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Filed 9/25/23 In re Cabrera CA3

Opinion on remand from Supreme Court

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Siskiyou)

----

In re MIGUEL ANGEL CABRERA 

on Habeas Corpus.

C091962

(Super. Ct. Nos. 

MCYKCRBF20076242, 

SCCRHCCR20189121)

OPINION ON REMAND

Petitioner Miguel Angel Cabrera sought relief in habeas corpus for ineffective 

assistance of appellate counsel in failing to challenge a sentence enhancement under 

Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). The trial court had imposed a 

five-year enhancement under Penal Code section 667, subdivision (a)(1), based on the 

court’s determination that Cabrera caused great bodily injury to the victim (Pen. Code, 

§ 1192.7, subd. (c)(8); statutory section citations that follow are found in the Penal Code 

unless otherwise stated). However, the jury deadlocked on special allegations that 

petitioner personally inflicted great bodily injury (§ 12022.7) and the trial court declared 
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a mistrial on those allegations. Petitioner contended the sentencing enhancement violated

the rule of Apprendi that a finding that increases punishment must be made by a jury. 

Therefore, petitioner maintained appellate counsel rendered ineffective assistance by 

failing to assign error on appeal on that basis. (Strickland v. Washington (1984) 466 U.S. 

668 (Strickland).) We denied the petition. (In re Cabrera (Aug. 25, 2021, C091962) 

[nonpub. opn.].)

The California Supreme Court granted review and reversed in In re Cabrera 

(2023) 14 Cal.5th 476 (Cabrera). The court remanded the case for this court to 

reconsider petitioner’s ineffective assistance of counsel claim in light of Cabrera. 

Having done so, we again conclude that the petition should be denied.

FACTS AND HISTORY OF THE PROCEEDINGS

In Cabrera, the Supreme Court stated the relevant background as follows: 

“Cabrera met Curtis Barnum in July 2006 at a bar in Siskiyou County. Barnum 

invited Cabrera and a few of Cabrera’s friends back to his home. After they arrived at the 

house, Cabrera and Barnum got into an argument, which culminated in Cabrera suddenly 

punching Barnum in the face while they were standing in the driveway next to Barnum’s 

truck. According to the testimony of a witness present at the time, this punch knocked 

Barnum ‘out cold on contact.’ Barnum collapsed and struck his head on the cement. He 

was unconscious for several minutes in a pool of blood about twice the size of his head. 

Cabrera fled, and Barnum was taken to the hospital. He received three stitches to close a 

one-inch laceration in the back of his head, which was necessary to control the bleeding. 

His treating physician testified that the wound was larger than the length of the laceration 

because of swelling around it, and that Barnum's skull was ‘easily visible within the 

wound.’ Barnum testified that he had experienced some dizzy spells since the injury. He 

said he had a ‘little bit’ of problems with headaches and they were ‘not bad.’

“Cabrera was charged with assault by means of force likely to produce great 
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bodily injury, battery with serious bodily injury, assault with a deadly weapon, and 

participating in a street gang. [Citation.] He was also charged with gang allegations on 

several of the counts, allegations that he had personally inflicted great bodily injury, and 

having four prior convictions constituting serious felonies and strikes. [Citation.]” 

“The jury was instructed that serious bodily injury means ‘a serious impairment of 

physical condition,’ which ‘may include but is no [sic] limited to loss of consciousness, 

concussion, bone fracture, protracted loss or impairment of function of any bodily 

member or organ, a wound requiring extensive suturing and serious disfigurement.’ The 

instructions specifically stated that ‘[l]oss of consciousness and a wound or cut requiring 

extensive suturing is a serious bodily injury.’ The jury was also instructed that great 

bodily injury means ‘significant or substantial physical injury’ and that it is ‘an injury 

that is greater than minor or moderate harm.’

“During its deliberations, the jury asked the court for ‘specific definitions of mild 

and moderate injury’ as those terms were used in the instructions on great bodily injury. 

The court informed the jury that ‘there really are no specific definitions,’ and it directed 

the jurors to the definition in the instruction it had given. The court declined ‘to try to 

fine-tune that or define it any further,’ explaining that ‘we know of no legal definition’

other than the instruction.

“Two days later, the jury sent another question to the court. The jurors explained 

that they were ‘having problems reconciling the differences between great bodily injury 

and serious bodily injury.’ They asked, ‘If we agree the injury was severe, are we bound 

to agree that great bodily injury occurred?’ The court referred the jurors back to the 

instructions defining great bodily injury and serious bodily injury, noting that ‘serious 

bodily injury is not defined exactly the same as great bodily injury’ but ‘they are not 

necessarily mutually exclusive.’

“Later that day, the jury indicated that it had reached verdicts on the first assault

charge, the battery charge, and the charge of participating in a street gang. It found 
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Cabrera guilty of each of those counts, but it found the gang allegations not true. It found 

true the allegations of four prior serious felonies. The jury deadlocked on the charge of 

assault with a deadly weapon and on the allegations that Cabrera had inflicted great 

bodily injury. The court declared a mistrial on the deadlocked counts.

“Cabrera’s sentence depended in part on whether his convictions counted as 

‘serious felon[ies]’; if so, because of his prior serious felonies, he faced a five-year 

sentencing enhancement. (Pen. Code, § 667, subd. (a)(1).) The Penal Code defines 

serious felonies to include ‘any felony in which the defendant personally inflicts great 

bodily injury on any person, other than an accomplice.’ (Id., § 1192.7, subd. (c)(8).) The 

relevant provisions of the Penal Code are unchanged from the time of Cabrera’s 

sentencing.

“At sentencing, the prosecutor argued that Cabrera’s charges were serious felonies 

because ‘[t]he evidence was that when the defendant swung, [the victim] went down, his 

knees buckled, his head . . . hit the cement and resulted in a concussion.’ The prosecutor 

said this showed that ‘in fact, the defendant inflicted great bodily injury.’ The prosecutor 

also argued that great bodily injury could be inferred from the jury’s finding of serious 

bodily injury, citing People v. Burroughs (1984) 35 Cal.3d 824 [] (Burroughs) and 

People v. Hawkins (1993) 15 Cal.App.4th 1373 [] (Hawkins) for the proposition that 

‘battery with serious bodily injury is great bodily injury.’ Defense counsel responded 

that Cabrera was ‘entitled to a jury finding on anything that would have had the effect of 

making his punishment more severe.’ He argued that a finding by the court that Cabrera 

inflicted great bodily injury would ‘invade[ ] the province of the jury.’

“The court concluded that Cabrera’s charges were serious felonies because ‘there 

is great bodily injury,’ citing Burroughs and Hawkins, and imposed a five-year 

enhancement. 

“On appeal, Cabrera’s conviction for participating in a street gang was reversed, 

but he did not challenge the sentencing court’s finding of great bodily injury. [Citation.] 
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Cabrera later sought a writ of habeas corpus in the Court of Appeal, arguing that his 

appellate counsel’s failure to challenge the great bodily injury finding constituted 

ineffective assistance. [This court] denied his petition in an unpublished opinion. [The 

California Supreme Court] granted review to consider whether the sentencing court’s 

finding of great bodily injury violated Cabrera’s Sixth and Fourteenth Amendment rights 

under Apprendi.” (Cabrera, supra, 14 Cal.5th at pp. 480-482.) 

The California Supreme Court held “that [the trial] court’s finding did violate 

Apprendi” and reversed. (Cabrera, supra, 14 Cal.5th at p. 480.) Noting that this court in 

denying Cabrera’s habeas petition “did not reach a conclusion as to whether counsel’s 

performance was deficient, instead holding that Cabrera ‘failed to show prejudice in the 

form of a reasonable probability of a different outcome had appellate counsel raised an 

Apprendi issue,’ ” and the opinion in Cabrera “bears directly on that holding,” the high 

court “remand[ed] this case for reconsideration of Cabrera’s ineffective assistance 

claim.” (Cabrera, supra, 14 Cal.5th at p. 492.)

The parties submitted supplemental briefs pursuant to California Rules of Court, 

rules 8.200(b), 8.528(f).

DISCUSSION

I

Standard of Review

“ ‘ “A criminal defendant is guaranteed the right to the assistance of counsel by 

both the state and federal Constitutions. [Citations] ‘Construed in light of its purpose, 

the right entitles the defendant not to some bare assistance but rather to effective

assistance.’ [Citation, italics in original.] In order to demonstrate ineffective assistance 

of counsel, a defendant must first show counsel’s performance was ‘deficient’ because 

his ‘representation fell below an objective standard of reasonableness . . . under 

prevailing professional norms.’ [Citations.] Second, he must also show prejudice 
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flowing from counsel’s performance or lack thereof. [Citation.] Prejudice is shown 

when there is 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.’ [Citations.]” [Citation.] 

The United States Supreme Court recently explained that this second prong of the 

Strickland test is not solely one of outcome determination. Instead, the question is 

“whether counsel’s deficient performance renders the result of the trial unreliable or the 

proceeding fundamentally unfair.” [Citation.] [¶] Similar concepts have been used to 

measure the performance of appellate counsel. [Citations.]’ ” (In re Richardson (2011) 

196 Cal.App.4th 647, 657 (Richardson); In re Harris (1993) 5 Cal.4th 813, 832-833, 

disapproved on another point in Shalabi v. City of Fontana (2021) 11 Cal.5th 842, 855; 

Strickland, supra, 466 U.S. at pp. 687-688.)

“Appellate counsel does not provide deficient, i.e., objectively unreasonable, 

assistance by failing to raise every nonfrivolous claim on appeal. [Citation.] As the high 

court has stated: ‘Experienced advocates since time beyond memory have emphasized 

the importance of winnowing out weaker arguments on appeal and focusing on one 

central issue if possible, or at most on a few key issues.’ [Citation.] However, where 

appellate counsel fails to raise ‘a significant and obvious issue,’ the failure will generally 

be considered deficient performance under [Strickland] if the missed issue is ‘clearly 

stronger than those presented.’ [Citations.] And where ‘an issue which was not raised 

may have resulted in a reversal of the conviction, or an order for a new trial, the failure 

[is] prejudicial.’ [Citation.]” (In re Hampton (2020) 48 Cal.App.5th 463, 477-478; see 

also In re Friend (2022) 76 Cal.App.5th 623, 636 (Friend) [appellate counsel “ ‘performs 

properly and competently when he or she exercises discretion and presents only the 

strongest claims instead of every conceivable claim’ ”].)

The Apprendi issue has become more significant, obvious and stronger as a result 

of the California Supreme Court’s opinion in Cabrera. However, that opinion succeeded 
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by many years appellate counsel’s omission of the issue from Cabrera’s initial appeal. 

As a result, we cannot rely on the California Supreme Court’s Cabrera opinion issued in 

2023 to evaluate appellate counsel’s performance in 2008.

“[W]hen reviewing a claim of ineffective assistance, we ‘must apply a “strong 

presumption” that counsel’s representation was within the “wide range” of reasonable 

professional assistance.’ [Citations.] ‘Judicial scrutiny of counsel’s performance must be 

highly deferential. It is all too tempting for a defendant to second-guess counsel’s 

assistance . . . , and it is all too easy for a court, examining counsel’s defense after it has 

proved unsuccessful, to conclude that a particular act or omission of counsel was 

unreasonable. [Citation.] A fair assessment of attorney performance requires that every 

effort be made to eliminate the distorting effects of hindsight, to reconstruct the 

circumstances of counsel’s challenged conduct, and to evaluate the conduct from 

counsel’s perspective at the time.’ [Citation.]” (Friend, supra, 76 Cal.App.5th at p. 635, 

italics added, quoting Strickland, supra, 466 U.S. at p. 689; see also People v. Harris (7th 

Cir. 2021) 13 F.4th 623, 629 [“To show deficient performance, it is not enough to rely on 

hindsight about whether a proposed challenge would have succeeded. [Citation.] Rather, 

the reasonableness of counsel’s performance must be assessed ‘in the context of the law’ 

at the time. [Citation.]”].)

A. Change in Law

In 2008, there was no controlling case law as there is now holding that an 

Apprendi violation occurs when a sentencing court imposes a sentence enhancement for 

“great bodily injury” where, as here, the jury hung on an allegation that the defendant 

inflicted “great bodily injury” (§ 12022.7, subd. (a)), but found that defendant committed 

battery with “serious bodily injury” (§ 243, subd. (d)). Rather, the prevailing law, as 

expressed in our decision in People v. Arnett (2006) 139 Cal.App.4th 1609 (Arnett),

based on cases going back to 1979, was: “Numerous courts have recognized that ‘[t]he 
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terms “serious bodily injury” and “great bodily injury” have substantially the same 

meaning.’ ” (Id. at p. 1613, citing, inter alia, Hawkins, supra, 15 Cal.App.4th at p. 1375 

[“[t]he terms ‘serious bodily injury’ and ‘great bodily injury’ have substantially the same 

meaning . . . ”]; Burroughs, supra, 35 Cal.3d at p. 831 [“we acknowledge that ‘ “[s]erious 

bodily injury” and “great bodily injury” are essentially equivalent elements’ ”], overruled 

on another ground in People v. Blakeley (2000) 23 Cal.4th 82, 89-91.)

However, in People v. Taylor (2004) 118 Cal.App.4th 11 (Taylor), the appellate 

court held that, where the jury found not true section 12022.7 allegations charging that 

the defendant personally inflicted great bodily injury, the trial court erred in treating the 

jury’s finding of serious bodily injury as the equivalent of a finding of great bodily injury,

and thereby violated the defendant’s right to a jury trial. (Taylor, supra, at pp. 25 [“In 

these circumstances, the jury’s finding of serious bodily injury cannot be deemed 

equivalent to a finding of great bodily injury”].) Subsequent cases, including Arnett, 

viewed Taylor as limited to circumstances where the jury made a negative finding on a 

great bodily injury enhancement. (Arnett, supra, 139 Cal.App.4th at p. 1615; see also 

People v. Johnson (2016) 244 Cal.App.4th 384, 395 [“The present case is more similar to 

Arnett than to Taylor,” because “the jury did not find ‘not true’ the allegations defendant 

personally inflicted great bodily injury, but rather made no findings in that regard”].)

Thus, prior to Cabrera, there was no controlling case law and the law was 

unsettled concerning the equivalence of findings of “great bodily injury” and “serious 

bodily injury” for purposes of imposing a sentence enhancement where the jury had not 

made a finding regarding the former but had done so regarding the latter. Under such 

circumstances, we are compelled to conclude that Cabrera’s appellate counsel did not 

render constitutionally ineffective assistance by failing to raise an Apprendi issue in 

Cabrera’s initial appeal. (People v. Upsher (2007) 155 Cal.App.4th 1311, 1328-1329.)

Moreover, the court in Cabrera expressly disapproved of two cases holding that, 

(1) since “great bodily injury” and “serious bodily injury” are essentially equivalent 
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terms, therefore a “serious bodily injury” under section 243 constitutes a “great bodily 

injury” as a matter of law under section 12022.7 (People v. Villareal (1985) 173 

Cal.App.3d 1136, 1141), and (2) “the element of ‘serious bodily injury,’ as required for 

felony battery, is essentially equivalent to or synonymous with ‘great bodily injury’ for 

the purpose of a ‘serious felony’ sentence enhancement pursuant to Penal Code sections 

667, subdivisions (a) and (d), and 1192.7, subdivision (c)(8)” (People v. Moore (1992) 10 

Cal.App.4th 1868, 1871; Cabrera, supra, 14 Cal.5th at p. 492.)

In addition, the Supreme Court in Cabrera rejected the distinction Johnson and 

Arnett drew between the current case and Taylor “on the ground that the jury there made 

a ‘determination contrary to a finding of’ great bodily injury, while ‘[t]here was no such 

determination in this case.’ ” (Cabrera, supra, 14 Cal.5th at p. 489.) Again, the court 

acknowledged that cases “considering this issue since Taylor have done the same.” 

(Cabrera, supra, at p. 489.) The court said, “this purported distinction gets the Apprendi 

inquiry backwards.” (Id. at pp. 489-490.) Apprendi requires an affirmative finding of 

“great bodily injury” by the jury. (Cabrera, supra, at p. 490.) 

We confront here circumstances that are similar to those this court faced in 

Richardson, supra, 196 Cal.App.4th 647. Richardson involved People v. Trujillo (2006) 

40 Cal.4th 165, in which the California Supreme Court overruled two appellate court 

opinions holding that a probation report was admissible to prove a strike. (Richardson, 

supra, 196 Cal.App.4th at p. 654.) The defendant’s 2004 appeal of his conviction, which 

we affirmed in 2006, did not challenge admission of his probation report for that purpose. 

(Id. at pp. 653-654.) Shortly after our affirmance, the Supreme Court issued Trujillo. We 

held that “appellate counsel’s performance was not deficient,” because “counsel could 

not have reasonably known then that the Supreme Court was about to change the law,” 

and “thus was not expected to argue against the prevailing law.” (Id. at p. 661.) 

Richardson reflects the well-established principle that failure to anticipate changes 

in case law is not generally considered ineffective assistance of counsel. (People v. 
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Harris (2013) 57 Cal.4th 804, 840 [“defendant’s failure to object is excusable because 

defense counsel could not reasonably have been expected to anticipate this change in the 

law”]; United States v. Juliano (9th Cir. 2021) 12 F.4th 937, 940 [“Given that the 

reasonableness of counsel’s conduct must be evaluated based on the time it occurred, 

courts have articulated a rule that ineffective assistance of counsel claims generally 

cannot be predicated on counsel’s failure to anticipate changes in the law”]; Thompson v. 

Warden, Belmont Correctional Institution (6th Cir. 2010) 598 F.3d 281, 288 [“appellate 

counsel is not ineffective for failing to predict the development of the law”]; Green v. 

Johnson (5th Cir. 1997) 116 F.3d 1115, 1125 [“there is no general duty on the part of 

defense counsel to anticipate changes in the law”]; Kornahrens v. Evatt (4th Cir. 1995) 

66 F.3d 1350, 1360 [“the case law is clear that an attorney’s assistance is not rendered 

ineffective because he failed to anticipate a new rule of law”]; Alcorn v. Smith (6th Cir. 

1986) 781 F.2d 58, 62 [“nonegregious errors such as failure to perceive or anticipate a 

change in the law . . . generally cannot be considered ineffective assistance of counsel”].) 

B. Former Counsel’s Declaration

Cabrera highlights in his supplemental brief that we referred in our prior opinion 

to former appellate counsel’s declaration regarding the omission of the Apprendi issue in 

Cabrera’s initial appeal as “tantamount to an admission of deficient performance.” 

(People v. Cabrera, supra, C091962.) The People, however, in their supplemental brief 

characterize this reference as a “suggestion,” and disagree with it. They argue that,

“[c]ounsel’s declaration is insufficient to support the conclusion that he acted in an 

objectively unreasonable [sic] manner by failing to challenge, on Apprendi grounds, the 

trial court’s imposition of a prior serious felony enhancement.” Upon reconsideration, 

we agree with the People.

In his brief declaration, Cabrera’s former counsel stated: “In my handling of the 

appeal in No. C058828, I identified as a potential issue the question whether, in the 
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absence of a jury finding, the sentencing court had the authority to find that Cabrera 

personally inflicted GBI [great bodily injury] and on that basis to impose the serious 

felony enhancements. However, I cannot recall the reason why I did not argue on appeal 

that the court’s finding and consequent imposition of the serious felony enhancements 

violated Cabrera’s rights to trial by jury. It appears to me now that this was an arguable 

issue at the time of Cabrera’s initial appeal to preserve it for review by a federal petition 

for writ of habeas corpus. I am unable at this point to offer a reasonable basis for my 

failure to challenge the sentencing court’s imposition of the five-year enhancements as a 

product of the court’s violation of Cabrera’s state and federal rights to trial by jury on the 

GBI question.” (People v. Cabrera, supra, C091962.)

In Friend, the court held that a “brief one-page” declaration from counsel who 

represented the defendant in his direct appeal and first habeas petition, stating “ ‘there 

was no strategic reason’ ” not to include Batson/Wheeler claims (i.e., that the prosecutor 

used peremptory strikes to exclude minorities and women from juries) raised in the 

second habeas petition, lacked “factual specificity” and was “highly problematic to

establishing a claim of ineffective assistance.” (Friend, supra, 76 Cal.App.5th at pp. 638, 

640.) The court in Friend relied on In re Reno (2012) 55 Cal.4th 428 (Reno), superseded 

by statute on other grounds In re Friend (2021) 11 Cal.5th 720, 745. (Friend, supra, at 

pp. 639-640.) In Reno, the California Supreme Court concluded that an attorney’s 

declaration that “on reflection, [an omitted claim was] potentially meritorious and he had 

no tactical reason for failing to raise it in” a prior habeas petition was “woefully lacking 

in detail,” and does not provide “a basis to conclude that competent counsel should have 

raised [the claim] or that ‘the issue is one which would have entitled the petitioner to 

relief had it been raised and adequately presented in the initial petition, and that counsel’s 

failure to do so reflects a standard of representation falling below that to be expected 

from an attorney engaged in the representation of criminal defendants.’ ” (Reno, supra, 

at p. 503.)
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The declaration of counsel Cabrera submitted, if anything, is less compelling than

the declarations in Friend and Reno. Counsel does not actually state that there was no 

“strategic” or “tactical” reason for omitting the issue on appeal. (Compare In re 

Hernandez (2006) 143 Cal.App.4th 459, 469 [declaration of trial counsel stating, “I had 

no tactical reason” for not objecting to inadmissible evidence (italics omitted)]; see also 

People v. Burnett (1999) 71 Cal.App.4th 151, 181 [“in his declaration submitted with 

appellant’s petition for writ of habeas corpus, trial counsel states that he had no tactical 

reason for failing to make additional objections” to submission of the case to the jury 

based on a single incident].)

Rather, Cabrera’s former appellate counsel states that he identified the issue of the 

trial court’s imposition of a “GBI” enhancement without a jury finding, which now 

“appears” to be “arguable,” but he “cannot recall” why he did not raise it on appeal, and 

cannot now think of a “reasonable basis” for failing to do so. Counsel’s declaration 

essentially conveys that he does not know or remember why he failed to raise a 

potentially meritorious issue on appeal, which is clearly insufficient to establish 

ineffective assistance. (Friend, supra, 76 Cal.App.5th at p. 640.)

Cabrera separately argues former counsel was deficient for failing to “federalize” 

the Apprendi issue by appealing it to state court to preserve the issue for a federal habeas 

petition. Cabrera refers to the statement in counsel’s declaration that “[i]t appears to me 

now that this was an arguable issue at the time of Cabrera’s initial appeal to preserve it 

for review by a federal petition for writ of habeas corpus.” Beyond the vague and 

tentative language of this statement, it “potentially invites the ‘distorting effects of 

hindsight’ that are to be avoided” when considering an ineffective assistance claim. 

(Alvarez v. Warden (E.D. Cal. April 3, 2019) 2019 LEXIS 57594.)

We conclude that Cabrera has failed to show that former appellate counsel 

rendered ineffective assistance of counsel. Because counsel’s performance was not 
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deficient, we need not discuss Cabrera’s claim of prejudice. (Richardson, supra, 196 

Cal.App.4th at p. 662.)

DISPOSITION

The order to show cause is discharged and the petition for writ of habeas corpus is 

denied.

 

HULL, J.

We concur:

 

EARL, P. J.

 

MAURO, J.