Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1413287. Scott T. Steffen, Judge.
John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Franson, J.
PROCEEDINGS
Appellant, Thomas Randolph Adams, was charged in a criminal complaint filed January 13, 2010, with felony possession of methadone, a controlled substance (Health & Saf. Code, § 11350, subd. (a), count one) and misdemeanor possession of a syringe (Bus. & Prof. Code, § 4140, count two). The complaint alleged a prior serious felony conviction for attempted robbery (Pen. Code, §§ 664 & 211) pursuant to the three strikes law (§ 667, subd. (d)).
Unless otherwise designated, all further statutory references are to the Penal Code.
On April 30, 2010, appellant entered into a plea agreement in which he would admit count one and the prior serious felony conviction pursuant to the three strikes law. Under the agreement, appellant would receive the midterm of two years on count one, doubled to four years pursuant to the three strikes law. The trial court advised appellant of the consequences of his plea and explained his constitutional rights pursuant to Boykin/Tahl. The parties stipulated to a factual basis for the plea. Appellant pled no contest to count one and admitted a prior serious felony conviction within the meaning of the three strikes law for attempted robbery (§§ 664 & 211).
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
The prosecutor stated that on December 22, 2009, while in Ceres, appellant possessed 16 pills analyzed by criminalist Jillian Bartgis to be the controlled substance, methadone. Each pill was a usable amount of methadone and appellant was aware of its nature as a controlled substance.
The remaining allegations were dismissed. The appellant agreed to be sentenced without the preparation of a formal probation report. The court sentenced appellant to prison for two years, doubled to four years pursuant to the three strikes law. Appellant received 70 days of actual presentence custody credits, plus 34 days of conduct credits. Appellant obtained a certificate of probable cause.
Appellant did not receive additional custody credits pursuant to section 4019, as amended on January 25, 2010. Because appellant has a prior felony conviction for attempted robbery, a serious felony under section 1192.7, subdivision (c)(19) and (c)(39), appellant is not entitled to additional custody credits under section 4019 even if they are found to apply retroactively.
APPELLATE COURT REVIEW
Appellant’s appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (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 January 18, 2011, we invited appellant to submit additional briefing.
Appellant replied with a letter complaining that his trial counsel had a conflict and did not defend him. Appellant further complains the trial court “droped [sic] one strike.” Appellant asserts that he has prior convictions for attempted robbery (§§ 664 & 211) and for assault (§ 245, subd. (a)), which appellant claims is not a strike offense. Appellant believes the trial court dropped a strike and that he should, therefore, be receiving halftime custody credits.
A defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, a 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.)
Other than the unsupported claims made in his letter, appellant has presented no evidence to support his assertions that his trial counsel had a conflict with appellant and failed to represent appellant. Without affirmative proof of these allegations, appellant has not demonstrated ineffective assistance of trial counsel.
Appellant’s assertion that the trial court struck a prior serious felony conviction is incorrect. As a term of the plea agreement, appellant admitted a prior serious felony conviction for attempted robbery. He had been advised that a consequence of this admission would be a doubling of his sentence from two years to four years. The court dismissed allegations of prior prison term enhancements, but not the allegation of a prior serious felony conviction. We find no merit to appellant’s claim that the trial court struck the allegation of a prior serious felony conviction or that he is entitled to half-time custody credits.
Attempted robbery is a serious felony under section 1192.7, subdivision (c)(19) and (c)(39).
After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.