Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. Nos. MA028555, MA031474
BOREN, P. J., DOI TODD, J., ASHMANN-GERST, J.
David Christopher Austin, also known as David Reynolds, David Roberson and Kevin Robertson, appeals from the judgments entered upon his conviction of possession of cocaine (Health & Saf. Code, § 11350, subd. (a)), in case No. MA028555, upon his plea of guilty and admission of a 1986 prior felony conviction for robbery (Pen. Code, § 211) within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), and upon his conviction of residential burglary (§ 459), in case No. MA031474, upon his plea of no contest and admission of a 1987 prior felony conviction of first degree burglary within the meaning of sections 1170.12, subdivisions (a) through (d), 667, subdivisions (b) through (i), 667, subdivision (a)(1) and one prior prison term within the meaning of section 667.5, subdivision (b). A certificate of probable cause was issued on June 27, 2006.
All further statutory references are to the Penal Code unless otherwise indicated.
On February 20, 2007, appellant also filed a petition for writ of habeas corpus, case No. B196759, which is considered concurrently with this appeal. A separate order will be filed in that matter.
We do not recite the facts relating to appellant’s offenses as he was found guilty in both cases based upon his pleas.
On September 15, 2004, pursuant to a plea agreement in case No. MA028555, appellant pled guilty to possession of cocaine and admitted a 1986 felony conviction for robbery. As part of the agreement, he received six months in a residential drug treatment program, with drug testing for the entire six months. Sentencing was continued for six months, with the understanding that if appellant complied with all of the conditions of the treatment program, he would receive three years of formal probation and his felony strike would be stricken at the time of sentencing. If he did not comply, the strike would remain, and he would be sentenced up to six years in prison.
On December 27, 2004, appellant was charged in case No. MA030610 with receiving stolen property and, thereafter, in case No. MA031474, with first degree burglary, with allegations of two prior felony convictions within the meaning of section 667, subdivision (a), two prior strike convictions within the meaning of sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i) and several prior prison terms within the meaning of section 667.5, subdivision (b).
On May 8, 2006, pursuant to plea agreement, in case No. MA031474, appellant pled guilty to residential burglary and admitted the 1987 felony conviction of first degree residential burglary and one prior prison term. The trial court sentenced him to the low term of two years on the residential burglary conviction, doubled as a second strike, plus a consecutive five years for the habitual offender enhancement in section 667, subdivision (a) and one year for the prior prison term enhancement in section 667.5, subdivision (b). It sentenced appellant in case No. MA028555 to the midterm of two years in state prison, to run concurrently with his sentence in case No. MA031474. Pursuant to the plea agreement, case No. MA030610 was dismissed.
The abstract of judgment in case No. MA031474 erroneously indicates that appellant was sentenced to the midterm of four years on his burglary conviction. On remand, it must be corrected.
We appointed counsel to represent appellant on this appeal. After examination of the record, counsel filed an “Opening Brief” in which no issues were raised.
On January 16, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished U.S. to consider. On February 13, 2007, appellant filed a supplemental brief which presents numerous unclear contentions. We distill from that brief the substance of the following claims: (1) ineffective assistance of counsel by virtue of counsel’s (a) failure to work on appellant’s case, (b) antagonism towards appellant, (c) failure to challenge appellant’s 21-year-old “daytime,” prior conviction, (d) advice to appellant to accept a 10-year plea offer or he would receive 20 years or more, and (e) failure to raise the sufficiency of the evidence of his prior strike conviction, which was a non-violent, daytime, second degree burglary, (2) his sentence is disproportionate to his crime and history, as none of his offenses involved violence or more than $400 and because he has a mental and drug problem, (3) the trial court imposed sentence without a jury determination of factors in aggravation as required by Cunningham v. California (2007) __U.S.__ [127 S.Ct. 856] (Cunningham),and (4) he was mentally unable to participate in the plea bargain decision.
With respect to the ineffective assistance of counsel claims based upon the failure to perform adequate work on the case, antagonism towards appellant and advice that appellant accept the 10-year plea offer, nothing in the record supports these contentions or indicates that there is a reasonable probability that but for this conduct the results of the proceeding would have been more beneficial to appellant. (See Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn 1.)
Similarly, with respect to the claim that appellant was mentally unable to participate in the plea bargain decision, that claim is unsupported by the record.
Appellant’s ineffective assistance of counsel claim based upon his attorney’s failure to challenge his 1987 conviction of “first degree burglary” is without merit. Appellant suggests it was not a felony strike because it occurred in the daytime and was non-violent. But in 1987, when the prior burglary was committed, section 460 defined first degree burglary as a burglary of an inhabited dwelling house, having been amended in 1982 to eliminate the requirement that the burglary be committed at night. At the time of appellant’s current offense, section 1192.7, subdivision (c)(18) provided that a serious felony was “any burglary of the first degree.” It had previously provided that that burglary of a dwelling house was a serious felony. Under either definition, appellant’s 1987 first degree burglary conviction was a serious felony; it was a first degree burglary and was a burglary of a dwelling house. Contrary to appellant’s assertion, it makes no difference whether the prior offense was committed during the day or at night.
Regarding appellant’s Cunningham claim, Cunningham is inapplicable here as appellant was not sentenced to the upper term and that case is inapplicable to consecutive sentencing. (People v. Black (2007) 41 Cal.4th 799, 821.)
Finally, appellant’s sentence is not disproportionate as the Legislature has determined what offenses are serious and that substantial additional penalties should be imposed for recidivist conduct. There is nothing inherently impermissible in a statute punishing not only for a current offense but for an offender’s recidivism. “Recidivism in the commission of multiple felonies poses a danger to society justifying the imposition of longer sentences for subsequent offenses. [Citation.]” (People v. Cooper (1996) 43 Cal.App.4th 815, 823-824.) This is because the defendant is being punished not merely for his current offense but for his recidivism. The record is also inadequate to support appellant’s claim that his sentence is too harsh because of his mental and drug problems.
In addition to our considering the issues submitted by appellant, we have examined the entire record and are satisfied that appellant’s attorney has fully complied with her responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)
The judgment is affirmed. On remand, the trial court is directed to correct the abstract of judgment in case No. MA031474 consistent with this opinion.