The People v. Giles CA2/7

Filed 10/7/13 P. v. Giles CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B244724

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. PA073718) v.

ROBERT THOMAS GILES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Dalila C. Lyons, Judge. Affirmed.

Armand Tinkerian, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Eric E. Reynolds and Ana R. Durate, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Robert Thomas Giles appeals from the judgment upon his conviction for grand theft after he pled no contest to the charge. Appellant argues that he did not receive effective assistance of counsel during the negotiation phase of his plea deal. More specifically, appellant contends that his counsel: (1) failed to challenge the sufficiency of the charges; (2) failed to present evidence that could have mitigated his sentence and could have possibly resulted in a reduction of the charges against him; (3) did not file a written discovery motion; and (4) failed to file a motion to exclude appellant‟s incriminating statement to police. As we shall explain, there is no evidence in the record on appeal as to why counsel acted (or failed to act) in the manner which appellant complains about on appeal. Appellant has thus failed to carry his burden to prove ineffectiveness of his trial counsel. Accordingly, we affirm the judgment. FACTS AND PROCEDURAL HISTORY The Crime. In 2012 appellant was arrested for theft of copper wire from the Los Angeles Department of Water and Power (DWP) and damage to DWP power lines located near San Francisquito Road. DWP estimated that the total value of damage to the power lines, on the low end, was approximately $687,700 – $354,000 for labor and equipment to repair all the damage; $182,400 to replace the copper wire; $6,800 to replace the insulators; and $13,000 for megawatt hours lost due to relays on the circuit. The Charges and Appellant’s Plea. Appellant was charged with grand theft of personal property in violation of Penal Code section 487, subdivision (a) in count (1), vandalism causing damaging over $400 in violation of Penal Code section 594, subdivision (a) in count (2), and cutting a utility line in violation of Penal Code section 591, in count 3. Prior to the preliminary hearing the prosecutor made a plea offer to appellant for a five-year term (to the charge in count 1) with victim restitution to be determined based on the evidence – at that point it appeared that it would be close to $1 million dollars. Appellant‟s counsel communicated the offer to appellant, who stated that he would plead