Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County Ct. No. DF007721A. William D. Palmer, Judge.
William Davies, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Harris, J., Levy, J.
Pursuant to a plea agreement, appellant Shane Nissen pled no contest to possession of a weapon while confined in a penal institution (Pen. Code, § 4502, subd. (a)) and admitted allegations that he had suffered a “strike” and had served a prison term for a prior felony conviction (§ 667.5, subd. (b)). The court denied appellant’s requests that appellant’s prior prison term enhancement and strike conviction be stricken, and imposed a prison term of seven years, consisting of the three-year midterm, doubled pursuant to the three strikes law (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)) for a total of six years, and one year on the prior prison term enhancement. The court ordered that term to run consecutively to the two-year term appellant was serving at the time of the instant offense. The court did not award appellant any presentence credits.
All 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’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 himself, in response to this court’s invitation to submit supplemental briefing, has submitted a brief in which he argues, as best we can determine, as follows: the court erred in failing to conduct a hearing on the issue of appointment of substitute counsel; the court erred in denying appellant’s request to strike his strike conviction; and the court erred in failing to award him presentence credits. We will affirm.
FACTS
On December 3, 2005, a correctional officer at North Kern State Prison, upon hearing a banging noise and yelling coming from the area of cell No. 117, went to the cell, where he encountered inmate Ramirez, who was covered with blood and was striking the cell door with what was later determined to be part of a walking cane. When interviewed later, Ramirez stated the following. His cellmate, appellant, accused him of being a rapist and child molester, grabbed Ramirez’s walking cane and began striking him with it. At one point during the attack, the cane broke, and appellant began stabbing Ramirez with the portion remaining. Appellant eventually ceased the attack, walked over to the cell sink, began to wipe off the broken piece of cane and walked out of the cell to go to dinner. As he left, he told Ramirez not to say anything “or ‘he was dead.’ ”
DISCUSSION
Appellant indicates that “prior to sentencing,” he told his trial counsel that he wished to make a motion for substitute counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 based on his counsel’s “misrepresentation”; “this issue was mentioned at sentencing”; and although the court “was aware,” it did not conduct any inquiry regarding, or a hearing on, a Marsden motion. We interpret the foregoing as a claim that the court erred in failing to address in any way appellant’s purported expression of dissatisfaction with his trial counsel. However, the transcript of the sentencing hearing contains no indication appellant expressed any dissatisfaction with trial counsel, or that the court was aware of any such dissatisfaction. Therefore, appellant has not established error. (People v. Barnett (1998) 17 Cal.4th 1044, 1183 [“our review on a direct appeal is limited to the appellate record”]; People v. Clifton (1969) 270 Cal.App.2d 860, 862 [on appeal, “ ‘error is never presumed, but must be affirmatively shown’ ”].)
Appellant also argues the court erred in denying his request to strike his strike conviction. There is no merit to this contention.
Section 1385 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 (Romero), 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.”
In determining whether to strike a prior conviction, a 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.) “The touchstone for that determination is 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 [Three Strikes] 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.’ [Citations.]” (People v. Cluff (2001) 87 Cal.App.4th 991, 997-998.)
A superior court’s determination not to strike a strike conviction is reviewable for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.) “In [conducting this review], 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 the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” ’ [Citation.] 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.’ ” ’ [Citation.] 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.” (Id. at pp. 376-377.)
Appellant’s criminal history consists of misdemeanor convictions in Illinois for “[p]ossession [of] drug paraphernalia” in 1999, “[r]esisting [a] peace officer” in 2001 and battery in 2001; a misdemeanor conviction of “DUI/drugs” in Arizona in 2002; and the following California felony convictions: assault with a deadly weapon or by means of force likely to cause great bodily injury (§ 245, subd. (a)(1)) in 2002, possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) in 2004, driving under the influence of drugs and/or alcohol (Veh. Code, § 23152, subd. (a)) in 2004 and grand theft (§ 487, subd. (c)) in 2005. As indicated above, appellant committed the instant offense in 2005.
The record demonstrates that in the space of less than seven years, appellant has suffered eight convictions, five of which were for felonies. He has been sentenced to prison and county jail, and received multiple grants of parole. Thus, appellant has demonstrated a continuing pattern of reoffending regardless of past sanctions and attempts to rehabilitate through parole. It was not irrational for the court to refuse to treat appellant as if he had not previously suffered a strike conviction, and we decline appellant’s invitation to substitute our judgment for that of the trial court.
Finally, appellant contends the court erred in failing to award him presentence credits. As best we can determine, appellant argues that on the day of the instant offense, December 3, 2005, he was placed in “AD-SEG,” i.e., presumably, administrative segregation, in North Kern State Prison, and from that day through the day of sentencing, he was entitled to presentence credits in the instant case. This contention too is without merit.
“Defendants sentenced to prison for criminal conduct are entitled to credit against their terms for all actual days of presentence and post sentence custody (§§ 2900, subd. (c), 2900.5, subds. (a), (b)) . . . .” (People v. Cooper (2002) 27 Cal.4th 38, 40.) However, “[presentence] credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted.” (§ 2900.5, subd. (b).) In People v. Bruner (1995) 9 Cal.4th 1178, the California Supreme Court explained that “the purpose of section 2900.5 is to ensure that one held in pretrial custody on the basis of unproven criminal charges will not serve a longer overall period of confinement upon a subsequent conviction than another person who received an identical sentence but did not suffer preconviction custody. However, … ‘[t]here is no reason in law or logic to extend the protection intended to be afforded one merely charged with a crime to one already incarcerated and serving his sentence for a first offense who is then charged with a second crime. As to the latter individual the deprivation of liberty for which he seeks credit cannot be attributed to the second offense . . . .’ [Citation.]” (Id. at p. 1183-1184.) Appellant was serving a prison term at the time of the instant offense. Therefore, his continuing incarceration was not attributable to the instant offense. The court did not err in failing to award appellant presentence credits.
We have independently reviewed the record and based on that review we have concluded that no reasonably arguable legal or factual issues exist.
DISPOSITION
The judgment is affirmed.