Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 62 051996, 62 067662, 62 067700, 62 089674A
BUTZ, J.
Defendant Darin Durel Blockton pleaded guilty to selling cocaine and possessing cocaine for sale (Health & Saf. Code, §§ 11352, subd. (a), 11351), and admitted he had a prior narcotics conviction (id., § 11370.2, subd. (a)) and a prior strike conviction (Pen. Code, §§ 667, 1170.12). Sentenced to an aggregate term of 13 years in state prison, he appeals.
Undesignated statutory references are to the Penal Code.
Defendant contends his prior conviction admissions must be reversed because he was not properly advised of his constitutional rights. He further contends the trial court abused its discretion in failing to dismiss his prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), and that his trial counsel rendered ineffective assistance by failing to request that the court exercise its discretion to dismiss the prior narcotics conviction enhancement. We shall affirm.
FACTUAL BACKGROUND
As defendant pleaded guilty, we take the facts underlying the offenses from the prosecutor’s statement of the factual basis of the plea.
“[O]n or about April 30th, 2009, the [Special] [I]nvestigation[s] [U]nit [SIU] of Placer County received a tip that defendant was selling illegal drugs out of the back door of Perry’s Barbershop in Roseville. They set up a surveillance at that location.
“At approximately 1613, a very expensive Mercedes pulled up in front and parked next to the business.... [T]he Mercedes was occupied by a male driver and female passenger later identified—the male driver [was] later identified as codefendant Edgar Pineda David. After about 30 minutes the car left. The car arrived back at that same location.
“At 1758 on that same day, the defendant exited the business and entered the rear seat of the back of the Mercedes. After a very short time, the defendant was seen shaking hands with the driver. He exited the car and went back into the barbershop. The Mercedes left the area, and SIU agents maintained surveillance of that car the entire time as the Mercedes left that business.
“At 1806... Roseville Police Officer Cortes made a traffic stop still with agents keeping the Mercedes under surveillance. The traffic stop of the Defendant David was made. And during the course of the contact, a bystander observed Mr. David dropkick a ball of cocaine out his door. Pictures of this event were taken.
“The driver ultimately was arrested, Mr. David, for possession and transportation of approximately 3.45 grams of cocaine. SIU agents then detained Defendant Darin Blockton and located $1,713 cash on him. Cell phones were found both in the possession of Mr. David, the codefendant, and Mr. Blockton. Mr. David was the buyer of the cocaine. Mr. Blockton was the seller, and there are text messages back and forth referencing the drug transaction that took place at approximately 1758 on April 30th, 2009.
“Further investigation revealed the cash was placed in a cardboard box next to two other cardboard boxes and a garbage can and a drug sniffing narcotics dog detected on the money indicating it had been in contact with drugs.
“The amount of cocaine determined by Valley Toxicology was 2.88 grams, a usable amount, and it contains cocaine salt.”
The trial court denied defendant’s request to dismiss his prior strike and his request for the low term. Defendant had already been found in violation of probation in case Nos. 62 051996, 62 067662, and 62 067700. The trial court sentenced defendant to an aggregate term of 13 years as follows: the midterm of four years, doubled to eight years, for selling cocaine (case No. 62 089674A) plus a consecutive three years for the prior narcotics conviction enhancement (case No. 62 089674A); a consecutive one third the midterm of 16 months for selling a controlled substance (case No. 62 051996); and a consecutive eight months for keeping a place to sell a controlled substance (case No. 62 067700). The court imposed and stayed the midterm of three years, doubled to six, for possessing cocaine for sale (case No. 62 089674A) and terminated probation in case No. 62 067662.
DISCUSSION
Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274] (Boykin); In re Tahl (1969) 1 Cal.3d 122 (Tahl).
Defendant contends his plea was not voluntarily and intelligently entered because the trial court failed to fully advise him of the constitutional rights he gave up by admitting his prior convictions. We reject his contention.
As with a guilty plea, when a defendant seeks to admit sentence enhancements based on prior convictions, the trial court must (1) advise him of his constitutional rights to a jury trial, to confront witnesses against him, and against self incrimination, and (2) obtain the defendant’s waivers of those rights. (People v. Howard (1992) 1 Cal.4th 1132, 1175, 1177, 1179 (Howard); see Boykin, supra, 395 U.S. 238 [23 L.Ed.2d 274]; Tahl, supra, 1 Cal.3d 122.
Here, the trial court advised defendant of his Boykin/Tahl rights prior to accepting defendant’s plea. The court did not, however, specifically advise defendant that the rights pertained to both the substantive charges and the allegations of prior convictions. Thus, the question is whether the record shows that defendant’s admission to the prior conviction allegations were “voluntary and intelligent under the totality of the circumstances.” (Howard, supra, 1 Cal.4th at p. 1175.) We conclude it was.
We note initially that defendant signed a written waiver of rights form. The form lists all of the substantive charges and all of the prior conviction enhancements, and then states: “You have the following trial rights in connection with the charges which are now pending against you. You will be giving up all of the following rights if you enter a plea of guilty or no contest.” Defendant initialed next to the listed rights he understood and gave up, including his rights to a jury trial, confrontation of witnesses, subpoena, testifying in his own defense, and remaining silent. The form referred to defendant entering, the consequences of, and the trial court accepting his “plea” in the singular. Further, defendant’s attorney also signed the form, attesting that he had explained not only the contents of the form to defendant, but had advised him of his rights, defenses and the consequences of his plea. Thus, the record reflects that defendant was adequately informed of, understood, and waived his rights prior to entering his plea. (See In re Ibarra (1983) 34 Cal.3d 277, 286 (Ibarra), disapproved on other grounds in Howard, supra, 1 Cal.4th at pp. 1174 1175.)
Moreover, the trial court questioned defendant in open court to assure that defendant understood his rights. Again, referring to all the separate pleas and admissions as “your plea, ” in the singular, the trial court reviewed defendant’s Boykin/Tahl rights, assuring that defendant understood and waived each one. The trial court’s additional canvassing, in addition to the written waiver form, was sufficient to ensure defendant’s plea was voluntary and intelligent.
We disagree with defendant that the fact that the court or waiver form used the phrase “plea of guilty or no contest” indicates that defendant was not advised that his constitutional rights applied to admissions of prior convictions. In context, the word “plea” and the vernacular of “guilty or no contest” was not used in a way so as to limit the discussion (or written waiver form) to substantive charges to the exclusion of enhancement allegations. For example, the trial court also assured that defendant understood that, by entering “a plea of guilty or no contest to the charges in [this case], ” he would be subjecting himself to the maximum possible sentence of 15 years—a term that necessarily included the prior conviction enhancements. And again, the waiver form referred to defendant entering, the consequences of, and the trial court accepting his “plea” in the singular. Likewise, the trial court consistently referred to defendant’s “plea” in the singular.
Defendant entered his pleas to the substantive charges and his admissions of the prior convictions in a single proceeding. “[W]here there is nothing in the manner in which the plea is taken which actually or in effect separates the substantive offense from [an enhancement] allegation, a single express advisement and waiver of defendant’s constitutional rights is sufficient....” (People v. Forrest (1990) 221 Cal.App.3d 675, 681 (Forrest).)
Defendant’s attempts to distinguish Forrest are to no avail. On the advisement and waiver form, the advisement and waiver section was preceded by a recitation of all of the charges, including the prior conviction allegations. And the trial court’s oral advisement was preceded by a recitation of the plea agreement, which was described as “a plea to the sheet, ” including pleading guilty to all substantive offenses and admitting all prior conviction allegations, with a maximum sentence of 15 years. Thus, unlike People v. Bell (1981) 118 Cal.App.3d 781 (Bell), disapproved on other grounds in Ibarra, supra, 34 Cal.3d at p. 286, upon which defendant relies, the trial court here did not implicitly separate the substantive charges from the prior conviction allegations. Instead, both the trial court and the advisement and waiver form informed defendant that he was pleading to both substantive charges and admitting the prior conviction allegations before proceeding with the advisements of defendant’s constitutional rights.
Finally, People v. Christian (2005) 125 Cal.App.4th 688, cited by defendant, stands for the proposition that advisements must include the privilege against self incrimination and the right of confrontation, not merely the right to a jury trial. It does not advance defendant’s claim here. (Id. at pp. 697 698.)
Considering the totality of the circumstances, the record demonstrates defendant’s plea was voluntary and intelligently entered.
II. Romero Request
Defendant contends the trial court abused its discretion by denying his request to dismiss his prior serious felony conviction pursuant to Romero, supra, 13 Cal.4th 497 and section 1385. We find no abuse of discretion.
Section 1385 gives the trial court authority, on its own motion or upon application of the prosecution, “and in furtherance of justice, ” to order an action dismissed. (§ 1385, subd. (a).) In Romero, the California Supreme Court held a trial court may utilize section 1385 to strike or vacate a prior strike for purposes of sentencing under the three strikes law, “subject, however, to strict compliance with the provisions of section 1385 and to review for abuse of discretion.” (Romero, supra, 13 Cal.4th at p. 504.) Likewise, a trial court’s “failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) Dismissal of a strike is a departure from the sentencing norm. Therefore, in reviewing a Romero decision, we will not reverse for abuse of discretion unless the defendant shows the decision was “so irrational or arbitrary that no reasonable person could agree with it.” (Carmony, at pp. 374 375, 377.)
In making a decision on whether to strike a prior conviction allegation, the trial court considers the current offenses, prior convictions, and the defendant’s background. (Carmony, supra, 33 Cal.4th at p. 377.) The trial court “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)
Here, defendant reiterates the argument rejected by the trial court and claims, “[q]uite simply, the [trial court’s] decision was so irrational and arbitrary that no reasonable person could agree with it.” We disagree.
The trial court provided a lengthy explanation for its decision not to dismiss defendant’s strike. Specifically, the court emphasized defendant’s significant criminal background, including: Having been adjudged a ward of the court as a juvenile in 2002 for vandalism and then a subsequent probation violation; convictions for possessing a deadly weapon and transporting, possessing or selling narcotics in 2006; deferred judgment for possessing narcotics, also in 2006; convictions for driving under the influence and while his license was suspended, also in 2006; another conviction for driving while his license was suspended in 2007; a conviction for maintaining a place to sell narcotics in 2007; and his strike conviction for participation in a criminal street gang in 2008. Considering this criminal record, the trial court reasonably concluded that defendant is a recidivist who has demonstrated that he is not going to obey the law or the terms and conditions of the numerous grants of probation he has been offered and who falls within the spirit of the three strikes law.
While defendant focuses on the fact that he has not previously served time in prison, he ignores the fact that he has been ordered to serve local time on nine separate occasions, has been placed or reinstated on probation nine times, and has continued to reoffend. As also noted by the trial court, defendant’s strike conviction was very recent and involved the potential for violence, as there were rifles, handguns, over $4,000 in cash, and packaging and counterfeit bills found in his apartment in connection with the gang participation crime. Considering this criminal history, the fact that defendant has been granted leniency in the past and has not previously served time in prison does not mandate the dismissal of his strike in this case. Nor does the fact that he has a job as a barber compel such a result.
In sum, we conclude the trial court did not abuse its discretion in declining to dismiss defendant’s prior strike conviction.
III. Dismissal of Prior Narcotics Conviction
Defendant admitted he had a prior narcotics conviction within the meaning of Health and Safety Code section 11370.2, subdivision (a), and the trial court imposed a consecutive three year term for the enhancement. Defendant now contends he received constitutionally deficient representation because his trial counsel did not invite the court to exercise its discretion to strike the three year prior narcotics conviction enhancement. We conclude his failure to make such a request, particularly after the trial court had denied his request pursuant to Romero, supra, 13 Cal.4th 497, was not ineffective assistance of counsel.
Health and Safety Code section 11370.2, subdivision (a) provides that any person convicted of a qualifying felony drug offense “shall receive, in addition to any other punishment authorized by law..., a full separate, and consecutive three year term for each prior felony conviction.”
Prior to 1997, Penal Code section 1170.1, subdivision (h) provided that a sentencing court could strike a Health and Safety Code section 11370.2 enhancement if the court determined that there were circumstances in mitigation and stated on the record its reasons for striking the additional punishment. In 1997, the Legislature repealed this version of subdivision (h), but clearly stated that its intent in doing so was not to “alter the existing authority and discretion of the court to strike those enhancements or to strike the additional punishment for those enhancements pursuant to [Penal Code] Section 1385, except insofar as that authority is limited by other provisions of the law.” (Stats. 1997, ch. 750, § 9, p. 5069.) Thus, the trial court retained the discretion to strike defendant’s Health and Safety Code section 11370.2 sentence enhancement.
Here, the record does not contain any evidence that the trial judge was not fully aware he retained the discretion to strike the three year enhancement allegation for the prior drug conviction within the meaning of Health & Safety Code section 11370.2. (See People v. Fuhrman (1997) 16 Cal.4th 930, 945 946.) The trial court is under no duty to acknowledge on the record its discretion to strike enhancements. (People v. Langevin (1984) 155 Cal.App.3d 520, 524.) It is presumed that official duty is performed. (Evid. Code, § 664.) Thus, trial counsel’s failure to invite the court to do so, based on the same facts that counsel argued supported dismissing the strike and imposing the low term, was of no consequence. Moreover, such a request would have been futile.
To establish ineffective assistance of counsel, defendant must demonstrate that counsel’s performance was deficient and that he suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687 688, 691 692 [80 L.Ed.2d 674, 693, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216 218.) Defendant contends that, despite the trial court’s decision not to dismiss his prior strike pursuant to section 1385, and despite the trial court’s decision to impose the midterm, it is reasonably probable that it would have exercised its discretion to dismiss the three year enhancement pursuant to section 1385 had counsel made the request. We disagree. The trial court’s decision that defendant fell within the spirit of the three strikes law and should serve the midterm, doubled, rather than the low term, as argued by defense counsel, indicates that it did not find the current sentence inappropriate considering the nature and circumstances of the offenses; defendant’s criminal history and other particulars of his background, character and prospects; defendant’s interests; and the interests of society. (See generally Williams, supra, 17 Cal.4th at p. 161; People v. Orabuena (2004) 116 Cal.App.4th 84, 99.) Accordingly, trial counsel was not ineffective for any failure to pursue a futile request. (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836.)
In sum, because there is no indication the trial court was unaware of its discretion to strike the enhancement, trial counsel’s failure to request it do so was neither deficient performance nor prejudicial. Additionally, because there is no reasonable probability that the trial court would have exercised its discretion to strike the enhancement had trial counsel argued the matter, defendant was not prejudiced.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, P. J. BLEASE, J.