Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC585862
Premo, J.
Defendant Anthony Ladon Brown appeals from a judgment entered after pleading no contest to one felony count of possession of methamphetamine for sale. (Health & Saf. Code, § 11378.) Brown also admitted allegations that he had suffered three prior “strike” convictions (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and that he had served two prior prison terms (§ 667.5, subd. (b)). At sentencing, the trial court denied Brown’s Romero motion and sentenced him to a term of 25 years to life.
All further statutory references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
On appeal, Brown contends that the trial court improperly denied his Romero motion. In a separate petition for writ of habeas corpus, which we ordered considered with the appeal, Brown raises a claim of ineffective assistance of counsel. Finding no merit to Brown’s arguments, we affirm the judgment and deny the petition for writ of habeas corpus.
I. Factual and Procedural Background
We derive the facts from the probation reports and other documents in the clerk’s transcript.
A. The current offense
On March 20, 2005, at approximately 12:15 a.m., San Jose Police responded to a report of a disturbance at Brown’s residence. The reporting party, Marcella White, told officers that she was at Brown’s residence to pick up their son. She believed the home was not safe for their child, as she had witnessed a gun and a large amount of drugs in a safe in Brown’s room on a previous occasion.
Brown consented to a search of his room, where officers located a safe. Brown claimed that he did not know the combination to the safe and denied that there were any drugs or guns in it. During the investigation, a K-9 unit alerted to possible drugs in the safe.
Brown was arrested and taken into custody. After being read his Miranda rights, Brown stated that he had owned the safe for about a year, but had not opened it in over four months. He again denied that there were any drugs or weapons in the safe.
When the safe was opened, it was found to contain $4,000 in cash, a digital scale, 17 similar-sized baggies containing approximately 7.13 grams methamphetamine apiece, as well as one large baggie with 156.31 grams of methamphetamine. Officers located three additional digital scales in Brown’s bedroom.
On October 26, 2006, Brown was charged by first amended information with possession for sale of methamphetamine. (Health & Saf. Code, § 11378.) The information further alleged that Brown had suffered three prior “strike” convictions (§§ 667, subds. (b)-(i), 1170.12) and had served two prior prison terms (§ 667.5, subd. (b)).
On February 26, 2007, Brown pleaded no contest to the charge of possession for sale, and admitted the allegations regarding his prior convictions as well as his prior prison terms.
B. Prior strike offenses
1. 1984 robbery (§ 211)
In October 1984, Brown was serving a commitment to the Santa Clara County James Ranch, when he was released for the day to spend time with his family. Brown, who was 17 at the time, along with five other males, approached two juveniles, ages 15 and 16, outside of the Eastridge Mall. After threatening to beat the two juveniles, Brown and his companions robbed them of $23 in cash, and several items that the juveniles had recently purchased, including a poster, a stuffed animal and a cassette tape. Brown was apprehended and admitted to robbing the two juveniles.
2. 1986 voluntary manslaughter (§ 192, subd. (a))
At about 10:30 p.m. on July 20, 1986, Brown was involved in an altercation involving approximately 40 to 50 people. Witnesses observed Brown exit the melee, holding his eye. Brown then pulled a gun from his back pocket, re-entered the fray and shot the victim, one David B., killing him. In subsequent statements to the police, Brown said that, before the shooting, someone named Pierre had hit him in the eye with a hammer. Brown admitted to police that he did not shoot at Pierre, but that he did intentionally shoot David B. because he had previously had problems with that individual. Brown was sentenced to 13 years in prison for this offense.
The probation report prepared in November 2005 identifies the person who purportedly hit Brown with a hammer as “Pierce.” However, the supplementary offense report, prepared in September 1986 in connection with the investigation into the shooting, refers to this person as “Pierre.” The discrepancy is not relevant to the issues presented in this appeal.
3. 1996 reckless evasion with gang enhancement (Veh. Code, § 2800.2 ; § 186.22, subd. (b)(1))
On April 1, 1996, at approximately 9:00 p.m., a security officer flagged down a San Jose police officer regarding a gang fight in progress. The two gangs involved were “Seven Trees Crips” and “Family Crip Gangsters.” Police began to follow a car, driven by Brown, which had been identified as being at the scene of the gang fight. A high speed chase ensued. At one point during the chase, the car slowed down to approximately 30 miles per hour and the occupants threw two handguns from the car. The chase continued, reaching speeds of up to 80 miles per hour. At some point, Brown exited the freeway and, on surface streets, drove into opposite lanes of traffic and ran multiple red lights. He eventually stopped the car, where he and two passengers fled on foot. Brown, who was still on active parole for the 1986 voluntary manslaughter, was apprehended.
Brown was subsequently convicted and sentenced to six years in prison.
C. Romero hearing and sentencing
Brown filed a Romero motion asking the trial court to dismiss the three strike priors before sentencing. Brown argued that the court should dismiss his strike priors “in furtherance of justice” as described in section 1385, subdivision (a), because his present felony was not serious or violent. He also argued that two of his prior strikes were at least 20 years old and the most recent strike was 10 years old.
Brown’s motion also related various personal factors in support of striking his strike priors, such as the fact that he has two young children, and had been gainfully employed for the three years prior to his arrest in 2005. After being released from prison in 2000, he had been discharged from parole in December 2003. Furthermore, in his interview with the probation officer, Brown stated that he only began selling methamphetamine in order to support his own methamphetamine habit. While Brown also told the probation officer that he did not see his methamphetamine use as “problematic,” by October 2006, he was enrolled in a substance abuse program at the county jail.
At the April 6, 2007 hearing on the motion, the trial court agreed that the current offense was not serious or violent, and that Brown had tried to maintain employment over the past few years. However, the trial court was ultimately concerned that there was a report of a firearm in the current case, especially as one of Brown’s prior strikes involved him using a firearm to kill someone. In addition, Brown had admitted beginning to use methamphetamine in early 2005, after having been released from prison. Finally, the supplemental probation report was very negative, pointing out that Brown displayed the behavior of a career criminal and had spent the majority of his adult life incarcerated.
The trial court denied Brown’s Romero motion and sentenced him to 25 years to life in prison.
II. Discussion
Brown argues that the trial court abused its discretion in two ways. First, the trial court based its denial of his Romero motion on erroneous factual findings, i.e., that there was a firearm involved and that Brown was on parole at the time of the instant offense. Second, the trial court committed legal error when it said that it did not have discretion to sentence Brown to less than 25 years to life.
A. Standard of review
A defendant has the right to seek review of a court’s decision not to strike a prior conviction. (People v. Carmony (2004) 33 Cal.4th 367, 376.) The court’s decision is reviewed under the abuse of discretion standard, and the burden on defendant is to show that the court’s decision was “ ‘ “irrational or arbitrary.” ’ ” (Id. at pp. 376-377.) In reviewing a ruling on a motion to strike priors under section 1385, the 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.)
“[A]n appellant who seeks reversal must demonstrate that the trial court’s decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance.” (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.)
B. The trial court did not abuse its discretion in denying the motion
1. The firearm and Brown’s parole status
Citing People v. Cluff (2001) 87 Cal.App.4th 991 (Cluff), Brown argues the court abused its discretion because its findings were based on erroneous facts, specifically that Brown was still on parole and that there was a gun involved in the instant offense.
In Cluff, the defendant was convicted of violating section 290, failing to comply with the sexual offender registration scheme. In addition, the court found Cluff had suffered three prior strikes under the Three Strikes law and had served a prior prison term. Cluff’s motion to strike the prior conviction allegations was denied. Though Cluff had not changed his residence, he had failed to comply with a separate requirement, added five years after he had been released from prison, that he annually update his registration within five days of his birthday. On appeal, the court remanded the matter for resentencing, holding substantial evidence did not support the critical inference the court relied on in denying the motion to strike. The court said, “In this case, the trial court’s analysis became disconnected from the evidence and entered the realm of imagination, speculation, supposition, and guesswork. At trial, the court had refrained from determining whether Cluff’s registration violation was negligent or intentional. At the sentencing hearing, however, the court resolved its earlier doubts and concluded that Cluff had not inadvertently failed to annually update his registration, but had done so with knowledge of the requirement in order to ‘obfuscate’ his true residence. We accept the trial court’s finding that the violation was intentional (as we would have if the court had made that finding at trial); the evidence that Cluff had notice of the new requirement supports that determination. However, none of the facts before the court--whether considered separately or together--support the inference that Cluff failed to update his registration in order to obfuscate his residence or escape the reach of law enforcement.” (Cluff, supra, 87 Cal.App.4th at pp. 1002-1003.)
At the hearing on Brown’s motion, the trial court expressed its “belie[f] that there were weapons involved in this case” because the reporting witness had said there were both drugs and a gun in the safe. The trial court continued, “So the fact that he[,] while on parole after having served a lengthy sentence[,] is again in possession of a gun, I think is a very disturbing fact with regard to the nature of the current offense, even though it’s not serious or violent.”
After Brown’s attorney clarified that “there was not a scintilla of evidence found in [Brown’s] apartment suggesting a firearm was present,” the trial court acknowledged that the police had not actually found a gun, but noted that since White’s report about the drugs was, in fact, reliable, her report about the gun was entitled to some credence. The trial court also noted that Brown was not credible, because he twice denied to police that there were any drugs in the safe.
The trial court continued, “I can’t say that if the facts were clear that he didn’t have a gun or conclusive that he didn’t have a gun that my decision would be any different. I’m just saying that that’s the coup de grace. That makes it really beyond question that [the Romero motion] should be denied, I think in my opinion. [¶]... [¶]... [L]ooking at Mr. Brown’s factual situation, you have significant amounts of drugs, you’ve got a possible gun, and I am influenced by that, but I don’t think it’s dispositive. [¶] There is an absolute[ly] awful recommendation by the probation department regarding his prospects. He’s starting to use drugs while out on parole after doing a lengthy sentence. [¶] And that’s not something that’s positive that shows here we have somebody who is trying to escape from a career of crime that was the result of misspent youth. [¶] So if he’s a career criminal and he’s had a history of serious and violent felonies and there’s no serious indication that he wants to depart from that lifestyle, I don’t see it in here anywhere, then how can I say that this is a case that should be outside of the three strikes law?”
Brown’s attorney then advised the court that Brown had, in fact, successfully discharged parole prior to being arrested for the instant offense. The trial court responded that it had analyzed the nature of the prior crimes, Brown’s prospects and the current offense, but “the only thing that’s positive is that the present offense is not per se on its face a serious or violent felony.”
Here, even if the trial court was initially misinformed about the existence of a gun and Brown’s parole status, Brown’s counsel corrected those facts on the record at the Romero hearing. The trial court expressly acknowledged that although it was “influenced” by the report of a gun, it was not “dispositive.” The trial court also acknowledged that Brown had completed parole, but ultimately stated that it was concerned principally about the quantity of drugs involved, that Brown was selling drugs, that there was a report of a gun in the safe, and the fact that Brown had only recently started using drugs, as opposed to being a long-time addict “that’s trying to beat it and finally getting too old to commit crime.” There was ample evidence in the record to support these concerns, and thus the trial court here was not, as in Cluff, operating in “the realm of imagination, speculation, supposition, and guesswork.” (Cluff, supra, 87 Cal.App.4th at p. 1002.) Consequently, the trial court did not rely on “erroneous” facts in denying the Romero motion.
2. The trial court’s comments regarding its discretion to dismiss strike priors
Brown also argues that the trial court misunderstood the scope of its discretion to dismiss his strike priors because it repeatedly stated at the sentencing hearing that it believed a sentence of 10 to 15 years would be appropriate but that it lacked the discretion to treat Brown as if he had only one strike prior. According to Brown, the trial court’s comments demonstrate that it did not understand that it could find he fell partially outside the spirit of the three strikes law, that it could properly consider the length of the alternative sentence it would impose if it dismissed two of Brown’s prior strikes or that the dismissal of two of the prior strikes would not be unreasonable as a matter of law.
“[A]n abuse of discretion occurs where the trial court was not ‘aware of its discretion’ to dismiss” a strike prior. (Carmony, supra, 33 Cal.4th at p. 378.) Looking at the trial court’s comments in context, we do not believe that these remarks indicate that it misunderstood the scope of its authority. In fact, at the outset of the hearing, the trial court made clear that since Brown had “admitted three strike convictions,... the question is whether two or more should be stricken pursuant to the Romero decision. [¶] If I strike only one it would have no effect.”
It is true that the trial court expressed its preference for “total and complete discretion” in sentencing Brown, but the record makes clear that the trial court, in making these statements, was articulating its dissatisfaction with the sentencing strictures laid out by the three strikes law, not conveying any lack of awareness of its discretion to dismiss prior strikes. For example, immediately after the trial court indicated that it wished it had “total and complete discretion” in sentencing Brown, it said, “But in order to get there I have to find following the guidelines that have been set out by Williams and so forth and the appellate cases, that this is a case that falls--clearly falls without the three strikes law, and it really doesn’t, it just doesn’t.” (Italics added.) Later in the hearing, the trial court again said, “[t]he appellate authorities are very clear that just because a predicate offense is not a serious and violent offense, that doesn’t mean the Court should willy-nilly outside the guidelines of the Williams case strike priors in order to bring this in within the normal sentencing range.”
The context makes clear that the trial court is here referring to a place where it would have “total and complete discretion” regarding sentencing Brown.
Taken in their entirety, the trial court’s remarks illustrate simply that it properly understood that a “court’s discretion to strike prior felony conviction allegations in furtherance of justice is limited” (Romero, supra, 13 Cal.4th at p. 530), and that “no weight whatsoever may be given to factors extrinsic to the [Three Strikes] scheme....” (Williams, supra, 17 Cal.4th at p. 161.) “[A] primary purpose of the Three Strikes law was to restrict judicial discretion” (People v. Garcia (1999) 20 Cal.4th 490, 501 (Garcia)), and “the [T]hree [S]trikes law not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so.” (Carmony, supra, 33 Cal.4th at p. 378.) In fact, it is an abuse of discretion for a trial court to dismiss prior strike convictions “ ‘guided solely by a personal antipathy for the effect that the [T]hree [S]trikes law would have on [a] defendant.’ ” (Romero, supra, at p. 531.) We therefore reject Brown’s contention that the trial court misunderstood the scope of its discretion to dismiss his strike priors.
At several points during the hearing, the trial court indicated that there could be no real doubt that Brown’s behavior fell within the spirit of the Three Strikes law. For example, the trial court noted, “[L]ooking at Mr. Brown’s factual situation, you have significant amounts of drugs, you’ve got a possible gun, and I am influenced by that, but I don’t think it’s dispositive. [¶] There is an absolute[ly] awful recommendation by the probation department regarding his prospects. He’s starting to use drugs while out on parole after doing a lengthy sentence. [¶] And that’s not something that’s positive that shows here we have somebody who is trying to escape from a career of crime that was the result of misspent youth. [¶] So if he’s a career criminal and he’s had a history of serious and violent felonies and there’s no serious indication that he wants to depart from that lifestyle, I don’t see it in here anywhere, then how can I say that this is a case that should be outside of the three strikes law? [¶]... [¶] It’s presented to me with a case that possibly involves a gun, involves a significant amount of drugs where the defendant is not candid about his involvement, where he’s admittedly starting to use drugs, where he’s had a lengthy time in prison before where that involved guns with terrible consequences, and no--the only positive thing is the job....”
On this record, Brown cannot show that the refusal to strike one of the priors was arbitrary or irrational. Brown has proven by his own actions that he remains a significant risk to the safety of the community. The initial probation report noted that, “[a]lthough [Brown]’s strike prior is old, occurring in 1986, it is very serious in nature. Also, [Brown]’s criminal record consists of two felonies each resulting in prison commitments. At the age of thirty-eight, [Brown] has spent much of his adult life incarcerated. He initially received a sentence of thirteen years for his strike prior, and then another six year term for his felony evading offense.” It is undisputed that Brown has either been in jail, prison or on parole for the majority of his adult life. We cannot say that in regard to the current offense, the trial court failed to balance the relevant facts and reach an impartial decision in conformity with the spirit of the law. (People v. Myers, supra, 69 Cal.App.4th at p. 310.) Accordingly, we conclude the trial court did not abuse its discretion by determining that Brown should not be “deemed outside the scheme’s spirit,” even “in part.” (See Williams, supra, 17 Cal.4th at p. 161.)
C. Ineffective assistance of counsel
In his separate habeas petition, Brown claims that he received ineffective assistance of counsel with respect to his plea. Specifically, he contends that his counsel was ineffective for advising him to admit the conduct leading to his juvenile adjudication and in failing to challenge the constitutionality of using that juvenile adjudication as a strike prior. We disagree.
Several weeks before Brown entered his plea in the instant case, this court issued an opinion in which we held that a prior juvenile adjudication could be used as a prior strike if the defendant had judicially admitted the conduct leading to that juvenile adjudication. (People v. Nguyen (2007) 146 Cal.App.4th 1332, rehg. granted Feb. 21, 2007.) Brown entered his plea in this case and admitted all of the strike allegations on February 26, 2007, five days after we granted rehearing in Nguyen. Brown argues his counsel should have known, based on our grant of rehearing in Nguyen, there was a “strong basis to challenge the use of a juvenile adjudication as a strike,” and he would therefore have only had two, rather than three, strike priors to address in his Romero motion.
Following rehearing, this court held that it was unconstitutional to use a juvenile adjudication as a strike prior, even if the minor had originally admitted the conduct giving rise to that adjudication. (People v. Nguyen (2007) 152 Cal.App.4th 1205, review granted Oct. 10, 2007, S154847.)
To prevail on a claim of ineffective assistance of counsel, the defendant “must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice.” (People v. Bolin (1998) 18 Cal.4th 297, 333.) “[P]rejudice must be affirmatively proved; the record must demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” (Ibid., quoting Strickland v. Washington (1984) 466 U.S. 668, 694.)
Brown has failed to carry that burden here. Even if Brown’s juvenile adjudication for robbery had not been used as a strike prior in this case, he has not demonstrated a reasonable probability that the trial court would have stricken either of his other two strikes. Again, those strikes consisted of a 1986 voluntary manslaughter, and a 1996 reckless evasion, involving a high-speed chase, where Brown drove the wrong way on surface streets, ran multiple red lights, and firearms were thrown from Brown’s vehicle. While it is true that the first of these strikes was, at the time of Brown’s Romero hearing, approximately 20 years old, Brown had been in prison for 14 of those 20 years.
Brown was sentenced to 13 years in prison for the 1986 voluntary manslaughter charge and served approximately 10 years of that sentence. In 1996, soon after his release from prison and while still on parole for the voluntary manslaughter offense, Brown was arrested for reckless evasion and sentenced to six years in prison. He served approximately four years of that sentence and was released in 2000.
At the Romero hearing, there was little, if any, discussion of Brown’s juvenile adjudication; to the contrary, that incident appears to have not entered into the trial court’s analysis of the motion in any significant manner. Instead, the trial court’s major concerns were the significant quantity of drugs that were involved in the instant offense, the report that Brown possessed a firearm and the fact that Brown had, despite his prior incarceration, recently begun using drugs which demonstrated to the trial court that Brown was not seriously “trying to escape from a career of crime that was the result of misspent youth.” Given these facts, it is not reasonably probable that the trial court would have granted Brown’s Romero motion as to either the 1986 or 1996 strike priors even if Brown’s 1984 juvenile adjudication had not been included as a strike prior.
III. Disposition
The judgment is affirmed. Brown’s petition for writ of habeas corpus is denied.
WE CONCUR: Rushing, P.J., Elia, J.