Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. SCN222159, Aaron H. Katz, Judge.
McCONNELL, P. J.
In a negotiated plea agreement, Robert E. Robbins pled guilty to one count of possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a), and admitted he had a prior felony strike conviction within the meaning of Penal Code section 667, subdivisions (b) through (i) and had served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). The trial court sentenced Robbins to an aggregate prison term of three years and eight months.
FACTS
On the night of December 13, 2006, sheriff deputies responded to a report of a disturbance in the apartment of Robbins's girlfriend. When the deputies arrived, Robbins was inside a bedroom closet. The deputies searched Robbins and found a drug pipe. Inside the closet, deputies found a Marlboro box, which contained two bindles of methamphetamine.
On January 24, 2007, Robbins pled guilty to possession of methamphetamine in exchange for a six-year sentencing lid. Robbins also admitted he had a prior strike conviction and had served three prior prison terms.
Robbins's prior strike conviction stems from his 1989 burglary conviction. In 1994, 2000 and 2004, Robbins was convicted of drug offenses and served prison terms.
On April 10 the court denied Robbins's Romero (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) motion to dismiss his prior strike conviction. After dismissing two of the three prior prison term enhancements, the court sentenced Robbins to two years and eight months for the possession count under the Three Strikes Law and imposed an additional year for the remaining prior prison term enhancement. Subsequently, the court issued a certificate of probable cause.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth evidence in the superior court. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible, but not arguable issues: (1) whether the trial court abused its discretion by denying Robbins's Romero motion to dismiss his prior strike conviction, thereby making him eligible for probation; (2) whether the court abused its discretion by not striking all three of Robbins's prior prison term enhancements given that the prosecution had been willing to accept a stipulated sentence of 32 months as a total settlement of the case; and (3) whether the record reflects that Robbins was properly advised to reject the offer of a 32-month stipulated prison sentence as opposed to entering a plea with a six-year lid, which would give him a chance to seek probation by having a Romero motion granted.
We granted Robbins permission to file a brief on his own behalf. He has responded.
Robbins complains that had he taken the prosecution's first plea bargain offer of a 32-month (two years and eight months) stipulated sentence, he would have received a better result than he received under the plea bargain arrangement his counsel promoted─namely, a 44-month (three years and eight months) sentence. Robbins contends he received ineffective representation of counsel because his trial attorney "talked me into signing a plea" for the six-year sentencing lid "by promising me I would get into a drug program. I was told that I would be eligible for [P]roposition 36 by way of Romero." Robbins also cites counsel's failure to "get a continuance" of the April 10 sentencing hearing so that the court could consider evidence that a drug rehabilitation program was willing to accept him. Robbins has included a copy of an April 17 letter from the House of Metamorphosis stating that Robbins's application was screened on April 12, and he "was found acceptable to the House of Metamorphosis program and upon bed availability he will be allowed to enter the program . . . ."
The Sixth Amendment guarantees competent representation by counsel for criminal defendants. (Strickland v. Washington (1984) 466 U.S. 668, 685-686.) The burden is on the defendant to prove he received ineffective assistance of counsel. To do so, the defendant must show counsel failed to act in a manner to be expected of a reasonably competent attorney and that counsel's acts or omissions prejudiced the defendant. (Id. at pp. 687-688, 691-692; see also In re Resendiz (2001) 25 Cal.4th 230, 239.)
"It is well settled that where ineffective assistance of counsel results in the defendant's decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea." (In re Alvernaz (1992) 2 Cal.4th 924, 934; see also Hill v. Lockhart (1985) 474 U.S. 52, 57.)
As a threshold matter, the record does not support Robbins's argument that counsel induced him to plead guilty in reliance on a promise that he would get probation. At the change of plea hearing, defense counsel and Robbins both expressed understanding that the plea exposed Robbins to a maximum possible sentence of six years in prison, and affirmed that no other promises had been made to induce Robbins to plead guilty. Defense counsel also acknowledged that neither the prosecutor nor the court had made any promises regarding Robbins's sentence. To the extent that Robbins's claim is based on matters outside the appellate record, it is more appropriately raised in a petition for writ of habeas corpus. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
As to defense counsel's advice that Robbins should forego a plea bargain in which the parties would stipulate to a 32-month prison term in favor of the six-year lid plea bargain that he accepted, Robbins has not shown counsel failed to act in a manner to be expected of a reasonably competent attorney. The six-year lid plea bargain gave counsel the opportunity to argue that Robbins's prior strike conviction should be dismissed, which would have allowed him to be eligible for a grant of probation and possible enrollment in a drug rehabilitation program. This was the result that Robbins wanted. Counsel's advice allowed Robbins a chance of receiving the desired result; the fact that counsel could not convince the court to dismiss the prior strike conviction did not make the advice bad or render his performance incompetent.
'"Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission." (People v. Fosselman (1983) 33 Cal.3d 572, 581-582.) Even if the record were sufficient to show the defense counsel misjudged the likelihood of the court dismissing the prior strike conviction, this would not support a finding of ineffective assistance of counsel. (See In re Alvernaz, supra, 2 Cal.4th at p. 937 ["We caution that a defense attorney's simple misjudgment as to the strength of the prosecution's case, the chances of acquittal, or the sentence a defendant is likely to receive upon conviction, among other matters involving the exercise of counsel's judgment, will not, without more, give rise to a claim of ineffective assistance of counsel"].)
On appeal, we apply a deferential standard in determining whether an ineffective assistance of counsel claim has merit. " '[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable . . . .' " (In re Cudjo (1999) 20 Cal.4th 673, 692.) We may not "second-guess" counsel's strategic decisions and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." (Strickland v. Washington, supra, 466 U.S. at p. 689; see also People v. Lucas (1995) 12 Cal.4th 415, 436-437.)
We also reject Robbins's complaint that defense counsel's failure to seek a continuance of the sentencing hearing was ineffective assistance of counsel. The sentencing hearing took place on April 10, 2007. The House of Metamorphosis did not screen Robbins until April 12. According to Robbins, a continuance request could have been based on his "waiting for acceptance into a [drug] program." We note that court already had continued the sentencing hearing once─from February 28 to April 10─at defense counsel's request on the basis, among other things, that Robbins was waiting to be evaluated by the Delancey Street Foundation drug program. Even if counsel had requested another continuance and it had been granted, there is no showing in the record that the court would have dismissed the prior strike conviction at a later sentencing hearing. As the court explained to Robbins, "I cannot grant your request brought by your attorney in that I do not believe this is a case that would justify striking a strike. Just given your history and your record, there is simply no justification under Romero to strike that strike and so your request in that regard is denied."
In sum, Robbins's contention that he received ineffective assistance of counsel at trial fails.
A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issues. Competent counsel has represented Robbins on this appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, J., McDONALD, J.