People v. Mesa

Omar David Mesa appeals from the judgment entered following his conviction by a jury for grand theft of personal property with a special finding, based on his admission to the court in a bifurcated proceeding, he had suffered one prior serious or violent felony conviction within the meaning of the “Three Strikes” law. Mesa contends the evidence is insufficient to support his conviction for grand theft, the prosecutor impermissibly commented during closing argument on his decision not to testify and his counsel’s failure to object to the prosecutor’s improper argument constituted ineffective assistance of counsel. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Summary of the Evidence Presented at Trial

Approximately 2:00 p.m. on July 29, 2004, Armando Aleman left his truck in the parking lot of the Bank of America branch in Huntington Park, walked inside the bank and was given access by a bank employee to a locked, specialized area of the branch reserved for merchants with accounts at the bank. When he initially entered the merchant area, there were no other customers there. Aleman, a regular customer of the branch, withdrew $5,000 in cash and obtained a cashier’s…

While I initially planned to dissent in this case, my colleagues’ opinion persuaded me the prevailing standard of review for claims involving ineffective assistance of counsel requires a “reasonable *1012 probability” of a different outcome, even when that ineffective assistance results in the deprivation of defendant’s federal constitutional rights. (Maj. opn., ante, at pp. 1008-1010.) I write separately, nonetheless, to register my concern this approach is not sufficiently protective of vital constitutional rights, such as a defendant’s Fifth Amendment right not to testify. In my view, when a lawyer’s ineffective assistance costs a defendant such a right only application of the Chapman standard 1 will afford the essential protection. That is, when, as here, a defense counsel’s failure to object deprives a defendant not just of his constitutional right to effective representation but to another constitutional right guaranteed by the United States Constitution, the conviction should be reversed unless the court can make a finding “beyond a reasonable doubt” the error did not affect the outcome.

The threshold issue, in my view, is what would have happened if that objection had…

Certified For Partial Publication. [*]

Omar David Mesa appeals from the judgment entered following his conviction by a jury for grand theft of personal property with a special finding, based on his admission to the court in a bifurcated proceeding, he had suffered one prior serious or violent felony conviction within the meaning of the "Three Strikes" law. Mesa contends the evidence is insufficient to support his conviction for grand theft, the prosecutor impermissibly commented during closing argument on his decision not to testify and his counsel's failure to object to the prosecutor's improper argument constituted ineffective assistance of counsel. We affirm.

At approximately 2:00 p.m. on July 29, 2004 Armando Aleman left his truck in the parking lot of the Bank of America branch in Huntington Park, walked inside the bank and was given access by a bank employee to a locked, specialized area of the branch reserved for merchants with accounts at the bank. When he initially entered the merchant area, there were no other customers there. Aleman, a regular customer of the branch, withdrew $5,000 in cash and obtained a cashier's check for $7,500. He was assisted with…