Opinion
H044366
06-14-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMES EDWARD MITCHELL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 16CR05332)
I. INTRODUCTION
Defendant James Edward Mitchell appeals after a jury found him guilty of first degree burglary (Pen. Code, § 459). Defendant also admitted allegations that he had previously suffered a strike conviction (§§ 667, subds. (b)-(i), 1170.12) and a serious felony conviction (§ 667, subd. (a)). The trial court sentenced defendant to 13 years in prison.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that insufficient evidence supports the jury's determination that he burglarized an inhabited dwelling house. Defendant also contends that the trial court inadequately instructed the jury on the meaning of "inhabited," and that the trial court abused its sentencing discretion.
For reasons that we will explain, we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Current Incident
On the afternoon of Saturday, August 6, 2016, Thomas Evenson and his fiancée went to Capitola for lunch to enjoy the day off. Afterwards, they drove by the Santa Cruz Harbor and stopped at The Crow's Nest restaurant. While there, sometime between 4:30 and 5:00 p.m., Evenson received an email notification that one of the security cameras at his new home on Clubhouse Drive in Santa Cruz had been disconnected at 4:20 p.m. The notification included a photograph of a man unknown to Evenson inside his house. Defendant was the man in the photo.
Evenson had purchased the property on Clubhouse Drive on June 6, 2016. The residence had been the Pasatiempo Golf Club's guesthouse until it was converted into a single family home in the 1980's or 1990's. The house was quite large, with six bedrooms and five bathrooms, and "needed a lot of work." Evenson hired his longtime contractor to perform various upgrades, including painting the residence, replacing the toilets and some of the plumbing, and modernizing the electrical system.
While the house was being renovated, Evenson continued to live with his family at his other home in the Pasatiempo neighborhood, which he had purchased in 2007 and was down the street from the Clubhouse Drive residence. Evenson estimated that it would "probably be some years before" the remodel of his new house was complete, but his goal was to have parts of the residence ready for his wedding on October 22, 2016.
Despite the ongoing construction that shut down part of the house, Evenson and his family threw a couple of parties there and used the pool and the smaller of the two kitchens after they acquired the home. The house was partially furnished because Evenson had purchased the previous owner's bedroom furniture and linens. Evenson activated the utilities right away, including the electricity, gas, cable, and internet. Three security cameras were installed within two weeks of the home's purchase. Evenson kept the house locked when no one was home. The only non-family members with a key were the contractor and some of his subcontractors.
After a couple of weeks, the family began to move some of their clothing to the house because they "used the [home's] facilities but . . . weren't prepared to move in yet." By July, Evenson and his family had started setting up one of the bedrooms and were in and out of every room, toggling light switches, configuring furniture, and "figuring out the bedding." They were at the house two to three times a week and spent a lot of daylight hours there, but no one stayed the night.
As the remodel progressed, the family was able to access and use more of the house although there were still boxes piled in different rooms. By August, they were at the house daily. Two-thirds of the residence had been painted, and Evenson's home office had been set up. His computer and checkbook were there. In addition to the bedrooms and the office, the front room was furnished. Evenson considered the property "an extension of [his] other home" and felt that he was using, and living at, both houses. When Evenson and his fiancée went to Capitola on August 6, 2016, they intended to stay at the house "that weekend."
The prosecution moved a photograph of the front room into evidence as People's Exhibit 1-A. The photograph shows a sitting area on one side of the room with several arm chairs, a throw blanket, and a mirror hanging above the fireplace. Four barstools line a counter on the other side of the room.
After Evenson received the security notification showing defendant inside the residence, he called 911 and told the police that his house was being burglarized. He also called the golf shop across the street to ask someone to check on the home. Evenson then headed to the residence, arriving just after 5:00 p.m. When he saw that the living room's security camera had been unplugged, he immediately went to his computer to check the camera's video footage, which was time stamped.
The footage showed defendant and his girlfriend, Ashley Sowers, knocking on the front door at 4:12 p.m. When there was no answer, Sowers walked away while defendant checked under the doormat. Defendant looked around the front entrance and then walked down the side of the house. The footage next showed defendant walking around a corner inside the residence. After that, defendant could be seen walking down a hallway carrying an "armload of stuff," and, later, hauling Evenson's television out the front door. The final footage from inside the house was of the couple walking out with additional bundles of items. Outside footage then captured Sowers packing the trunk of a red Chevrolet Impala and the car driving away at 4:42 p.m. Evenson discovered that in addition to his 60-inch, flat-screen television, an end table, lots of bedding that was still in packaging from the dry cleaners, a television mount, and three uninstalled security cameras had been stolen.
Around noon two days later, on August 8, 2016, Evenson was driving past the Pasatiempo Inn when he saw a red Impala in front of the hotel that matched the vehicle depicted in the security footage. The car had the same license plate number, and Evenson saw what looked like a flat-screen television strapped to the car's roof. Evenson made a u-turn, parked directly behind the vehicle to block its exit, and called the police.
Defendant and Sowers, both of whom Evenson recognized from the security footage, got out of the car and asked Evenson to move his vehicle. Evenson asked them to wait because he was on the phone. Defendant then maneuvered the Impala around Evenson's car, eventually getting out of the parking spot by knocking over a moped. Defendant and Sowers fled northbound on Highway 17 at a high rate of speed. Evenson followed them at first, but stopped when the police advised him not to pursue the car. Later that day, Evenson identified defendant in a photographic lineup.
On August 22, 2016, California Highway Patrol Officer Matthew Clark contacted defendant during a traffic stop. Defendant told Officer Clark that his name was "Johnny Lee Slater" and his birthday was March 30, 1979. When Officer Clark confronted defendant with the fact that he did not match Slater's description, defendant gave the officer his real name. Defendant was arrested on an outstanding warrant for the burglary of Evenson's residence.
B. Evidence of a Prior Burglary
On the afternoon of March 28, 2012, Eileen Zurbriggen returned to her home in Santa Cruz to find the back door open, with its frame and lock damaged. Zurbriggen discovered that her laptop, laptop DVD drive, router, wireless mouse, and power cords were missing. Zurbriggen called her partner to ask him to come home and then called the police.
Defendant worked for Zurbriggen, cleaning her home and doing some repairs, and had his own key to the residence. On April 14, 2012, Santa Cruz County Sheriff's deputies contacted defendant in Aptos and retrieved Zurbriggen's laptop from him. He had not been scheduled to clean Zurbriggen's house on March 28, 2012, and did not have permission to enter her home that day or take her laptop and electronics equipment.
When a Sheriff's deputy interviewed defendant about the burglary, defendant said that he had purchased the laptop from his associate, Jorge, for $600. Defendant explained that he met Jorge at a Home Depot and had worked with him at Zurbriggen's residence, and that "Jorge had obtained [the laptop] from a family member who didn't want it any longer." Defendant could not provide a phone number for Jorge and declined the deputies' request to take them to Jorge's residence.
On April 27, 2012, defendant pleaded no contest to first degree residential burglary.
C. Defense Case
Defendant stated that on August 6, 2016, he and Sowers drove to Santa Cruz from their home in Redding to spend the weekend. The couple brought Sowers's two daughters, ages four and five, because one of them had a birthday that weekend and neither had been to the Boardwalk before. They were going to stay with defendant's mother in Aptos.
The group made the four-hour journey in Sowers's red Impala, and stopped the vehicle in the Pasatiempo neighborhood to take a break around 3:30 or 4:00 p.m. Defendant parked the car in front of the Pasatiempo Inn and stepped away from the kids to smoke a cigarette.
Defendant stated that while he was smoking, a man approached him, introduced himself as "Michael," and mentioned that he was moving out of his house and wanted to sell some of his things, including a television. Defendant described Michael as white, 40 to 45 years old, and approximately six feet one inches tall, with short, dark hair and brownish-hazel eyes.
Defendant was curious, so he told Michael that he needed to confer with his girlfriend. Defendant stated that Michael then gave him an address on Clubhouse Drive, along with directions, in case defendant decided to take him up on his offer.
Defendant stated that he brought $4,000 with him to spend during the weekend, and that he had earned the money by legally growing marijuana in Redding. He and Sowers decided to meet Michael because they wanted to upgrade their television set. They drove to the address on Clubhouse Drive, and defendant and Sowers knocked on the front door when they arrived, leaving the kids in the car. When there was no answer, defendant looked under the doormat because Michael told him there might be a key there. Finding none, defendant and Sowers went around the side of the house to look for Michael. Defendant stated that they found him working in the backyard near a doorway to the back of the house.
According to defendant, Michael told them that the things in boxes were for sale. Michael let him inside the house through the back door while Sowers remained outside to look at some gardening items. Defendant stated that Michael went inside the back room with him momentarily, but that Michael never went into the rest of the house because he was busy moving things.
After defendant had decided there was nothing in the library he wanted to buy, he let Sowers inside through the front door. Defendant then went to look for the television and Sowers searched for other things to buy. Defendant stated that they ultimately bought the television, a remote control, a television mount, a knife set, bedding, an end table, a serving platter, and two security cameras. Defendant explained that he had unplugged one of the security cameras that was operating inside the house before he realized there was a box of brand-new cameras he could buy instead. Defendant stated he paid Michael $2,500 for the items. Defendant and Sowers then loaded the property into the Impala and drove to the Boardwalk.
Defendant stated that on their way home to Redding on Sunday, they decided to stop at Pasatiempo again because Sowers wanted to buy a glass beverage dispenser she had seen at the house. Michael had given defendant his phone number, and defendant stopped to call him because defendant's cell phone was not working. After they parked, a man pulled behind Sowers's car. When the man refused to move out of their way, they decided to leave. Although Sowers told defendant he hit something on the way out of the parking space, they did not stop because they were concerned about the man blocking them in. After that, they returned to Redding.
Defendant stated that when he was arrested on this case, he told the officer his name was Johnny Slater, which was his cousin's name. Defendant also acknowledged that when he called Sowers from jail on August 27, 2016, he apologized to her for being " 'so loaded and stupid,' " not " 'thinking smart,' " and " 'being greedy.' "
Defendant admitted that he was convicted of residential burglary in 2012. Defendant stated that he purchased Zurbriggen's laptop and other computer equipment from Jorge, but he took responsibility for the burglary because he had known that the property belonged to Zurbriggen. Defendant also admitted that he was convicted of petty theft in 2012 for stealing from his nephew's father.
D. Prosecution's Rebuttal
Evenson was not familiar with anyone by the name of Michael or Mike working on the remodel of the Clubhouse Drive home. His contractors were in their 50's and 60's. No one was captured in the security footage other than defendant and his girlfriend.
Neither Evenson's longtime contractor, Gary Banks, nor the electrical subcontractor, Steven Pauly, matched defendant's description of Michael. Both Banks and Pauly denied loaning out the key to the Clubhouse Drive home or participating in the burglary.
While investigating this case, Santa Cruz County Sheriff's Detective Roger Galvin spoke to Sowers several times. When he first talked with her, Sowers denied there was a television set strapped to the roof of her car during the collision. Sowers also did not mention anything about purchasing property at a house. At some point after Detective Galvin's conversations with Sowers, defendant called him. Defendant said that he was in possession of the property and that he bought it from someone named Michael. He refused to give the detective his address, saying that the police were just going to arrest him.
E. Charges , Verdict , and Sentence
Defendant was charged with first degree burglary (§ 459). It was also alleged that defendant had been convicted of a serious felony (§ 667, subd. (a)(1)) and a prior strike offense (§ 667, subds. (b)-(i), 1170.12), that he committed the current offense while on felony probation (§ 1203, subd. (k)), and that he was ineligible to be sentenced to imprisonment in the county jail (§ 1170, subds. (f), (h)(3)).
A jury found defendant guilty of first degree burglary. Defendant admitted that he had suffered a prior serious felony conviction and a prior strike conviction. The trial court sentenced defendant to the midterm of four years for the burglary, which was doubled to eight years under the "Three Strikes" law, and imposed a five-year consecutive term for the prior serious felony conviction, for an aggregate term of 13 years in prison.
III. DISCUSSION
A. Sufficient Evidence of Residential Burglary
Defendant contends that his conviction of first degree burglary must be reversed because there was insufficient evidence that the residence he burglarized was inhabited.
1. Standard of Review
The standard of review for an appellate challenge to the sufficiency of the evidence to support a conviction is well established. "The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must 'review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.]" (People v. Ceja (1993) 4 Cal.4th 1134, 1138.)
2. Analysis
Burglary of "an inhabited dwelling house . . . is burglary of the first degree." (§ 460, subd. (a).) For purposes of the burglary statutes, " 'inhabited' means currently being used for dwelling purposes, whether occupied or not." (§ 459.)
" ' " 'Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation—the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence.' " [Citation.]' " (People v. Hughes (2002) 27 Cal.4th 287, 355 (Hughes).) " ' "In addition, a burglary of an inhabited dwelling involves an invasion of perhaps the most secret zone of privacy, the place where trinkets, mementos, heirlooms, and the other stuff of personal history are kept. Society therefore has an important interest in seeing to it that burglars stay out of inhabited dwelling houses." ' [Citation.]" (Ibid.) "Courts specifically have recognized that the distinction between first and second degree burglary is founded upon the perceived danger of violence and personal injury that is involved when a residence is invaded." (People v. Cruz (1996) 13 Cal.4th 764, 775-776 (Cruz).)
"The term 'inhabited dwelling house' for many years has been considered a broad, inclusive definition [citation], and has been analyzed in terms of whether the dwelling was being used as a residence." (Cruz, supra, 13 Cal.4th at p. 776.) " '[T]he " ' "inhabited-uninhabited" dichotomy turns not on the immediate presence or absence of some person but rather on the character of the use of the building.' " [Citation.] "[T]he proper question is whether the nature of a structure's composition is such that a reasonable person would expect some protection from unauthorized intrusion." [Citation.]' [Citation.]" (Hughes, supra, 27 Cal.4th at p. 355.)
"The dispositive element is whether the person with the possessory right to the house views the house as his [or her] dwelling." (People v. Cardona (1983) 142 Cal.App.3d 481, 484 (Cardona).) "[A] house, for example, remains inhabited although the residents are away on vacation and the burglar knows it." (Ibid.) Intent to use the structure as a dwelling can be shown by the presence of valuable personal items, the presence of the usual furnishings, and the fact that the utilities are on. (Hughes, supra, 27 Cal.4th at p. 355; People v. DeRouen (1995) 38 Cal.App.4th 86, 92 (DeRouen), overruled on another ground by People v. Allen (1999) 21 Cal.4th 846, 865-866.) "The use of a house as sleeping quarters is not determinative, but instead is merely a circumstance used to determine whether a house is inhabited." (Hughes, supra, at p. 354.)
Courts have recognized that the intent to use a residence as a dwelling may exist when an owner or tenant is in the process of moving in. (Hughes, supra, 27 Cal.4th at p. 355; People v. Vasquez (2015) 239 Cal.App.4th 1512, 1517 (Vasquez); People v. Hernandez (1992) 9 Cal.App.4th 438, 442 (Hernandez).) For example, in Vasquez, the court upheld a first degree burglary conviction where the home's new owner was not yet sleeping in the residence but had moved some personal belongings there, activated the utilities, and begun renovations. (Vasquez, supra, at pp. 1513-1517.) "Aside from her temporarily sleeping at a girlfriend's house, [the owner] was generally in or around the premises of her new home" and had "narrowly missed [the burglar's] intrusions." (Id. at p. 1517.) Similarly, in Hernandez, the court determined that sufficient evidence supported the residential burglary conviction where the tenant and his family had moved all of their furniture and personal belongings into their new apartment and had activated the utilities, but had not unpacked and were spending the night with relatives when the burglary occurred. (Hernandez, supra, at pp. 440, 442.) The court found that the tenants intended to use the apartment as their residence "from which they were merely temporarily absent." (Id. at p. 442.)
Vacation homes have also been considered inhabited residences even though they were "not the victims' 'regular, primary living quarters' " and were unoccupied at the time of the offenses. (DeRouen, supra, 38 Cal.App.4th at pp. 90-91 [involving the burglaries of several vacation homes and trailers].) Although the owners resided in the dwellings sporadically, they kept treasured family heirlooms there. (Id. at p. 92.) "The potential danger of an unexpected intruder into these dwellings, surprising the occupants and inciting violence is the same potential danger a burglar poses to occupants of their primary residence. The seriousness of the crime does not turn on the fortuity of whether the occupant chose one home or the other on a particular day." (Ibid.)
This case shares several significant facts with the above cases. When the burglary occurred, Evenson was still in the process of renovating and moving into the Clubhouse Drive residence, and was living at his other house down the street. However, Evenson had activated the utilities at his new home, including cable and the internet, and he and his family had moved personal belongings there. Evenson testified that by the time of the burglary, "a lot" of clothing had been moved to the residence and his home office had been set up with his computer, checkbook, and billing. The bedrooms were furnished, as was the front room. Security cameras had been installed and the family kept the house locked. All of these factors were consistent with a reasonable expectation of protection from unauthorized intrusion. (Hughes, supra, 27 Cal.4th at p. 355.)
Important, too, was the nature of Evenson's use of the property when it was burglarized. Because the remodel had progressed and his home office was there, Evenson and his family were no longer just throwing parties at the residence and using the pool, but were in the home daily. They had intended to spend the night there "that weekend." Like the new homeowners in Vasquez and Hernandez, Evenson appears to have "narrowly missed [defendant's] intrusion[]" and was "merely temporarily absent" from the residence when the burglary occurred. (Vasquez, supra, 239 Cal.App.4th at p. 1517; Hernandez, supra, 9 Cal.App.4th at p. 442.) Given the personal belongings inside the residence and Evenson's use of the home, the potential danger posed by defendant's intrusion into the Clubhouse Drive house was the same as the potential danger from an intrusion into Evenson's other home. (DeRouen, supra, 38 Cal.App.4th at p. 92.)
While defendant equates this case to People v. Burkett (2013) 220 Cal.App.4th 572 (Burkett), which involved a landlord who intended to resume occupancy of his home after he evicted the tenant, we find the facts distinguishable in important ways. The owner there testified that he did not have keys to the residence at the time of the burglary because though the tenant had already moved out, the keys were still in the tenant's possession. (Id. at p. 575.) The owner had not turned on the utilities or moved anything in. (Ibid.) Although the owner intended to occupy the house in the near future, the evidence did not establish the home was inhabited, in "that it was currently being used by someone for dwelling purposes," at the time of the offense. (Id. at p. 582.) Evenson, on the other hand, testified that he was using and living at both of his houses when the burglary occurred, and that he considered the house on Clubhouse Drive to be "an extension" of his other residence. (See Cardona, supra, 142 Cal.App.3d at p. 484.)
Based on the evidence at trial, a reasonable trier of fact could have found, beyond a reasonable doubt, that the Clubhouse Drive house was inhabited at the time of the burglary. Substantial evidence therefore supports defendant's first degree burglary conviction.
B. Instruction on Residential Burglary
Defendant contends the trial court violated his Fourteenth Amendment right to due process because it failed to adequately instruct the jury on the meaning of the term "inhabited" for the purposes of first degree burglary. Specifically, defendant asserts that the trial court was required to inform the jury that a house is inhabited if the homeowner intends to use the residence as his or her dwelling and the homeowner actually uses the residence as his or her dwelling at the time of the offense. Defendant also contends that if we find he forfeited the claim, his trial counsel was ineffective.
1. Proceedings Below
During a conference on jury instructions, the trial court discussed CALCRIM No. 1701 with the parties, which is the pattern instruction on the degrees of burglary. Defendant requested the court include the optional language of the pattern instruction that states: " '[A] house is not inhabited if the former residents have moved out and do not intend to return, even if some personal property remains inside.' " The court agreed to include that language over the prosecution's objection, and defendant accepted the instruction as modified. The court also agreed to add to the instruction the prosecutor's pinpoint language that " '[a] reasonable but mistaken belief that a dwelling house is not inhabited is not a defense [to] first degree burglary.' "
After both parties had rested, the prosecution requested additional pinpoint language be added to the instruction. The prosecution wanted the instruction to include: " 'The use of a house as a sleeping quarters is not required, but rather such use is merely one circumstance that the jury may consider.' " Defendant objected to the proposed language and the trial court declined to give it.
As read to the jury, the modified version of CALCRIM No. 1701 provided: "Burglary is divided into two degrees. If you conclude that the defendant committed a burglary, you must then decide the degree. [¶] First degree burglary is the entry of an inhabited house or room in an inhabited house. [¶] A house is inhabited if someone uses it as a dwelling, whether or not someone is inside at the time of the alleged entry. [¶] A house is not inhabited if the former residents have moved out and do not intend to return, even if some personal property remains inside. [¶] A reasonable but mistaken belief that a dwelling house is not inhabited is not a defense to first degree burglary. [¶] All other burglaries are second degree. [¶] The People have the burden of proving beyond a reasonable doubt that the burglary was first degree rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree burglary."
2. Forfeiture
Defendant did not object to the trial court's jury instruction on the meaning of "inhabited" or request the addition of clarifying language, and the Attorney General contends that defendant thereby forfeited the claim. Defendant contends that the forfeiture rule does not apply for two reasons. First, defendant argues that the court had a sua sponte duty to instruct the jury more fully on the meaning of "inhabited" because the term involved a general principle of law necessary to the jury's understanding of the case. Second, defendant argues that even if the court had no sua sponte duty to instruct on a particular legal point, because the court included the optional language in CALCRIM No. 1701 that gave additional instruction on the meaning of "inhabited," it had a sua sponte duty to give a more complete and accurate instruction on the term.
" 'A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' [Citation.]" (People v. Rojas (2015) 237 Cal.App.4th 1298, 1304 (Rojas); see also People v. Russell (2010) 50 Cal.4th 1228, 1272-1273.) If a defendant could have asked for modification or clarification of the instruction he or she challenges on appeal, the forfeiture rule is "triggered" and the appellate court "review[s] the alleged instructional error only to determine if [the defendant's] substantial rights were affected (§ 1259), i.e., whether the giving of [the instruction] resulted in a miscarriage of justice. [Citation.]" (Rojas, supra, at p. 1304; see also United States v. Olano (1993) 507 U.S. 725, 731-732 [forfeiture rule applies to claims alleging constitutional violations].)
We agree with the Attorney General that defendant was required to object to the court's modified version of CALCRIM No. 1701, because the instruction could have been modified to alleviate the concerns he now expresses. However, "[a]scertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) Furthermore, defendant's assertion that his trial counsel rendered ineffective assistance by failing to ask for clarifying language also necessitates that we address the merits of the issue.
3. Analysis
Defendant contends that the trial court's jury instruction on the meaning of "inhabited" for the purposes of first degree burglary was incomplete because it did not adequately convey "the twin factors that drive the analysis," namely, whether the homeowner views the structure as his or her residence and whether the homeowner uses the structure as his or her residence at the time of the offense. Defendant argues that the trial court should have instructed the jury, in part, that "[a] house is inhabited if someone intends the house be his or her residence and actually uses the house as his or her place of residence at the time of entry."
The entirety of defendant's suggested language reads: "A house is inhabited if someone intends the house be his or her residence and actually uses the house as his or her place of residence at the time of entry. It is not enough to show the home was suited for use as a residence and its owner had declared his intent to move in or that it had been recently used or would be imminently used. It is the nature of the current use of the building, which is to say the use at the time of the entry rather than the design of the building, its customary use, or its current occupancy that is important. A house can be inhabited whether or not someone is inside at the time of entry. [Citations.]"
A criminal defendant has a right to accurate instructions on the elements of a charged crime. (People v. Mil (2012) 53 Cal.4th 400, 409.) We review de novo whether a jury instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) "Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' [Citation.] ' "In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." [Citation.]' [Citation.] 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' [Citation.]" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
We agree with the Attorney General that the trial court's modified version of CALCRIM No. 1701 correctly and adequately instructed the jury on the meaning of "inhabited." "[T]he term 'inhabited dwelling house' means a 'structure where people ordinarily live and which is currently being used for dwelling purposes.' " (Cruz, supra, 13 Cal.4th at p. 776; see also Hughes, supra, 27 Cal.4th at p. 355 [" 'the " ' "inhabited-uninhabited" dichotomy turns . . . on the character of the use of the building.' " ' "].) The trial court's instruction informed jurors that "[a] house is inhabited if someone uses it as a dwelling."
In cases involving owners in the process of moving into or out of a home, courts have "observe[d] that '[t]he dispositive element is whether the person with the possessory right to the house views the house as his [or her] dwelling' " and intends to use it as such. (Burkett, supra, 220 Cal.App.4th at pp. 581-582.) Thus, "when a tenant moves out of an apartment without intending to return and continue living there, the premises become 'uninhabited' for purposes of the relevant statutes, even if the tenant leaves some property behind with the intent of retrieving it later." (Hughes, supra, 27 Cal.4th at p. 354.)
At defendant's request, the trial court instructed the jury that "[a] house is not inhabited if the former residents have moved out and do not intend to return, even if some personal property remains inside." While the trial court's language arguably could have been more tailored to the facts of this case, its instruction was legally correct and would have indicated to jurors that a homeowner's intentions with his or her home were a relevant consideration. Taken as a whole, the instruction correctly told jurors to consider Evenson's use and view of the Clubhouse Drive house.
But even if we were to conclude that the trial court erred, we would find no miscarriage of justice because it is not reasonably probable that a result more favorable to defendant would have been reached absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); People v. Mitchell (2008) 164 Cal.App.4th 442, 465 [" 'Substantial rights' are equated with errors resulting in a miscarriage of justice under . . . Watson"].) Evenson's testimony established that he and his family viewed the house as their dwelling and that they used it as such. Evenson testified that they were at the residence daily; he and his fiancée had planned to sleep there "that weekend"; and he considered it "an extension of [his] other home." By the date of the burglary, they had moved in personal belongings like clothing and Evenson's computer and checkbook. The bedrooms were furnished. Security cameras had been installed, and they kept the house locked. This testimony went unchallenged, and was supplemented by a photograph showing the front room had ample furnishings. Given this evidence, it is not reasonably probable a result more favorable to defendant would have been reached had the trial court given the more elaborate instruction on the meaning of "inhabited" defendant now requests.
4. Ineffective Assistance of Counsel
We reject defendant's alternative argument that he received ineffective assistance of counsel. To establish ineffective assistance of counsel, defendant must demonstrate that "(1) counsel's representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation subjected [him] to prejudice, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to [him]." (In re Neely (1993) 6 Cal.4th 901, 908-909, citing Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) Our finding that the asserted error was harmless precludes the finding of prejudice necessary for a claim of ineffective assistance of counsel. (People v. Maury (2003) 30 Cal.4th 342, 394.)
C. Sentencing
Lastly, defendant contends the trial court abused its sentencing discretion when it declined to strike his prior strike conviction and when it selected the midterm for his offense. Specifically, defendant asserts that the trial court was unaware that it could strike the prior strike based on the length of his sentence, and that it mistakenly believed the circumstances in mitigation had to outweigh those in aggravation in order to lawfully impose the low term. Defendant also contends that his trial counsel's failure to correct the court's misapprehension constituted ineffective assistance of counsel.
1. The Probation Report
The probation report summarized defendant's prior criminal record, which began in 2006 and included seven misdemeanor and four felony convictions. One of the felony convictions was for defendant's first degree burglary of Zurbriggen's residence in 2012. The other convictions were for theft, forgery, resisting arrest, and several drug offenses and Vehicle Code violations. When defendant committed the current offense, he was on formal probation for two felony drug convictions in Santa Cruz County Superior Court case No. F26020.
The probation department recommended defendant be sentenced to 13 years in prison.
2. The Romero Motion and Opposition
Defendant filed a Romero motion requesting that the trial court strike his prior strike conviction for burglary. His request was based on his history of substance abuse; the fact that he had never been sentenced to state prison; and the de minimis nature of the current offense, as no one was home when he committed the crime, there was no damage to the residence, and the items taken were replaceable housewares. Defendant pointed out that if the court did not strike his prior strike conviction, he would be subject to a minimum sentence of nine years, which he argued was "a hefty amount of time for someone who has never been to prison and did not commit a violent crime." Defendant also asserted that he was "an active participant in the lives of his five children," and that he had the education and skills to support himself and be a productive member of society.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
The prosecutor filed written opposition to defendant's Romero motion. The prosecutor referred to defendant's lengthy criminal record, asserting he was a " 'revolving-door defendant' " because he was often on probation when he committed a new offense, and noted that defendant had been given the opportunity to complete drug treatment programs. The prosecutor also referenced defendant's 2012 burglary conviction, which involved breaking into the home of a woman he worked for, and declared that defendant had lied during his trial testimony about purchasing the property from Jorge.
Regarding the current offense, the prosecutor observed that it was a serious, not "low-level," felony, and asserted that defendant had "returned to repeated, routine behavior—stealing and victimizing for his own personal gain." The prosecutor also noted that defendant had refused to return Evenson's property and that he had committed the offense with his girlfriend.
3. The Parties' Sentencing Recommendations
Defendant requested that the trial court grant him probation should it decide to strike his prior strike conviction. Alternatively, defendant requested a sentence of seven years. Included in defendant's sentencing memorandum were seven alternative sentencing options for the court's consideration, ranging from probation to 17 years in prison.
The prosecution recommended that defendant be sentenced to a 13-year prison term.
4. The Romero Hearing/Sentencing
At the outset of the sentencing hearing, the trial court granted defendant's petition to reduce his two felony drug convictions in Santa Cruz County Superior Court case No. F26020 to misdemeanors pursuant to Proposition 47 (§ 1170.18).
The trial court also corrected the probation report to reflect that defendant's other felony drug conviction had previously been reduced to a misdemeanor pursuant to Proposition 47.
The trial court then informed the parties of its tentative decision to deny defendant's Romero motion. The court stated that it had reviewed defendant's motion and the prosecution's opposition, and observed that defendant had a "lengthy criminal history" that had gone uninterrupted since his mid-20's. Defendant had been placed on probation for his prior conviction of first degree burglary, and had completed that probation only eight months before he committed the burglary here. The court was "mindful of the fact that many of [defendant's] offenses are related to substance abuse," but found that defendant's "long history of theft crimes . . . appear[ed] . . . to be increasing in severity," and the current offense was committed with "some degree of criminal sophistication consistent with the prior burglary offense." The court acknowledged that defendant had successfully completed a six-month residential treatment program while on probation for his prior burglary offense, but noted that afterwards defendant started using heroin and methamphetamine again and committed a theft offense in Butte County before perpetrating the current burglary.
In response to the trial court's tentative ruling, defendant asserted that he had no prior prison commitments and that based on the reduction of his felony drug offenses to misdemeanors, his 2012 burglary was his only prior felony conviction. He also referenced his participation in jail programming, and a "discharge planner" from the jail described defendant as understanding that his substance abuse contributed to his criminality and as appearing to be "willing" to participate in treatment. Defendant expressed his remorse and apologized to the Evenson family in a letter he submitted to the court.
After the trial court reviewed defendant's letter, it further explained why it would not "exercise [its] discretion to strike the strike." It was apparent to the court that defendant had not taken responsibility for the current offense. The court stated that it did not find defendant's trial testimony credible, and that the crime "seem[ed] to be a pattern and practice" where defendant went "into the homes in an effort to steal property and either support his drug use or generate income." The court determined that defendant's lack of truthfulness and unwillingness to take responsibility did "not bode well for him in the future avoiding further criminal behavior and criminal acts," which was another factor in the court's decision.
The trial court again noted defendant's successful completion of the residential treatment program and recognized his participation in jail programming, but stated it did not "have any confidence" that defendant would not relapse and reoffend. It recounted defendant's trial testimony that he had $4,000 in cash on the date of the offense and that he was generating income from his marijuana growing business, and found that if that were true, "then it's also true . . . that he is stealing not to support a drug habit but because he's a thief" from whom the community needed protection "by way of the imposition of the sentence that probation is recommending." Nonetheless, the court conveyed that it was "not particularly comfortable imposing the type of lengthy sentence that's recommended," but concluded that because of defendant's prior strike and "the fact that [it was] not going to be able to find any mitigating factors, it appear[ed] that [it was] really left with no alternative but to follow the Probation Department's recommendation."
Defendant had no response to the trial court's comments, other than to request that his letter be made part of the record. The prosecution expressed agreement with the court's reasoning. The court denied the Romero motion.
The trial court then turned to its tentative sentencing decision. The court first noted the statutory presumption against granting probation to a person convicted of burglary, and it determined that the interests of justice would not be served by granting defendant probation. The court also found three factors in aggravation: the crime was committed close in time to the prior burglary offense; the manner in which the crime was committed reflected a degree of sophistication and planning; and defendant's convictions as an adult were numerous or of increasing seriousness. (See Cal. Rules of Court, rule 4.421(a)(8), (b)(2), (c).) In mitigation, the court found that defendant had previously completed felony probation successfully (see rule 4.423(b)(6)), but that the circumstances in mitigation did not outweigh those in aggravation. The court stated that for all of those reasons, it intended to impose the midterm sentence of four years for defendant's offense, which would be doubled pursuant to the Three Strikes law, and that it would impose a five-year consecutive term under section 667, subdivision (a)(1) for defendant's prior serious felony conviction, for a total term of 13 years.
All further rule references are to the California Rules of Court.
Defendant had no additional comments. The prosecution offered the following circumstances in aggravation in addition to those found by the court: defendant occupied a position of leadership in the crime's commission and induced another to participate; the offense was an attempt to take property of great monetary value; and defendant's overall performance on probation was unsatisfactory. (See rule 4.421(a)(4), (9), (b)(5).) The trial court determined that the record supported those aggravating factors as well.
The trial court ruled that it would not select the aggravated term despite the existence of "numerous aggravating factors" because it would be "too many years in prison in relation to the offense." While it "struggled mightily to find some mitigating factors . . . so [it] could impose a lower term," it determined that it would be "intellectually dishonest . . . to select the mitigated term" because it lacked a "factual basis . . . in light of" defendant's prior criminal history and the other factors cited. The court stated it chose the midterm because "it most accurately reflects the circumstances of the crime and results in a sentence that is supported by the evidence and the law."
The trial court sentenced defendant to a total prison term of 13 years. The sentence consists of the midterm of four years for the offense, which was doubled to eight years pursuant to the Three Strikes law, plus a five-year term for the prior serious felony enhancement (§ 667, subd. (a)(1)).
5. Forfeiture
The Attorney General argues that because he did not object below, defendant has forfeited his claims that the trial court was unaware of the scope of its sentencing discretion when it denied his Romero motion and selected the midterm. In response, defendant contends that the forfeiture rule does not apply because he did not have a meaningful opportunity to object, as the court's "errors . . . would not have been obvious or readily identifiable at the time of the hearing" and were "only . . . apparent after the court had already clearly made its decision." We agree with the Attorney General that the claims have been forfeited.
Failure to object to a trial court's discretionary sentencing choices forfeits the issue on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353 (Scott); accord, People v. Gonzalez (2003) 31 Cal.4th 745, 752 (Gonzalez).) "Although the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing. Routine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention." (Scott, supra, at p. 353.) "Of course, there must be a meaningful opportunity to object" for the forfeiture rule to apply. (Id. at p. 356.) "This opportunity can occur only if, during the course of the sentencing hearing itself and before objections are made, the parties are clearly apprised of the sentence the court intends to impose and the reasons that support any discretionary choices." (Ibid.)
The trial court advised the parties of its tentative sentencing decisions and its reasoning, and before it made its final rulings, asked defendant twice during the Romero hearing and once during the sentencing hearing whether he had any comments. Defendant did not raise the concerns he voices here. While defendant argues that the nature of the trial court's errors would have "ma[d]e it difficult for even the most experienced litigator to, in the moment," object, Scott "recognize[d] that pronouncement of sentence is a highly technical process encompassing a wide variety of procedural and substantive matters," but still held "that complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal" where the court has informed the parties of its intended sentence and its reasoning. (Scott, supra, 9 Cal.4th at p. 356; see also Gonzalez, supra, 31 Cal.4th at p. 752 ["Scott rejected the argument of the defendant in that case that 'a rule requiring a contemporaneous objection to defects in the court's statement of reasons is impractical [because] it is unrealistic to expect counsel to comprehend, remember, and respond to the various sentencing factors and choices delivered orally by the court at the hearing' "].) "The parties are given an adequate opportunity to seek such clarifications or changes if, at any time during the sentencing hearing, the trial court describes the sentence it intends to impose and the reasons for the sentence, and the court thereafter considers the objections of the parties before the actual sentencing." (Gonzalez, supra, at p. 752.) Defendant was given an adequate opportunity to object to the trial court's reasoning for denying his Romero motion and selecting the midterm, and he failed to do so, forfeiting the claims.
6. Ineffective Assistance of Counsel
Although defendant has forfeited his sentencing claims, we nevertheless address his contentions because of his claim that his counsel's failure to object to the trial court's exercise of its sentencing discretion amounted to ineffective assistance of counsel.
Citing People v. Garcia (1999) 20 Cal.4th 490, 500 (Garcia), defendant first contends the trial court abused its sentencing discretion when it declined to strike his prior strike conviction, because it was unaware it could do so based on the length of his sentence. Defendant rests his claim on the trial court's statement that it was "not particularly comfortable imposing the type of lengthy sentence that's recommended, but given the prior strike and the fact that [it was] not going to be able to find any mitigating factors, it appears that [it was] really left with no alternative but to follow the Probation Department's recommendation."
Section 1385 authorizes a trial court to strike prior strike allegations "in furtherance of justice." (Romero, supra, 13 Cal.4th at pp. 504, 529, 530.) That discretion, however, is "limited." (Id. at p. 530.) "[T]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts' discretion in sentencing repeat offenders." (Id. at p. 528.) "To achieve this end, 'the Three Strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless the sentencing court "conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme." ' [Citation.]" (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)
In exercising its discretion, the trial court must " ' "consider[ ] both . . . the constitutional rights of the defendant, and the interests of society represented by the People . . . ." ' " (Romero, supra, 13 Cal.4th at p. 530, italics omitted.) The trial court must accord "preponderant weight . . . to factors intrinsic to the [Three Strikes] scheme, such as the nature and circumstances of the defendant's present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects." (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).) "[N]o weight whatsoever may be given to factors extrinsic to the scheme, such as the mere desire to ease court congestion or, a fortiori, bare antipathy to the consequences for any given defendant. [Citation.]" (Ibid.) Ultimately, the trial court must determine whether "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." (Ibid.)
We review a trial court's discretionary sentencing choices, including its refusal to strike a prior strike conviction, for abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 375; People v. Jordan (1986) 42 Cal.3d 308, 316.) "In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' [Citations.] Second, a ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " ' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Carmony, supra, at pp. 376-377.)
In Garcia, the California Supreme Court held that a trial court may exercise its discretion to strike a prior conviction allegation with respect to fewer than all counts. (Garcia, supra, 20 Cal.4th at p. 500.) The court also reaffirmed that a trial court must "consider among other things, ' " 'individualized considerations' " ' [citation] 'such as the nature and circumstances of the defendant's present felonies' and his 'prospects.' " (Id. at p. 499.) The court observed that "a defendant's sentence is also a relevant consideration when deciding whether to strike a prior conviction allegation; in fact, it is the overarching consideration because the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences. [Citation.]" (Id. at p. 500.)
Here, when determining whether to strike defendant's prior strike conviction, the trial court was cognizant of sentence length and did consider it, among other " ' "individualized considerations." ' " (Williams, supra, 17 Cal.4th at p. 159.) The court stated at the outset of the Romero hearing that it had reviewed defendant's motion, and included in defendant's papers was his argument that he would face a minimum sentence of nine years if the court did not strike the strike, which he asserted was "a hefty amount of time for someone who ha[d] never been to prison and did not commit a violent crime."
The trial court considered the "nature and circumstances of the defendant's present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects." (Williams, supra, 17 Cal.4th at p. 161.) The court reviewed defendant's "lengthy" criminal history, observing that it had continued "uninterrupted since his mid 20s," involved many theft crimes, and "appear[ed] . . . to be increasing in severity." The court also evaluated the current offense, finding that it was committed with "some degree of criminal sophistication" and was perpetrated a mere eight months after defendant completed probation for his prior burglary conviction. The court expressed its awareness of defendant's substance abuse issues and his completion of residential treatment, but pointed out that defendant had relapsed afterwards and committed another theft offense before perpetrating this burglary. The court remarked that the crime "seem[ed] to be a pattern and practice" where defendant went "into the homes in an effort to steal property and either support his drug use or generate income." Finally, the court considered defendant's character and prospects, concluding that his failure to take responsibility for the offense and lack of candor did "not bode well for him in the future." It did not "have any confidence" that defendant would not relapse and reoffend. For these reasons, the court concluded it could not "say that [defendant] was someone that falls outside the spirit of the [T]hree [S]trikes law."
In light of this reasoning, the trial court's statement that it was "not particularly comfortable imposing the type of lengthy sentence that's recommended," is fairly read as its recognition of the sentence's length. Although the court commented that "it appears that [it was] really left with no alternative but to follow the Probation Department's recommendation" based on the prior strike and the lack of mitigating factors, it also declared "that the community needs protection by way of the imposition of the sentence that probation is recommending." By properly evaluating the "factors intrinsic to the [Three Strikes] scheme" (Williams, supra, 17 Cal.4th at p. 161) and concluding that defendant was not someone outside the scheme's spirit, the court necessarily determined that the interests of justice would not be served by striking the prior strike conviction (Garcia, supra, 20 Cal.4th at p. 500). On this record, it cannot be said that the trial court "was not 'aware of its discretion' to dismiss [citation], or . . . considered impermissible factors in declining to dismiss [citation]." (Carmony, supra, 33 Cal.4th at p. 378.) Nor was its decision so irrational or arbitrary that no reasonable person could agree with it. (Id. at p. 377.)
Defendant also contends the trial court abused its sentencing discretion because it mistakenly believed that it could not impose the low term for his offense unless the circumstances in mitigation outweighed those in aggravation. Defendant alleges that the trial court was "working under an outdated version of section 1170."
"When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court." (§ 1170, subd. (b).) "In exercising his or her discretion in selecting one of the three authorized prison terms of imprisonment referred to in section 1170[, subdivision] (b), the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision." (Rule 4.420(b).) "The court shall select the term which, in the court's discretion, best serves the interests of justice," and it "shall set forth on the record the reasons for imposing the term selected." (§ 1170, subd. (b).) " 'Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citations], and may balance them against each other in "qualitative as well as quantitative terms." ' " (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.)
"The trial court's sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.' [Citation.]" (People v. Sandoval (2007) 41 Cal.4th 825, 847.) A trial court abuses its discretion "if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision." (Ibid.)
The record establishes that the trial court's selection of the midterm for defendant's offense was not arbitrary or capricious. The court explained that it found several circumstances in aggravation, namely, that defendant perpetrated the crime soon after his prior burglary offense; the manner in which the crime was committed reflected a degree of sophistication and planning; and defendant's convictions as an adult were numerous or of increasing seriousness. (See rule 4.421(a)(8), (b)(2), (c).) The court also agreed with the prosecution that defendant had occupied a position of leadership in the crime's commission and induced another to participate; the offense was an attempt to take property of great monetary value; and defendant's overall performance on probation was unsatisfactory. (See rule 4.421(a)(4), (9), (b)(5).) In mitigation, the court found that defendant had previously completed felony probation successfully. (See rule 4.423(b)(6).)
Defendant asserts that the trial court also "recognized some mitigating factors" when it noted that many of defendant's prior offenses were related to substance abuse and that defendant had successfully completed a residential treatment program. However, the trial court made those comments in its explanation of why it was denying defendant's Romero motion. The trial court expressly stated regarding "circumstances in mitigation" that "[i]t doesn't appear to the Court that there really are any other than the fact that he had previously successfully completed the felony probation." --------
Despite the existence of numerous aggravating circumstances and only one circumstance in mitigation, the trial court decided to impose the midterm because the upper term amounted to "too many years in prison in relation to the offense." The court stated that it could not "find any factual basis to select a mitigated term," and explained that in its view, the midterm "most accurately reflects the circumstances of the crime and results in a sentence that is supported by the evidence and the law." These statements by the trial court establish that it was aware of its sentencing discretion and "select[ed] the term which . . . best serves the interests of justice." (§ 1170, subd. (b).)
The trial court's sentencing choices are supported by the record and were not arbitrary or capricious, nor did they exceed the bounds of reason. (People v. Welch (1993) 5 Cal.4th 228, 234.) Defendant has thus failed to meet his burden of demonstrating a reasonable probability that, but for defense counsel's failure to object to the court's exercise of its discretion, he would have obtained a more favorable sentence. (Strickland, supra, 466 U.S. at p. 694.)
IV. DISPOSITION
The judgment is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
GREENWOOD, P.J. /s/_________
GROVER, J.