Filed 9/3/20 P. v. Rangel CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B303041
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No.NA100277)
v.
JOSE GERARDO RANGEL,
Defendant and
Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, James D. Otto, Judge. Affirmed.
Christian C. Buckley, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
In a bench trial, Jose Gerardo Rangel was convicted of
perpetrating a lewd act upon a child (Pen. Code, § 288, subd.
(a)1); orally copulating a person under 14 years of age (former
§ 288a, subd. (c)(1)2); and orally copulating a child 10 years old or
younger (§ 288.7, subd. (b)). We affirmed the judgment, but found
the trial court had improperly imposed a multiple victim sentence
enhancement. (§ 667.61, subds. (b), (e).) We therefore vacated
defendant’s sentence and remanded the cause for resentencing.
(See People v. Rangel (Aug. 24, 2017, B271735 [nonpub. opn.].)
Following remand, defendant filed a petition for writ of
habeas corpus asserting that his waiver of his right to a jury trial
was not knowing and intelligent, and that his trial counsel had
been ineffective. The trial court denied the petition and
resentenced defendant; defendant appealed. Defendant’s counsel
filed a brief requesting that we independently review the record
for error under People v. Wende (1979) 25 Cal.3d 436 (Wende).
We have conducted an independent examination of the entire
record and conclude that no arguable issues exist. We therefore
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
As stated in our previous opinion, People v. Rangel, supra,
B271735, “Defendant was charged by information with
perpetrating a lewd act upon a child, G.R., with the intent of
arousing, appealing to, and gratifying the lust, passions, and
sexual desires of G.R. or himself (§ 288, subd. (a), count 1); orally
1Allfurther statutory references are to the Penal Code
unless otherwise indicated.
2Effective January 1, 2019, this statute was renumbered as
section 287.
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copulating V.S., a person under 14 years of age who also was
more than 10 years younger than he ([former] § 288a, subd. (c)(1),
count 2); and orally copulating V.S., a child 10 years old or
younger (§ 288.7, subd. (b), count 3). Counts 2 and 3 arose out of a
single incident with V.S., who was nine years old. The
information alleged a multiple victim enhancement as to all three
counts. (§ 667.61, subds. (b) & (e).) [¶] Defendant proceeded to a
bench trial, at which the prosecution dismissed the multiple
victim allegation as to count 3. The trial court found defendant
guilty of all three counts and found true the remaining multiple
victim allegations.”
“Invoking section 667.61, subdivision (b), the trial court
sentenced defendant to 15 years to life on each of counts 1 and 2.
The court stated that it had no choice but to run those sentences
consecutively, for a total sentence of 30 years to life. The court
imposed and stayed a sentence of 15 years to life on count 3,
pursuant to section 654. It also imposed various fines and fees,
and issued a protective order barring defendant from contacting
G.R. and V.S.” (People v. Rangel, supra, B271735.)
On appeal, defendant asserted in part that the multiple
victim enhancement as to counts 1 and 2 under section 667.61,
subdivisions (b) and (e) was not applicable to his case as a matter
of law. The Attorney General agreed. We concurred, stating,
“Defendant . . . was convicted of only one offense specified in
section 667.61, subdivision (c), against only one victim, G.R. The
multiple victim enhancement accordingly was inapplicable as a
matter of law and must be reversed.” (People v. Rangel, supra,
B271735.) We therefore affirmed the judgment, ordered the
multiple victim enhancement pursuant to section 667.61,
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subdivisions (b) and (e) stricken, and remanded the case for
resentencing. (Ibid.)
Following remand, on December 20, 2017 the private
attorney who had previously represented defendant, Oscar Perez,
informed the court that he no longer represented defendant. The
court appointed the public defender’s office to represent
defendant.
After several continuances, on April 2, 2019, defendant
filed a petition for a writ of habeas corpus. He argued that his
“[t]rial counsel failed to properly apprise the petitioner of her [sic]
Sixth Amendment right to a jury trial, any resulting jury trial
waiver was not knowing and intelligent, and there was no
reasonable strategic reason for waiving jury trial in this case.”
Defendant represented that the jury waiver occurred as follows:
“The Court: Mr. Rangel, I understand you are going to
waive your right to a jury trial and have me hear this matter as a
court trial?
“The Defendant: Yes.
“The Court: After discussing this with your attorney, you
are waiving your right to a jury trial and agree I can hear this
matter; there won’t be a jury?
“The Defendant: Yes.”
Defendant argued that the “two-question waiver by Judge
Otto did not disclose to Mr. Rangel the difference between a court
and jury trial, how many individuals would make up a jury, a
jury will be from the community and not other Judges, any basic
differences between court and jury trial, and thus the only
remedy being that Mr. Rangel be given a new jury trial.”
Defendant also argued that he received ineffective
assistance of counsel during trial. Following appeal and remand,
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Perez had been unable to locate defendant’s case file. Defendant
argued, “Mr. Perez does not have a file associated with Mr.
Rangel’s case. . . . There is no indication that there were any
kind of investigation [sic] conducted” into the allegations against
defendant. Defendant also argued that Perez’s trial performance
“falls below the suggested case law,” because his cross-
examination of witnesses was “perfunctory,” he did not file trial
motions, and he did not file a sentencing memorandum.
The court ordered the District Attorney of Los Angeles
County (the People) to file a return. The People contended that
defendant forfeited any argument that his jury trial waiver was
not knowing and intelligent by failing to assert it on direct
appeal. The People also argued that because defendant “has
waived his right to a jury trial [in] seven separate prior cases,”
the argument that defendant did not understand his rights was
not credible. The People further contended that defendant failed
to prove that his trial counsel’s performance was deficient, or that
any such deficiency was prejudicial.
At the hearing on October 10, 2019, the court denied
defendant’s petition, stating, “[T]he totality of the circumstances,
particularly including the seven prior jury waivers in connection
with misdemeanor pleas and duly executed Tahl waiver[3] on one,
the court finds that the jury waivers here were knowing and
intelligently given, notwithstanding the court did not provide a
3 See, e.g., People v. Burns (2019) 38 Cal.App.5th 776, 782
[“For a plea to be constitutionally valid, the record must
demonstrate a defendant’s knowing and voluntary waiver of . . .
three constitutional trial rights, now known as a ‘Boykin-Tahl
waiver’; waiver cannot be presumed from a silent record. (Boykin
[v. Alabama (1969) 395 U.S. 238,] 243, 89 S.Ct. 1709; In re Tahl
(1969) 1 Cal.3d 122, 132, 81 Cal.Rptr. 577, 460 P.2d 449.)”].)
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full colloquy of the details on the waiver.” The court added that
defendant’s failure to argue the issue on appeal barred him from
asserting it in a habeas petition. The court continued, “As to the
ineffective assistance of counsel claim, that’s denied. There’s no
demonstration that the performance was inefficient as [sic]
showing a reasonable probability that [defendant] was prejudiced
by the deficient performance.”
The trial court sentenced defendant to a total of 21 years to
life, consisting of 15 years to life on count 3 as the principal term;
six years on count 1 to run consecutively; and 15 years to life on
count 2, stayed pursuant to section 654. Defendant timely
appealed.
On appeal, defendant’s appointed counsel filed a brief
requesting that we independently review the record for error.
(Wende, supra, 25 Cal.3d 436, 441.) We directed counsel to send
the record and a copy of the brief to defendant, and notified
defendant of his right to respond within 30 days. We have
received no response.
DISCUSSION
We have examined the entire record, and are satisfied no
arguable issues exist in the appeal before us. (Smith v. Robbins
(2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106,
110; Wende, supra, 25 Cal.3d at p. 443.) In a non-capital case
such as this one, there is “no right to appeal from a superior court
denial of habeas corpus relief.” (Briggs v. Brown (2017) 3 Cal.5th
808, 836.)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, ACTING P.J.
CURREY, J.
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