Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F06900025-8. Gary D. Hoff, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Refugio Angel Cedillo was convicted of possession of methamphetamine for sale, transportation of methamphetamine, and driving without a valid driver’s license. On appeal, he contends (1) defense counsel provided ineffective assistance at the sentencing hearing by making no attempt to persuade the court to dismiss (“strike”) any of defendant’s prior drug conviction enhancements, and (2) the prosecution failed to present evidence to prove the out-on-bail enhancement. We will affirm.
FACTS AND PROCEDURAL SUMMARY
On December 22, 2005, Clovis police officers stopped defendant’s vehicle because his music was loud. Defendant’s driver’s license was expired and the odor of marijuana emanated from inside the vehicle. Defendant consented to a vehicle search, during which the officers found some marijuana cigarettes and 56 grams of methamphetamine in 20 bags. Defendant admitted knowledge of the drugs, but claimed they belonged to a friend who had left them in his car the night before.
On April 18, 2006, defendant was charged with possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 1), transportation of methamphetamine for sale (Health & Saf. Code, § 11379, subd. (a); count 2), and driving without a valid driver’s license (Veh. Code, § 12500, subd. (a); count 3). The information further alleged that defendant had suffered three prior drug convictions for violating Health and Safety Code section 11378 (Health and Saf. Code, § 11370.2, subd. (c)); that he had suffered a prior prison term (Pen. Code, § 667.5, subd. (b)); and that he was out on bail or his own recognizance when he committed the charged offenses (§ 12022.1).
Health and Safety Code section 11370.2, subdivision (c) provides: “Any person convicted of a violation of … Section 11378 or 11379 with respect to any substance containing a controlled substance … shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of … Section 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, or 11383, whether or not the prior conviction resulted in a term of imprisonment.”
All statutory references are to the Penal Code unless otherwise noted.
Defendant admitted the prior drug conviction allegations (Health & Saf. Code, § 11370.2, subd. (c)), and a jury convicted him on all counts. The trial court granted the prosecution’s motion to dismiss the prior prison term allegation. The trial court sentenced defendant to a total of 12 years in prison, as follows: on count 2, as the principal term, the court imposed the middle term of three years, plus three consecutive three-year terms for the prior drug conviction enhancements (Health & Saf. Code, § 11370.2, subd. (c)); on count 1, the court imposed the middle term of two years, stayed pursuant to section 654; and on count 3, the court awarded defendant credit for time served.
DISCUSSION
I. Ineffective Assistance of Counsel
Defendant contends defense counsel rendered ineffective assistance at the sentencing hearing by failing to invite the court to exercise its authority under section 1385 to strike one or more of his three prior drug conviction enhancements to obtain a lesser sentence. Defendant notes that defense counsel urged the trial court to grant probation, despite defendant’s being statutorily ineligible for probation, but failed to request that the court strike any prior drug conviction enhancements. Defendant argues “[t]here could be no tactical reason [for defense counsel] to request leniency in the form of an unauthorized disposition (probation) and not request leniency be afforded in a manner authorized by law (striking enhancements).”
At the sentencing hearing, the following occurred:
“[DEFENSE COUNSEL]: Your Honor, I would just submit that prior to this offense [defendant] had been doing well. He has a family with small or young children. He has a lot of responsibilities that he is anxious to attend to. [¶] And he was released from custody in 1998 and this offense occurred in 2005, I believe. And submit that for your consideration in mitigation.
“Defendant requests that any -- if he is sentenced to prison that that term be stayed and he allowed a grant of probation. He submits that he is willing to have a long term hang over his head and to keep him in compliance with being a law abiding citizen. In the alternative that he would desire a life changing program, the court allow him to do that as part of a stayed term and I submit.
“THE COURT: All right. Mr. [Prosecutor], any comments concerning sentencing?
“[PROSECUTOR]: Yes, Your Honor. Thank you. [¶] [Defendant] has an extensive prior history of drug sales which was evident in the Information in this case. And the People’s concern or what was problematic here was after the jury trial in this case he, defendant was -- he was released on his own recognizance and subsequent to that there was another criminal complaint that was filed. And the People’s concern basically is looking at the totality of the circumstances in this matter, the fact that [defendant] does have an extensive criminal history, and my notes indicate one, two, three, four prison priors, three drug sales priors, and it’s the People’s contention that the maximum allowable term, which I believe is 13 years, that should be the term imposed in the California Department of Corrections.
“And also, since I am addressing the issue of the other case, upon sentencing it would be the People’s request with the trailing felony being dismissed, the issue of restitution and right to comment being reserved. With that, [the] People submit.
“THE COURT: Do you wish to say anything?
“[DEFENDANT]: Your Honor, I can’t say anything other than everything my attorney stated, and I really didn’t prepare anything to say today. I’m sorry for the things I’ve done and I really wish that I could be given a chance, like I stated to my attorney. I’m willing to have all that 13 years hanging over my head just to show the court, show myself, show my children that I can make something of myself. This isn’t me. The fact that I paroled in ’98, gave them three years clean on parole, not a violation, not a dirty test, nothing until this matter arose states enough for itself. It might not to some people, but the world that I’ve been shown again in County Jail, it’s a revolving door. And to be out that long is an accomplishment for myself and
“THE COURT: All right. Thank you.
“[DEFENDANT]: Thank you.
“THE COURT: Is the matter submitted?
“[DEFENSE COUNSEL]: Yes, Your Honor.
“[PROSECUTOR]: Submitted. [¶] … [¶]
“THE COURT: This defendant has a particularly troubling criminal history when it comes to narcotics violations. I would note, and I do consider as somewhat of a mitigating factor, that once he was paroled, completed parole and spent a substantial period of time apparently free of arrest and conviction of any offense. But what I have is a case in which the jury has found the defendant guilty of a new and additional drug case. The jury found the defendant guilty of the felony offense of Health and Safety Code Section 11378 in Count 1, the alternative charge of Health and Safety Code Section 11379 in Count 2, and the traffic violation Vehicle Code Section 12500(a) in Count 3. This defendant is statutorily ineligible for a grant of probation because of his prior criminal history, specifically under Penal Code section 1203.073(b)(2), 1203.[0]7[(a)](11). This court also finds this defendant is not a suitable candidate for probation in light of the history and the charges in the current case. He poses a danger to others by engaging in the possession for sale and transportation of narcotics. Any application for a grant of probation or a stayed prison term with a grant of probation and drug treatment is denied by the court, the court finding the defendant is not eligible or suitable for a grant of probation, even with a stayed term and drug treatment programs.
“The court is selecting Count 2 as … the principal term …. That’s the Health and Safety Code Section 11379(a). In looking at the factors in mitigation and any appropriate factor in aggravation and for purposes of this sentencing, the only factor in aggravation that the court is considering is the defendant’s prior felony criminal history. I have not considered the fact that another case was pending at the time. I have not considered the fact that the prior prison term enhancement which was stricken, and I have not considered the fact the defendant was arrested subsequent to his conviction in this case on the new charge. Court has not placed any emphasis or drawn any conclusions for purposes of sentencing based on any of those factors.
“In looking at circumstances in mitigation and aggravation, while the court tends to find that the aggravation may preponderate, giving the defendant the benefit of the doubt and noting that his prior period of … apparent crime free behavior does carry some significant weight, the court is selecting the middle term of three years for the base term for the offense in Count 2. He’s committed to the [D]epartment of [C]orrections for that three-year period.
“Court further finds that the defendant during the course of the trial admitted three separate Health and Safety Code Section 11370.2(c) allegations. Each of those carries a three-year enhancement. The court is ordering three consecutive three-year enhancements for those … allegations for a total of nine years to be run consecutive to the three years for Count 2 for a total commitment of 12 years.
“For the offense in Count 1 under Health and Safety Code Section 11378 the court is again imposing the midterm of two years. I am staying that pursuant to Penal Code Section 654.
“As to the misdemeanor in Count 3, the traffic violation, the court is giving credit for time served.”
To prevail on an ineffective assistance claim, defendant bears the burden of establishing both deficient performance and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694.) He must show that defense counsel’s representation fell below an objective standard of reasonableness under prevailing professional standards and that there is a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different. (Ibid.; People v. Lewis (1990) 50 Cal.3d 262, 288.) When an ineffective assistance claim can be resolved solely on lack of prejudice, we need not determine whether counsel’s performance was objectively deficient. (In re Jackson (1992) 3 Cal.4th 578, 604, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 6.)
“Counsel’s duty at sentencing is to be familiar with the sentencing alternatives available to the court, to make sure that the court is aware of such alternatives, to explain to his or her client the consequences of the various dispositions available and to be certain that the sentence imposed is based on complete and accurate information.” (People v. Cotton (1991) 230 Cal.App.3d 1072, 1085; People v. Cropper (1979) 89 Cal.App.3d 716, 719.) The United States Supreme Court has recognized that “a criminal defendant’s need for counsel may be greatest at the time of sentencing because the judge then frequently ‘moves within a large area of discretion’ and may want to bring to his aid every consideration that defendant’s counsel can appropriately urge.” (People v. Cropper, supra, at pp. 719-720, fn. omitted, citing Carter v. Illinois (1946) 329 U.S. 173, 178.)
Here, defendant claims defense counsel should have requested that the trial court exercise its discretion under section 1385 to strike one or more of defendant’s three prior drug conviction enhancements. Sentence enhancements for prior drug convictions under Health and Safety Code section 11370.2, subdivision (c) are generally subject to a trial court’s discretion to strike pursuant to section 1385. (See People v. Meloney (2003) 30 Cal.4th 1145, 1155-1156.) However, under section 1203.7, subdivision (a)(11), which prohibits the granting of probation in cases such as defendant’s, the court has no discretion under section 1385 to strike a prior drug conviction finding for the purpose of rendering a defendant eligible for probation. (People v. McGuire (1993) 14 Cal.App.4th 687, 693; People v. Neild (2002) 99 Cal.App.4th 1223, 1227.)
The People argue section 1203.7, subdivision (a)(11) completely eliminates the trial court’s power to strike under section 1385, regardless of the purpose.
Assuming the trial court in this case had discretion under section 1385 to strike one or two of defendant’s three prior drug convictions -- to reduce his sentence rather than render him eligible for probation -- we conclude it is not reasonably probable the court would have done so even if defense counsel had made the request. The court found defendant’s criminal history of narcotics violations “particularly troubling” and concluded he would not be suitable for probation even if he were eligible. The court found he posed a danger to others due to his drug sales and transportation. Still, the court expressly limited its consideration of defendant’s aggravating factors to his prior felony history. Although the court believed this aggravating factor might preponderate over the mitigating factors, the court nonetheless gave defendant “the benefit of the doubt” by giving substantial weight to his period of apparently crime-free behavior and imposing the middle term. The court did not discuss the possibility of imposing the lower term.
In light of the court’s explanation and its choice not to exercise its authority to impose the lower term (which was only one year less than the imposed middle term), we see no reasonable probability the court would have agreed to exercise its authority to strike even a single three-year enhancement had defense counsel urged it to do so. We therefore conclude defendant suffered no prejudice due to defense counsel’s failure to invite the court to strike the prior drug conviction enhancement(s) to lessen defendant’s sentence. As a result, defendant’s claim of ineffective assistance must fail.
II. Section 12022.1 Enhancement
Defendant argues the prosecution made no attempt to prove, and the trial court did not impose a sentence on, the section 12022.1 out-on-bail enhancement allegation. He asserts that we should either dismiss the allegation or instruct the trial court to enter a not-true finding. The People concede there is no record that the allegation was proven, found true or dismissed; there were no jury instructions and no jury finding on the allegation; and the probation report and the abstract of judgment both are silent as to the allegation. Thus, the People propose that no amendment or other action need be taken. Defendant counters that without correction the enhancement allegation remains untried according to the record of judgment.
We agree with the People that remand is unnecessary. Where the record is silent in regard to any findings on the allegation and the trial court does not include any reference to it in the pronouncement of judgment or the sentence, in the absence of evidence to the contrary, we may infer that the omission was an act of leniency by the trial court. In such circumstances, the silence operates as a finding that the prior conviction was not true. (In re Candelario (1970) 3 Cal.3d 702, 706; People v. Mesa (1975) 14 Cal.3d 466, 471-472.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Cornell, Acting P.J., Hill, J.