Opinion
C080910
03-15-2017
THE PEOPLE, Plaintiff and Respondent, v. SANTOS LUCIANO JIMENEZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CR-F-14-3529)
Defendant Santos Luciano Jimenez pleaded no contest to possessing methamphetamine and admitted to a prior strike. The trial court imposed the low term of 16 months, doubled for the strike. On appeal, defendant challenges the trial court's exercise of discretion in failing to reduce his conviction to a misdemeanor. He argues the trial court and his trial counsel failed to understand his possession conviction was a "wobbler," which could be sentenced as a misdemeanor. He further contends his trial counsel rendered ineffective assistance in failing to ask the court to reduce the offense to a misdemeanor. We conclude the challenge is forfeited on appeal, and the record cannot support a claim of ineffective assistance. We therefore affirm.
BACKGROUND
Defendant was found with over four grams of methamphetamine and two methamphetamine pipes. He was charged with, inter alia, felony possession of methamphetamine. (Health & Saf. Code, § 11377.)
A. The Plea
The parties reached a plea agreement: defendant would plead no contest to felony possession and admit to a prior strike, exposing him to a six-year maximum term. In exchange, the remaining counts and an enhancement would be dismissed. Under the agreement, defendant would bring a contested Romero motion. Explaining the agreement to the court, defense counsel added: "The defendant waives Prop 47 consideration because he is not entitled to its relief."
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The parties agree that waiver of Proposition 47 consideration would not preclude the trial court from treating the possession count as a wobbler.
Before taking his plea, the trial court advised defendant that it "may or may not grant the Romero motion. . . . [I]f the Court for some reason does not grant the Romero motion, the maximum you would get would be six years, it could be as low as . . . thirty-two months." Defense counsel interjected: "Right."
Defendant then pleaded no contest to felony possession and admitted to a prior strike.
B. Romero Motion
Seven weeks later, the trial court denied the Romero motion. The court noted it had "struggled" with the decision "because obviously with the strike it's somewhat of an onerous outcome." But, the court noted, defendant had been "in and out of trouble pretty regularly."
Defendant's strike conviction was for lewd and lascivious touching of a six-year-old girl, when defendant was 17. He was granted probation, but probation was revoked after testing positive for marijuana. In prison, he was convicted of conspiring to traffic drugs into the prison and received an additional two years. After his release, he violated parole and served 30 days in prison. He was successfully discharged from parole in 2011 and has not been to prison since.
But in 2013, he was arrested for possessing methamphetamine for sale—the case was dismissed for lack of evidence. And he has had six separate convictions for various Vehicle Code violations between August 2012 and May 2014.
In denying the motion, the court explained: "It's a difficult case . . . , but in the final analysis I just can't say it deserves an extraordinary exercise of judicial discretion." It added: "I kind of thought I'd be able to when this thing started, but then when I see the extent of his contact with law enforcement since that original conviction, the strike, . . . I just can't do it, otherwise I think you're setting yourself up to say, you know, anytime a sentence may be too serious or the results of a strike sentence is more than you would like to give, you just grant a Romero." The court noted that would contravene the Romero decision.
The court however, allowed defendant to remain out of custody until sentencing. It told defendant, "you probably are looking at [the] low term doubled," but warned if he failed to return, "you're probably going to get the upper term." The court also noted: "he's going to go to prison. There's no way around that[.]"
C. Sentencing
Eleven months later, at sentencing, defendant asked not to be sentenced to prison, noting his work to recover from addiction, his nine months of sobriety, and his full-time job. His counsel added defendant would accept a six-year suspended sentence, along with treatment or jail time. His counsel had also submitted a sentencing memorandum, asking the court to reconsider the Romero ruling.
The prosecution, in requesting the middle term, noted defendant was arrested for possessing burglary tools and a methamphetamine pipe or paraphernalia, shortly after he was released following the Romero hearing. Defense counsel added defendant had also had another driving on a suspended license offense.
The trial court declined to reconsider the Romero motion and denied the request for probation, calling defendant's efforts at treatment, "too little, too late." The court then imposed the low term, doubled for the strike.
DISCUSSION
On appeal, defendant challenges the trial court's exercise of discretion in not reducing the possession charge to a misdemeanor. He argues the court and his counsel erroneously believed that unless the Romero motion was granted, his possession charge must be treated as a felony. He also contends his counsel rendered ineffective assistance in failing to ask that he be sentenced to a misdemeanor.
We conclude defendant has forfeited his challenge to the court's exercise of discretion, and the record cannot support a challenge of ineffective assistance.
A. The Challenge to the Trial Court's Exercise of Discretion is Forfeited
"Routine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention." (People v. Scott (1994) 9 Cal.4th 331, 353.) Accordingly, forfeiture applies "to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices." (Ibid.)
Here, sentencing the possession count as a felony was within the trial court's discretion. The failure to ask the court to consider sentencing the conviction as a misdemeanor forfeits the issue on appeal.
B. Trial Counsel Did Not Render Ineffective Assistance
Anticipating that conclusion, defendant argues his trial counsel rendered ineffective assistance in failing to ask the court to treat the possession count as a misdemeanor. We cannot agree.
To establish ineffective assistance of counsel, a defendant must show (1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693-694, 696].) To establish prejudice, defendant must show a reasonable probability of a different result but for counsel's errors. (Id. at. p. 694.)
Here, defendant cannot show a reasonable probability of a different result. Defendant relies heavily on the trial court's statements at the Romero hearing, noting the court "struggled with" the Romero motion, and ultimately could not find the "extraordinary circumstances" required for granting Romero relief. Defendant argues, "it stands to reason that if the court found the decision to deny the Romero motion a close call, there is a reasonable probability that if counsel had argued for reduction of the offense to a misdemeanor, [defendant] would have received a better result because of the court's broader discretion under Penal Code section 17, subdivision (b) [to sentence as a misdemeanor]."
But the trial court's statements at the Romero hearing give little cause to believe the court would have reduced the offense to a misdemeanor at sentencing. Between the Romero hearing and sentencing, defendant was arrested for possessing burglary tools and drug paraphernalia; he was also found driving on a suspended license. Under the circumstances, a different outcome was not probable. (See People v. Park (2013) 56 Cal.4th 782, 790 ["the court's exercise of discretion under [Penal Code] section 17(b) contemplates the imposition of misdemeanor punishment for a wobbler 'in those cases in which the rehabilitation of the convicted defendant either does not require, or would be adversely affected by, incarceration in a state prison as a felon' "]; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978 & fn. 5 [relevant factors in exercising Penal Code section 17(b) discretion can include, inter alia, " '[p]reventing the defendant from committing new crimes by isolating him for the period of incarceration' "].) Indeed, defense counsel had asked the trial court that, in lieu of prison, defendant be sentenced to a suspended six-year term, along with jail time or treatment. The trial court denied that request.
On this record, it is not reasonably probable the trial court would have granted a request to treat the possession count as a misdemeanor. Defendant's claim of ineffective assistance of counsel therefore fails.
DISPOSITION
The judgment is affirmed.
NICHOLSON, J. We concur: BLEASE, Acting P. J. BUTZ, J.