MARIA LUCERO,
Defendant and Appellant.
Defendant Dolores Maria Lucero appeals the trial court’s denial of her motion to
vacate her conviction because of newly discovered evidence of actual innocence.
Appointed counsel for defendant asks this court to conduct an independent review of the
record to determine whether there are any arguable issues on appeal, and defendant has
filed a supplemental brief. (People v. Wende (1979) 25 Cal.3d 436; People v. Delgadillo
(2022) 14 Cal.5th 216 (Delgadillo).) We have considered defendant’s supplemental brief
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and conducted an independent review of the record, and we will affirm the trial court’s
order.
FACTS AND HISTORY OF THE PROCEEDINGS
In 2014, a jury found defendant guilty of preparing false documentary evidence.
The trial court suspended the imposition of sentence and placed defendant on probation,
which defendant successfully completed early.
In September 2022, defendant moved to vacate her conviction pursuant to Penal
Code section 1473.7 (statutory section citations that follow are found in the Penal Code
unless otherwise stated). Specifically, defendant argued: (1) one of the jurors had
indicated she did not believe defendant was guilty of a felony and (2) defendant’s trial
counsel had been ineffective. The trial court found defendant failed to carry her burden
to establish actual innocence or ineffective assistance of counsel and denied the motion.
DISCUSSION
Defendant’s appointed counsel asks this court to conduct an independent review of
the record to determine whether there are any arguable issues on appeal. (People v.
Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of her right to file a
supplemental brief, and she has done so.
A. Procedures for Review in This Case
“The prophylactic procedures in Wende are ‘relevant when, and only when, a
litigant has a previously established constitutional right to counsel.’ ” (Delgadillo, supra,
14 Cal.5th at p. 224.) Wende requirements “do not apply to an appeal from the denial of
postconviction relief, even if the defendant has a state-created right to the appointment of
counsel for that appeal.” (Id. at p. 226.) In such cases, if the defendant files a
supplemental brief, “the Court of Appeal is required to evaluate the specific arguments
presented in that brief and to issue a written opinion. The filing of a supplemental brief
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or letter does not compel an independent review of the entire record to identify unraised
issues.” (Id. at p. 232.) While the Delgadillo opinion considered it “possible that some
more unusual postconviction context will call for additional or more specialized
requirements” (id. at p. 231), we conclude that is not the case here.
Nevertheless, we have exercised our discretion to conduct an independent review
of the record, as permitted by Delgadillo. (Delgadillo, supra, 14 Cal.5th at p. 232.) We
found no arguable errors that would result in a disposition more favorable to defendant,
so we address only those issues raised in her supplemental brief.
B. Analysis
In her supplemental brief, defendant maintains her ineffective assistance of
counsel claim, and adds two new claims: An investigator tampered with a witness before
her trial and the trial court violated her right to counsel at the hearing on her motion to
vacate.
1. Ineffective Assistance of Trial Counsel
Defendant contends her trial counsel performed ineffectively by failing to
undertake a thorough investigation and failing to call a specific witness—the attorney
who drafted the declarations that the jury ultimately determined were false documentary
evidence. We hold defendant has failed to establish ineffective assistance of counsel.
“To establish constitutionally inadequate representation, a defendant must
demonstrate that (1) counsel’s representation was deficient, i.e., it fell below an objective
standard of reasonableness under prevailing professional norms; and (2) counsel’s
representation subjected the defendant to prejudice, i.e., there is a reasonable probability
that, but for counsel’s failings, the result would have been more favorable to the
defendant.” (People v. Samayoa (1997) 15 Cal.4th 795, 845; see Strickland v.
Washington (1984) 466 U.S. 668, 687-696.) “[R]arely will an appellate record establish
ineffective assistance of counsel.” (People v. Thompson (2010) 49 Cal.4th 79, 122.)
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“ ‘When a defendant on appeal makes a claim that his counsel was ineffective, the
appellate court must consider whether the record contains any explanation for the
challenged aspects of representation provided by counsel. “If the record sheds no light
on why counsel acted or failed to act in the manner challenged, ‘unless counsel was asked
for an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation,’ [citation], the contention must be rejected.” ’ ” (Samayoa, at
p. 845.)
Here, the record sheds no light on defense counsel’s investigation of the case or
why he chose not to call the attorney as a witness. Further investigation could have been
unwarranted, and the witness could have been hostile or incriminated defendant.
Accordingly, defendant has failed to establish ineffective assistance of counsel.
2. Witness Tampering
Defendant points to an interview transcript attached to her brief and argues it
shows investigators from the Shasta County District Attorney’s office tampered with a
witness. Defendant does not explain how the excerpt she quotes constitutes witness
tampering, does not cite to any law defining witness tampering, and does not explain how
such tampering, if proven, would make her actually innocent of preparing false
documentary evidence. In any event, this transcript is not part of the record, so we will
not consider it here. (People v. Leonard (2007) 40 Cal.4th 1370, 1393 [“we review the
appellate record for error, without considering matters not presented to the trial court”];
In re Zeth S. (2003) 31 Cal.4th 396, 405 [“It has long been the general rule and
understanding that ‘an appeal reviews the correctness of a judgment as of the time of its
rendition, upon a record of matters which were before the trial court for its
consideration’ ”].)
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3. Right to Counsel
Finally, defendant argues the trial court violated her right to counsel at the hearing
on her motion to vacate her conviction. Defendant did not raise this issue below. Rather,
when the trial court asked, “But you’re representing yourself today on [the motion to
vacate her conviction], and that is what you want to do?” Defendant responded, “Yes,
Your Honor.” We conclude defendant has failed to demonstrate reversible error.
“To demonstrate error, appellant must present meaningful legal analysis supported
by citations to authority and citations to facts in the record that support the claim of error.
[Citations.] When a point is asserted without argument and authority for the proposition,
‘it is deemed to be without foundation and requires no discussion by the reviewing court.’
[Citations.] Hence, conclusory claims of error will fail.” (In re S.C. (2006)
138 Cal.App.4th 396, 408.)
Here, defendant has not cited any authority establishing a right to counsel at the
hearing. (See Delgadillo, supra, 14 Cal.5th at p. 226 [“ ‘there is no constitutional right to
the effective assistance of counsel’ in state postconviction proceedings”]; cf. People v.
Fryhaat (2019) 35 Cal.App.5th 969, 978 [former section 1473.7, subdivision (d) does not
expressly provide for a right to counsel, but, if the moving party is indigent and cannot
attend the hearing because he or she is in federal custody awaiting deportation, the trial
court should appoint counsel].) Nor has defendant explained how the trial court violated
her rights by acceding to her request to represent herself. Accordingly, we see no merit
in this argument.
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DISPOSITION
The order denying defendant’s motion to vacate her conviction is affirmed.
HULL, J.
We concur:
EARL, P. J.
DUARTE, J.
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