P. v. Sparacino

Filed 11/29/05 P. v. Sparacino CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ROY SPARACINO Defendant and Appellant.

F046948 (Super. Ct. No. 3275) OPINION

THE COURT^*

APPEAL from a judgment of the Superior Court of Mariposa County. Wayne R. Parrish, Judge.

Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and Wanda Hill Rouzan, Deputy Attorney General, for Plaintiff and Respondent.

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INTRODUCTION

On August 3, 2004, appellant Michael Roy Sparacino, pled no contest to assault with a deadly weapon upon a peace officer (Pen. Code, § 245, subd. (c)). In changing his plea, Sparacino executed a change of plea form. Sparacino’s original counsel withdrew from the case on September 10, 2004. Substitute counsel filed a motion for Sparacino to withdraw his plea on October 27, 2004. On November 23, 2004, the court denied the motion.

At the December 2, 2004, sentencing hearing, the court followed the plea agreement and sentenced Sparacino to prison for a mitigated term of three years. Sparacino was granted applicable custody credits and ordered to pay a $600 restitution fine. On appeal, Sparacino contends the trial court erred in denying his motion to withdraw his plea because there was an insufficient factual basis for the plea.^[1] Sparacino further contends his trial counsel was ineffective in advising him to change his plea.

FACTS

Incident

On the afternoon of May 27, 2004, Mariposa County Sheriff’s Deputy Weeks responded to a domestic disturbance call.^[2] Weeks contacted Barbara Sparacino, whom he recognized as Sparacino’s wife, at a pay phone at Yosemite Westlake Campground. Weeks was aware Sparacino had recently been jailed for assault with a baseball bat. Barbara Sparacino told Weeks her husband was smashing up the house with a baseball bat. Weeks gave her a ride to her residence.

During the car ride, Barbara Sparacino told Weeks she had been arguing with her husband over the past two days because she “ ‘got rid’ ” of his pickup truck and tools while he was in jail. Sparacino “ ‘flipped out’ ” and began destroying the house.

Driving up to the residence, Weeks saw a broken window. The front door was ajar. As Weeks approached the residence, he announced his presence saying, “ ‘Hello, Mike its Deputy Weeks, [c]ome on out.’ ” After receiving no response, Weeks repeated his statement. Weeks was 15 or 20 feet north of the front entrance when he saw Sparacino exit.

Sparacino was grasping a gray-colored baseball bat with both hands. Sparacino had the bat upright by the handle section at chest level. Feeling threatened, Weeks drew his pistol from its holster but did not point the gun at Sparacino. Weeks told Sparacino to put the bat down because he was there to help.

Sparacino approached Weeks, who was saying, “ ‘Mike, put down the bat, I’m here to help you.’ ” Sparacino continued to advance toward Weeks, waiving the bat at chest level. Weeks feared an imminent attack and pointed his gun at Sparacino. Weeks also began to back away from Sparacino toward the west but had to stop his retreat because there were objects behind him he might trip or stumble over. Weeks needed to keep his full attention on Sparacino.

Weeks continued giving Sparacino verbal commands to drop the bat or he would have to shoot Sparacino. Sparacino replied, “ ‘Your [sic] gonna have to shoot me.’ ” Sparacino abruptly stopped near two trees which were 5 to 10 feet apart. Weeks thought Sparacino was going to seek cover from one of the trees. The two men were between 10 and 15 feet apart from one another.

With his gun pointed at Sparacino, Weeks told him he would not achieve anything by attacking Weeks or by forcing Weeks to shoot him. Sparacino was still waiving the bat around in what Weeks perceived to be a threatening manner. Weeks was still in fear of his life and decided to shoot Sparacino if he “continued to advance his assault.”

After repeated demands that Sparacino put down the bat, he threw it away from Weeks. Weeks asked Sparacino to sit down, but Sparacino started walking toward the porch. When Weeks asked Sparacino to sit down on the porch, Sparacino complied. Sparacino told Weeks to give him the cuffs.

Change of Plea

In the change of plea form executed by Sparacino, he admitted Collings fully explained each allegation with him and explained the possible defenses. In the written change of plea form, Sparacino waived his right to appeal all proceedings; including earlier proceedings, the change of plea hearing, and sentencing. The court obtained a stipulation from the parties that the police report could serve as the factual basis for the plea. Sparacino was admonished with his constitutional rights pursuant to Boykin/Tahl and waived them.^[3] Sparacino orally waived his right to appeal. Sparacino pled no contest to assault with a deadly weapon on a peace officer. He also admitted a violation of probation in an unrelated action.

Motion to Withdraw Plea

Gary Collings was Sparacino’s original counsel. During the hearing on Sparacino’s motion to withdraw his plea, Collings testified that he represented Sparacino during the preliminary and change of plea hearings. During the course of his representation, Collings met with Sparacino more than he met any other prisoner. Collings met Sparacino four to six times after the preliminary hearing and ten or twelve times in total.

During the visits, Collings explained to Sparacino the definition of assault, including the elements and what the prosecution would have to prove to convict him. In fact, at page 120 of the reporter’s transcript, Collings told Sparacino that, “ ‘Assault is done by someone who willfully commits an act which, by its very nature, would probably and directly result in the application of physical force on another person.’ ” Collings told Sparacino if the jury believed he had the present ability to assault Weeks and that if Weeks was threatened, the jury could convict him.

Collings based his assessment on his research over 32 years, the CALJIC instructions, and his legal experience. Collings told Sparacino that chasing a peace officer with a raised baseball bat could qualify as an act as defined in CALJIC No. 9.00. Collings could not recall doing additional research. Collings said he discussed with Sparacino the fact that he never swung the bat at Weeks and he never got closer than 10 feet to Weeks.

Collings never told Sparacino he would lose at trial. Collings merely informed him of the possibility of losing if the jury believed the deputy’s account. Collings also never told Sparacino to accept the plea agreement, only that he could do better or worse at trial. Collings did note Sparacino had emotional problems but did not specifically investigate them.

Sparacino testified that when the incident occurred, he was on Social Security Disability suffering from Obsessive Compulsive Disorder, anxiety, and depression. Sparacino was taking several medications including Prozac and Wellbutrin. Just prior to the incident, Sparacino had been incarcerated and released. Because of an argument with his wife, Sparacino did not have access to his medications just prior to the incident.

Sparacino did have opportunities to discuss the case with his counsel before and after the preliminary hearing. According to Sparacino, his counsel told him he doubted Sparacino could win if he proceeded to trial. Sparacino said he accepted the plea bargain because he believed he had no other options. Sparacino said his counsel did not explain the change of plea form to him but only told him to initial all the boxes and sign the form.

DISCUSSION

Factual Basis for Plea

Sparacino contends there was no factual basis for his plea from the account of the incident from the report of Deputy Weeks. Sparacino argues his trial counsel misadvised him concerning the elements of assault with a deadly weapon on a peace officer and was therefore incompetent. Sparacino argues that Weeks could not have had a reasonable belief that Sparacino would hit him with the baseball bat. Respondent contends Sparacino waived his right to appeal any issue concerning the validity of his plea.^[4] We find no merit to Sparacino’s substantive argument.

The trial court must garner information concerning whether there is a factual basis for the plea, either from the defendant or defense counsel. The court may have the defendant describe the conduct which gave rise to the charge or it may question the defendant regarding the detailed factual basis described in the complaint or written plea agreement. If the court queries defense counsel concerning the factual basis, counsel may stipulate to a particular document that provides an adequate factual basis, such as the complaint, police report, preliminary hearing transcript, probation report, grand jury transcript, or written plea agreement. We review the trial court’s findings of fact under a deferential standard of substantial evidence and its findings of law under a de novo standard. An erroneous denial of a motion to withdraw a plea is reviewed for abuse of discretion. (People v. Holmes (2004) 32 Cal.4th 432, 442-443.)

The factual basis required by Penal Code section 1192.5 does not require more than establishing a prima facie factual basis for the charges. It is not necessary for the trial court to interrogate the defendant about possible defenses to the charged crime, nor does the trial court have to be convinced of the defendant’s guilt. (People v. Holmes, supra, 32 Cal.4th 432, 441.)

To constitute an assault, there must be the willful commission of “ ‘an act the direct, natural and probable consequences of which if successfully completed would be injury to another.’ ” (People v. Williams (2001) 26 Cal.4th 779, 784.) Sparacino asserts he never assaulted Weeks because the police report does not set forth sufficient facts to constitute an act that would lead to injury. Sparacino compares his conduct to simple brandishing of a weapon.

It is not indispensable to the commission of an assault that the assailant should be at any time in actual striking distance. If the assailant is advancing with intent to strike his adversary and comes sufficiently near to induce an ordinary person to believe, in view of all the circumstances, that he or she will instantly receive a blow unless he or she strikes in self-defense or retreat, the assault is complete. In such a case the attempt has been made coupled with a present ability to commit a violent injury within the meaning of the statute. (People v. Yslas (1865) 27 Cal. 630, 634.)

Although it is true that Sparacino never got closer to Weeks than 10 feet, this was not because he quickly heeded Weeks’s command to stop. Weeks drew his pistol from its holster and told Sparacino to put the bat down. Weeks kept telling Sparacino to put down the bat. Sparacino continued to advance on Weeks, who, in turn, had to keep retreating from Sparacino. Weeks continued giving Sparacino verbal commands to drop the bat or he would have to shoot. Sparacino replied, “ ‘Your [sic] gonna have to shoot me.’ ”

With his gun pointed at Sparacino, Weeks told him he would not achieve anything by attacking Weeks or by forcing Weeks to shoot him. Sparacino was still waiving the bat around in what Weeks perceived to be a threatening manner. Weeks was still in fear of his life and decided to shoot Sparacino if he “ ‘continued to advance his assault.’ ” Sparacino finally stopped advancing and threw the bat away from Weeks.

Had it not been for Weeks’s retreat and his commands to stop, the reasonable and probable consequence of Sparacino’s action would have been serious, or possibly grave, injury to Weeks. We reject Sparacino’s contention that there was insufficient evidence in Weeks’s report that an assault occurred. There was sufficient evidence adduced pursuant to Penal Code section 1197.5 that the offense occurred.

Ineffective Assistance of Trial Counsel

Sparacino contends his trial counsel was ineffective for failing to research the law and to understand that assault with a deadly weapon requires more than brandishing a weapon. He further contends that trial counsel was ineffective for failing to investigate his mental condition and the effect, if any, that being off his medication may have had on his conduct.

The defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsel’s decision making is evaluated in the context of the available facts. To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or, unless there simply could be no satisfactory explanation. Prejudice must be affirmatively proved. The record must affirmatively demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389.) Attorneys are not expected to engage in tactics or to file motions which are futile. (Id. at p. 390; also see People v. Mendoza (2000) 24 Cal.4th 130, 166.)

We note there is no merit to Sparacino’s contention that there was an insufficient factual basis in Deputy Weeks’s report to constitute an assault with a deadly weapon. Trial counsel testified that he discussed the elements of the offense, and went over Sparacino’s present ability to commit the offense. Counsel reviewed the CALJIC instructions related to assault. The law concerning assault has not changed over the past century. Even if counsel did not review the Williams case, his failure to do so would not have affected Sparacino’s defenses or whether the Weeks’s report constituted a prima facie case that the offense occurred. Any alleged inadequacy by defense counsel in researching the law was harmless under these facts, especially because there was a factual basis for the plea.

In fact counsel told Sparacino that, “ ‘Assault is done by someone who willfully commits an act which, by its very nature, would probably and directly result in the application of physical force on another person.’ ”^[5] This legal definition is in accord with the definition used in the Williams case.

As for Sparacino’s contention that his counsel failed to investigate his emotional and mental problems, we cannot say that counsel’s performance fell below what is professional. Counsel had to weigh the probability of the success of a defense based on Sparacino’s emotional and mental state against the offer of a plea for the mitigated term of three years. Counsel explained he did not believe his client would do any better in the case than to receive the mitigated term. Also, counsel explained he visited Sparacino 10 or 12 times in jail. Counsel was in a good position to evaluate Sparacino’s mental and emotional state and whether pursuit of such a defense would be fruitful.

Counsel testified that he did not specifically tell Sparacino to accept the plea and that Sparacino could either be more successful or less successful if he proceeded to trial. From this record, we cannot discern whether Sparacino’s emotional and mental state could have constituted a defense. Sparacino has failed to demonstrate prejudice on this point. For this court to find prejudice without more definitive evidence of Sparacino’s mental condition would be mere speculation on our part.

DISPOSITION

The judgment is affirmed.

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^* Before Harris, Acting P.J., Levy, J., Cornell, J.

^[1] Sparacino obtained a certificate of probable cause for this appeal.

^[2] The facts are derived from Deputy Weeks’s report because the report was stipulated as the factual basis of the plea. A less detailed presentation of the facts is also part of the record from the preliminary hearing transcript.

^[3] Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.

^[4] An appellant may affirmatively waive constitutional rights and may also waive the right to appeal as part of a plea agreement. (People v. Panizzon (1996) 13 Cal.4th 68, 80.) A defendant may manifest the right to appeal either orally or in writing. The defendant must waive the right in a knowing, intelligent, and voluntary manner. (Ibid.) Sparacino apparently demonstrated his intent to waive his right to appeal both with the executed written change of plea form and orally during the change of plea hearing. Sparacino replies that his waiver was not knowing and intelligent because he was not informed of the consequences of waiving his right to appeal. The court did not orally admonish Sparacino of the consequences of waiving his right to appeal. The written form did explain that Sparacino was waiving his right to contest any issue with regard to his plea, sentencing, or suppression motion. The procedures followed here were not consistent. The party claiming waiver bears the burden to show it. The showing must not involve speculation. (See People v. Vargas (1993) 13 Cal.App.4th 1653, 1657-1663.) Also, the trial court granted Sparacino a certificate of probable cause. Given our holding on the merits, we do not find it necessary to resolve the question of whether the respondent has met its burden to show Sparacino’s waiver was knowing and intelligent.

^[5] On appeal, Sparacino argues that defense counsel’s definition of assault was incorrect because he told Sparacino that if Weeks believed Sparacino had the present ability to assault Weeks and if Weeks was threatened, the jury could convict Sparacino. As we read defense counsel’s testimony at pages 120 and 128 of the reporter’s transcript, counsel first advised Sparacino of the elements of assault. Counsel then discussed the case from the practical viewpoint of how the jury would weigh the evidence. Read in this light, defense counsel’s present ability discussion was not the legal definition of assault set forth in Williams or an incorrect alternative definition of assault. Rather it was a way of illustrating how a jury might view the evidence of Sparacino’s conduct. In discussing how the jury might practically evaluate the evidence, counsel was sharing his many years of experience as a trial attorney with his client. In doing so, counsel was acting within the standard of the profession.