In re Clark CA1/4

Filed 3/5/21 In re Clark CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re KAYLA CLARK, A160862
on Habeas Corpus.
(Napa County
Super. Ct. No. 19CR002735)
Kayla Clark has filed a petition for writ of habeas corpus in which she
contends she was denied the effective assistance of counsel during a
sentencing hearing. Clark was sentenced to an aggregate nine-year prison
sentence after she pleaded guilty to multiple offenses, including driving with
a blood alcohol level over 0.08 percent causing injury. (Veh. Code, § 23153,
subd. (b) (section 23153(b)).)
“To establish ineffective assistance of counsel, a petitioner must
demonstrate that (1) counsel’s representation was deficient in falling below
an objective standard of reasonableness under prevailing professional norms,
and (2) counsel’s deficient representation subjected the petitioner to
prejudice, i.e., there is a reasonable probability that, but for counsel’s failings,
the result would have been more favorable to the petitioner.” (In re Wilson
(1992) 3 Cal.4th 945, 950.)
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Here, Clark alleges she was denied the effective assistance of counsel
because her trial counsel failed to object when the trial court relied on
improper factors to impose an upper-term sentence for Clark’s section
23153(b) conviction. Clark makes the same claim in a separately filed appeal
from the judgment. We deny Clark’s request to consolidate this petition with
her direct appeal but grant her request for judicial notice of the appellate
record in People v. Clark (Mar. 2021, A160193) [nonpub. opn.].
The only new issue raised by Clark’s petition that is not resolved in her
appeal pertains to her allegation that her trial counsel’s representation fell
below an objective standard of reasonableness. Clark relies on a declaration
from her former trial counsel, Mr. Rubinger, who states that he was
“surprised” when the trial court denied Clark probation and imposed an
upper term. Rubinger acknowledges that he did not make any specific
objections to the trial court’s reasons for imposing an upper term, adding that
he was “taken aback” by the “severity” of the sentence and was “focused” on
his client.
Rubinger’s declaration also contains this confusing statement: “I had
no strategic reason to object to the trial court’s dual use of facts, use of
inapplicable factors in aggravation, or his failure to consider Ms. Clark’s
alcoholism as mitigating.” Even if Rubinger meant to say that he had no
strategic reason for failing to make these objections, such an admission would
be inadequate to state a prima facie claim for relief.
The appellate record precludes Clark from showing that she was
prejudiced by her trial counsel’s failure to object to allegedly improper
reasons for imposing the upper term sentence. The trial court stated that it
could not conceive of a more “egregious” violation of section 23153(b), thus
demonstrating its commitment to imposing an aggravated term. When Clark
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committed the instant offense, she was driving on a suspended license, had
an outstanding warrant, and was on probation for two prior convictions for
driving under the influence, which shows that Clark’s prior performance on
probation was unsatisfactory. (See Cal. Rules of Court, rule 4.421.) This
single aggravating circumstance is sufficient to support her upper term
sentence. (People v. Osband (1996) 13 Cal.4th 622, 728.) But in this case,
there was more. In the circumstances of this case and in light of the trial
court’s explanation for its sentencing decision, it is not reasonably probable
Clark would have received a more favorable sentence if her trial counsel had
objected that some of the aggravating factors relied on by the trial court were
improper.
DISPOSITION
The petition for writ of habeas corpus is denied.
TUCHER, J.
WE CONCUR:
POLLAK, P. J.
STREETER, J.
In re Kayla Clark (A160862)
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