Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB900772 Duke D. Rouse, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
The vehicle in which defendant and appellant Maurice James Gibson was riding in was stopped by two police officers. During a search of his person, two baggies containing methamphetamine fell out of defendant’s shorts. A digital scale was found in the center console of the vehicle, a small case containing $205 and 17 small baggies marked with a symbol was found in the seat behind the front passenger seat, and an additional small baggie containing methamphetamine was found in the vehicle’s fuse box.
Defendant was charged with possession of a controlled substance for sale (Health & Saf. Code, § 11378), but was convicted by a jury of the lesser offense of possession (Health & Saf. Code, § 11377, subd. (a)). Defendant was alleged to have one strike prior (Pen. Code, §§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)), and four prison priors (Pen. Code, § 667.5, subd. (b)), one of which was for the conviction underlying the strike prior. Defendant admitted three of the convictions, including the one that was both a strike and a prison prior, and the fourth prison prior allegation was dismissed at the request of the People. Prior to sentencing, defendant filed a Romero motion requesting the trial court dismiss the strike allegation. Defendant contends the trial court abused its discretion by refusing to strike the strike prior or the prison priors. We affirm.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
I. BACKGROUND
Defendant was convicted in 1994 of burglary. (Pen. Code, § 459.) This conviction was the strike prior, and the first prison prior. He was granted probation, with the condition that he serve one year in county jail.
In 1995, he was convicted of several misdemeanors: carrying a concealed weapon in a vehicle (Pen. Code, § 12025, subd. (a)); carrying a loaded firearm in public (Pen. Code, § 12031, subd. (a)); and obstructing or resisting a public officer (Pen. Code, § 148, subd. (a)(1)). He was granted probation, with the condition that he serve 90 days in county jail.
At the beginning of 1997, the probation from defendant’s first conviction was revoked, and he was sentenced to two years in prison. Later that year, defendant was convicted of two counts of failing to remain at the scene of an accident (Veh. Code, § 20002, subd. (a)), and was granted probation with the condition that he serve 15 days in county jail.
In 1999, defendant was convicted of forgery (Pen. Code, § 475, subd. (c)) and burglary (Pen. Code, § 459). Defendant was sentenced to three years in state prison. The burglary conviction was the second prison prior.
In June 2001, defendant was returned to prison for a parole violation. In December 2001, he was returned to prison again for a parole violation.
In 2004, defendant was convicted of receiving stolen property. (Pen. Code, § 496, subd. (a).) He was sentenced to 16 months in state prison. This conviction was the third prison prior.
In 2006, defendant was convicted of selling, possessing, or transporting tear gas (Pen. Code, § 12420), and receiving stolen property (Pen. Code, § 496, subd. (a)). For the misdemeanor tear gas conviction, defendant was granted probation with the condition that he serve five days in county jail. For the receiving stolen property conviction, defendant was sentenced to 16 months in state prison.
In February, June, and October 2007, defendant was returned to prison for parole violations.
In April 2008, defendant was convicted of receiving stolen property (Pen. Code, § 496, subd. (a)), and granted probation with the condition that he serve six months in county jail. In August 2008, defendant was convicted of unlawfully possessing ammunition (Pen. Code, § 12316, subd. (b)(1)) and sentenced to 15 days in county jail. He was also returned to prison for a parole violation.
On January 4, 2009, defendant was paroled from prison. Less than two months later, on February 24, 2009, the incident underlying defendant’s present conviction occurred.
Defendant’s Romero motion requested only that the alleged burglary conviction be dismissed; it did not address the other prison priors. The motion advocated for the dismissal of the burglary conviction because defendant was a minor at the time of the conviction. The trial court stated, “The Court has read the motion, the points and authorities, the responding points and authorities, and supplemental points and authorities and finds there’s no basis at this time to strike the strike and that motion is denied.”
Addressing the imposition of a sentence, the trial court stated it had reviewed the supplemental probation officer’s report. Based upon defendant’s lengthy criminal record, his status as a parolee at the time of the offense, his prior unsatisfactory performance on probation and parole, and his prior prison terms, the trial court selected the upper term. Accordingly, defendant was sentenced to the upper term of three years, doubled to six years due to the strike (Pen. Code, §§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)), with additional, consecutive one-year terms for each of the three prison priors (Pen. Code, § 667.5, subd. (b)), “for a total commitment to state prison for a period of nine years.”
II. SENTENCE SELECTION
Defendant contends the trial court abused its discretion by refusing to strike the strike prior or the prison priors. Defendant also contends that if either of his claims were forfeited it was due to ineffective assistance of counsel. The People contend the trial court did not abuse its discretion by refusing to strike the strike prior, defendant forfeited his contention as to the prison priors by not raising it below, the trial court acted properly by not striking the prison priors on its own motion, and defendant’s trial counsel did not provide ineffective assistance. We hold that the sentence was within the trial court’s discretion and defendant did not receive ineffective assistance of counsel.
A. Sentence Selection
“[A] court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374.) Defendant has the burden of demonstrating that the trial court’s “decision is so irrational or arbitrary that no reasonable person could agree with it, ” and in the absence of such a showing, we presume the trial court acted correctly. (Id. at pp. 376-377.) An exercise of discretion to strike a prior conviction pursuant to Penal Code section 1385 requires the trial court to balance the legitimate societal interest in imposing longer sentences for repeat offenders and the defendant’s constitutional right against disproportionate punishment. (Romero, supra, 13 Cal.4th at pp. 530-531.) Trial courts “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) There is a “ ‘strong presumption’ [citation] that the trial judge properly exercised his discretion in refusing to strike a prior conviction allegation.” (In re Large (2007) 41 Cal.4th 538, 551.) The circumstances must be “ ‘extraordinary’ ” for a career criminal to be deemed to fall outside the scheme of the Three Strikes law. (Carmony, at p. 378.)
While defendant’s present offense may have been neither a serious felony nor a violent one, and while the jury did find him guilty of a lesser offense rather than the charged offense, by virtue of his substantial and consistent criminal activity he falls squarely in the antirecidivist sentencing schemes that enhanced his sentence. Furthermore, there is no affirmative indication that the trial court did not consider the factors before it. Accordingly, the sentence imposed was not irrational or arbitrary and the trial court did not abuse its discretion.
B. Forfeiture and Ineffective Assistance of Counsel
Defendant failed to request the striking of his prison priors and failed to object to the imposition of enhancements to his sentence based upon those priors. Accordingly, defendant has forfeited the issue. (People v. Scott (1994) 9 Cal.4th 331, 353.) Defendant contends the forfeiture was the result of ineffective assistance of counsel. The People disagree. So do we.
“To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings. [Citations.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.] [¶] A defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record. ‘If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.’ [Citations.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1003.)
As we indicated ante, the imposed sentence was within the trial court’s discretion. There is no indication that the trial court was unaware of its discretion to strike the prison priors on its own motion. The trial court expressly selected an upper term base sentence and thereby indicated its desire to impose an aggravated sentence. Thus, the record does not disclose a reasonable probability that defendant would have obtained a more favorable result. Accordingly, defendant was not rendered ineffective assistance by his trial counsel.
III. DISPOSITION
The judgment is affirmed.
We concur: RICHLI J., CODRINGTON J.