Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County, Super. Ct. No. 07CM1311, James LaPorte, Judge.
David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J., and Gomes, J.
PROCEEDINGS
An information was filed on May 15, 2007, alleging appellant, Gary Wayne Newton, transported methamphetamine (Health & Saf. Code, § 11379, subd. (a), count one), possessed methamphetamine (Health & Saf. Code, § 11377, subd. (a), count two), drove with a suspended license when the license was suspended for driving under the influence (Veh. Code, § 14601.2, subd. (a), count three), and drove with a suspended license (Veh. Code, § 14601.1, subd. (a), count four). The information alleged three enhancements for prior narcotics convictions (Health & Saf. Code, § 11370.2, subd. (c)), a prior serious felony conviction within the meaning of the three strikes law (Pen. Code, § 1170.12, subds. (a) – (d)), and five prior prison term enhancements (§ 667.5, subd. (b)).
Unless otherwise indicated, all statutory references are to the Penal Code.
On July 6, 2007, appellant entered into a plea agreement. The court advised appellant of the consequences of his plea and his constitutional rights pursuant to Boykin/Tahl. The parties stipulated to a factual basis for the plea, including that the amount of narcotic found was a usable quantity. Appellant pled guilty to count one and admitted the prior serious felony conviction and two prior narcotic conviction enhancements. When the trial court asked if there was a Cunningham waiver, defense counsel replied affirmatively.
Under the terms of the agreement, appellant would admit count one, a prior serious felony allegation, and two prior drug conviction enhancements. He would receive a stipulated sentence of 14 years, which included an upper term on count one doubled pursuant to the three strikes law.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
Cunningham v. California (2007) 549 U.S. 270 (Cunningham).
There is no indication in the record that appellant personally waived his Cunningham rights.
At sentencing on August 29, 2007, the trial court found appellant was ineligible for probation due to his prior serious felony conviction. The court noted it was also not inclined to grant probation because appellant had five prior felony convictions, was on parole when he committed the instant offense, and had a history of unsatisfactory performance on parole and probation. The court imposed the stipulated prison term of 14 years. On September 10, 2007, the court denied appellant’s request for a certificate of probable cause.
The court imposed the upper term of four years on count one, doubled to eight years because of the strike. The court imposed two three-year enhancements for each prior narcotic conviction for a total prison term of 14 years. The abstract of judgment contains a clerical error stating that appellant received the lower term for count one. Such clerical errors can be corrected at any time, even on appeal. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) We will remand to the trial court to amend the abstract of judgment.
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on March 3, 2008, we invited appellant to submit additional briefing.
Appellant responded with a letter brief asserting that comments by the prosecutor during the sentencing hearing demonstrated vindictiveness and misconduct. Appellant argues his trial counsel was ineffective for failing to inform him that he was not entitled to half-time custody credits after admitting a prior serious felony conviction. Appellant finally contends the trial court erred in denying his counsel’s motion for a continuance at the sentencing hearing.
FACTS
On April 17, 2007 at about 1:53 p.m., Deputy Trevor Lopes with the Kings County Sheriff’s Department was driving a marked patrol car eastbound on Florinda at Gladys. Lopes was wearing his uniform. Lopes caught up to a white passenger vehicle at the intersection of Whitney Drive and stopped. The driver stared back at Lopes in his rearview mirror, drove through the intersection, and immediately pulled into the first residential driveway from the intersection.
Lopes thought the driver’s actions seemed suspicious so he drove down the road, made a U-turn, and watched the vehicle. After 20 seconds, the driver backed out of the driveway onto Florinda without exiting the vehicle and traveled eastbound past Lopes. The driver looked over toward Lopes and appeared to be stunned. The driver pulled over immediately to the side of the road and walked through a front yard toward the door of a home. The driver never made contact with anyone, walked back to his vehicle, and continued driving eastbound.
The driver made a right turn and drove southbound on Cortner. Lopes followed the driver who then turned onto Lacey. When Lopes caught up with the driver, he turned into an open paved lot where there were half a dozen enclosed shops and some abandoned vehicles.
Lopes contacted the driver and identified him during the preliminary hearing as appellant. Lopes approached the car, standing four or five feet from the driver’s side window. Appellant told Lopes he had just come from a meeting regarding his parole. Lopes asked appellant if he was supposed to be driving. Appellant admitted his license was suspended. When Lopes asked appellant if he could search the car, appellant replied, “I guess.” In the trunk, inside a black CD case, Lopes found a black digital scale that had white residue all over it. There was a small black pouch with two baggies, one clear and one black, that contained a crystal-like substance.
A presumptive test was negative for methamphetamine in the black baggie but positive for methamphetamine for the substance in the clear baggie. The clear baggie weighed 1.8 grams, a usable amount of methamphetamine. Appellant later told Lopes that he parked in the driveway to avoid the deputy and that the methamphetamine belonged to him.
ALLEGED PROSECUTORIAL MISCONDUCT
Appellant contends the prosecutor committed misconduct at the sentencing hearing when, in opposing a continuance of the sentencing hearing, she said the People were ready to proceed and preferred that appellant “not take up anymore space in our jail for anymore time.” Appellant argues the comments of the prosecutor so infected the trial court with unfairness as to make the resulting conviction a denial of due process.
Appellant was not tried by a jury. He pled guilty to transportation of methamphetamine and admitted a prior serious felony allegation and prior drug conviction enhancements. The prosecutor’s comments were after appellant’s plea and just prior to sentencing. These comments would not have affected the trial court’s judgment. The court sentenced appellant to a sentence he had stipulated to as part of the plea agreement. Even if we assume arguendo that the prosecutor’s statement was error, it was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.)
ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL
Appellant contends his trial counsel failed to inform him that because of his admission of the prior serious felony allegation, he would not receive half-time credits but would have to serve 85 percent of his prison sentence. Appellant argues his trial counsel was ineffective.
The defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsel’s decision making is evaluated in the context of the available facts. To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or, unless there simply could be no satisfactory explanation. Prejudice must be affirmatively proved. The record must affirmatively demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389.) Attorneys are not expected to engage in tactics or to file motions which are futile. (Id. at p. 390; also see People v. Mendoza (2000) 24 Cal.4th 130, 166.)
What trial counsel did or did not tell appellant on the issue of custody credits is not part of the record on appeal. Argument that relies upon matters outside the record may not be considered on appeal. (See People v. Smith (2007) 40 Cal.4th 483, 507; People v. Allen (1999) 21 Cal.4th 424, 439; People v. Barnett (1998) 17 Cal.4th 1044, 1183.) Because we have no record of what trial counsel told appellant, if anything, concerning custody credits, we cannot review the matter on direct appeal. Appellant may pursue the remedy of filing a petition for writ of habeas corpus on the question of whether his counsel misrepresented how he could accrue custody credits in prison with a conviction. Should appellant choose to do so, his petition must first be filed in superior court -- not here. (In re Hillery (1962) 202 Cal.App.2d 293, 294.)
CONTINUANCE MOTION
Appellant contends the trial court erred in denying his trial counsel’s motion for a continuance.
Procedural Limitations
We note that where, as here, a defendant has pled guilty in return for a specified sentence, appellate courts will not find error even when the trial court has acted in excess of jurisdiction in reaching that sentence, as long as the trial court did not lack fundamental jurisdiction. Defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to improve the bargain through the appellate process. (People v. Hester (2000) 22 Cal.4th 290, 295.) To the extent appellant is attempting to undo a key facet of his plea bargain, he is attempting to improve his plea bargain through the appellate process.
We further find that appellant cannot attack the validity of his plea, where, as here, he has failed to obtain a certificate of probable cause. We therefore cannot review any infirmities concerning the validity of the underlying no contest plea. (People v. Mendez (1999) 19 Cal.4th 1084; People v. Panizzon (1996) 13 Cal.4th 68.)
Merits of Motion
Appellant retained private counsel, J. M. Irigoyen, for sentencing. On August 7, 2007, the court granted appellant’s motion to substitute Irigoyen as counsel. The court granted appellant a continuance until August 29, 2007. Irigoyen informed the court he was planning to make a motion to set aside the plea agreement. Irigoyen said he would have his motion filed in two weeks, by August 21, 2007.
On August 17, 2007, Irigoyen filed a motion to continue sentencing because he could not obtain a transcript of the change of plea hearing. On August 29, 2007, Irigoyen explained to the court that he received the documents he needed and had talked to appellant and was prepared to proceed on September 14, 2007. The court stated it was concerned because there was no suggestion in the motion that Irigoyen was still pursuing a motion to set aside the plea.
Irigoyen stated he believed appellant had legal cause to challenge a strike. Irigoyen said he did not believe the strike was valid even though appellant admitted it. Irigoyen conceded that after reading the change of plea transcript, he found no other basis to set aside the plea. Irigoyen still believed the strike was invalid based on an unnamed case from the Ninth Circuit Court of Appeals. Irigoyen explained this case, for which he had no citation, gives the court discretion to strike a strike in a case such as appellant’s where the defendant is not factually guilty of the crime. The court then denied the motion for a continuance.
The prior serious felony conviction Irigoyen was referring to was appellant’s conviction in 2006 for making a criminal threat in violation of section 422.
According to the probation report, appellant was convicted in 2006 of making criminal threats in violation of section 422. This was the prior serious felony allegation in the information appellant admitted during the change of plea hearing. Section 1170.12, subd. (b)(1) states that serious felonies are defined in sections 667.5 and 1192.7. Section 1192.7, subdivision (c)(38) defines a violation of section 422 as a serious felony. There is no legal error in the appellant’s admission of a prior section 422 conviction as a prior serious felony.
It appears that Irigoyen may have been trying to challenge the factual basis for the underlying conviction for section 422. If this was trial counsel’s intent, he was attempting to collaterally attack the prior conviction. Irigoyen failed to make even a prima facie representation of a factual basis to the trial court to challenge the factual basis for appellant’s conviction in 2006 for section 422. Also, whatever delay Irigoyen experienced in obtaining the transcripts of appellant’s change of plea in the instant action had no effect on Irigoyen’s ability to obtain factual information concerning the 2006 conviction. Irigoyen made no representation concerning any delay or inability to obtain the necessary documentation from the 2006 proceedings.
The determination of whether a continuance should be granted rests within the sound discretion of the trial court. (People v. Sakarias (2000) 22 Cal.4th 596, 646.) Absent a showing of abuse of discretion and prejudice to the defendant, the denial of a motion for continuance does not require reversal. (People v. Samayoa (1997) 15 Cal.4th 795, 840; People v. Jacobs (2007) 156 Cal.App.4th 728, 735-736.) Even though this issue is procedurally barred on appeal, we alternatively find that the trial court did not abuse its discretion in denying appellant’s motion for a continuance to challenge his conviction for section 422.
After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.
DISPOSITION
The judgment is affirmed. The case is remanded to the trial court to correct the abstract of judgment to reflect that appellant received the upper term on count one. The amended abstract of judgment shall be forwarded to the appropriate authorities.
We further note that the trial court sentenced appellant after the effective date of the Legislature’s revisions to the Determinate Sentencing Law (DSL). Under the amended law, trial courts now have discretion to impose an upper term sentence without violating the defendant’s right to a jury trial on the truth of factors used to impose the aggravated sentence. (People v. Sandoval (2007) 41 Cal.4th 825, 844-852.) Appellant’s offense occurred on April 17, 2007, which is after the effective date of the change to the statute which became effective on March 30, 2007. (Id. at p. 836, fn. 2.)
Even if an argument could be fashioned that appellant’s sentence constituted Cunningham error, recidivism is recognized as an exception to the requirement of a jury finding prior to imposing an aggravated sentence. As noted by the California Supreme court, a defendant’s criminal history can be used by a court in sentencing a defendant without violating the defendant’s right to a jury trial. (People v. Black (2007) 41 Cal.4th 799, 818-820.) Furthermore, a single sentencing factor can be used both to deny probation and to impose an upper term sentence. (People v. Ramos (1980) 106 Cal.App.3d 591, 600 [disapproved on another ground in People v. Scott (1994) 9 Cal.4th 331, 353, fn. 16].) Thus, we find no error in the trial court’s imposition of an upper term sentence on count one.