Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, Super. Ct. No. DF009155A. L. Bryce Chase, Judge.
Barbara Coffman, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Cornell, J., and Hill, J.
FACTS AND PROCEEDINGS
On January 6, 2009, appellant, Miguel Haro Lara, Jr., was charged in a criminal complaint with felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), count one) and misdemeanor possession of narcotics paraphernalia (Health & Saf. Code, § 11364, count two). The complaint further alleged that appellant had a prior serious felony conviction within the meaning of the three strikes law (Pen. Code, §§ 667, subds. (c)-(j) & 1170.12, subds. (a)-(e)) and three prior prison term enhancements (Pen. Code, § 667.5, subd. (b)). A document was filed indicating appellant was ineligible for Proposition 36 or a drug diversion program.
Unless otherwise stated, all statutory references are to the Penal Code.
On January 21, 2009, the parties entered into a plea agreement. Appellant would plead no contest to count one, admit the prior serious felony conviction, and there would be a lid of 32 months on his prison sentence. Appellant executed a felony advisement of rights, waiver, and plea form (plea waiver form). In the plea waiver form, appellant acknowledged the terms of the plea agreement, the consequences of his plea, and constitutional rights pursuant to Boykin/Tahl. Appellant waived his constitutional rights in the form.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
The trial court confirmed that appellant had carefully read and understood the plea waiver form and had no questions concerning its contents. The court determined that appellant was freely and voluntarily changing his plea.
The prosecutor stated that on January 2, 2009, at 7:00 p.m., Officer Bautista of the Delano Police Department encountered appellant who was a known parolee. Bautista conducted a parole search in the vicinity of the 1100 block of Dover Street and found a plastic baggie containing a white crystalline substance which was seized and transported to the Kern County crime laboratory. The substance tested positive for 83 milligrams of methamphetamine. Appellant had a qualifying felony conviction for an offense that constituted a serious felony under the three strikes law. The defense attorney and prosecutor and appellant stipulated to a factual basis for the plea.
Appellant pled no contest to count one and admitted the prior serious felony conviction. The trial court granted the prosecutor’s motion to dismiss the remaining allegations. Appellant requested that the court exercise its discretion to strike the prior serious felony allegation pursuant to People v. SuperiorCourt (Romero) (1996) 13 Cal.4th 497 (Romero). On February 20, 2009, the trial court denied appellant’s request to dismiss the prior conviction allegation and sentenced appellant to the low term of 16 months, which it doubled to 32 months pursuant to the three strikes law. Appellant filed a timely notice of appeal but did not obtain a certificate of probable cause.
APPELLATE COURT REVIEW
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on May 5, 2009, we invited appellant to submit additional briefing.
Appellant sent a letter stating he is a young grandfather and his case is a wobbler. Appellant argues his counsel was ineffective for failing to enter a Romero motion early in the plea bargain stage of his case. Appellant argues his strike is 17 years old. Appellant complains that he was not sent to the California Rehabilitation Center (CRC) drug program.
The defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsel’s decision making is evaluated in the context of the available facts. To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or, unless there simply could be no satisfactory explanation. Prejudice must be affirmatively proved. The record must affirmatively demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389.) Attorneys are not expected to engage in tactics or to file motions which are futile. (Id. at p. 390; also see People v. Mendoza (2000) 24 Cal.4th 130, 166.)
Appellant entered into a plea bargain in which he faced a lid sentence of 32 months. He did not enter into a plea bargain for his case to be treated as a misdemeanor. Appellant’s counsel filed a written request for the prior serious felony allegation to be dismissed and argued this point during sentencing. Furthermore, appellant knew his former strike was old when he admitted it as part of the plea agreement. The trial court sentenced appellant to prison for 32 months, the lid sentence for which he bargained. Appellant received the full benefits of his plea bargain and has failed to show that his counsel’s representation fell below professional standards.
Appellant was convicted of rape of his spouse, section 262, in 1992. !(Prob. Rpt. 3)! Between 1992 and 2007, appellant had numerous misdemeanor convictions and felony drug convictions in 2000 and 2004. Appellant has failed to show that the trial court abused its sentencing discretion in refusing to dismiss his prior serious felony conviction. (See People v. Carmony (2004) 33 Cal.4th 367, 377; People v. Myers (1999) 69 Cal.App.4th 305, 310.) As for appellant’s argument that he should have been sent to CRC, appellant’s prior serious felony conviction for Section 262 disqualifies him for commitment to CRC. (Welf. & Inst. Code, § 3052, subd. (a)(1); § 667.5, subd. (c)(3).) Furthermore, appellant did not seek this disposition as part of his plea bargain.
After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.