Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Lake County Super. Ct. Nos. CR909870 & CR912731
Siggins, J.
Defendant was convicted by a jury of six drug-related crimes. Three were felonies. He thereafter waived his right to a jury on the trial of allegations under the three strikes law that he was previously convicted of two serious felonies, and on a sentence enhancement that he was on bail when he committed some of his crimes. The court denied defendant’s motion to dismiss the prior strike allegations under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and found all of the allegations to be true. Defendant was sentenced to a total term of 77 years to life in prison.
In this appeal, defendant contends the bench trial on the enhancement allegations was equivalent to a “slow plea,” and therefore the court violated his constitutional rights by failing to advise him and obtain waivers of his rights not to incriminate himself and to confront and cross-examine witnesses. Defendant further contends that the court abused its discretion when it denied his Romero motion; and that his 77-year-to-life sentence imposed violates constitutional prohibitions against cruel and unusual punishment. In a separate petition for writ of habeas corpus, defendant claims his counsel was ineffective because he did not inform defendant of the advisability of a plea offered by the district attorney, and failed to suitably argue the Romero motion. We find none of defendant’s contentions to be meritorious. Accordingly, we affirm the judgment and deny the petition for writ of habeas corpus.
BACKGROUND
June 28, 2006
On June 28, 2006, law enforcement officers conducted an authorized search of a residence in Clearlake. Defendant, another man, and a woman were apprehended in a back bedroom. Defendant was sitting in a recliner and moved his hands between his body and the arm of the chair, or reached down to the opposite side of the chair. Officer Michael Ray observed defendant’s furtive movements, asked defendant if he had any weapons, and asked for defendant’s consent to patsearch him for weapons. Defendant said he was unarmed, consented to a search, and said that he had methamphetamine in his pocket. Officer Ray found a prescription pill canister in defendant’s right front pants pocket. The canister proved to contain.17 grams of methamphetamine and three morphine pills.
May 12, 2007
On the afternoon of May 12, 2007, California Highway Patrol Officer Erich Paarsch was on duty when he obtained a radar reading on a car traveling 70 miles per hour in a 55-mile per hour zone. He made a U-turn and followed the car onto a private driveway. There were three occupants in the car. The driver got out of the car and Officer Paarsch ordered him to get back in. Officer Paarsch approached the passenger side and saw that the car’s ignition had been “punched.” There was no key in the ignition, and Officer Paarsch suspected the car might be stolen. He requested additional officers to respond to the scene.
Defendant was sitting in the right front passenger seat. Neither he nor the driver was able to produce identification, and the driver could not say who owned the car, how he had obtained it, or why the ignition was punched in.
Officer Kevin Domby, Paarsch’s partner, observed that defendant exhibited eyelid tremors, was very fidgety with his fingers, and spoke rapidly. Officer Domby told Paarsch that he suspected defendant was under the influence of a controlled substance. Officer Paarsch also observed defendant show physical signs of drug use that included accelerated speech, fidgety fingers, dilated eyes, and an elevated pulse. Defendant told the officers he last used methamphetamine the previous day.
Officer Paarsch arrested defendant for being under the influence of a controlled substance and searched him for weapons and drugs. When he did, Paarsch felt a “large... clump” under defendant’s buttocks, and suspected defendant was hiding drugs. As Paarsch had defendant reposition his legs in order to remove the suspected drugs, a quarter-sized baggie fell out of a leg of defendant’s pants. Defendant smashed the baggy into the ground with his foot, raking an off-white powdery substance over the dirt and gravel. Officer Paarsch believed the bag contained a usable amount of methamphetamine before defendant ground it into the dirt. Analysis of the baggy showed it had contained methamphetamine and a by-product of methamphetamine synthesis. A urine sample taken from defendant the same day of his arrest contained methamphetamine.
Defendant was charged in a consolidated information with possession of methamphetamine and possession of morphine based on the June 28, 2006, incident, and possession of methamphetamine, attempt to destroy evidence, misdemeanor being under the influence of a controlled substance and misdemeanor resisting arrest based on the May 12, 2007, incident. The consolidated information also alleged that defendant was on bail at the time of the May 12, 2007, offenses and that he previously had been convicted of two serious or violent felonies within the meaning of the three strikes law.
A jury found defendant guilty of all charges. Defendant then waived his right to jury trial of the prior conviction allegations and the on-bail enhancement. Following a bench trial, the court found the prior conviction and enhancement allegations were true. Defendant was sentenced to three consecutive terms of 25 years to life plus two years for the on-bail enhancement, for a total term of 77 years to life in state prison. This appeal timely followed.
DISCUSSION
I. Waiver of Jury Trial
A. Background
While the jury was deliberating, defendant’s attorney informed the court that his client agreed to a court trial on the truth of defendant’s prior convictions and the on-bail enhancement. After the jury was discharged, the court asked defendant to confirm on the record whether it was in fact his decision to waive his right to a jury trial on the remaining matters. Defendant confirmed that it was his decision to proceed before the court.
The prosecutor introduced documentary evidence of defendant’s two strikes (Pen. Code, § 969b), and requested judicial notice of the file containing defendant’s probation report which showed defendant was on bail when he committed the May 12, 2007, crimes. Defense counsel urged the court to consider that defendant was just 17 years old when he committed the first alleged strike in 1994. Regarding the second alleged strike, defense counsel challenged the sufficiency of the documentary evidence to sustain the allegation. He argued: “when I look at, for example, the criminal history provided by discovery by the People, I see nothing in there about the 12022 allegation that’s contained in that probation report. So it is not an abstract of judgment upon which the Court would normally rely for that kind of proof. I’m just questioning the sufficiency of that for a finding as vitally important as the Court needs to make.” The court ruled that the probation order together with a probation officer’s report were sufficient evidence of a finding of a prior serious or violent felony conviction within the meaning of the three strikes law. The court found both strike allegations and the on-bail enhancement allegation to be true.
Penal Code section 969b provides: “For the purpose of establishing prima facie evidence of the fact that a person being tried for a crime or public offense under the laws of this State has been convicted of an act punishable by imprisonment in a state prison, county jail or city jail of this State, and has served a term therefor in any penal institution, or has been convicted of an act in any other state, which would be punishable as a crime in this State, and has served a term therefor in any state penitentiary, reformatory, county jail or city jail, or has been convicted of an act declared to be a crime by any act or law of the United States, and has served a term therefor in any penal institution, the records or copies of records of any state penitentiary, reformatory, county jail, city jail, or federal penitentiary in which such person has been imprisoned, when such records or copies thereof have been certified by the official custody of such records, may be introduced as such evidence.”
B. Analysis
Defendant contends the bench trial amounted to a “slow plea” because it was tantamount to his admission of the truth of the strike allegations. Therefore, he argues, the trial court committed constitutional error when it failed to advise him and obtain a waiver of his rights to confront and cross-examine witnesses, and to refuse to testify against himself; to advise him that the allegations would, to a practical certainty, be found true; and to advise him of his maximum possible punishment. We disagree.
When a defendant pleads guilty or admits the truth of a prior conviction, the court must obtain a knowing and intelligent waiver of the defendant’s constitutional rights to a jury trial and to confront and cross-examine the witnesses against him, and his right to assert a privilege against self-incrimination. (People v. Wright (1987) 43 Cal.3d 487, 491-492; see Boykin v. Alabama (1969) 395 U.S. 238, 242 [guilty plea]; In re Tahl (1969) 1 Cal.3d 122, 132; In re Yurko (1974) 10 Cal.3d 857, 863-864.) When a prior conviction allegation is admitted, the court must also advise the defendant of the increased sentence that may be imposed due to the prior conviction. (Yurko, supra, at p. 864.) If the court fails to give required advisements and obtain the defendant’s waiver of constitutional rights, the judgment must be reversed unless the record shows the plea was voluntarily and intelligently given under the totality of the circumstances. (People v. Howard (1992) 1 Cal.4th 1132, 1175.)
Our Supreme Court extended these constitutional requirements to cases in which a defendant enters a “slow plea,” or submits on the transcript of the preliminary hearing and the submission is “tantamount to a plea of guilty.” (In re Mosley (1970) 1 Cal.3d 913, 924-926; People v. Levey (1973) 8 Cal.3d 648, 654; Bunnell v. Superior Court (1975) 13 Cal.3d 592; see also People v. Robertson (1989) 48 Cal.3d 18, 39; People v. Wright, supra, 43 Cal.3d at p. 492.) “Under the rule of [Boykin] and [Tahl], as extended in [Bunnell] and other cases, ‘when the defendant agrees to a submission procedure, such as a guilty plea or a submission on the preliminary hearing transcript, by virtue of which he surrenders one or more of the three specified rights [jury trial, confrontation and privilege against self-incrimination]’ [citation], the record must reflect that he was advised of and personally waived the applicable right or rights. [Citation.] When the submission is a guilty plea or ‘tantamount to a plea of guilty’ [citation] the Boykin-Tahl requirements are constitutionally compelled.” (People v. Robertson, supra, at p. 39.)
Boykin-Tahl advisements and waivers are not constitutionally compelled when a submission on specified evidence such as a preliminary hearing transcript is not tantamount to a guilty plea—i.e., when the defendant actively contests his guilt. (People v. Robertson, supra, 48 Cal.3d at p. 39; Bunnell v. Superior Court, supra, 13 Cal.3d at pp. 604-605.) In such situations, advisements and waivers are required only as a matter of judicial policy. (Ibid.) Here, defendant’s sole contention is that the bench trial procedure was a slow plea, which is reversible per se unless advisements and waivers are shown on the record; but he makes no contention that proceeding amounted to a submission that was not tantamount to an admission, which would be reversible only upon a finding of prejudice under People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Wright, supra, 43 Cal.3d at pp. 494-495.)
We are not persuaded that defendant’s trial before the court on the enhancements was the equivalent of a “slow plea.” “A ‘slow plea’ has been defined as follows: ‘It is an agreed-upon disposition of a criminal case via any one of a number of contrived procedures which does not require the defendant to admit guilt but results in a finding of guilt on an anticipated charge and, usually, for a promised punishment.’ [Citation.] ‘Perhaps the clearest example of a slow plea is a bargained-for submission on the transcript of a preliminary hearing in which the only evidence is the victim’s credible testimony, and the defendant does not testify and counsel presents no evidence or argument on defendant’s behalf.... [¶] Submissions that are not considered slow pleas include those in which... the facts revealed at the preliminary examination are essentially undisputed but counsel makes an argument to the court as to the legal significance to be accorded them. [Citation.]’ [Citation.] ‘If it appears on the whole that the defendant advanced a substantial defense, the submission cannot be considered to be tantamount to a plea of guilty.’ ” (People v. Stone (1994) 27 Cal.App.4th 276, 282; People v. Wright, supra, 43 Cal.3d at pp. 496-497.) Whether a proceeding qualifies even as a “submission,” of which a slow plea is a subset, depends on whether the defendant’s waiver of rights was by virtue of an agreement to proceeding on agreed evidence. (People v. Robertson, supra, 48 Cal.3d at p. 39.)
“An appellate court, in determining whether a submission is a slow plea, must assess the circumstances of the entire proceeding.” (People v. Wright, supra, 43 Cal.3d at p. 496.)
Here, defendant agreed to, and proceeded with, a bench trial. He did not agree to submit the truth of the allegations on agreed evidence, and his waiver of a jury trial was not a consequence of any such agreement. There was no negotiated punishment. Defendant’s attorney attempted to minimize the legal significance of the first strike because of defendant’s age at the time he committed it, and challenged the sufficiency of the evidence offered by the prosecution to prove the second strike allegation. Although defendant did not elect to present evidence in his defense, he retained the right to do so. “[A] decision not to exercise a right is not the same as a waiver of that right.” (People v. Marella (1990) 225 Cal.App.3d 381, 387 [waiver of jury trial on prior prison term allegation was not a “submission” even though only evidence was certified prison records and defendant submitted without argument].) As in Marella, defendant “merely waived his right to a jury trial on the prior prison term allegation. At the court trial, the People were still required to present evidence to prove the prior. [Defendant] retained the right to challenge the validity of the People’s evidence, to question any witnesses, to subpoena and call witnesses in his defense or to take the witness stand in his own behalf. Under the circumstances, [defendant] did not ‘incriminate himself by an “involuntary confession of guilt” ’ or ‘surrender the right to confront and cross-examine the witnesses against him’ by agreeing to a court rather than a jury trial.” (Ibid., fn. omitted.)
We conclude that defendant’s decision to waive his right to a jury determination of the validity of the prior strike and on bail allegations did not constitute a slow plea. Accordingly, there was no constitutional error.
II. Defendant’s Romero Motion
Defendant contends the court did not understand that it had the discretion to dismiss one or both strikes as to fewer than all three felony counts. Therefore, he argues, the court abused its discretion when it denied his Romero motion by failing to exercise it. We reject this contention because the record does not support defendant’s premise that the court was unaware of its discretionary authority.
A. Background
The probation officer’s report catalogues defendant’s long history of violent crime. In one incident as a juvenile, defendant attacked another person with his fists and then with a knife; threatened others with the knife; attempted to assault an off-duty officer, and stabbed a bystander. Six months later defendant threatened a number of individuals with a baseball bat and chased one of them, struck a man twice in the hand with the bat and threatened to kill him, and struck a woman in the nose and threatened to kill her and others with the bat. Three months after that episode, defendant orchestrated a violent, albeit short-lived group escape from juvenile hall.
There followed a 1996 battery; a 1997 hit-and-run; 1998 convictions of willful cruelty to a child, battery, public drunkenness and fighting; and from 2000 through 2002 a series of drug-related convictions and a trespassing conviction. A December 2002 incident resulted in convictions for kidnapping, false imprisonment, assault with a deadly weapon, making terrorist threats and battery on a spouse or cohabitant. Defendant’s next offenses, in June 2003, were giving false identification to a peace officer and driving on a suspended or revoked license, followed in September 2003 with another battery on a cohabitant and violation of a protective order.
The probation officer recommended the court give defendant an aggregate term of 77 years to life under the three strikes law, composed of three consecutive 25-year-to-life terms plus the two-year on-bail enhancement. Defendant moved to strike both of the alleged prior convictions under Romero and urged the court to consider setting aside at least one of the strikes, which would yield a sentence of a little more than eight years in prison. The prosecutor opposed setting aside either of the strikes and argued that defendant’s 12-year record of violent crime necessitated the full sentence.
The court agreed with the prosecution. It explained: “This is for the Court was [sic] quite a difficult case. I read the report and recommendation. In fact, I came in again this morning at 6:15 to go over it and do a little research.” The court observed that defendant’s new conviction was not something “in and of itself that one thinks should be a life term in prison,” but defendant’s extensive history of violent crimes altered the court’s analysis: “Now, if this had been a situation where the defendant had [a] real serious crime, it was a long time ago, and he led a pretty law abiding life for the substantial period of time the Court would consider striking the strikes. [¶] And like I said, when I first looked at it I thought, well, it wasn’t a huge amount of drugs and a term of this length doesn’t seem fair on its face; but he hasn’t had any periods of crime free life and he’s only had a four year period which was some time ago now where there were no violent crimes committed. And otherwise, I mean, there’s just crime after crime and most of them are violent.
“And the defendant has had several opportunities to straighten his life out and to get off drugs, and he’s chosen not to; and now that he’s looking at a potential life term, he’s decided that would be a good thing to do. And I think he’s probably right that would be a good thing to do, but the decision should have been made many crimes ago.
“Anyway, on balance after spending quite a bit of time going through the report, thinking about the testimony in the trial, and reviewing the documents, the Court concluded that at this point at the age that the defendant is at and the violence that he’s perpetrated on members of the public, his friends, family, so forth, that he poses a great deal of danger to society.
“So the Court is not going to strike either of the strikes. And the Court gave that some consideration too; and as I computed, he would get a sentence of something less than ten years, have to do 80 percent of that. And considering this violent record, that’s not long enough even if one strike were stricken. The defendant is not safe to exist in society with the rest of the people out there. [¶] So the Romero motion is denied as to each of the strikes.”
B. Analysis
Defendant argues the court failed to recognize that it had discretion to deny the Romero motion as to one count, but grant it to set aside one or both strikes as to the other two. (See People v. Garcia (1999) 20 Cal.4th 490, 503-504 [court has discretion to dismiss a strike as to fewer than all counts].) He asserts such a result would have produced sentences of 25 years or 32 years and four months to life. Defendant concedes the record does not affirmatively demonstrate the court was unaware of this discretion, but argues that the court’s “giant leap from ‘something less than 10 years’—the possibility of which the judge did entertain but considered ‘not long enough’—to 77-years-to-life, without any explanation of why a life-long sentence was necessary or why an intermediate sentence would not be adequate, makes it very doubtful that the judge realized that he had the ability to impose an intermediate sentence.”
We find the contention to be unpersuasive. It is true that a court abuses its discretion if it fails to appreciate the scope of its discretion and therefore fails to exercise it. (People v. Carmony (2004) 33 Cal.4th 367, 378; People v. Orabuena (2004) 116 Cal.App.4th 84, 99.) But it is defendant’s burden to demonstrate an abuse of discretion (People v. Romero (2002) 99 Cal.App.4th 1418, 1433-1434), and reviewing courts will not infer sentencing error if the record does not affirmatively show it. (People v. Carmony, supra, 33 Cal.4th at p. 378 [court ordinarily is presumed to have correctly applied the law on Romero motions].) Here, the record does not show that the court was unaware of its sentencing options. Defendant proposed but one alternative sentence—the term that would result from setting aside one of his strikes as to all three counts. The court expressly rejected that proposal and gave its reasons for doing so. There was no reason for the court to explain why it chose not to impose other potential sentences that defendant had not proposed, and its failure to do so in no way indicates that the court was unaware of its authority to fashion a different sentence by setting aside one or both strikes as to fewer than all counts.
Moreover, the record shows that the court gave appropriately serious consideration to the factors relevant to its sentencing decision. “[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question 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.) The trial court assessed those factors and concluded they do not amount to the “extraordinary” circumstances “by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record.” (People v. Carmony, supra, 33 Cal.4th at p. 376.) The sentence imposed on defendant was a proper exercise of the court’s discretion.
In light of this conclusion, we do not address the People’s contention that defendant waived the right to raise this issue on appeal because his attorney never asked the court to dismiss one or both strikes as to fewer than all counts. While as a general matter the waiver doctrine applies to claims involving the trial court’s failure to properly make discretionary sentencing choices (People v. Scott (1994) 9 Cal.4th 331, 351), an appellate court is not prohibited from reaching a question that has not been preserved for review by a party. (People v. Williams, supra, 17 Cal.4th at p. 161.) In view of the severity of the consequences to defendant, we find that this is an appropriate occasion to address the merits of the claim despite the fact that it was not raised in the trial court.
III. Cruel and Unusual Punishment
Defendant argues that his sentence of 77 years to life violates state and federal constitutional prohibitions against cruel and unusual punishment and, further, that any sentence longer than five years would violate the state Constitution. Defendant forfeited these claims because he did not raise them in the trial court. “Cruel and unusual punishment arguments, under the federal or California tests, require examination of the offense and the offender. ‘Dillon [People v. Dillon (1983) 34 Cal.3d 441] makes clear that its holding was premised on the unique facts of that case. [Citation.] Since the determination of the applicability of Dillon in a particular case is fact specific, the issue must be raised in the trial court. Here, the matter was not raised below, and is therefore waived on appeal.’ ” (People v. Norman (2003) 109 Cal.App.4th 221, 229; People v. Ross (1994) 28 Cal.App.4th 1151, 1157, fn. 8.)
In any event, assuming arguendo these contentions are properly before us, they lack merit.
A. The Federal Constitutional Claim
Under the federal proscription of cruel and unusual punishment in the Eighth Amendment, a “ ‘narrow proportionality principle... applies to noncapital sentences.’ ” (Ewing v. California (2003) 538 U.S. 11, 20 (lead opn. of O’Connor, J.), quoting Harmelin v. Michigan (1991) 501 U.S. 957, 996-997.) This principle “forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” (Ewing, supra, at p. 23, quoting Harmelin, supra, at p. 1001.)
The factors that inform the proportionality analysis include “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for the commission of the same crime in other jurisdictions.” (Solem v. Helm (1983) 463 U.S. 277, 292.) But only in the rare case where the sentence imposed is grossly disproportionate to the crime does a reviewing court consider the second and third factors. (Harmelin v. Michigan, supra, 501 U.S. at p. 1005 (conc. opn. of Kennedy, J.).) When the courts consider the possibility of disproportionality in the context of a recidivist sentencing law, the defendant’s crime must be considered along with his prior record. (Ewing v. California, supra, 538 U.S. at p. 28.)
The United States Supreme Court rejected an Eighth Amendment challenge to a 25-year-to-life three strikes sentence for shoplifting three golf clubs in Ewing v. California, supra, 538 U.S. 11. The high court noted that recidivism has traditionally been recognized as a proper ground for increased punishment. (Id. at p. 25.) Given the defendant’s long criminal history, the court held that the defendant’s punishment was not disproportionate despite the relatively minor character of his most recent felony. (Id. at p. 29.) The same holds true here. Defendant’s criminal record was violent, prolonged and consistent. Although his current offenses are not violent or shocking, his punishment cannot be considered grossly disproportionate to his crimes in light of his history of criminality. (See People v. Poslof (2005) 126 Cal.App.4th 92; People v. Meeks (2004) 123 Cal.App.4th 695, 706-710.)
B. The State Claim
Article I, section 17 of the California Constitution also proscribes “cruel or unusual punishment.” Although this language is construed separately from the federal constitutional ban on “cruel and unusual punishment” (People v. Carmony (2005) 127 Cal.App.4th 1066, 1085), the method of analysis is similar: we consider “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society”; the comparison of “the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses”; and the comparison of “the challenged penalty with the punishments prescribed for the same offense in other jurisdictions....” (In re Lynch (1972) 8 Cal.3d 410, 424-427.) The purpose of our analysis is to determine whether the punishment is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (Id. at p. 424.)
Applying this analysis, this is not one of those rare cases where the sentence is so disproportionately harsh as to shock the conscience or to offend fundamental notions of human dignity. Defendant’s extensive and sometimes violent criminal record gives every indication that he presents a serious, ongoing danger to society. His punishment is severe, but defendant has not shown that it is disproportionate to that inflicted on other recidivists under the three strikes law. (See, e.g., People v. Meeks, supra, 123 Cal.App.4th at p. 710; People v. Martinez (1999) 71 Cal.App.4th 1502, 1512.) Nor has defendant shown that his sentence would have been less severe in other jurisdictions. (See Martinez, supra, at p. 1516.)
Assuming for purposes of argument that defendant has not forfeited his right to raise this issue on appeal, we conclude he has not shown his punishment was “cruel and unusual” under the federal Constitution or “cruel or unusual” within the meaning of our parallel state constitutional provision.
IV. Defendant’s Petition for Writ of Habeas Corpus
The principal argument in defendant’s habeas corpus petition is that his counsel was ineffective because he did not properly advise defendant of the desirability of accepting a prosecutorial plea offer and failed to advise him of the consequences of a conviction if he rejected the offer. He claims that although he knew that he faced a possible sentence of 25 years to life on each of the three counts with which he was charged, he did not realize and was not told that imposition of consecutive sentences was mandatory and that conviction on all counts would result in a sentence of 77 years to life. The petition also challenges the sufficiency of counsel’s efforts to set aside defendant’s prior strikes in the Romero motion.
Defendant’s claims that his counsel failed to give him proper advice and that he would have accepted the prosecution’s offer if properly advised must be corroborated by independent evidence. (In re Alvernaz (1992) 2 Cal.4th 924, 938.) Here, he contends that the content of the prosecution’s written offer, subsequent statements by his trial counsel when arguing in support of defendant’s motion to strike sentencing enhancements, and other factors, provide sufficient corroboration. We express no opinion on the sufficiency of that evidence, and deny the petition for a writ of habeas corpus without prejudice to it being refiled as an original proceeding in the superior court. The trial court is in a better position than we to assess defendant’s claims in the first instance. (See Turner v. State of Tennessee (6th Cir. 1988) 858 F.2d 1201, 1206.)
DISPOSITION
The judgment is affirmed. The petition for a writ of habeas corpus is denied without prejudice.
We concur: Pollak, Acting P.J., Jenkins, J.