THE PEOPLE v. PAUL MICHAEL SAFRAN (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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On December 27, 2006, Paul Michael Safran entered a plea of nolo contendere to one count of domestic violence (Pen.Code, § 273.5, subd. (a)) with great bodily injury (Pen.Code, § 12022.7, subd. (e)) on Marie Barnes, and admitted a probation violation in a previous case for the same offense with the same victim.   On January 18, 2007, Safran was placed on formal probation for three years and was ordered to serve 375 days in the county jail with credit for 37 days.   On September 18, 2007, Safran was arraigned for a possible probation violation.   An information filed October 9, 2007 charged Safran with one count of making a criminal threat in violation of Penal Code section 422, a felony.   After a hearing on March 24, 2008, the court found by a preponderance of the evidence that Safran had violated probation;  on March 25, 2008, the court sentenced Safran to the upper term of five years in state prison, with a total of 665 days of custody credits.

At the March 24, 2008 hearing, Cecilia Veliz, the caregiver for Safran's mother, testified that on September 13, 2007, Safran entered his mother's apartment in a very angry state and told Veliz he wanted her to leave.   Safran told Veliz that he did not want her to work for his mother and that if he continued to see Veliz there he would kill her.   He said he was going to kill her two or three times, and called her names.   Safran had been drinking.   As Veliz tried to leave Safran threatened her physically, but Safran's girlfriend stood between Veliz and Safran and grabbed Safran.   Safran then followed Veliz into the hall and continued to curse at her.   Veliz testified that although she only spoke “a little bit” of English, she understood that Safran did not say he would fire her, but said he would kill her.

Safran filed a notice of appeal on March 20, 2009.   We considered Safran's petition for habeas corpus, filed on February 19, 2009, as an application to file a belated notice of appeal, granted the application, and directed the superior court clerk to accept the notice of appeal as timely filed.

We appointed counsel to represent Safran on appeal.   After examining the record, counsel filed an opening brief raising no issues and asking this court to independently review the entire record.   On March 2, 2010, we advised Safran he had 30 days in which to submit to us any contentions or issues he wished us to consider.

Safran filed a supplemental letter brief arguing his counsel on the probation violation rendered ineffective assistance at the hearing by failing to obtain the complaints his sister Laura filed against Veliz or a copy of Veliz's job duties, failing to question Veliz about whether her duties included changing his mother's diapers, failing to point out systematic harassment by Veliz and the senior apartment complex where his mother lived, and in general failing to follow a plausible line of defense that he had threatened to fire, not kill, Veliz.   He also assigns as ineffective assistance counsel's failure to file a timely appeal.

A successful claim of ineffective assistance of counsel requires a showing, by a preponderance of the evidence, of objectively unreasonable performance by counsel and prejudice, that is, a reasonable probability that, but for counsel's errors, appellant would have obtained a more favorable result.   (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)   Safran must overcome presumptions that counsel was effective and that the challenged action might be considered sound trial strategy.  (In re Jones (1996) 13 Cal.4th 552, 561.)

Safran states that counsel told him that she chose not to question Veliz further about her duties because that line of inquiry would only make it more logical that Safran might be angry enough to make a threat of violence.   By Safran's own admission, counsel's choice not to pursue further Veliz's job duties was a tactical decision, and he has not overcome the presumption that the strategic decision was reasonable.   We also will not second-guess counsel's decision not to put more emphasis on Safran's history of conflict with Velez and personnel in his mother's apartment complex, which also would fall within counsel's discretion to make tactical decisions, as such emphasis might also support a conclusion that Safran was angry enough to make the charged threat.   Counsel did question Veliz whether she understood what Safran had said (she answered yes), whether he had told her she was not taking good care of his mother (she answered no), and also asked her directly whether Safran had said “I am going to kill you” or “I am going to fire you.”   Veliz answered that Safran had said “I am going to kill you,” and had not said “I am going to fire you.”   Counsel did pursue the line of defense that Safran had threatened to fire, not kill, Veliz.   Safran has not shown that counsel's tactical decisions were unreasonable or prejudicial.

To the extent that Safran argues that it was ineffective assistance not to file a notice of appeal, he has not shown prejudice, as we construed his habeas petition as an application to file a belated notice of appeal and granted the application.

We have reviewed the entire record.   Safran has not demonstrated, and cannot demonstrate from the record, that counsel provided ineffective assistance at his probation violation hearing.   We are satisfied that no arguable issues exist.  (See People v. Kelly (2006) 40 Cal.4th 106, 109;  People v. Wende (1979) 25 Cal.3d 436, 441-442.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

We concur:

MALLANO, P. J. ROTHSCHILD, J.