Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF137636, Robert Baysinger, Judge. (Retired judge of the San Joaquin Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
William H. Strohmeyer, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RICHLI, J.
Following a jury trial, defendant Pedro Miramontes was convicted of driving under the influence (DUI) of a blood alcohol concentration of 0.15 and more (Veh. Code, § 23578) after having committed prior DUI’s (Veh. Code, § 23152, subd. (a)) (count 1) and driving with a blood alcohol concentration of.08 percent or greater after having committed prior DUI’s (Veh. Code, § 23152, subd. (b)). In a bifurcated proceeding, defendant admitted that he had sustained one prior strike conviction (Pen. Code, §§ 667, subds. (c) & (e) & 1170.12, subd. (c)) and had served five prior prison terms (Pen. Code, § 667.5, subd. (b)). Defendant was sentenced to a total term of nine years in state prison.
Defendant appeals from the judgment, essentially challenging the representation he received, the evidence, and his sentence. We reject defendant’s contentions and affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
Around 4:20 a.m., on May 13, 2007, Officer Jason Goudy was on routine patrol in the City of Corona when he observed a 1989 Mercury Sable “weaving in between lanes, straddling, and almost hitting curbs.” The officer explained that the vehicle was going into the opposite lane and “going back and forth, straddling the lane.”
As Officer Goudy pulled in behind the vehicle, the vehicle exited the road and pulled into a parking stall on 6th Street. The officer pulled into an adjacent parking lot and observed the vehicle for about five minutes. Officer Goudy then exited his patrol vehicle and approached the car from the passenger side. He looked into the vehicle and saw defendant asleep in the driver’s seat with the radio playing. The officer knocked on the window, waking defendant up. He then instructed defendant to exit the vehicle. Defendant complied.
When defendant exited the vehicle, the officer noticed the odor of alcohol emanating from defendant. Additionally, defendant’s appearance and behavior indicated to the officer that defendant was intoxicated. Defendant failed field sobriety tests. He was thereafter placed under arrest and transported to the police station. A sample of his blood later revealed a blood alcohol level of.20 percent.
Defendant’s boss Alfredo Rodriguez, who was the manager of Al Tune and Lube, testified on behalf of defendant. He claimed that defendant had purchased the 1989 Mercury Sable from the owner of Al Tune and Lube and that the vehicle had ignition problems. He explained that he, along with others, had helped defendant push the vehicle into the space where the vehicle was parked when defendant was arrested. Essentially, Rodriguez stated that the vehicle defendant had been driving on the date of the incident was inoperable, and the steering column and ignition key had been damaged.
On cross-examination, Rodriguez conceded that the last time he had inspected the vehicle was about one month prior to defendant’s arrest. He also admitted that defendant had one key to the car that opened the car and started it and that the problem with the car was limited to the ignition lock cylinder.
Following argument from counsel, defendant was convicted as charged.
Prior to trial, defendant brought a verbal motion to relieve his counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118, arguing his appointed counsel had failed to adequately investigate his claim that he had not been driving on the day of the incident, as the car was inoperable, and did not arrange for an expert witness to testify as to the condition of the vehicle. Defense counsel explained that she had investigated defendant’s claim and believed an expert would not be helpful. The court denied the motion.
Prior to sentencing, defendant made a motion to represent himself for the purpose of making a new trial motion. Defendant executed a petition to proceed in propria persona and then stated on the record that this was his wish. After the court repeatedly explained the ramifications of representing himself, the motion was granted. Defendant subsequently argued his motion for new trial, which was denied. The matter then proceeded to sentencing. Citing defendant’s lengthy criminal history of alcohol-related offenses and his failure to rehabilitate following grants of probation and parole, the court imposed a total sentence of nine years, plus credit of 292 days for time served in this jurisdiction.
Following defendant’s arrest in this case, defendant was sentenced to two years in an Orange County matter.
II
DISCUSSION
Defendant appealed, and upon his request this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting that this court undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, and he has done so. In his supplemental brief, defendant claims (1) his counsel was ineffective; (2) the court erred in failing to grant his Marsden motion; (3) there was insufficient evidence to sustain his conviction; (4) he only had four prior prison terms and not five; (5) he should have been granted credits for the period of time that there was no conviction in his Orange County case; and (6) the court erred in denying his motion to strike his prior strike conviction.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error.
A. Ineffective Assistance of Counsel
We reject defendant’s first claim of error that his counsel was repeatedly ineffective. To establish ineffective assistance of counsel, a defendant must show both that his counsel’s performance was deficient and that the deficiencies prejudiced his defense. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 [104 S.CT. 2052, 80 L.Ed.2d 674].) A conviction will be reversed only if there could be no conceivable reason for counsel’s acts or omissions. (People v. Jones (2003) 29 Cal.4th 1229, 1254.) Tactical errors are generally not reversible, and defense counsel’s tactical decisions should be evaluated in the context of available facts, not in the “‘“harsh light of hindsight.”’” (People v. Hinton (2006) 37 Cal.4th 839, 876.) However, “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” (Strickland, at p. 697.) Prejudice is shown when there is a reasonable probability that the defendant would have obtained a more favorable outcome absent counsel’s alleged deficiency. (Strickland, supra, at p. 697.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (People v. Stanley (2006) 39 Cal.4th 913, 965.)
Defendant has met neither of the requirements of Strickland. There is no evidence that his counsel’s performance was deficient, nor can defendant demonstrate that any alleged deficiencies caused him prejudice. Counsel may well have had good tactical reasons for not calling an expert witness to testify regarding the vehicle’s steering column. Moreover, even if we assume, for the sake of argument, that trial counsel was ineffective for the reasons alleged by defendant, defendant cannot show prejudice. Officer Goudy unequivocally testified that he saw defendant driving on the day of the incident, weaving in and out of lanes or straddling the lanes. In addition, it was undisputed that defendant was intoxicated at the time of his arrest.
B. Motion to Relieve Appointed Counsel
We also reject defendant’s claim that the court erred in failing to grant his Marsden motion. He also asserts that judicial and prosecutorial misconduct was committed when the prosecution failed to produce dispatch tapes and other evidence. The record does not disclose any such errors were committed.
“‘“‘When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].’ [Citations.]”’ [ Citation.]” (People v. Barnett (1998) 17 Cal.4th 1044, 1085.) After the defendant has been afforded the opportunity to explain the grounds for his motion to substitute counsel, the trial court has discretion to deny the motion unless the defendant has made a sufficient showing of a substantial impairment of his right to counsel. (People v. Burton (1989) 48 Cal.3d 843, 855.) Mere disagreement over trial tactics or strategy does not justify the appointment of a new attorney. (People v. Crandell (1988) 46 Cal.3d 833, 859-860, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) Defendant’s complaints here were insufficient to warrant appointment of new counsel. We cannot find on this record that the court abused its discretion in denying defendant’s Marsden motion.
In addition, the record does not support defendant’s general claim that prosecutorial and judicial misconduct was committed in the instant case. There is no evidence in the record to support these assertions or the assertion that the court “bull[ied] him into proceeding to trial with an ineffective legal counsel and never considered his proffer of proof....”
C. Insufficient Evidence
Defendant also claims that the evidence was insufficient to sustain his convictions, claiming the evidence showed he was not driving “the disabled vehicle.” Defendant is mistaken.
“In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves.” (People v. Guerra (2006) 37 Cal.4th 1067, 1129.) Rather, “we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime... beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict i.e., evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) “In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.) Here, as noted previously, Officer Goudy unequivocally testified that he saw defendant driving and weaving in and out of lanes and straddling the lanes. The officer’s testimony was neither physically impossible nor inherently improbable. Hence, there was sufficient evidence to support the jury’s finding that defendant drove while intoxicated.
D. Prior Prison Terms
Defendant’s claim that he had only sustained four prior prison terms rather than five is unsupported by the record, as the trial court found at the sentencing hearing. Moreover, defendant admitted that he had served five prior prison terms in a bifurcated proceeding. (See People v. Tenner (1993) 6 Cal.4th 559, 563; People v. Cardenas (1987) 192 Cal.App.3d 51, 61 [“admission of prior convictions where the charging information specifically alleges the convictions resulted in prior separate prison terms is deemed an admission such prison terms were separately served”].)
E. Custody Credits
We also reject defendant’s claim that he was entitled to presentence custody credits for the period of time that there was no conviction in his Orange County case. (People v. Joyner (1984) 161 Cal.App.3d 364, 368-369.)
F. Motion to Strike Prior
Defendant further argues the trial court abused its discretion by refusing to dismiss his 24-year-old prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. We disagree.
A trial court’s decision whether or not to dismiss or strike a prior serious and/or violent felony conviction allegation under Penal Code section 1385 is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.) The touchstone of the analysis must be “whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) A decision to dismiss a strike allegation based on its remoteness in time is an abuse of discretion where the defendant has not led a life free of crime since the time of his conviction. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.)
Here, the record is clear that defendant had not led a crime-free life following his strike conviction. We cannot conclude the trial court abused its discretion in declining to strike defendant’s prior strike conviction. The relevant considerations supported the trial court’s ruling, and there is nothing in the record to show that the court declined to exercise its discretion on improper reasons or that it failed to consider and balance the relevant factors, including defendant’s personal and criminal background. Defendant has manifested a persistent inability to conform his conduct to the requirements of the law.
G. Ineffective Assistance of Appellate Counsel
We also reject defendant’s claim that his appellate counsel was ineffective for failing to discover nonfrivolous issues. Appellate counsel has the duty to prepare a legal brief containing citations to the appellate record and appropriate authority. Counsel must set forth all arguable issues and cannot argue the case against his or her client. To establish ineffective assistance of counsel, however, the defendant must show that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms and prejudice from counsel’s unprofessional errors. (Strickland v. Washington, supra, 466 U.S. at p. 694.) The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. (People v. Harris (1993) 19 Cal.App.4th 709, 714.)
The fact that appellate counsel followed the procedure set forth in People v. Wende, supra, 25 Cal.3d 436 is insufficient, by itself, to show appellate counsel has been ineffective. Defendant has failed to meet his burden of proof on this issue. After our own independent review of the record, we have concluded no reasonably arguable legal or factual argument exists. Appellate counsel’s filing of a Wende brief was not unprofessional.
We have now concluded our independent review of the record and find no arguable issues.
III
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER, Acting P.J., KING, J.