Pereida-Alba v. Coursey, CC CV090464

CourtSupreme Court of Oregon
Citation342 P.3d 70,356 Or. 654
Docket NumberCA A146174,SC S060846.,CC CV090464
PartiesFelipe PEREIDA–ALBA, Respondent on Review, v. Rick COURSEY, Superintendent, Eastern Oregon Correctional Institution, Petitioner on Review.
Decision Date15 January 2015

356 Or. 654
342 P.3d 70

Felipe PEREIDA–ALBA, Respondent on Review
Rick COURSEY, Superintendent, Eastern Oregon Correctional Institution, Petitioner on Review.

CC CV090464
CA A146174
SC S060846.

Supreme Court of Oregon, En Banc.

Argued and Submitted Sept. 16, 2013.
Decided Jan. 15, 2015.

342 P.3d 71

Erin C. Lagesen, Assistant Attorney General, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Rankin Johnson IV, Portland, argued the cause and filed the brief for respondent on review.



356 Or. 656

Petitioner was convicted of first-degree robbery. After pursuing a direct appeal, he filed a petition for post-conviction relief, alleging that his trial counsel's performance had fallen below the minimum level of representation that the state and federal constitutions require. Among other things, petitioner claimed that his trial counsel was constitutionally inadequate for failing to ask for an instruction on the lesser-included offense of third-degree robbery. Essentially, he argued that his trial counsel either did not decide or reasonably could not have decided to forego giving the jury the option of convicting him of the lesser-included offense of third-degree robbery. The post-conviction court ruled that no reasonable counsel would have failed to ask for an instruction on that lesser-included offense and entered judgment in petitioner's favor.

The Court of Appeals affirmed the post-conviction court's judgment but on a different ground. Pereida–Alba v. Coursey, 252 Or.App. 66, 284 P.3d 1280 (2012). It reasoned that the post-conviction court could have found that petitioner's counsel inadvertently failed to ask for a lesser-included instruction. Id. at 71, 284 P.3d 1280. The Court of Appeals concluded that the failure to make a conscious decision regarding that issue was sufficient, without more, to establish constitutionally inadequate assistance. Id. We allowed the state's petition for review to consider this recurring issue. We now reverse the Court of Appeals decision and the post-conviction court's judgment and remand this case to the circuit court for further proceedings.1

The evidence at petitioner's post-conviction trial consisted of the transcript of his criminal trial, some entries from the trial court record, and the briefs that the parties had filed on direct appeal. We take the following facts from the transcript of the criminal trial. One day, petitioner went into a Shop'N Kart in Woodburn, Oregon. He was wearing a backpack with a “bright yellow Tweety Bird on it,” and

356 Or. 657

the store's security guard kept an eye on petitioner because he was concerned that petitioner would take food from the store and put it into his backpack. The guard saw petitioner take two packages of Twinkies and a carton of flavored milk, crouch behind one of the shelves, put the flavored milk and Twinkies into his backpack, and leave the store without paying. The guard pursued petitioner, identified himself as a security guard, and showed petitioner a badge. Because the guard did not speak Spanish and petitioner did not speak English, a store employee went with the security guard and translated.

When the guard confronted petitioner, petitioner initially “started backing up with his hands up.” Then, he “turned around and took off running.” The guard caught up with petitioner, “took him to the ground[,] and put him in a headlock and a wristlock to put him in a submission [hold].” The guard told petitioner “don't run, stop resisting” and asked petitioner, through the store employee, if he was going to cooperate. When petitioner said that he would, the guard let petitioner up but kept him “in a wristlock and headlock because [the guard] did not want [petitioner] running from [him].” When asked whether petitioner had “attempt[ed] to pull away” as he walked petitioner back into the store, the guard answered, “He was still struggling with me, but once we got into the building he stopped the struggling.”

342 P.3d 72

Once in the building, the guard took petitioner upstairs to the office where petitioner sat in a chair holding his backpack. What happened next was disputed. The security guard testified that he tried to get hold of the backpack but that petitioner initially hugged the backpack to his chest. The guard testified that, when he attempted to get hold of the backpack a second time, petitioner “ripped” the backpack open, pulled out a gun, and pointed it directly at the guard for several seconds. According to the guard, petitioner was “holding [the gun] with his right hand, his hands [were] around the stock of the gun and his finger's on the trigger, and it's pointed right at me.” At that point, the guard told petitioner to leave, which he did.

The store employee, who spoke Spanish and thus understood what petitioner had said, offered a different

356 Or. 658

perspective. He testified that, when the guard was trying to grab petitioner's backpack, petitioner said in Spanish, “[D]o you really want to see what I have, do you really want to see,” as if petitioner were asking a question. As the security guard got closer, petitioner pulled the handgun out, pointed it for a second at the guard, and then pointed it at the ceiling. Petitioner “looked towards [the store employee] and he said he didn't want to do anything, pretty much saying he didn't want to harm anybody.”

Petitioner's testimony essentially tracked the store employee's. He testified that, when the guard asked to see what was in his backpack, “he didn't want to show it to them because he knew there was a weapon in there.” However, the guard “kept insisting that [petitioner] should take things out” of the backpack. So, he did. Petitioner testified that he took the gun out but did not point it at the guard. The guard, however, “got scared and [he] told [him] to leave.” When asked why he left the store, petitioner replied, “They told me to leave.”

Several days later, two officers saw petitioner wearing his backpack. They arrested him, and the state charged him with first-degree robbery. The indictment alleged:

“[Petitioner] * * * did unlawfully and knowingly while in the course of committing theft, with the intent of preventing and overcoming resistance to [his] taking of property and retention of the property after the taking, use and threaten the immediate use of physical force upon [the security guard] and use a dangerous weapon. The State further alleges [that petitioner] used or threatened the immediate use of a firearm.”

At the trial on that charge, the parties' closing arguments focused on whether petitioner had used or threatened the use of a firearm with the intent of retaining the Twinkies and flavored milk. Relying on the security guard's testimony, the state argued that, when petitioner took the gun out of the backpack and pointed it at the guard, he had threatened the use of a firearm with the intent of retaining the stolen property. That was the point, the state argued, at which the robbery occurred.

356 Or. 659

Defense counsel responded that there were two versions of the events: the security guard's and petitioner's. She acknowledged that petitioner had taken a gun out of his backpack but explained that, as petitioner testified, he had done so because the guard had insisted that he empty his backpack. She explained that the store employee's testimony corroborated petitioner's version of the events, and she reminded the jury that the store employee was the only person other than petitioner who understood what petitioner had said that day. Beyond that, she argued that, as a practical matter, no one would use deadly force to retain two packages of Twinkies and a carton of milk. In concluding, she acknowledged that petitioner had committed theft, but she argued that “we're not talking about a Theft II here; we're talking about a [R]obbery I, and that is a huge difference.” She told the jurors that, when they considered the store employee's testimony, “you will find that in fact [petitioner] is not guilty of robbery in the first degree.”

The trial court instructed the jury that:

“Oregon law provides that a person commits the crime of robbery in the first degree if, in the course of committing or attempting to commit theft, the person uses or threatens the immediate use of
342 P.3d 73
physical force upon another person with the intent of preventing or overcoming resistance to his taking of the property or retention of the property immediately after the taking, and he uses or attempts to use a dangerous weapon.”

Because first-degree robbery consists of third-degree robbery plus the use or attempted use of a dangerous weapon, ORS 164.415(1)(b),2 the trial court's instructions on first-degree robbery necessarily included the elements of third-degree robbery. See ORS 164.395(1)(b).3 Third-degree robbery, in


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