Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 09WF1041, John Conley, Judge.
Original proceedings; petition for a writ of habeas corpus, after judgment of the Superior Court of Orange County. Petition denied.
Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant, Appellant and Petitioner.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant Vinh Quang Nguyen appeals from a judgment of conviction by direct appeal. Defendant argues that his counsel provided ineffective assistance by failing to request that the court strike a 1993 prior felony for purposes of sentencing, and that he does not fit the mold of a career criminal for whom the “Three Strikes” law was developed. Defendant argues that the trial court abused its discretion by not striking the prior for sentencing purposes.
Defendant also filed petition for writ of habeas corpus, arguing ineffective assistance of counsel because defense counsel did not make a “Romero motion.” (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) He again contends that in the interest of justice, the court should have struck the prior serious felony for sentencing purposes and defendant’s sentence should be seven, not nine years in state prison. We affirm the judgment and deny the petition.
I
FACTS
On the morning of May 13, 2009, Garden Grove police were dispatched to a residential neighborhood due to reports of a reckless driver. An officer spotted defendant and pursued him. The officer witnessed defendant, traveling approximately 20 miles per hour, crash the car into a house and flee the scene. Defendant was wearing a white baseball cap and a white T-shirt. While trying to escape, he broke into a storage shed and hid the white baseball cap. Later, he entered a residence through a rear door. While in the house, he changed into a different shirt that he took from a closet in the house. Eventually, police apprehended him in a bedroom of the house.
On March 24, 2010, a jury found defendant guilty of first degree burglary in count one (Pen. Code, §§ 459, 460, subd. (a)) and hit and run causing property damage in count two (Veh. Code, § 20002, subd. (a)).
The probation and sentencing report lists five violations under defendant’s juvenile history. The violations include: three theft-related offenses, one for a probation violation, and one for providing a false name to police officers. As an adult, defendant amassed three misdemeanors and three felonies. The offenses include: armed robbery, aggravated robbery, vehicle burglary, theft, unlawful possession of a firearm by a felon, and credit card abuse. Defendant’s most recent conviction, in 2006, involved possession of drugs and drug paraphernalia. The court sentenced defendant to 44 months in prison for the felony possession conviction.
In 1993, defendant was convicted of personally discharging a firearm in a grossly negligent manner. The trial court raised the issue of whether this prior felony should be considered a strike for sentencing purposes. At a sentencing hearing on May 14, 2010, a continuance was granted in order for defense counsel to “peruse the probation report and do a little research on a Romero motion.” The judge issued a tentative sentence, but acknowledged that it is “somewhat contingent, obviously, on whether the strike is a strike.” At the subsequent hearing on June 18, 2010, after conferring with the prosecutor, defense counsel stated that “we reviewed the records and it does appear that it is a strike.” The court replied, “All right. That solves that.”
On count one, the court imposed the low term of two years. On count two, the court suspended the imposition of sentence. The court imposed a five-year enhancement for the prior serious felony pursuant to Penal Code section 667, subdivision (a)(1). The court doubled the low term sentence pursuant to Penal Code sections 667, subdivision (e)(1) and 1170.12, subdivision (c)(1). The court struck two prior prison enhancements in the interest of justice. The court sentenced defendant to a total of nine years in state prison.
Defendant also filed a petition for a writ of habeas corpus that this court consolidated with the direct appeal. A declaration by counsel, Alan S. Yockelson, related to defendant’s trial attorney, Deputy Public Defender Ricardo Vallejo, is contained in defendant’s writ petition. The declaration states: after Yockelson was appointed on appeal, he inquired of Vallejo about the absence in the record of a motion to strike the 1993 felony for sentencing purposes; Vallejo represented that he did in fact request that the trial court strike the prior at a hearing on May 14, 2010; the reporter’s transcript from May 14, 2010 contained no record of a request; Yockelson repeatedly attempted to contact Vallejo regarding the failure to make a request, but Vallejo did not respond. Petitioner contends that his present confinement is unconstitutional because he was denied the effective assistance of counsel.
II
DISCUSSION
Ineffective Assistance of Counsel
“The standard for establishing ineffective assistance of counsel is well settled. A defendant must demonstrate that: (1) his attorney’s performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been more favorable to the defendant. [Citation.] A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.] (People v. Stanley (2006) 39 Cal.4th 913, 954.) A defendant must establish both elements by a preponderance of the evidence, otherwise, the claim of ineffective assistance of counsel fails. (People v. Harris (1993) 19 Cal.App.4th 709, 714.)
Defendant must show that defense counsel’s failure to make a “Romero motion” fell below an objective standard of reasonableness. (See Strickland v. Washington (1984) 466 U.S. 668.) Romero stands for the proposition that Penal Code section 1385 permits a judge to dismiss prior felony convictions in order to avoid statutorily increased penalties for the defendant. (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 507-508.) Penal Code section 1385, subdivision (a) states, “The judge or magistrate may, either of his or her own motion or upon application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed....” The statute allows for a motion to be made only by the prosecutor or on the courts own motion. Therefore, defendant’s claim that defense counsel failed to make a “Romero motion” is without merit because “[a] defendant has no right to make a motion, and the trial court has no obligation to make a ruling, under [Penal Code] section 1385.” (People v. Carmony (2004) 33 Cal.4th 367, 375.)
Although the law does not permit defense counsel to make a“Romero motion, ” counsel does have the right to invite the court to dismiss priors in the furtherance of justice. (People v. Carmony, supra, 33 Cal.4th at p. 375.) Competent counsel would invite the court to make and grant its own motion under Penal Code section 1385 absent a reasonable determination such a request would be futile. “Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile.” (People v. Price (1991) 1 Cal.4th 324, 387.)
However, even were we to assume counsel was ineffective in failing to invite the court to exercise its discretion, defendant cannot demonstrate prejudice. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” (Strickland v. Washington, supra, 466 U.S. at p. 697.)
The Three Strikes scheme is intended to limit courts’ discretion in sentencing repeat offenders. There exists no discretionary sentencing choice, unless the sentencing court determines that an exception should be made because defendant is deemed to fall outside the spirit of the Three Strikes law. This analysis includes considering remoteness and the nonviolent nature of prior offenses. (See People v. Bishop (1997) 56 Cal.App.4th 1245.) When deciding whether to strike a prior, “weight must be accorded to factors intrinsic to the scheme, such as the nature and circumstances of the defendant’s present felonies and prior serious and/or violent felony convictions, and the particulars of the his background, character, and prospects. [Citation.]” (People v. Williams (1998) 17 Cal.4th 148, 161.)
State legislatures enacting Three Strikes laws made a deliberative policy choice that individuals who have repeatedly engaged in serious or violent criminal behavior, and whose conduct has not been deterred by more conventional punishment approaches, must be isolated from society to protect the public safety. (Ewing v. California (2003) 538 U.S. 11, 24.) “In imposing a three strikes sentence, the State’s interest is not merely punishing the offense of conviction, or the ‘triggering’ offense: ‘[I]t is in addition the interest... in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.’ [Citations.]” (Id. at p. 29.)
The probation and sentencing report reveals numerous juvenile and adult priors. Although the 1993 prior was remote in time, there seemed to be no subsequent decrease in defendant’s criminal activity. Armed robbery, aggravated robbery, vehicle burglary, theft, and unlawful possession of a firearm by a felon are crimes that present unacceptable risk of injury or violence to the public. Moreover, in the present case defendant committed a residential burglary in an effort to escape capture on another crime. Defendant appears to be the type of repeat offender the Legislature targeted for tougher sentences.
The record in this case clearly shows the trial court was fully aware of its discretion. Moreover, defendant’s own record shows he has committed himself to a life of crime. There is no reason to conclude the court would have found defendant falls outside the spirit of the Three Strikes law given defendant has demonstrated he is incapable of conforming to societal norms.
III
DISPOSITION
The judgment is affirmed and the petition for a writ of habeas corpus is denied.
WE CONCUR:BEDSWORTH, ACTING P. J., ARONSON, J.