People v. Zambrano CA6

Filed 3/21/16 P. v. Zambrano CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H042492
(Santa Clara County
Plaintiff and Respondent, Super. Ct. Nos. F1554733, F1554552)

v.

ANTONIO ZAMBRANO,

Defendant and Appellant.

In re ANTONIO ZAMBRANO, H042382

on Habeas Corpus.

Defendant Antonio Zambrano pleaded no contest in two separate cases to several
felony and misdemeanor counts, including second degree burglary and vehicle theft with
a prior conviction. Zambrano admitted to three prior convictions in each case. He was
sentenced on June 1, 2015 to a total term of four years four months, the last two years of
which the court suspended imposition of sentence and ordered supervised probation.
Among the conditions of probation, the trial court recommended that Zambrano’s
driver’s license be revoked pursuant to Vehicle Code section 13357. Zambrano filed a
timely notice of appeal and requested a certificate of probable cause challenging the
license revocation, which the trial court granted.
We appointed counsel to represent Zambrano in this court. Counsel has filed a
brief stating the case and the facts, but raising no specific issues. We notified Zambrano
of his right to submit written argument in his behalf within 30 days. The 30-day period
elapsed without a response from Zambrano. Pursuant to People v. Wende (1979) 25
Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire
record and have concluded there is no arguable issue on appeal.
Concurrent with his brief on appeal, Zambrano has filed a petition for writ of
habeas corpus, which we have ordered considered with the appeal. In his writ petition,
Zambrano contends that he was deprived of effective assistance of counsel when his
attorney failed to object at the sentencing hearing to the recommended revocation of his
driver’s license. For the reasons expressed herein, we deny the petition.
I. FACTUAL AND PROCEDURAL BACKGROUND
On February 26, 2015, the Santa Clara County District Attorney filed a criminal
complaint (case No. F1554552) alleging that between January 5 and 6, 2015 and between
January 13 and 14, 2015, Zambrano burglarized the Outback Equipment Company in
Gilroy. The complaint further alleged that on February 24, 2015, Zambrano bought,
received, concealed, or withheld from its owner certain property valued at less than $950,
and that he was found in possession of methamphetamine and an opium pipe. The
complaint also alleged that Zambrano had three prior felony convictions under Penal
Code section 667.5, subdivision (b). The district attorney charged defendant in case
No. F1554552 with five counts: second degree burglary (Pen. Code, §§ 459, 460,
subd. (b); counts 1 & 2) (both felonies); buying, receiving, concealing or withholding
stolen property (id., § 496, subd. (a); count 3) (a misdemeanor); possession of a
controlled substance, methamphetamine (Health & Saf. Code, § 11377, subd. (a);
count 4) (a misdemeanor); and possession of controlled substance paraphernalia (id.,
§ 11364; count 5) (a misdemeanor).
On March 16, 2015, the district attorney filed a separate complaint (case
No. F1554733) alleging that on February 18, 2015, Zambrano burglarized the
transportation yard of the Gilroy Unified School District, stole a Dodge van belonging to
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the district, tampered with the vehicle, and committed petty theft and vandalism of school
district property. The complaint also alleged that Zambrano had three prior felony
convictions under Penal Code section 667.5, subdivision (b). The district attorney
charged defendant in case No. F1554733 with five counts: second degree burglary (Pen.
Code, §§ 459, 460, subd. (b); count 1) (a felony); vehicle theft with a prior conviction
(Veh. Code, § 10851, subd. (a), Pen. Code, § 666.5; count 2) (a felony); tampering with a
vehicle (Veh. Code, § 10852; count 3) (a misdemeanor); petty theft (Pen. Code, §§ 484,
488; count 4) (a misdemeanor); and vandalism (id., § 594, subds. (a), (b)(2)(A); count 5)
(a misdemeanor).
On April 23, 2015, Zambrano pleaded no contest in case No. F1554552 to second
degree burglary (count 1), possession of methamphetamine (count 4), possession of
paraphernalia (count 5), and admitted to three prior convictions. In case No. F1554733,
Zambrano pleaded no contest to second degree burglary (count 1), vehicle theft with a
prior conviction (count 2), and admitted to three prior convictions. The plea form in both
cases contained the following advisement: “32. I understand if I committed a crime with
an automobile . . . my privilege to drive a motor vehicle may be revoked or suspended by
the Court or the California Department of Motor Vehicles (DMV) and my vehicle may be
ordered forfeited (taken away) if it was involved in the crime. I may lose my license and
the car that was involved.” Zambrano initialed paragraph 32 in case No. F1554733. He
did not initial paragraph 32 in case No. F1554552. The judge at the plea hearing asked if
Zambrano had gone over the plea forms carefully with his attorney, and Zambrano
responded, “Yes, I did.” The judge asked if Zambrano had any questions, and Zambrano
said he did not.
Zambrano was sentenced on June 1, 2015, to a total term in county jail of two
years eight months in case No. F1554733, with punishment stricken for the three prison
priors, and to one year eight months in case No. F1554552, consecutive to the first, which
included a term for one of the three prison priors. The trial court suspended imposition of
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the concluding year of each sentence and ordered Zambrano released on mandatory
supervision for that portion of each term. The trial court listed among the conditions of
Zambrano’s probation that it would recommend revocation of Zambrano’s license to the
DMV. Neither Zambrano nor his attorney objected to the license revocation at
sentencing.
II. DISCUSSION
A. APPEAL
Zambrano timely filed a notice of appeal on June 12, 2015. Zambrano also
requested a certificate of probable cause on June 17, 2015, challenging his driver’s
license revocation, which the trial court granted. Zambrano’s appointed counsel has filed
an opening brief which raises no specific issues and asks this court for an independent
review of the record as required by People v. Wende, supra, 25 Cal.3d at page 441. We
notified Zambrano of his right to submit written argument within 30 days and received no
submission. We have carefully reviewed the entire record and conclude there is no
arguable issue on appeal. (Id. at pp. 441-443; People v. Kelly, supra, 40 Cal.4th 106.)
We nonetheless address Zambrano’s certificate of probable cause insofar as it indicates at
least one claim that Zambrano wished to raise on direct appeal and is helpful to our
discussion that follows on the habeas petition. (See People v. Kelly, supra, at pp. 110,
124 [Wende opinion should include any information from the record that might be
relevant in further challenges to the judgment or helpful in subsequent habeas
proceeding].)
In his certificate of probable cause, Zambrano seeks to appeal the revocation of his
driving privileges. Zambrano explains he is a culinary art graduate and makes his living
by working for a catering company, Catering With a Cause. Zambrano argues that
revocation of his license imposes a hardship on his work, which requires late night or
early morning hours at locations across the Bay Area, making it difficult to get to and
from work by public transportation and, thus, difficult to fulfill his child support and
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restitution obligations. Zambrano suggests the trial court could give him a restrictive
license to allow him to get to work and return home.
We find nothing in the record that indicates arguable error in the revocation of
Zambrano’s driver’s license pursuant to Vehicle Code section 13357, which directs the
DMV to “suspend or revoke the privilege to operate a motor vehicle of any person who
has been found guilty of a violation of [Vehicle Code] Section 10851” upon
recommendation of the trial court. Zambrano pleaded no contest in case No. F1554733
to vehicle theft with a prior conviction (Veh. Code, § 10851, subd. (a)). The plea form
for case No. F1554733 reflects that Zambrano initialed the paragraph advising him that
loss of his driver’s license was a possible consequence of his plea. He also signed the
“Defendant’s Statement and Plea,” which states: “I have read this form (or this form was
read to me) and I have initialed each of the items that applies to my case. By putting my
initials on this form, I am indicating I understand and agree with what is stated in each
item I have initialed.” Further, Zambrano’s trial attorney, Phong Do, signed the
attorney’s statement verifying that he had “explained to the defendant each of the items
on the form,” including “the consequences of the plea and admissions . . . .” The
probation report, paragraph 13, recommended revocation of Zambrano’s driver’s license
pursuant to Vehicle Code section 13357 in case No. F1554733. At the time of
sentencing, the judge stated, “The next time I talk to the Department of Motor Vehicles,
I’m going to recommend that they revoke your license pursuant to the law.” Neither
Zambrano nor Attorney Do objected. “It is settled that failure to object and make an
offer of proof at the sentencing hearing concerning alleged errors or omissions in the
probation report waives the claim on appeal. [Citations.] No different rule should . . .
apply to probation conditions under consideration at the same time.” (People v. Welch
(1993) 5 Cal.4th 228, 234-235.) Accordingly, we find no arguable issue on this record.
(People v. Wende, supra, 25 Cal.3d at pp. 441-443.)

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 B. PETITION FOR WRIT OF HABEAS CORPUS
Zambrano’s petition raises ineffective assistance of counsel during the sentencing
hearing as the sole basis for challenging the judgment. Zambrano contends his
conviction in case No. F1554733 is unlawful on this ground, because his attorney failed
to object to the trial court’s discretionary decision to recommend license revocation even
though Zambrano’s attorney knew that he wanted to object, and the resulting condition to
Zambrano’s probation is inherently prejudicial.
It is the petitioner’s burden on application for habeas corpus to state fully and with
particularity the facts on which relief is sought and to include copies of reasonably
available documentary evidence supporting the claim. (People v. Duvall (1995) 9 Cal.4th
464, 474.) Here, Zambrano offers three declarations in support of his petition:
(1) Zambrano’s declaration explaining his plea and the hardship imposed by revocation
of his license; (2) the declaration of his trial attorney, Phong Do, stating why he did not
object to the revocation condition; and (3) the declaration of his former work supervisor,
Juan A. Yanez, describing Zambrano’s work responsibilities. Zambrano contends these
declarations demonstrate two key facts in support of the petition. The first is that
Attorney Do knew Zambrano wanted to object to the license revocation yet failed to do
so at sentencing. The second is that Zambrano held steady employment in the catering
industry for several years and needs to be able to drive to and from work in order to pay
restitution and child support. We find the supporting declarations establish that
Zambrano was concerned about the license recommendation in the probation report but
told Attorney Do that he wanted to go forward with the sentencing. Thus, we conclude
that Attorney Do’s failure to object to the condition appears to have been a reasonable
tactical decision at the time based on his client’s desire to resolve the case, and that even
if trial counsel erred in failing to object to the probation condition, Zambrano has not
demonstrated prejudice as a result.

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 Criminal defendants are constitutionally entitled to effective assistance of counsel
under the Sixth Amendment to the United States Constitution and article I, section 15, of
the California Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) California
courts have defined effective assistance as “ ‘the reasonably competent assistance of an
attorney acting as [the defendant’s] diligent conscientious advocate.’ ” (Ibid.) This right
extends to the criminal sentencing stage, whereby “a defense attorney who fails to
adequately understand the available sentencing alternatives, promote their proper
application, or pursue the most advantageous disposition for his client may be found
incompetent.” (People v. Scott (1994) 9 Cal.4th 331, 351, citing People v. Cotton (1991)
230 Cal.App.3d 1072, 1085-1087; People v. Cropper (1979) 89 Cal.App.3d 716,
719-721.)
The standard of review for an ineffective assistance of counsel claim is well
settled. “To prevail on a claim of ineffective assistance of counsel, a defendant ‘ “must
establish not only deficient performance, i.e., representation below an objective standard
of reasonableness, but also resultant prejudice.” ’ [Citation.] A court must indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance. (Strickland v. Washington (1984) 466 U.S. 668, 689.) Tactical
errors are generally not deemed reversible, and counsel’s decisionmaking must be
evaluated in the context of the available facts. (Id. at p. 690.) To the extent the record on
appeal fails to disclose why counsel acted or failed to act in the manner challenged, we
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. (People v.
Mendoza Tello (1997) 15 Cal.4th 264, 266.) Moreover, prejudice must be affirmatively
proved; the record must demonstrate ‘a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the

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outcome.’ (Strickland v. Washington, supra, 466 U.S. at p. 694.)” (People v. Maury
(2003) 30 Cal.4th 342, 389.)
The appellate record before us does not reveal why Attorney Do failed to object to
the recommendation in the probation report, which the trial court adopted, nor does it
indicate that counsel was ever asked for an explanation. We thus turn to the extra-record
evidence provided with the habeas petition. (People v. Mendoza Tello, supra, 15 Cal.4th
at pp. 266-267 [ineffective assistance of counsel claim is more appropriately decided in
habeas proceeding when appellate record sheds no light on the challenged act or
omission].) Zambrano’s declaration states that he filled out the plea form in case
No. F1554733 and initialed paragraph 32 regarding the potential loss of his license, but
that his trial attorney did not explain the term of probation to him when he was filling out
the form. He did not object to the condition when the judge announced it at sentencing.
His petition alleges that by filing the notice of appeal and obtaining a certificate of
probable cause, Zambrano evidenced his desire had been to object to the condition.
Zambrano’s declaration expands on the statements in his certificate of probable cause,
explaining that he worked a variety of cook, bartender, and service positions for two
companies, Party Staff and Catering With a Cause, and that both jobs required travel to
events that sometimes would last until midnight at locations throughout the Bay Area
region. Zambrano states that the jobs required the employees “to drive food and
ourselves to events.” Because of the late hours and his residence in Gilroy, which is far
from the event locations, Zambrano states that if he cannot drive, he will not be able to
work many jobs, as public transit does not run at those hours and takes substantially more
time. Zambrano ultimately states that “I wanted my lawyer to object to the license
suspension. I want to be able to pay my restitution and my child support, and without
being able to get to my jobs, I will not earn enough to be able to do that.”
Yanez supervised Zambrano’s work at Catering With a Cause. The Yanez
declaration describes the positive impact of Catering With a Cause on individuals and the
8
community through its job training and job creation efforts. Yanez states that Zambrano
was a good employee and worked at catering jobs all over the Bay Area between 2011
and 2014, which sometimes would begin very early in the morning and end very late at
night.
Attorney Do’s declaration states in relevant part: “I remember that Mr. Zambrano
wanted to resolve the case to avoid any additional charges. He pled to a case involving
auto-theft, so I would have discussed license revocation with him. I remember going
over the probation recommendations with him at the time of sentencing. Mr. Zambrano
was not happy with the license revocation issue. I advised him that we could object, but
he wanted to proceed with the sentencing. I believe he did not want to do anything that
might jeopardize the plea. [¶] In accordance with Mr. Zambrano’s wish to proceed with
the sentencing and to not jeopardize his plea agreement, I did not object to the license
revocation at Mr. Zambrano’s sentencing.”
It is petitioner’s burden to show “that the omission was not attributable to a
tactical decision which a reasonably competent, experienced criminal defense attorney
would make.” (In re Sixto (1989) 48 Cal.3d 1247, 1257.) Zambrano argues the failure to
object may not be attributed to a reasonable tactical decision because the
recommendation to the DMV was discretionary, and to lodge an objection would not
have interfered with the sentencing or plea agreement. Zambrano urges that deference to
counsel’s tactical choices “ ‘ “is not abdication” [citation]; it must never be used to
insulate counsel’s performance from meaningful scrutiny and thereby automatically
validate challenged acts or omissions.’ ” (In re Cordero (1988) 46 Cal.3d 161, 180,
quoting People v. Ledesma, supra, 43 Cal.3d at p. 217.) Zambrano suggests that
competent counsel “would have advocated for non-suspension and presented testimony
from petitioner and others about why this license revocation was not in the best interest
of probation or the client,” such as due to the fact that without a license, Zambrano would
be unable to earn his livelihood and be more likely to reoffend. Zambrano further
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suggests that it would have required only minor effort by counsel to have “offered the
court evidence” similar to the statements in Zambrano’s certificate of probable cause as
to why a proper exercise of discretion would have been to forego the suspension.
We agree that the trial court had discretion whether to impose the condition
and could have elected not to make the recommendation, because Vehicle Code
section 13357 directs the DMV to suspend or revoke the license “[u]pon the
recommendation of the court.” But we do not agree that counsel’s failure to object
constituted deficient performance under the circumstances. Taken together, the
Zambrano and Do declarations establish that if Zambrano did not understand
paragraph 32 of the plea form when he initialed it, by the time of sentencing, Attorney Do
had reviewed the probation report with him and was aware that Zambrano “was not
happy with the license revocation issue.” There is no evidence that Attorney Do “fail[ed]
to adequately understand the available sentencing alternatives [or] promote their proper
application . . . .” (People v. Scott, supra, 9 Cal.4th at p. 351.) To the contrary, he
informed Zambrano that they could object to the condition, and Zambrano indicated that
he wanted to go forward. Zambrano does not dispute this statement in either his petition
or declaration. We therefore do not find this to be a circumstance in which the failure to
“pursue the most advantageous disposition” (ibid.) for the client stemmed from
incompetency, but rather from a conflict in the client’s expressed priorities.
To the extent that Zambrano’s trial counsel reasonably understood that Zambrano
wished to go forward with the sentencing, counsel made a rational tactical decision to
forgo the objection in order to proceed and resolve the case for his client. To introduce
the facts and testimony necessary to argue against the trial court recommending
revocation of Zambrano’s driver’s license, as Zambrano now argues his counsel should
have done, would have required some form of evidentiary hearing, which could not have
taken place consistent with Zambrano’s apparent desire to get the sentencing process over
and done. Accordingly, we disagree that the failure to object constituted deficient
10
performance below an objective standard of reasonableness, based on all the facts
available to counsel at the time. (Strickland v. Washington, supra, 466 U.S. at
pp. 689-690.) Counsel’s decision not to object appears to have been based on his client’s
indication to proceed with the sentencing, as well as his client’s general desire to see the
case resolved without delay or distraction.
We also find that Zambrano’s ineffective assistance of counsel claim fails based
on an inability to establish prejudice. Zambrano cannot affirmatively “demonstrate ‘a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ ” (People v. Maury, supra, 30
Cal.4th at p. 389, quoting Strickland v. Washington, supra, 466 U.S. at p. 694.)
Zambrano cites Glover v. United States (2001) 531 U.S. 198, 200 (Glover) for the
proposition that prejudice at the sentencing stage may be established by even a small
increase in a defendant’s sentence. Indeed, the United States Supreme Court in Glover
confirmed that if an alleged error in the sentencing determination resulted in an increased
prison term of between six and 21 months, such increase would be prejudicial under the
Strickland analysis. (Ibid.) The court explained that in most cases, trying to determine
whether the increase in sentence is “significant” is inappropriate and “ ‘do[es] not justify
a departure from a straightforward application of Strickland when the ineffectiveness of
counsel does deprive the defendant of a substantive or procedural right to which the law
entitles him.’ ” (Id. at p. 203, quoting Williams v. Taylor (2000) 529 U.S. 362, 393.)
Even accepting for purposes of this habeas corpus petition that revocation of the driving
privilege constitutes a deprivation of a substantive right within the meaning of Glover
would not resolve the prejudice issue for Zambrano. As the court in Glover was careful
to point out, Glover involved “the sentencing calculation itself” based on determinate
sentencing guidelines which, if calculated in error “would have been correctable on
appeal,” as opposed to the type of discretionary determination at issue here, whereby
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“trial strategies, in retrospect, might be criticized for leading to a harsher sentence.”
(Glover, supra, at p. 204.)
We are not persuaded that the trial court would have exercised its discretion
differently—by at least a reasonable probability—if trial counsel had presented evidence
of Zambrano’s job credentials and transportation needs in order to work and pay child
support and restitution. Zambrano contends that by granting his certificate of probable
cause, the trial court not only found his claim was neither frivolous nor vexatious, but
that the failure to object to the probation condition was an argument the trial judge may
have considered if counsel had presented it. We decline to impute any meaning to the
trial judge’s decision to execute and file the certificate of probable cause beyond that
which is consistent with the well-settled purpose of Penal Code section 1237.5, which is
“to promote judicial economy by screening out wholly frivolous appeals prior to the
commitment of economic and legal resources to such matters.” (In re Chavez (2003) 30
Cal.4th 643, 653; People v. Mendez (1999) 19 Cal.4th 1084, 1095.) Given that “[t]he
trial court must issue the certificate if the defendant’s statement under section 1237.5
presents ‘any cognizable issue for appeal which is not clearly frivolous and
vexatious . . . .’ ” (People v. Johnson (2009) 47 Cal.4th 668, 676, underscore added), it
would be improper to interpret issuance of the certificate as a sign of prejudice for
purposes of an ineffective assistance of counsel analysis.
Although we have no means of measuring the precise impact that an objection to
the probation report and trial court’s recommendation regarding license revocation may
have had, we do not find the evidence presented here to be sufficiently compelling in
light of Zambrano’s vehicle theft with a prior vehicle theft felony conviction (Veh. Code,
§ 10851, subd. (a), Pen. Code, § 666.5, subd. (a)). We conclude that the failure to object
to the driver’s license revocation recommendation, and any related evidence that might
have been raised in support of that objection, was not “ ‘sufficient to undermine
confidence in’ ” the trial court’s decision to impose that condition consistent with its
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discretion under Vehicle Code section 13357. (People v. Maury, supra, 30 Cal.4th at
p. 389; Strickland v. Washington, supra, 466 U.S. at p. 694.)
III. DISPOSITION
The judgment is affirmed. The petition for writ of habeas corpus is denied.

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 Premo, J.

WE CONCUR:

Rushing, P.J.

Márquez, J.

People v. Zambrano; Zambrano on Habeas Corpus
H042492; H043282