The People v. Avila CA5

Filed 10/3/13 P. v. Avila CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F065507 Plaintiff and Respondent, (Super. Ct. Nos. VCF210477 & v. VCF264336)

JOSE RUBEN AVILA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Darryl B. Ferguson, Judge. Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Wiseman, Acting P.J., Kane, J. and Franson, J.

While defendant Jose Ruben Avila was on probation, he stole two sago palm trees from an acquaintance’s front yard. Defendant pled guilty to grand theft, the taking of personal property valued over $950. (Pen. Code, § 487, subd. (a).) On appeal, he contends defense counsel was ineffective for failing to investigate the value of the palms. We will affirm. BACKGROUND At the preliminary hearing, a police officer testified that the homeowner who owned the sago palms described the trees as over 30 years old and approximately six feet tall. The homeowner estimated their value at $3,000 for both. The homeowner’s neighbor had witnessed the theft and identified defendant as the perpetrator. Defendant was acquainted with the homeowner because he had met the homeowner’s deceased wife at church and she had given him work as a handyman. At the arraignment hearing, defendant pled not guilty to the grand theft charge. At a pretrial hearing, the prosecutor asked whether the defense would be willing to stipulate to the amount of the theft so the prosecutor would not be required to call a nursery employee to testify. Defense counsel declined, stating: “Since it’s an element of the offense, we can’t stipulate.” Later at the same hearing, defense counsel stated that defendant now wished to enter a plea and receive the six-year indicated term previously mentioned by the court. The court reiterated that the maximum penalty to which defendant would be exposed at trial was seven years eight months, and even if defendant prevailed at trial, he would still receive the previously imposed and suspended six-year term for his probation violation. The court explained, “So, really, I’m pretty much giving you a free ride here on these palms.” The court stated that the restitution would be less than $3,000 if defendant could prove the palms were worth less. Defendant said he would like to dispute the value of the palms, and the court responded that he could do that at the restitution hearing. Defendant said he appreciated it. The court questioned defendant and proceeded to take his plea. The court asked whether there was a factual