Opinion
F041139.
7-30-2003
THE PEOPLE, Plaintiff and Respondent, v. ERIC N. HERRING, Defendant and Appellant.
J. Peter Axelrod, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Carlos A. Martinez and Robert K. Gezi, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Eric N. Herring pled nolo contendere to entering the grounds of a prison without permission (Pen. Code, § 4571) and pled guilty to driving under the influence of drugs or alcohol (Veh. Code, § 23152, subd. (a)). Herring admitted committing a prior serious felony within the meaning of the three strikes law. Herring was sentenced to prison for the low term of one year four months (16 months) which was doubled pursuant to the three strikes law to two years eight months (32 months). Herring was granted applicable custody credits and ordered to pay a restitution fine.
The trial court denied Herrings motion to withdraw his plea. On appeal, Herring contends his trial counsel was ineffective for failing to properly advise him of the consequences of his plea. Herring also contends the trial court abused its discretion in denying his request to strike his prior serious felony conviction.
FACTS
On February 26, 2002, Herring changed his plea to nolo contendere, admitting he entered prison grounds without permission and drove under the influence of drugs or alcohol.
The trial court represented that in exchange for his admissions, Herrings total prison term would be no more than 32 months. Herring was given and waived his constitutional rights pursuant to Boykin/Tahl. The court explained to Herring that his maximum prison exposure was 6 years but Herring would receive no more than 32 months in prison. Herring was told he faced a restitution fine of at least $ 200 or as much as $ 10,000.
Because Herrings issue on appeal concerns the effectiveness of his trial counsel, we do not recount the underlying facts of his offenses. Instead, we review the plea proceedings and Herrings motion to withdraw his plea. We note Herring was apparently arrested at the gate of a jail facility in Kern County.
Boykin v. Alabama (1969) 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709; In re Tahl (1969) 1 Cal.3d 122, 81 Cal. Rptr. 577, 460 P.2d 449.
When asked if he had enough time to talk to his attorney, Mr. Castro, about his case, Herring replied affirmatively. Herring was asked if he had any questions about the consequences of his plea. Herring replied he had none. The parties stipulated to a factual basis for the plea. Herring admitted he feloniously trespassed on prison grounds.
Herring obtained new counsel and filed a motion to withdraw his plea on the ground that his trial counsel was ineffective. Herring filed a declaration stating he "did not fully understand the consequences" of his plea and that he had only minimum contact with Mr. Castro. Herring stated he was never advised by Castro there were specific elements of the alleged crime which had to be proven, he never received a copy of the police report until it was time for sentencing, and that Castro told Herring he was getting a good deal.
Prior to sentencing, the trial court conducted a hearing on Herrings motion to withdraw his plea. Herring testified that Castro never discussed the elements of his offense and did not hear Herrings version of the events leading to his arrest. Herring stated Castro told him to plead no contest. Herring later did his own legal research and learned he had a defense. Herring said he had two brief meetings with Castro prior to his change of plea. Herring asserted he only saw the police report after he changed his plea.
Castro testified he had assisted hundreds of clients making felony pleas. Castro remembered one visit with Herring which lasted between 30 minutes and one hour. Castro went over the police report. Castro discussed Herrings maximum prison exposure and the consequences of admitting the prior serious felony allegation. Castro conducted research on the Penal Code section 4571 allegation. The trial court denied Herrings motion to withdraw his plea and sentenced him.
Motion To Withdraw Plea
Herring contends his trial counsel was ineffective because Herring had a potential defense to the Penal Code section 4571 allegation and counsel failed to properly advise Herring of the defense. Herring argues that construction of a prison gate away from the public street implies access is permitted to that portion of the property outside the gate because access to the gate is open to the world. Herrings argument rests on a claim of what his appellate counsel calls "apparent consent."
For purposes of our discussion, we use the terms prison and jail synonymously.
Penal Code section 4571 does not readily lend itself to a construction in which apparent or implied consent to enter prison (or jail) grounds exists simply because there is an outer gate beckoning passersby to approach it. For a convicted felon to enter the grounds of a prison (or jail), the statute requires "the consent of the warden or other officer in charge." Herring concedes he was on the grounds of the jail even though he did not travel beyond the gate of the prison. Herring does not contend he had verbal or written consent to be on the premises of the jail. Herrings contention is based, when viewed in its best and most positive light, on an improbable legal defense.
Penal Code section 4571 provides:
"Every person who, having been previously convicted of a felony and confined in any State prison in this State, without the consent of the warden or other officer in charge of any State prison or prison road camp, or prison forestry camp, or other prison camp or prison farm or any other place where prisoners of the State prison are located under the custody of prison officials, officers or employees, or any jail or any county road camp in this State, comes upon the grounds of any such institution, or lands belonging or adjacent thereto, is guilty of a felony."
To establish ineffective assistance of trial counsel, a defendant must demonstrate (1) counsels performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsels deficient representation subjected the petitioner to prejudice, i.e., there is a reasonable probability that, but for counsels deficiencies, the result of the proceedings would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 686, 80 L. Ed. 2d 674, 104 S. Ct. 2052; In re Neely (1993) 6 Cal.4th 901, 908-909, 864 P.2d 474.) A reasonable probability is one sufficient to undermine confidence in the outcome. (Strickland v . Washington, supra, 466 U.S. at p. 694; In re Harris (1993) 5 Cal.4th 813, 833, 855 P.2d 391.)
The record discloses trial counsel consulted with Herring prior the change of plea hearing and that counsel conducted legal research on Herrings case. Counsel reviewed the police report with Herring and considered possible defenses as well as the consequences of Herrings admission of the allegations.
Reviewing courts defer to counsels reasonable tactical decisions in examining a claim of ineffective assistance of trial counsel. There is a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance. A conviction will be reversed on direct appeal only if the record affirmatively discloses that counsel had no rational tactical purpose for his or her act or omission. (People v . Lucas (1995) 12 Cal.4th 415, 436-437, 907 P.2d 373.)
Given the unlikely success of Herrings proposed defense, trial counsel likely had excellent tactical reasons for negotiating a plea bargain in Herrings case. Even if defense counsel had completely failed to consider Herrings "apparent consent" defense, Herring has failed to demonstrate prejudice from counsels alleged inadequacy in pursuing such a defense.
Prior Serious Felony Allegation
Herring contends the trial court abused its discretion in failing to strike his prior serious felony conviction pursuant to People v. Romero (1996) 13 Cal.4th 497. The trial court found that based on the current offense and Herrings criminal history, it would not strike the prior serious felony conviction. Herring characterizes the implementation of a sentence doubled by the three strikes law as a miscarriage of justice.
The burden is on the party attacking the sentence to clearly show it was irrational or arbitrary, otherwise the trial courts sentencing choice remains intact. A reviewing court may not overturn a trial courts exercise of discretion simple because it would have decided the issue differently. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978, 928 P.2d 1171; People v. Bishop (1997) 56 Cal.App.4th 1245, 1249-1251.)
In determining whether to exercise discretion to strike a prior serious felony conviction, courts must consider whether the defendant may be deemed outside the spirit of the three strikes law given the circumstances of current felonies and the defendants background, character, and prospects. (People v . Williams (1998) 17 Cal.4th 148, 161, 948 P.2d 429.)
Herring had at least 12 misdemeanor convictions as an adult and as a juvenile as well as three felony convictions, including the instant offense. Herrings felony convictions were for assault with a deadly weapon in 1983, transportation or sale of narcotics in 1989, and the instant offense. Herring was on misdemeanor probation when he committed the current offense. On this record, we cannot find that the trial court abused its discretion in refusing to strike Herrings prior serious felony conviction.
DISPOSITION
The judgment is affirmed.