Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. KA084341, Daniel J. Buckley, Judge. Affirmed.
Thien Huong Tran, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent..
ALDRICH, J.
Alex Colon Figueroa appeals from the judgment entered following his plea of no contest to making criminal threats (Pen. Code, § 422) and his admission that he previously had suffered a conviction amounting to a strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a serious felony (§ 667, subd. (a)(1)). The trial court sentenced Figueroa to seven years, eight months in prison. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
The facts have been taken from the probation report.
On August 31, 2008, police officers responded to a call indicating a large “dispute” was taking place in the back yard of a residence at 225 Sherwood Place in Pomona. When the officers arrived, they saw Figueroa sitting on the ground. He had blood on his shirt, jeans and hands, as well as bruising and swelling on the right side of his face. When the officers asked Figueroa if they could take photographs of him, he became angry and kicked a small dog that had been standing next to him. The officers decided to detain Figueroa, who appeared to be drunk. As they took him into custody, Figueroa cursed at the officers, calling them names. He then stated that he was a “ ‘South Side Surreno and he was going to send his homies [after] the officer[s] and he was going to put a hit on [them].’ ” As the officers put him in the patrol car, Figueroa attempted to kick the car door. He struggled with the officers and, after they had placed him in the back seat, he twice spit through the open cage onto the back of the head of one of the officers.
2. Procedural history.
Figueroa was charged by felony complaint with making criminal threats (§ 422), resisting an executive officer (§ 69), committing battery upon an officer and emergency personnel (§ 243, subd. (b)) and exhibiting cruelty to an animal (§ 597, subd. (a)). It was further alleged that Figueroa previously had suffered a conviction within the meaning of the Three Strikes law (§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and which qualified as a serious felony (§ 667, subd. (a)(1)). He had also served two prior prison terms within the meaning of section 667.5, subdivision (b).
At proceedings held on October 1, 2008, Figueroa entered into a negotiated plea agreement under the terms of which he would plead no contest to making criminal threats and admit he had suffered a previous serious felony conviction pursuant to the Three Strikes law and section 667, subdivision (a). In exchange for his plea, Figueroa would be sentenced to seven years, eight months in state prison.
After waiving his right to a preliminary hearing, his right to a jury or court trial, his right to confront and cross-examine the witnesses against him, his right to use the subpoena power of the court and to present a defense and his privilege against self incrimination, Figueroa entered a plea of no contest to the allegation he had made criminal threats and admitted the prior conviction and prison terms.
The trial court sentenced Figueroa to the low term of 16 months in prison for his conviction of making criminal threats, then doubled the term to 32 months, or 2 years, 8 months, pursuant to the Three Strikes law. The court then imposed a five-year enhancement for Figueroa’s admission he previously had suffered a serious felony conviction. In total, the trial court sentenced Figueroa to seven years, eight months in prison. Figueroa was given presentence custody credit for 32 days actually served and 16 days of good time/work time, for a total of 48 days. He was ordered to pay a $200 restitution fine (§ 1202.4, subd. (b)), a stayed $200 parole revocation restitution fine (§ 1202.45) and a $20 court security fee (§ 1465.8, subd. (a)(1)). In accordance with the plea agreement, the trial court dismissed the remaining counts and allegations.
CONTENTIONS
After examining the record, counsel for Figueroa filed an opening brief which raised no issues and requested this court to conduct an independent review of the record. By notice filed April 3, 2009, the clerk of this court advised Figueroa to submit within 30 days any contentions, grounds of appeal, or arguments he wished this court to consider.
On May 5, 2009, Figueroa filed a supplemental brief asserting his trial counsel, the public defender and the alternate public defender, had been ineffective for failing to challenge the allegation that he, Figueroa, previously had suffered a conviction amounting to a strike. Figueroa indicates he does not remember having had a prior strike conviction and, if he did, it was over nine years old and should have been stricken.
“In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.]” (People v. Carter (2003) 30 Cal.4th 1166, 1211; see Strickland v. Washington (1984) 466 U.S. 668, 694.) If the defendant makes an insufficient showing with regard to either component the claim must fail. (People v. Holt (1997) 15 Cal.4th 619, 703.)
According to Figueroa, his first counsel, a deputy public defender, indicated that the district attorney had informed her that Figueroa had indeed suffered a strike. Further, the lowest sentence the prosecutor would agree to was seven years, eight months in prison. Figueroa’s second trial counsel, an attorney from the alternate public defender’s office, agreed that it appeared Figueroa had suffered a strike conviction and that the district attorney would not agree to strike it. In addition, the district attorney again indicated the lowest term he would agree to was seven years, eight months in prison.
Figueroa indicates that, while he was waiting to be transferred to a reception center at the state prison, other inmates at the county jail told him that his trial counsel could have obtained the transcripts of the alleged prior conviction to determine whether it was for a strike. However, here Figueroa chose to admit the alleged strike, that in 1999 he had been convicted of making terrorist threats in violation of section 422. It also appears that his trial counsel attempted to obtain for Figueroa a lesser sentence, but the prosecutor was unwilling to negotiate. Finally, the term imposed, then doubled, for Figueroa’s current conviction of making criminal threats, was the lowest Three Strikes sentence possible. Under these circumstances, it cannot be concluded trial counsel was ineffective.
REVIEW ON APPEAL
We have examined the entire record and are satisfied that Figueroa’s counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.