Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. RIF151949, James T. Warren, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant and appellant Michael Luca Spinella appeals from his conviction and sentence following a guilty plea. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Pursuant to a written plea agreement, defendant pled guilty on October 28, 2009, to one count of forgery. (Pen. Code, § 475, subd. (b).) At the time of his guilty plea, the court amended the complaint to add a prior strike allegation. Defendant then admitted the prior strike. All remaining counts and allegations were dismissed and stricken, including two prior prison terms within the meaning of section 667.5, subdivision (b). On April 9, 2010, the trial court followed the plea agreement and sentenced defendant to state prison for 32 months; 16 months doubled as a result of the strike.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant filed a notice of appeal on May 3, 2010. Along with his appeal, defendant requested a certificate of probable cause, which was granted by the trial court. We appointed counsel to represent defendant on appeal.
Appointed counsel on appeal filed a brief under People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth the facts and procedural history, raising no specific issues, and requesting this court to conduct an independent review of the record. On October 25, 2010, we offered defendant an opportunity to file a personal supplemental brief. Defendant filed a supplemental brief on November 15, 2010. On November 30, 2010, defendant also filed a request to amend his supplemental brief to add another page of argument, and this document was filed in the record.
DISCUSSION
Defendant contends his attorney was ineffective because she refused his request to file a motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, asking the court to dismiss his prior strike conviction for sentencing purposes. He believes he would have prevailed on a Romero motion because the prior conviction was actually a “wobbler, ” which was treated as a misdemeanor and would therefore not qualify as a strike. He also contends there were grounds for a motion to dismiss the strike because the prior conviction was 18 years old and his involvement in the offense was minimal. In support of his argument, defendant cites the transcripts, police reports and probation reports from this prior case.
A wobbler is “ ‘an offense which may be charged and punished as either a felony or a misdemeanor.’ [Citations.]” (People v. Statum (2002) 28 Cal.4th 682, 699.) “[T]he characterization of the crime is dependent upon the actual punishment imposed. [Citation.] When a defendant is sentenced to state prison, the offense is a felony; when the defendant is sentenced to county jail, the offense is a misdemeanor. [Citations.]” (People v. Terry (1996) 47 Cal.App.4th 329, 332.)
Whether a wobbler is a misdemeanor or a felony for purposes of the “Three Strikes” law is generally controlled by subdivision (b) of section 17 and subdivision (d)(1) of section 667. Under subdivision (b) of section 17, an offense characterized by statute as a wobbler is only a misdemeanor for all purposes under certain circumstances, such as when the punishment imposed “[a]fter a judgment” is something “other than imprisonment in the state prison.” (§ 17, subd. (b)(1).) Under subdivision (b)(3) of section 17, a wobbler is a misdemeanor for all purposes “[w]hen the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.”
Cases involving wobbler offenses by a minor are controlled by subdivisions (b)(2) and (c) of section 17. In such cases, the court can designate the offense as a misdemeanor when the minor is committed to the Youth Authority. (§ 17, subd. (b)(2).) If the court does not designate the offense as a misdemeanor under subdivision (b)(2) of section 17, the offense is “deemed a misdemeanor for all purposes” when the minor is discharged by the Youth Authority. (§ 17, subd. (c).)
Subdivision (d)(1) of section 667 of the Three Strikes law, provides in part as follows: “The determination of whether a prior conviction is a prior felony conviction for purposes of subdivisions (b) to (i), inclusive, shall be made upon the date of that prior convictionand is not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor.” (Italics added.)
In People v. Glee (2000) 82 Cal.App.4th 99 (Glee), for example, the jury found defendant guilty of a burglary and also found he had previously been convicted of assault with a deadly weapon. He was then sentenced under the Three Strikes law. (Id. at pp. 100-101.) On appeal, he argued there was insufficient evidence to establish the assault conviction was a felony that qualified as a strike. (Id. at p. 101.) The record showed defendant pled guilty to assault with a firearm in violation of section 245, subdivision (a)(2), which was a wobbler, in exchange for probation and one year in the county jail “ ‘with probation to terminate at the end of that year.’ ” (Id. at p. 101.) The appellate court agreed with the defendant that the prior offense did not qualify as a strike because the sentence imposed “automatically rendered the crime a misdemeanor pursuant to Penal Code section 17, subdivision (b)(1).” (Id. at pp. 105-106.) In reaching this conclusion, the appellate court relied on several key facts. First, the sentencing court did not indicate it intended to impose a felony sentence. Second, the sentencing court granted “summary probation, ” which is only authorized in misdemeanor cases. Third, the sentencing court terminated probation upon completion of the jail time, and did not retain jurisdiction over the case to impose a felony sentence if the defendant violated any probation conditions. (Id. at pp. 104-106.) Based on the strength of the other key facts, the appellate court concluded the offense was automatically rendered a misdemeanor under subdivision (b)(1) of section 17, even though there was some contradictory evidence in the record. The sentencing court “suspended proceedings, ” and this was contradictory to a misdemeanor sentence. (Id. at pp. 105-106.)
By contrast, the appellate court in Glee distinguished the facts at issue there from other cases where the court suspends proceedings on a wobbler and grants probation with county jail as a probation condition and some time remains on probation after the defendant is released from jail. In such cases, the court retains jurisdiction over the defendant to impose a state prison sentence for a probation violation committed after the defendant is released from jail. (Glee, supra, 82 Cal.App.4th at p. 105.) Under these circumstances, the offense is not automatically rendered a misdemeanor for Three Strikes purposes under subdivision (b)(1) of section 17 and subdivision (d)(1) of section 667, because the proceedings have been suspended and no judgment or sentence has been imposed. (Glee, at pp. 103-105.)
In his supplemental briefing, defendant essentially attempts to show his prior conviction was not a strike because the facts of his prior conviction are analogous to those at issue in Glee. Based on the police reports, probation reports, and sentencing transcripts in the prior proceeding, defendant argues his prior conviction was not a strike, because he pled guilty to a wobbler and was granted summary or informal probation, with four months in county jail.
There are at least two problems with defendant’s argument. First, defendant claims his prior conviction for a wobbler was to be reduced to a misdemeanor “upon completion of informal probation.” Based on Glee, it does not appear subdivision (d)(1) of section 667 and subdivision (b)(1) of section 17 would apply under these circumstances to automatically render the offense a misdemeanor and bring it outside the Three Strikes law. Rather, these circumstances suggest the court suspended proceedings, did not enter a judgment or sentence, and retained jurisdiction over defendant to impose a prison sentence if he violated any of the conditions of his probation. In other words, defendant’s argument is not a colorable claim that his prior conviction is a misdemeanor and not a strike.
Second, there is nothing in the record on appeal to support defendant’s contention his prior conviction is a misdemeanor, not a felony, and therefore does not qualify as a strike. During defendant’s change of plea hearing, the prosecutor called the prior conviction a strike and indicated it was a violation of section 211 (robbery) from October 11, 1991. Robbery is defined in section 211 as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” Robbery can either be classified as first or second degree. (§§ 212.5, 213.) First and second degree robbery are both punishable by imprisonment in the state prison. Robbery is therefore a felony, not a wobbler. When the court asked defendant whether he was convicted of section 211 on October 11, 1991, he replied, “Yes.”
Without more, the record suggests counsel’s purported decision not to pursue a Romero motion was competent under the circumstances. As in this case, when a defendant claims counsel’s performance was deficient for failure to file a motion, the defendant must show that reasonably competent counsel would have filed such a motion and the motion would have been successful. (People v. Thompson (2010) 49 Cal.4th 79, 122.) “The Sixth Amendment does not require counsel ‘ “to waste the court’s time with futile or frivolous motions.” ’ ” (People v. Memro (1995) 11 Cal.4th 786, 834.)
Ineffective assistance of counsel claims based on matters outside the record on direct appeal are more appropriately raised in a habeas corpus proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
There is a “ ‘strong presumption’ [citation] that the trial judge properly exercised his discretion in refusing to strike a prior conviction allegation.” (In re Large (2007) 41 Cal.4th 538, 551.) To overcome the presumption, the defendant has the burden of demonstrating an abuse of discretion and, in the absence of such a showing, we presume the trial court acted correctly. (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) The circumstances must be “ ‘extraordinary’ ” for a career criminal to be deemed to fall outside the scheme of the Three Strikes law. (Id. at p. 378.) A decision to strike a prior conviction remote in time is an abuse of discretion where the defendant has not led a crime-free existence since the time of his last conviction. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.)
Although the prior strike conviction in this case was remote in time, the record indicates defendant did not lead a crime-free existence after he committed the qualifying offense. The complaint alleged defendant had two other prior felony convictions, which he incurred after the strike. On July 8, 2005, it was alleged defendant was convicted of receiving stolen property. (§ 496.) It was further alleged defendant was convicted of forgery (§ 470) on October 26, 2007. According to the complaint, defendant served a prison term for both of these offenses within the meaning of subdivision (b) of section 667.5. These prior conviction allegations were dismissed and stricken as part of the plea agreement. However, defendant has not shown these offenses were not part of his prior record and were alleged in error. As a result, there is nothing in the record to indicate defendant could have prevailed on a motion to dismiss the prior strike conviction. Therefore, contrary to defendant’s contention, there is no evidence in the record to support his ineffective assistance of counsel claim. Under the circumstances presented, we can only conclude the trial court properly used his prior conviction to double his sentence under the Three Strikes law. (§§ 667, subds. (d) & (e)(1), 667.5, subd. (c)(9).)
We have now concluded our independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
We concur: RICHLI, J., KING, J.