Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS040867A
Duffy, J.
Defendant Danny Camel pleaded guilty to possessing cocaine base for purpose of sale (Health & Saf. Code, § 11351.5) and admitted, as relevant here, to two prior strikes subjecting him to punishment under the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). The trial court conducted a hearing on defendant’s motion to dismiss his strike priors under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and denied the motion. The court sentenced defendant to 25 years to life in state prison.
Further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant claims that the trial court misunderstood its ability to exercise discretion to dismiss the strike priors in the interest of justice, and that if we find that claim forfeited because defense counsel failed to alert the court to its error, counsel’s failure to do so constituted ineffective assistance of counsel.
We will affirm the judgment.
FACTS
Because defendant pleaded guilty, we describe the facts as taken from the probation report, which in turn relies on a report from the Monterey County Sheriff’s office.
On February 20, 2004, the authorities received a tip that defendant was selling cocaine base or crack cocaine and had brandished a weapon in a high-crime area of Salinas. A parole agent directed defendant, who was on parole at the time, to report to the parole office. Defendant drove up and authorities searched his car. They found a canister with 12 grams of cocaine base apportioned into lots for street sales. They also found $1,100, divided into 11 $100 groupings, and a piece of paper containing data consistent with a tallying method used for sales of illegal drugs. Eventually, after lying to investigators about these facts, defendant admitted to them that he was in possession of cocaine base but said it was for his own use. He was unable to explain why the circumstances of his apprehension and the subsequent investigation suggested he was carrying cocaine base for sale rather than for personal use. For example, defendant told investigators that he did not know anything about the tallying sheet and that his girlfriend had given him the $1,100 after cashing her income tax refund check.
DISCUSSION
I. The Trial Court’s Awareness of its Discretionary Powers to Dismiss Strikes in the Interest of Justice
We turn to defendant’s claim that the trial court misunderstood its ability to exercise discretion to dismiss the strike priors in the interest of justice.
A. Procedural and Factual Background
1. Defendant’s Criminal Past
Defendant’s two strike priors were for the attempted murder of Garin Brown and assault with a firearm on Michael Jackson.
According to a probation report dated January 11, 1990, which in turn relied on information from Monterey County District Attorney’s Office files, defendant believed that Brown was associated with the murder of defendant’s brother in 1989. Later that year, defendant and others, including Jackson, saw Brown. One or more of defendant’s party shot Brown. Brown was left paralyzed from the waist down. When the police arrested members of defendant’s party, one of them implicated defendant as one of the shooters and defendant conceded that he was involved in the incident without admitting he was a shooter.
Ten years later, according to a probation report dated May 4, 1999, which in turn relied on a Salinas Police Department crime report, defendant encountered one of the people who had been with him the night that Brown was shot. Defendant shot at his victim, Michael Jackson. He was charged with attempted murder but ultimately negotiated a guilty plea to assault with a firearm. He was sentenced to prison and paroled in 2001, remaining free of new criminal charges until the possession for sale charge in 2004 that resulted in the conviction from which he now appeals.
Aside from the very serious crimes we have described, defendant has a history of minor offenses and a juvenile court record. In 1995, defendant was convicted on separate occasions of trespassing and of possessing an ounce or less of marijuana while driving a motor vehicle. Minor sanctions were imposed in each case. Defendant, who was born in 1967, also developed a juvenile court record in the early 1980s for receiving stolen goods and unlawfully taking or driving a motor vehicle without the owner’s consent. He was confined in the facilities of the California Youth Authority.
2. Favorable Information Regarding Defendant
The trial court received evidence that at times in his adult life when defendant was not in prison, he had been gainfully employed in legal occupations and was a member of a union local. Defendant testified about the importance of his family to him and stated that he was a changed, more mature person than the individual who committed the violent crimes in 1989 and 1999. Defendant’s wife asked for leniency and said that defendant had changed. Others, including a minister who opined that defendant had become a committed student of the Bible, sent letters in support of lenity for defendant.
B. Standard of Review
We review the trial court’s decision refusing to strike defendant’s priors for abuse of discretion. (In re Large (2007) 41 Cal.4th 538, 552.) A “court in exercising its discretion under the Three Strikes law ‘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.’ ” (Ibid.)
A trial court’s discretion, however, is limited in the context of a motion to dismiss one or more strike priors. “ ‘[T]he Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court “conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.” ’ ” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
C. Analysis
Defendant’s claim is very narrow. It is the opposite of the petitioner’s in In re Large, supra, 41 Cal.4th 538. In Large, the petitioner acknowledged that the trial court was aware of its discretion but claimed that the manner in which the court exercised or attempted to exercise his discretion was flawed. (Id. at p. 549.) In this case, defendant claims that the trial court did not understand the nature of its discretion to strike his two priors. The court, in defendant’s view, “made an error of law insofar as it wrongly ‘believed that it had no authority to grant . . . relief.’ ” (The quotation is from defendant’s reply brief on appeal and the interior quotation is to defendant’s opening brief on appeal.)
The People argue that defendant has forfeited his claim because his counsel never brought to the trial court’s attention any perceived misunderstanding of the law as the court was rendering its ruling. Defendant’s claim is, however purely or predominantly legal, and he claims a violation of a substantial right under state law. Under these circumstances, review on the merits is either required or strongly favored. (See In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7, 1st & 2d pars.) We will proceed to review defendant’s claim on the merits.
We do not agree. Some nine pages of the reporter’s transcript are taken up by the trial court’s giving of reasons for denying defendant’s motion. Yet if the court had avoided all discussion and simply denied the motion, defendant could not have complained on appeal. (In re Large, supra, 41 Cal.4th at p. 550.) “While a court must explain its reasons for striking a prior [citations], no similar requirement applies when a court declines to strike a prior [citation]. ‘The absence of such a requirement merely reflects the legislative presumption that a court acts properly whenever it sentences a defendant in accordance with the three strikes law.’ [Citation.] ‘Thus, the three strikes 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. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.’ ” (Ibid.)
The trial court here did, however, offer a lengthy explanation of why it was denying defendant’s motion, and its comments made clear that it understood the scope of its discretion. The court had before it People v. Carmony, supra, 33 Cal.4th 367, and read from its text the paragraph we have quoted in our description of the standard of review. The court stated that under Carmony, “I can’t strike it just on a feeling. I can’t strike it just because I hear you and say—hum—this is going to be a guy who now understands what is going on in life, now has grown up, now has matured, and now can contribute to society, all by itself. I can’t make that decision on that. I have to have something that’s more.” “I have to have a list of reasons, that I can provide, which can withstand the scrutiny for abuse; that means can withstand the Sixth District Court of Appeal, since we’re within the Sixth District Court of Appeal, saying that I did not abuse my discretion. . . . [¶] . . . [¶] . . . [T]he Court has to say, as we continue on with this person’s history, what are the articulable facts that the Court can look at that puts this person outside the Three Strikes scheme and also qualifies for an exception to the rule? Because a general rule is it’s 25 years to life. The Court has to put an actual, factual, and legal basis to take you outside of the Three Strikes Law.”
The trial court not only understood that it had a degree of discretionary authority to dismiss defendant’s strike priors, but also correctly understood the limits of that discretion. Indeed, it began its lengthy ruling by stating, “Mr. Camel has asked the Court to consider, under Penal Code Section 1385, to exercise its discretion to strike his two prior strikes, and it is not unbridled discretion.” The court was correct. Defendant’s claim that the court did not understand the law is without merit.
II. Ineffective Assistance of Counsel
Defendant claims that if we find his claim forfeited because counsel failed to alert the trial court that it misconceived the scope of its discretion to dismiss his prior strikes, he received constitutionally ineffective assistance of counsel
We have, as noted, chosen to address defendant’s claim on the merits.
In any event, counsel did not perform deficiently and any ineffective assistance of counsel claim would be without merit. A claim of ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution entails deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of an adverse effect on the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.) To the extent that defendant also presents a claim under article I, section 15 of the California Constitution, the Strickland standards also apply. (E.g., People v. Waidla (2000) 22 Cal.4th 690, 718.)
We would find no ineffective assistance of counsel even if we had chosen not to address defendant’s claim on the merits. As we have explained, the trial court understood the law. If defense counsel had complained otherwise, counsel’s objection would have been meritless. “Representation does not become deficient for failing to make meritless objections. There was no . . . reason to object . . . .” (People v. Ochoa (1998) 19 Cal.4th 353, 463.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Mihara, Acting P. J., McAdams, J.