Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 08CM1890, Steven D. Barnes, Judge.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Levy, A.P.J., Cornell, J., and Gomes, J.
Pursuant to a plea agreement, appellant Beunju Jarrod Moon pled guilty to possession of methamphetamine for purposes of sale (Health & Saf. Code, § 11378), and admitted allegations that he had served a prison term for a prior felony conviction, within the meaning of Penal Code section 667.5, subdivision (b), and that he had suffered a prior conviction of a drug-related offense within the meaning of Health and Safety Code section 11370.2, subdivision (c) and a “strike” conviction. The court imposed a prison term of eight years, consisting of the two-year midterm on the substantive offense, doubled pursuant to the three strikes law (§§ 667, subd. (e)(1); 1170.12, subd. (c)(1)); three years on the prior drug offense enhancement; and one year on the prior prison term enhancement.
Except as otherwise indicated, all further statutory references are to the Penal Code.
We use the terms “strike,” in its noun form, and “strike conviction,” as synonyms for “prior felony conviction” within the meaning of the “three strikes” law (§§ 667, subds. (b)-(i), 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
Appellant requested the court issue a certificate of probable cause (§ 1237.5). The court denied the request.
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d. 436.) Appellant, in response to this court’s invitation to submit additional briefing, has submitted a brief in which he argues that (1) the trial court erred in not striking appellant’s strike conviction and (2) appellant was denied his constitutional right to the effective assistance of counsel. We will affirm.
FACTS
The report of the probation officer (RPO) indicates the following. On June 12, 2008, law enforcement personnel, in conducting a parole search of appellant’s residence, found a digital scale and, in two plastic bags, a total of seven ounces of a substance containing methamphetamine. Appellant admitted that the “stuff[]” was his, but “denied that he was selling it....”
DISCUSSION
Appellant contends the court erred in failing to strike his strike conviction under section 1385. That statute provides, in relevant part, “The judge or magistrate may,... in furtherance of justice, order an action to be dismissed.” (§ 1385, subd. (a).) In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530, the California Supreme Court concluded that section 1385, subdivision (a) “permit[s] a court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law.” And although “[a] defendant has no right to make a motion, and the trial court has no obligation to make a ruling, under section 1385,” a defendant “[has] the right to ‘invite the court to exercise its power by an application to strike a count or allegation of an accusatory pleading....’ ” (People v. Carmony (2004) 33 Cal.4th 367, 375.) However, “any failure on the part of a defendant to invite the court to dismiss under section 1385 following Romero waives or forfeits his or her right to raise the issue on appeal.” (Id. at pp. 375-376.) Here, appellant failed to request that the trial court dismiss his strike conviction. Therefore, his challenge to the court’s failure to strike the strike is not cognizable on appeal.
Such a request is commonly called a “Romero motion.”
Appellant also argues that his counsel’s failure to bring a Romero motion denied appellant his right to the effective assistance of counsel. This contention is without merit.
In order to establish a denial of the constitutional right to the effective assistance of counsel, “a defendant must show both that counsel’s performance was deficient – it fell below an objective standard of reasonableness – and that defendant was thereby prejudiced.” (People v. Cash (2002) 28 Cal.4th 703, 734.) However, “‘there is no reason for a court deciding an ineffective assistance claim to... address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, 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.’” (People v. Cox (1991) 53 Cal.3d 618, 656.)
In order to establish prejudice, the defendant must show “‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different.’” (People v. Freeman (1994) 8 Cal.4th 450, 484.) “‘“It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding....” [Citations.]’” (People v. Cox, supra, 53 Cal.3d at p. 656.) The defendant “‘must carry his burden of proving prejudice as a “demonstrable reality,” not simply speculation as to the effect of the errors or omissions of counsel.’” (People v. McPeters (1992) 2 Cal.4th 1148, 1177.)
In People v. Williams (1997) 17 Cal.4th 148, our Supreme Court explained how a court should go about exercising its discretion under section 1385: “[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to [section 1385, subdivision (a)], or in reviewing such a ruling, the court in question must consider 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.” (Id. at p. 161.) “[T]he circumstances must be ‘extraordinary... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record....’” (People v. Carmony (2004) 33 Cal.4th 367, 378.)
The RPO indicates the following. Between January 2000 and the date of the instant offense, appellant suffered convictions of five misdemeanors and two felonies, including one strike. He has been sentenced to prison twice, and he has received multiple grants of probation and parole, all of which he “has failed to successfully complete....” Thus, for more than eight years appellant has demonstrated a continuing pattern of reoffending regardless of past sanctions and attempts to rehabilitate. On this record, it is, at most, only “‘“conceivable”’” that the court would have granted a Romero motion. (People v. Cox, supra, 53 Cal.3d at p. 656.) Appellant has not demonstrated it is reasonably probable that, had counsel made such a motion, the trial court would have concluded that the instant case is the extraordinary one that justifies departure from three strikes law sentencing scheme.
Following independent review of the record, we have concluded that no reasonably arguable legal or factual issues exist.
DISPOSITION
The judgment is affirmed.