Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County Ct. No. SWF015875. Sherrill A. Ellsworth, Judge.
Patricia L. Brisbois, 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, Gil Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
An information charged defendant and appellant Tyrone Ingram with willfully and unlawfully possessing a weapon, a shank, in a penal institution under Penal Code section 4502, subdivision (a). The information also alleged four strike priors under section 667, subdivisions (c) and (e)(2)(A). Following a bifurcated trial, the jury found defendant guilty of the charge and found true the special allegations. The trial court sentenced defendant to state prison for 25 years to life.
All statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant contends that the trial court abused its discretion (1) in denying defendant’s discovery motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess); and (2) in failing to dismiss his strike priors. In a supplemental brief filed by defendant, he further contends that he was rendered ineffective assistance of counsel (IAC). For the reasons set forth below, we shall affirm the judgment.
I
FACTUAL AND PROCEDURAL HISTORY
On February 19, 2006, defendant was an inmate at the Southwest Detention Center in Murrieta. He was housed in the jail’s “B” pod. That evening, Correctional Deputies Rich and Hubbard contacted defendant in order to move him from his cell to another location at the jail. At that time, Deputy Rich was Deputy Hubbard’s training officer.
During a patdown search of defendant, Deputy Hubbard found a “plastic-handled instrument with two razor blades attached to one end,” known as a “shank,” in defendant’s jumpsuit pocket. When the deputy found the shank, defendant said, “Uh-oh.”
About one-half hour later, after waiving his rights under Miranda v. Arizona (1966) 384 U.S. 436, defendant admitted making the shank for his protection. Deputy Rich opined at trial that the shank was capable of being used to stab or slash, and of causing great bodily injury or death.
II
DISCUSSION
A. Pitchess Motion
Defendant contends that the trial court abused its discretion in denying defendant’s pretrial Pitchess motion to discover Deputy Hubbard’s personnel file.
1. Background
Before trial, defense counsel filed a Pitchess motion seeking discovery of Deputy Hubbard’s personnel file. The trial court denied the motion without prejudice.
Thereafter, defense counsel filed a renewed Pitchess motion on the grounds that Deputy Hubbard had “made deliberate false material misrepresentations and/or omissions regarding the investigation of [defendant].” The motion also stated that defendant sought discovery of the file to support defendant’s defense that “he did not willfully and unlawfully possess the object in question.”
In the renewed Pitchess motion, defense counsel also declared that she intended to use the information contained in Officer Hubbard’s file to show: “Deputy Hubbard falsified his police report in order to ensure and justify [defendant’s] arrest, search and interrogation. The information contained in the records of Deputy Hubbard would be used by the defense to enable it to effectively cross-examine the officer during the trial for impeachment and as affirmative proof in this case of character, habit, and custom that Deputy Hubbard falsified probable cause and falsified his investigation report and statements in order to support his conduct and the charged offense. The information sought would support the defendant’s defense that he did not willfully and unlawfully possess a weapon commonly known as a ‘shank.’ ”
Furthermore, defense counsel declared, “[a] likely issue at trial will be Deputy Hubbard’s lack of veracity, false arrest, illegal search and seizure, fabrication of charges, falsification of police reports, planting of evidence, and such conduct unbecoming an officer.” Specifically, defendant denied telling the deputy that “he was beat up by his cellmate . . . and that he carrie[d] a shank for protection in fear of being beat up again.” Defendant also denied describing how the shank had been made. Counsel declared that she had been informed by the prosecutor that Deputy Hubbard no longer worked for the sheriff’s department “and that there may have been an internal affairs investigation regarding Deputy Hubbard’s conduct.”
The Riverside County Sheriff’s Department opposed the motion. The department contended that the motion should be denied because defendant had not disputed that he possessed the shank and thus, failed to set forth a “ ‘plausible factual foundation.’ ”
At the hearing on the Pitchess motion, the trial court denied the motion.
2. Applicable Law and Analysis
In Pitchess, supra, 11 Cal.3d 531, the court held that a criminal defendant could “compel discovery” of certain information in police officer personnel files by demonstrating good cause. Good cause is demonstrated by making “general allegations which establish some cause for discovery” of the information and by showing how it would support a defense to the charge against him. (Id. at pp. 536-538.)
In 1978, the California Legislature codified the holding in Pitchess by enacting Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81 (Santa Cruz).) To initiate discovery of such records, the defendant must file a written noticed motion supported by affidavits showing “good cause for the discovery or disclosure sought, setting forth the materiality” of the information to the pending litigation and “stating upon reasonable belief” that the police agency has the records or information sought. (Evid. Code, § 1043, subd. (b)(3); see also Santa Cruz, at p. 82.)
This two-part showing of good cause is a “relatively low threshold for discovery . . . .” (Santa Cruz, supra, 49 Cal.3d at p. 83.) Once the trial court finds good cause has been established, it must examine the records “in chambers” and disclose only those records and information that are relevant and not subject to exclusion from disclosure. (Evid. Code, § 1045, subds. (a) & (b); see also People v. Thompson (2006) 141 Cal.App.4th 1312, 1316 (Thompson).)
Here, having found defendant failed to establish good cause, the trial court declined to hold an in-chambers examination of the information. Defendant contends he made an adequate showing of good cause. We disagree.
The trial court is granted wide discretion when ruling on a motion to discover police officer records (People v. Memro (1995) 11 Cal.4th 786, 832), and we review that ruling for abuse of discretion (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039; see also People v. Mooc (2001) 26 Cal.4th 1216, 1228).
The California Supreme Court has recently clarified the defendant’s burden of proof in establishing the first part of the good cause requirement. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016 (Warrick).) In order to show materiality, the defendant must show “a logical link between the defense proposed and the pending charge . . . [and] articulate how the discovery being sought would support such a defense or how it would impeach the officer’s version of events.” (Id. at p. 1021.)
In establishing the necessary link, counsel’s declaration must propose a defense to the pending charge that is factually plausible and articulate how the discovery sought may lead to relevant evidence or be admissible as direct or impeachment evidence. (Warrick, supra, 35 Cal.4th at p. 1024.) A factually plausible scenario is one that “might or could have occurred.” (Id. at p. 1026.) The trial court then determines “whether defendant’s averments, ‘[v]iewed in conjunction with the police reports’ and any other documents, suffice to ‘establish a plausible factual foundation’ for the alleged officer misconduct and . . . ‘articulate a valid theory as to how the information sought might be admissible’ at trial.” (Id. at p. 1025.) This inquiry is made by asking the following questions: (1) has the defense made a logical connection between the charges and the proposed defense? (2) was the affidavit supporting the motion factually specific and tailored to support its claim of officer misconduct? (3) will discovery of the requested information support the proposed defense, or is it likely to lead to information that would support the proposed defense? and (4) under what theory is the requested information admissible? (Id. at p. 1027.)
In Warrick, the defendant was charged with possessing cocaine base for sale. Three officers, patrolling an area known for violent crime and narcotics activity, observed the defendant standing next to a wall looking at a clear plastic baggie he was holding that contained off-white solids. When the officers exited their patrol car, the defendant fled, throwing numerous pieces of a substance resembling rock cocaine. One officer retrieved 42 lumps from the ground, and the defendant was arrested, at which time he was found to be in possession of an empty baggie and $2.75 in cash. He filed a Pitchess motion seeking disclosure of previous citizen complaints against the three arresting officers for making false arrests, falsifying police reports, or planting evidence. In support of his motion, he submitted an affidavit that stated his version of the events, namely, that when the officers exited their car, he fled, fearing arrest for an outstanding warrant. He was at the scene to buy cocaine from a seller who was also there, and it was the seller who tossed the cocaine as defendant ran past him. The court found the defendant had made a sufficient showing of good cause to entitle him to an in-chambers record review by the trial court. (Warrick, supra, 35 Cal.4th at pp. 1016-1017, 1024.)
In Thompson, supra, 141 Cal.App.4th 1312, the Court of Appeal found the defendant’s factual scenario insufficient because it was “not internally consistent or complete,” “[c]ounsel’s declaration simply denied the elements of the offense charged,” and the defendant did not “present a factual account of the scope of the alleged police misconduct [nor] explain his own actions in a manner that adequately support[ed] his defense.” (Id. at p. 1317.) The defendant in Thompson, who was arrested for selling drugs to an undercover officer and receiving marked money in exchange, said he did not sell drugs or receive marked money and that the arresting officers fabricated the alleged events using narcotics already in their possession to frame the defendant and cover up their own mishandling of the situation. (Ibid.) The appellate court found the defendant’s scenario insufficient in that he gave no nonculpable explanation for his presence in a popular drug-selling area, offered no factual basis for being singled out by police, and gave no further information about the police’s alleged mishandling of the situation. (Ibid.) The Thompson court distinguished Warrick, in which the defendant “did not merely make bald assertions that denied the elements of the charged crime” but “provided an alternate version of the events” through a specific factual scenario that explained the facts set forth in the police report. (Thompson, at p. 1318.)
Applying these principles, we find defendant failed to establish a link between the charge and the proposed defense and the relevancy of the alleged misconduct to that defense. In her affidavit, defense counsel declared that from time to time, persons have been arrested or detained following the planting of evidence; the planting of evidence was among the likely issues at trial; and Deputy Hubbard attributed to defendant, statements defendant never made. In her affidavit, however, counsel never stated that defendant denied manufacturing and possessing the shank found in his jumpsuit pocket, and that Deputy Hubbard planted the shank on defendant. Therefore, defense counsel’s declaration failed to establish “a logical link between the defense proposed and the pending charge . . . [and] articulate how the discovery . . . would support such a defense or how it would impeach the officer’s version of events.” (Warrick, supra, 35 Cal.4th at p. 1021.)
Nevertheless, defendant argues that the information in Deputy Hubbard’s file was important because defendant “denied making the statements attributed to him by [Deputy] Hubbard,”and the deputy’s credibility was important to defendant’s defense that “he did not willfully and unlawfully possess the shank.” We disagree. Although Deputy Hubbard’s report was discussed during the trial, Deputy Rich was the officer who testified. Deputy Rich, as Deputy Hubbard’s training officer, stood three to five feet behind Deputy Hubbard when the shank was discovered in defendant’s pocket. Moreover, Deputy Rich was present when defendant admitted to making the shank and carrying it for his own protection. Although Deputy Rich occasionally scanned Deputy Hubbard’s report to refresh his recollection, he also based his testimony on his own contemporaneous observations and perceptions. In fact, during cross-examination, defense counsel attempted to question Deputy Rich’s recollection of the incident. However, during the course of the cross-examination, Deputy Rich demonstrated that he had a clear recollection of the incident involving defendant. First, Deputy Rich stated that he remembered the incident involving defendant because “[i]t’s not often that I find a shank on somebody or I witness a shank being found.” Second, he recalled defendant stating “uh-oh” when the shank was found in defendant’s pocket. Third, Deputy Rich recalled defendant making a statement that he made the shank and carried it for his protection. Therefore, Deputy Rich established defendant’s possession of the shank.
As such, we find the trial court did not abuse its discretion in concluding that defendant did not meet the standard for permitting discovery of information from police personnel files. Moreover, given the testimony of Deputy Rich, even were we to find that the trial court erred in finding that defendant had made no showing of good cause to support his Pitchess motion, defendant has not shown “there was a reasonable probability that the outcome of the case would have been different had the information been disclosed to the defense” (People v. Hustead (1999) 74 Cal.App.4th 410, 422), and such error would be harmless in light of all the other evidence linking defendant to the crimes of which he was convicted (see People v. Samuels (2005) 36 Cal.4th 96, 110).
B. Romero Motion
Defendant contends that the trial court erred in denying his motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to dismiss his strikes in the interest of justice under section 1385.
1. Background
In a bifurcated proceeding, the jury found true the allegations that defendant had previously been convicted of four felony offenses within the meaning of sections 667, subdivisions (c) and (e)(2)(A), and 1170.12, subdivision (c)(2). The prior offenses, all committed on November 3, 2003, were for the crimes of mayhem, torture, kidnapping, and assault by force likely to produce great bodily injury and personally inflicting great bodily injury under sections 203, 206, 207, subdivision (a), and 245, subdivision (a)(1). Defendant received an indeterminate sentence of life with the possibility of parole for the torture conviction, a determinate term of eight years for kidnapping, plus an additional five years for a sentence enhancement under section 12022.7, subdivision (e). Defendant’s sentence on the mayhem and assault convictions was stayed under section 654.
In the Romero motion, defense counsel requested that the trial court exercise its discretion and dismiss defendant’s prior strike convictions in the interest of justice. Defendant contended below, as he does on appeal, that the trial court should have dismissed all but one of the strikes and sentenced him as a second striker because: (1) defendant had never been to prison prior to his strike convictions; (2) the strike convictions arose from a single course of events involving a single victim; (3) sentencing for two of the strikes was stayed under section 654; (4) the current offense did not involve any injury or violent conduct; and (5) as a second striker, defendant could be sentenced to a term of eight years (the upper term of four years violating section 4502, doubled by the strike).
At the hearing on the motion, the court stated, “The Court has read and considered both the motion and the memorandum in terms—from the People, notice of motion and motion to dismiss strike allegations, commonly known as a Romero motion, as well as the sentencing memorandum, I believe is how you titled that from the People . . . . [¶] And I have read and considered that. I have also—I am in receipt of the probation officer’s report and have read and considered that, and I was the bench officer who presided over the trial, which just took place not too long ago.”
Thereafter, the trial court denied the motion.
2. Applicable Law and Analysis
A trial court’s decision refusing to dismiss or strike a prior serious and/or violent felony conviction allegation under section 1385 is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.) “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” ’ [Citation.] Second, a ‘ “decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at pp. 376-377, quoting People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978, quoting People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831 and People v. Preyer (1985) 164 Cal.App.3d 568, 573; see also People v. Myers (1999) 69 Cal.App.4th 305, 309.)
The California Supreme Court explained, “In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not ‘aware of its discretion’ to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation].” (People v. Carmony, supra, 33 Cal.4th at p. 378, citing People v. Langevin (1984) 155 Cal.App.3d 520, 524 and People v. Gillispie (1997) 60 Cal.App.4th 429, 434.) Discretion is also abused when the trial court’s decision to strike or not to strike a prior is not in conformity with the “spirit” of the law. (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams); see also People v. Myers, supra, 69 Cal.App.4th at p. 310.)
But “[i]t is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance. [Citation.]” (People v. Myers, supra, 69 Cal.App.4th at p. 310.) “Because the circumstances must be ‘extraordinary . . . 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, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (People v. Carmony, supra, 33 Cal.4th at p. 378, quoting People v. Strong (2001) 87 Cal.App.4th 328, 338.)
The touchstone of the analysis must be “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.” (Williams, supra, 17 Cal.4th at p. 161; see also People v. Garcia (1999) 20 Cal.4th 490, 498-499.)
In this case, defendant’s main contention is that his “four prior strike convictions arose out of a single case and that sentence on two of the priors had been stayed pursuant to Penal Code section 654.” We disagree with defendant because we cannot say that the trial court abused its discretion in denying defendant’s motion. The relevant considerations supported the trial court’s ruling, and there is nothing in the record to show that the court declined to exercise its discretion on improper reasons or that it failed to consider and balance the relevant factors, including defendant’s personal and criminal background. In fact, the record shows the court was aware of its discretion, aware of the applicable factors a court must consider in dismissing a prior strike, and appropriately applied the law.
Here, the case is far from extraordinary. Defendant has manifested a persistent inability to conform his conduct to the requirements of the law. Defendant had a record dating back to the early 1990’s. Following his May 7, 1993, conviction of willful infliction of corporal injury upon a cohabitant under section 273.5, subdivision (a), defendant received probation and 250 days custody in Los Angeles County jail. Defendant was convicted of misdemeanor battery of a cohabitant on March 9, 2000. Following his conviction of receiving stolen property under section 496, subdivision (a), defendant had the offense reduced to a misdemeanor on June 21, 2000. Defendant was on probation when he committed his strike offenses on June 10, 2003. On that date, defendant repeatedly beat his girlfriend to the point of unconsciousness, causing her to suffer great bodily injury and the loss of her tooth. He repeatedly bit her, in addition to punching her in the head and face. He drove around with her against her will while she bled and pled for help. Each time the victim regained consciousness, he would beat her into unconsciousness. Officers eventually found her, bloody and unconscious, in the passenger seat of defendant’s car.
In sum, defendant appears to be “an exemplar of the ‘revolving door’ career criminal to whom the Three Strikes law is addressed.” (People v. Stone (1999) 75 Cal.App.4th 707, 717.) Therefore, given defendant’s continuous criminal history, his numerous parole violations, the seriousness of the past offenses, and lack of meaningful crime-free periods, we cannot say that the trial court abused its discretion when it declined to dismiss defendant’s prior strike convictions. The trial court’s decision not to strike defendant’s priors was neither irrational nor arbitrary.
In a related argument, in his supplemental brief, defendant contends that his trial counsel “rendered [IAC] . . . by failing to specifically argue and otherwise point out evidence presented during the jury trial on the prior conviction allegations showing the sentences on two of the priors had been stayed pursuant to Penal Code section 654.” To prevail on a claim of IAC, the defendant must not only show an unprofessional error but also that there is a reasonable probability that the outcome of the trial would have been more favorable in the absence of the error. A reasonable probability is one which is sufficient to undermine confidence in the outcome of the trial. (Strickland v. Washington (1984) 466 U.S. 668, 688, 693-694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) We reject defendant’s IAC claim because defendant has failed to demonstrate professional error and prejudice.
As noted above, defendant’s four strike priors arose from a single 2004 criminal proceeding in which defendant received (1) an indeterminate sentence of life with the possibility of parole for one of the strikes, to wit, torture; and (2) a determinate term of eight years plus a five-year great bodily injury enhancement for the second strike, to wit, kidnapping. Defendant received terms which were stayed under section 654 for the third and fourth strikes: Mayhem and aggravated assault.
In the written Romero motion and during the hearing, trial counsel did not specifically mention that the previous trial court stayed terms for two of the four strikes, which arose from the single prior proceeding. This error did not amount to professional error because this fact was already self-evident to the trial court from the jury trial exhibit. In fact, during the hearing on the motion, the trial court stated that it was familiar with the case since he “was the bench officer who presided over the trial, which just took place not too long ago.”
Defendant’s reliance on People v. Burgos (2004) 117 Cal.App.4th 1209 (Burgos) is unavailing. There, “[the defendant] and two companions approached a man at a gas station and [the defendant] demanded the victim’s car while one of the companions told the victim that he had a gun. [The defendant] and his companions were frightened off before they took the victim’s car.” (Id. at p. 1212, fn. 3.) As a result, the defendant had two strike priors—a conviction for attempted robbery and a conviction for attempted carjacking. (Id. at p. 1212 & fn. 3.)
The appellate court held “that the failure to strike one of the two priors [sic] convictions that arose from a single act constitutes an abuse of discretion.” (Burgos, supra, 117 Cal.App.4th at p. 1214, fn. omitted.) It noted that, in People v. Benson (1998) 18 Cal.4th 24, the Supreme Court held that a prior conviction on which the sentence had been stayed pursuant to section 654 nevertheless constituted a strike. In a footnote, Benson had declined to decide “ ‘whether there are some circumstances in which two prior felony convictions are so closely connected—for example, when multiple convictions arise out of a single act by the defendant as distinguished from multiple acts committed in an indivisible course of conduct—that a trial court would abuse its discretion under section 1385 if it failed to strike one of the priors.’ [Citation.]” (Burgos, at pp. 1214-1215, quoting Benson, at p. 36, fn. 8.) The Burgos court felt that this language “strongly indicates that where the two priors were so closely connected as to have arisen from a single act, it would necessarily constitute an abuse of discretion to refuse to strike one of the priors.” (Burgos, at p. 1215.)
The court, however, also noted: “In the case of these particular offenses, not only did the two prior convictions arise from the same act, but, unlike perhaps any other two crimes, there exists an express statutory preclusion on sentencing for both offenses. Section 215, subdivision (c) permits the prosecution to charge a defendant with both carjacking and robbery under section 211, but expressly states that ‘no defendant may be punished under this section and Section 211 for the same act which constitutes a violation of both this section and Section 211.’ While this provision does not refer to the use of the convictions as priors in a later prosecution such as the one before us, it reinforces our belief that infliction of punishment in this case based on both convictions constitutes an abuse of discretion.” (Burgos, supra, 117 Cal.App.4th at p. 1216.)
Here, unlike in Burgos, defendant cannot show from the trial record that the strikes, whose terms were stayed—mayhem and aggravated assault with the personal infliction of great bodily injury—arose from a single act as opposed to multiple acts committed during an indivisible course of conduct. Moreover, defendant cannot show that the strikes in question represented crimes with an express statutory preclusion against sentencing on both offenses. (Contrast Burgos, supra, 117 Cal.App.4th at p. 1216.)
Separately and alternatively, unlike the court in Burgos, we do not read the footnote in Benson to mean that it would necessarily be an abuse of discretion to refuse to strike one of two priors arising out of a single act. Rather, we take the Supreme Court at its word—it simply was not deciding this issue, one way or the other. Once we read not only Benson, but also Carmony and Williams, which deal specifically with the scope of the trial court’s discretion to strike a strike, it becomes clear that the crucial question is whether the defendant falls outside the spirit of the three strikes law. While the nature and interrelationship of the strike priors are certainly factors to be considered, they cannot, by themselves, be dispositive. This may be why the Burgos court went on to note that other factors also weighed in favor of striking a strike.
Moreover, even if trial counsel erred in presenting evidence regarding the staying of two of the sentences in the strike priors and the trial court decided to dismiss one or both of these strikes, defendant cannot show any reasonable likelihood that the trial court would have dismissed the remaining strike priors—torture and kidnapping—in order to sentence defendant as a second striker, and not as a third striker.
In sum, because defendant cannot demonstrate either professional error or prejudice, we reject defendant’s IAC argument.
III
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P. J., MILLER, J.