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Casillas v. Secretary of Corrections

United States District Court, E.D. California

September 3, 2019

OMAR CASILLAS, Petitioner,
v.
SECRETARY OF CORRECTIONS, Respondent.

          FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS [THIRTY DAY OBJECTION DEADLINE]

          SHEILA K. OBERTO UNITED STATES MAGISTRATE JUDGE

         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is currently serving a sentence of 29 years for his conviction of several offenses involving an attempted murder. He has filed the instant habeas action challenging the conviction. As discussed below, the Court finds the claims to be without merit and recommends the petition be DENIED.

         I. PROCEDURAL HISTORY

         On February 28, 2013, a Kern County jury found Petitioner guilty of attempted murder (Cal. Penal Code §§ 664, 187(a)), assault with a semiautomatic firearm (Cal. Penal Code §245(b)), being a felon in possession of a firearm (Cal. Penal Code §29800(a)(1)), being a felon in possession of ammunition (Cal. Penal Code § 30305(a)(1)), and felony false imprisonment (Cal. Penal Code § 236). (Doc. 61-2 at 89.[1]) Petitioner was sentenced to a total state prison term of 29 years. Id.

         Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth DCA”). On December 14, 2015, the Fifth DCA ordered the abstract of judgment corrected to reflect that certain enhancements were in fact dismissed, but in all other respects, the judgment was affirmed. (Doc. 61-20.) Petitioner then filed a petition for review in the California Supreme Court. (Doc. 61-21.) The petition was denied on February 17, 2016. (Doc. 61-22.)

         Petitioner also sought collateral relief in the state courts. On March 1, 2017, Petitioner filed a petition for writ of habeas corpus in the Kern County Superior Court. (Doc. 61-23.) The superior court denied the petition in a reasoned decision on April 25, 2017. (Doc. 61-24.) He then filed a habeas petition in the California Supreme Court which was summarily denied on November 29, 2017. (Doc. 61-26.)

         On April 5, 2017, Petitioner filed a petition for writ of habeas corpus in this Court. (Doc. 1.) On December 22, 2017, following a stay of the proceedings pending exhaustion of state remedies, Petitioner filed a Third Amended Petition, which is the operative pleading. (Doc. 30.) On April 4, 2019, Respondent filed an answer to the petition. (Doc. 60.) On July 15, 2019, Petitioner filed a traverse to Respondent's answer. (Doc. 67.)

         II. FACTUAL BACKGROUND

         The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision[2]:

Victim's Account of Incident to Detective Castaneda
Detective Castaneda questioned the victim Andrew Fern on October 11. The session was recorded with video and audio and played for the jury. A written transcript of the questioning was admitted into evidence as well. Castaneda was aware Fern was on probation and had an electronic monitor or global positioning system (GPS) tracking device.
Fern told Castaneda that on the day of the incident he went to his uncle's apartment. As Fern was playing a video game, Dulcinea Robinson came into his uncle's apartment, shut the door, and told Fern not to open the door if anyone came up behind her. She went into the back room; shortly thereafter someone pounded on the door. Fern opened the door. A male on the other side told Fern, “ ‘it's not going down like this.' ” Fern later identified that male as defendant in a photographic lineup.
Defendant told Fern that Robinson just “got” an ounce of defendant's “shit.” Fern told defendant he had nothing to do with the woman. With defendant waiting outside the apartment behind the screen door, Fern walked to the back room and heard Robinson talking to Ariana Sullivan. Fern's uncle opened the door to the room and Fern saw Robinson holding a bag in her hand. Fern told Robinson it was stupid for her to have taken defendant's drugs. Fern took the bag from Robinson and brought it out to defendant. Defendant complained he did not receive all of the drugs because there had been an ounce. Fern agreed there was not an ounce in the bag. Defendant again told Fern it was not “going down like this.” Defendant said three quarters of the drugs were missing and demanded money. Fern told Robinson and the other people in the house that they needed to go outside and talk to defendant immediately. Defendant backed up a small, yellow SUV to the stairs leading to the second floor apartment. Fern told the others defendant was going to do something dumb. Fern saw defendant take something from under the hood of the SUV. Fern said defendant had a gun, asked the others who defendant was, and what they had been doing. Fern walked outside his uncle's residence because “kids” were present, walked down the stairs, and met defendant.
Defendant cocked the gun. Fern told him he did not need to do anything. Fern said he was going to go with defendant to keep people from going to jail. Fern confirmed defendant did not want the remnants of the bag, but money. Fern assured defendant they would try to get money. Fern rode with defendant in the SUV. On the way, defendant pistol-whipped Fern, who then grabbed defendant's arm and chest. The two struggled as the SUV slowly coasted.
Fern told defendant he was on a GPS monitor and that Fern would let go of defendant and let him keep his gun. Defendant drove to a residence on Oasis Street, parked, and talked to Fern. Defendant called someone on the phone; a heavy-set Hispanic man arrived, and he talked to defendant in Spanish. Defendant informed Fern that his brother wanted to “fucking execute” Fern. They went to another residence on North Norma and Coso, though Fern was not sure of the exact location. Defendant left the motor of his vehicle running, and they went inside the house.
Inside the residence, defendant called people and told them he had kidnapped Fern. Fern reminded defendant that Fern's actions had saved the young women at his uncle's home from being shot and defendant from going to jail. Fern told defendant that because he was not from the area, it was dumb of defendant to tell people he had kidnapped Fern. Fern also told defendant he was stupid for getting “jacked by a bunch of little fucking scally wags” and for assuming Fern had anything to do with it.
Defendant received a text offering $1, 000 to release Fern and informing defendant a large group of White people were at the Oasis Street location. Defendant and Fern went in the garage. Defendant received another text that a group of White people were breaking the windows at the Oasis Street location. Defendant put a plastic tarp on the floor of the garage and told Fern to stand on it. Defendant jumped onto a vehicle parked in the garage. Fern asked defendant not to point the gun at him, and told defendant he did not need to shoot.
Fern persuaded defendant to let him make one quick call to find out what had happened. Fern called Russell Lester who told Fern he heard what happened, picked up Robinson, and some windows got broken. Fern told Lester he had been at a house on Oasis Street but he was now with defendant, he did not know defendant's name, and they were at a house defendant had been working on. Fern also told Lester defendant pulled a gun and was threatening to kill him. Defendant became more agitated.
Fern refused defendant's demand to get onto the tarp. Defendant threatened to shoot Fern in the arm. Fern kept the phone in his back pocket with the connection to Lester still open. Defendant held the gun with two hands about to fire, but Fern distracted him and then slapped the gun from defendant's grasp. Fern struck defendant in the face. Defendant stumbled backwards and Fern beat defendant on the face. As defendant fell over, two bullets were quickly fired from the gun.
Fern later learned Lester heard the shots over the phone and thought Fern had been shot. At that point, Lester slapped Robinson to the ground and then yelled at her for being stupid and dragging Fern into the situation. Robinson suddenly remembered the other place defendant might be located and told Lester to take her there. This was how Fern's friends went to the intersection of Norma and Coso.
Fern had gotten cut but thought he had been shot and ran out of the garage. Defendant fired two more shots. Defendant fired three more shots at Fern as he headed toward a fence. Fern rolled on the ground to avoid the gunfire. As Fern stood and looked back, defendant tried to fire the gun again but had run out of ammunition. Defendant demanded Fern lie on the ground. Instead, Fern jumped over a chain-link fence and hid in a nearby yard as defendant went back to the garage.
Fern watched defendant come back out of the garage, looking for Fern and assuming he had run down the alley. Fern saw defendant jump into his SUV and drive away. Fern described the gun as being a small, chrome .25-caliber. Fern described defendant as being Hispanic and not having a spider-web tattoo.
Castaneda and another officer had prepared a photo lineup that included defendant and five other people. Castaneda had training in the signs of methamphetamine intoxication and Fern did not appear to Castaneda to be under its influence. Fern's demeanor was calm until Castaneda handed him the photo lineup.
When Fern received the photo lineup, he became emotional and started to tear up. Just before Fern circled the picture and signed it, he asked Castaneda what was going to happen to him. Fern was concerned about being a snitch. Fern was aware the people who were arrested on October 6 had already provided a statement. Castaneda explained to Fern investigators had questioned an eyewitness, went to the location of the shooting with the witness, and found shell casings.
Victim's Testimony Fern began his testimony stating he barely remembered the events of October 6, 2012. [Fn.2] Fern stated he had been in a program in Ridgecrest that required him to take a urine test. Fern had a GPS tracking device attached to him. Instead of walking across town, Fern walked to his uncle's house to get a ride. At his uncle's house, there were a couple of girls and “a dude” named Ryan from Bakersfield, who was “blasted up” with tattoos. Ryan was with his girlfriend, Dulcinea Robinson.
[Fn.2] The dates surrounding the incident all refer to the year 2012.
Fern's uncle would not let him inside the house. Fern left with Ryan on foot. Ryan kept trying to take Fern toward “stupid little dump places.” Fern objected, explaining to Ryan he had to take a urine test. Ryan was a member of Fern's former gang, the East Kern Hellbound Peckerwoods. Ryan accused Fern of being a rat and started hitting him. But Fern had the better of Ryan and “dropped him.” Fern called his friend Russell Lester for a ride, then jumped over a fence and walked down an alleyway away from Ryan.
Fern denied he went to Oasis Avenue, a place he called “the dump of Ridgecrest.” Fern said he was about halfway down the alley, in the area of Norma and Coso, when law enforcement arrived. People had made reports of shots fired at Fern, but Fern did not remember any gunshots being fired. The police picked up Fern two blocks away. Fern's friends were lined up on the curb telling him he had been shot at.
Investigators questioned Fern about the incident four or five days later. Fern testified that prior to being questioned, he had “slammed” methamphetamine with Southern Comfort and had also snorted a Xanax. Fern explained he was intoxicated during questioning and did not remember much of what he told investigators. Everything he told investigators was “a pretty big blur.” At trial, Fern said the account of events he told investigators was a story Robinson and Ariana Sullivan told him to say. The two women had told Fern whom to identify during a lineup conducted at the jail.
A week after questioning, Fern cut off his ankle monitor because he realized he had wrongfully accused defendant. Fern also wanted to run because he was afraid he would be killed.
Eyewitnesses and Initial Investigation Donald Beaver testified he owned property on Norma Street, and defendant was working on that property on October 6. Beaver knew defendant through his grandson, who had served time in prison with defendant.
Between 5:15 and 5:30 p.m. on October 6, John Froehner was in his driveway helping his sister's children into her vehicle when he heard three or four gunshots from Beaver's property on Norma Street. Froehner saw a man with his arm over the fence and smoke coming from a gun. There was a yellow SUV backed into the driveway of the house. After the gunshots, the shooter loaded tools into the back of the SUV and drove away. After the shooting, Froehner called 911. Before police arrived, a group of people showed up in two cars and fanned out over the area.
Officer Kyle Cushman of the Ridgecrest Police Department was dispatched to investigate shots fired and people shouting just before the 6:00 p.m. end of his shift on October 6. Cushman arrived at the corner of West Coso and Norma and saw several individuals with whom he had previous encounters, including Richard Caine, Jr., Luis Enriquez, Scott George and Dulcinea Robinson, who is also known as Ruvidia Robinson. Cushman had them sit on the curb. Another officer found Fern at West Ridgecrest Boulevard and Sunset and brought him back to Coso and Norma.
Fern told Cushman he had been in a fight with a male who was five feet five inches tall, weighed 230 to 240 pounds, and had a spider web tattoo on his right forehead. The man had called Fern a snitch. Fern did not tell Cushman someone had shot at him. Fern did not want to press charges and did not want to be a snitch.
Detective Manuel Castaneda and his partner found three spent shell casings from a .380-caliber semiautomatic firearm on the ground just inside the backyard of the property on Coso and Norma. There was a thick plastic painter's tarp in the garage of the property. The house was undergoing remodeling. No shell casings or bullet impact marks were found in the garage. Castaneda questioned Robinson, who said she had been “hanging out” with defendant and admitted stealing his drugs.
GPS Evidence
Fern's GPS ankle monitor communicated with a cell tower every three minutes. On October 6, the monitor indicated Fern was at his uncle's apartment on West Wilson Avenue in Ridgecrest from 3:24 p.m. until 3:45 p.m. At 3:51 p.m., Fern was at the 11000 block of California Avenue. Between 3:57 p.m. and 4:06 p.m., Fern was on Oasis Drive. From 4:15 p.m. until 5:27 p.m. Fern was apparently at the same address on North Norma and Coso Avenue, although between 4:17 and 5:27 p.m., Fern's location on the monitor registered back and forth from Norma to Coso. Between 5:27 p.m. to 5:36 p.m., Fern was traveling from West Coso to the 500 block of Ridgecrest.
In-Person Lineup Daniel Stevenson, an investigator for the Kern County District Attorney's Office, visited Fern in jail on June 25, 2013. Fern told Stevenson he had been taken from a home and held by another person. Fern, who appeared to be afraid and did not want to testify, asked for protection or relocation. A couple of times Fern said he believed he would be killed if he testified. Fern appeared emotional and teared up as Stevenson was talking to him. That same day, an in-person lineup was conducted at the jail. Defendant was one of the subjects in the lineup. Fern did not identify defendant as the person who shot at him.
Kite Evidence On July 15, 2013, Kern County Sheriff Deputy Jeff Brockett transported inmates, including defendant, from the Lerdo pretrial facility to the courthouse on a bus. Fern was coming to court the same day on the same bus. Brockett searched the inmates before they boarded the bus and found a “kite, ” or note, in defendant's shirt pocket. The note said: “Hey bro. I need you to write me a letter saying that ... Det Castaneda made you say all that, that he coered [sic] and intimidated you.” Defendant's name, booking number, and pod number were written on the back of the note with the message, “we will get paid” with two dollar signs.
The parties stipulated defendant had been convicted of a felony prior to October 6. The parties further stipulated both defendant and Fern were ordered to court appearances on July 15, 2013.
Defendant's Testimony
Defendant was in jail from September 13 until October 4. Defendant made a passing reference to taking psychotropic medication. Don Beaver hired defendant to remodel his house on North Norma. Defendant met Beaver's grandson in prison where defendant was serving a sentence for receiving stolen property. Defendant worked on Beaver's house from 6:00 or 7:00 a.m. on October 6 until he loaded up his tools to leave between 4:00 and 4:30 p.m. Defendant heard no gunshots that day. Defendant denied knowing Robinson or Fern, and he denied shooting at Fern. Defendant denied writing the kite found in his shirt. The kite was passed to him on the bus.

People v. Casillas, 2015 WL 8483864, at *1-5 (Cal.Ct.App. Dec. 10, 2015).

         III.DISCUSSION

         A. Jurisdiction

         Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the Kern County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d).

         On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997) (holding the AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

         B. Legal Standard of Review

         A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless the petitioner can show that the state court's adjudication of his claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 412-413.

         A state court decision is “contrary to” clearly established federal law “if it applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or “if it confronts a set of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a different result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405- 406).

         In Harrington v. Richter, 562 U.S. 86, 101 (2011), the U.S. Supreme Court explained that an “unreasonable application” of federal law is an objective test that turns on “whether it is possible that fairminded jurists could disagree” that the state court decision meets the standards set forth in the AEDPA. The Supreme Court has “said time and again that ‘an unreasonable application of federal law is different from an incorrect application of federal law.'” Cullen v. Pinholster, 563 U.S. 170, 203 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fairminded disagreement.” Harrington, 562 U.S. at 103.

         The second prong pertains to state court decisions based on factual findings. Davis v. Woodford, 384 F.3d 628, 637 (9th Cir. 2003) (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). Under § 2254(d)(2), a federal court may grant habeas relief if a state court's adjudication of the petitioner's claims “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Wiggins v. Smith, 539 U.S. 510, 520 (2003); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997). A state court's factual finding is unreasonable when it is “so clearly incorrect that it would not be debatable among reasonable jurists.” Jeffries, 114 F.3d at 1500; see Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004).

         To determine whether habeas relief is available under § 2254(d), the federal court looks to the last reasoned state court decision as the basis of the state court's decision. See Ylst v. Nunnemaker, 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). “[A]lthough we independently review the record, we still defer to the state court's ultimate decisions.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

         The prejudicial impact of any constitutional error is assessed by asking whether the error had “a substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007) (holding that the Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness).

         C. Review of Petition

         The petition presents the following claims for relief: 1) Defense counsel rendered ineffective assistance in failing to file a motion to dismiss a twice-dismissed charge pursuant to section 1387 and for failing to object to a jury instruction on felony false imprisonment; 2) The trial court violated Petitioner's right to counsel by denying his motion for new counsel; 3) Defense counsel rendered ineffective assistance in several instances; 4) The prosecutor committed misconduct by knowingly using false evidence in the form of perjured testimony to obtain a conviction; 5) Petitioner's right to confrontation was violated when a witness's statements were introduced at trial and Petitioner was not afforded an opportunity to cross-examine; and 6) Petitioner was denied due process by the combined effect of errors in his case.

         1. Ineffective Assistance of Counsel

         Petitioner first claims trial counsel rendered ineffective assistance when he failed to timely bring a motion to dismiss a charge that had already been dismissed on two prior occasions. He contends that a motion pursuant to section 1387 would have been meritorious and the charge of unlawful possession of a firearm would have been dismissed. Petitioner also contends that trial counsel failed to object to a jury instruction on false imprisonment. Petitioner raised this claim on direct appeal in the state courts. In the last reasoned decision, the Fifth DCA denied the claim as follows:

I. Failure to File Section 1387 Motion
Defendant contends his trial counsel was ineffective for failing to file a motion pursuant to section 1387 to dismiss count 4, possession of a firearm by a felon (§ 29800, subd. (a)(1)). According to defendant, this count had been dismissed twice before for statutory cause and could not be filed a third time. We disagree.
A. Prior Proceedings
This action began in Kern County as case No. RF006440A. Defendant was originally charged with three counts. Count 1 alleged assault with a firearm on October 6, 2012. Counts 2 and 3 alleged respectively that on October 12, 2012, defendant was a felon in possession of a firearm and a felon in possession of ammunition. At the preliminary hearing, Detective Castaneda testified concerning the incident on October 6, 2012. On November 21, 2012, an information with the same allegations was filed. On January 24, 2013, the court granted a section 995 motion filed by defendant as to counts 2 and 3, finding there was no evidence at the preliminary hearing concerning defendant's alleged status as a felon. The next day, the court granted the People's motion to dismiss the remaining allegation in the interests of justice.
A new criminal complaint was filed in case No. RF006526A on January 25, 2013, charging defendant with the same counts alleged in the prior action. On March 20, 2013, the prosecutor filed an amended complaint, adding allegations of attempted murder, count 1, and kidnapping for ransom, count 2. Assault with a semiautomatic firearm became count 3, and being a felon in possession of a firearm became count 4. All of the counts alleged the incident occurred on October 12, 2012.
At the preliminary hearing, Detective Castaneda testified concerning the incident on October 6, including the facts that Fern explained defendant possessed a semiautomatic pistol, fired shots at Fern, and four .380-caliber shell casings were found at the North Norma residence. A .22-caliber magnum revolver was found at defendant's residence when he was arrested October 12. A .380-caliber round cannot be fired from a .22-caliber revolver.
Defense counsel moved to have count 4 dismissed, among other reasons, based on a conflict in the October 6 and October 12 dates. The prosecutor made a motion to have the complaint amended to reflect the allegations occurred on October 6. The prosecutor pointed out the discrepancy in dates regarding count 4 resulted from the fact a gun was found in defendant's residence on October 12. The court asked the prosecutor which date applied to count 4. The prosecutor requested the dates for all counts in the amended information refer to October 6 based on the testimony at the preliminary hearing.
The court permitted the prosecutor to amend counts 1, 2, and 3 to reflect the offenses occurred on October 6. As to count 4, the court stated it was discharging defendant “for a failure of notice as to the alleged violation.” The court acknowledged its finding was inconsistent with its holding order on count 3, assault with a semiautomatic firearm. It concluded, however, there was insufficient notice to the defendant regarding possession of a firearm on October 6, “especially since there is the confusion as to which acts they are attempting to charge the defendant with.” Although the trial court did not cite any section of the Penal Code when it dismissed count 4, the clerk's minute order stated count 4 was dismissed for insufficient cause pursuant to section 871. [Fn.3]
[Fn.3] Section 871 permits the dismissal by the trial court of a criminal complaint for insufficient cause where “it appears either that no public offense has been committed or that there is not sufficient cause to believe the defendant guilty of a public offense....” B. Section 1387 Section 1387 states that pursuant to its chapter, or to sections 859b, 861, 871, or 995, an order terminating an action “is a bar to any other prosecution for the same offense if it is a felony ... and the action has been previously terminated pursuant to this chapter, or to Section 859b, 861, 871, or 995....” Defendant argues his case was dismissed the second time by the magistrate pursuant to section 871 and further prosecution is barred by section 1387. We disagree for the following reasons.
As a preliminary matter, we note the magistrate did not make a finding pursuant to section 871 even though the clerk so indicated in the minute order. The court expressly noted a lack of fair notice to defendant as to which violation of section 29800, subdivision (a)(1), and on what date, he was being charged. The court's finding was neither an express nor an implied finding there was insufficient evidence to hold defendant on count 4. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or abstract of judgment, the court's oral pronouncement generally controls over the clerk's minute order. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Zackery (2007) 147 Cal.App.4th 380, 385.)
The first dismissal occurred because there was no evidence before the court defendant was a felon. During the second preliminary hearing, the magistrate specifically identified the lack of notice to the defendant because there was evidence of two separate handguns, a .22-caliber weapon found in the defendant's residence on October 12, and shell casings from a .380-caliber gun fired by defendant on October 6. Thus, there was sufficient evidence from the second preliminary hearing to support two separate counts that defendant was a felon in possession of a firearm on two different dates. When the magistrate dismisses a count based on insufficient evidence, there is a dismissal within the meaning of section 871. This is so even without a formal order of dismissal where there is a decision not to hold the defendant. (Brazell v. Superior Court (1986) 187 Cal.App.3d 795, 800; In re Williams (1985) 164 Cal.App.3d 979, 983.) Here, because the trial court's dismissal was not based on section 871, the holdings of Brazell and Williams do not apply to the facts of the instant action.
Furthermore, because the evidence supported, for purposes of section 1387, two separate section 29800, subdivision (a)(1) offenses, defendant was not charged a third time with the “same offense.” Instead of charging defendant with a violation of the statute on October 12, the information charged him with violating the statute on October 6. The evidence adduced at the second preliminary hearing supported an allegation of this offense on either or both dates. We further agree with the People that a so-called “qualifying termination” did not otherwise occur pursuant to the chapter containing section 1387, or to sections 859b, 861, 871, or 995.
The parties devote a great deal of legal analysis of the California Supreme Court's case in People v. Traylor (2009) 46 Cal.4th 1205, 1211-1213. In Traylor, however, our high court was not analyzing the situation we have here, an allegation of two separate offenses occurring on two different occasions. Applying the statutory elements test, the Supreme Court in Traylor analyzed whether felony vehicular manslaughter had the same elements of the misdemeanor offense of negligent vehicular manslaughter and concluded the elements of both offenses were not the same. (Ibid.) We find the facts and analysis of the Traylor decision largely inapposite to those here.
Finally, we reject defendant's assertion that defense counsel was ineffective for failing to file a motion to dismiss count 4 pursuant to section 1387. 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. 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) 3 ...

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