Opinion
C081117
08-20-2018
THE PEOPLE, Plaintiff and Respondent, v. KEITH EARL OAKLEY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13F05812)
A jury found defendant Keith Earl Oakley guilty of driving under the influence of alcohol or drugs (DUI) and driving with a blood alcohol level of .08 percent or above, both having occurred within 10 years of a previous felony DUI conviction. In a bifurcated proceeding, the trial court found defendant had two prior convictions for aggravated assault under former section 245, subdivision (a) and former section 245, subdivision (a)(1) of the Penal Code, as well as a prior prison term. The trial court determined that the prior convictions were serious felonies qualifying as "strikes" within the meaning of the three strikes law, and sentenced defendant to an aggregate term of seven years in state prison.
Undesignated statutory references are to the Penal Code.
Defendant appeals, arguing the trial court erred in finding the prior assault convictions were strikes. Specifically, defendant contends—and the People appear to concede—that insufficient evidence supports the trial court's determination that the first prior assault conviction qualifies as a strike. Relying on Descamps v. United States (2013) 570 U.S. 254 (Descamps) and Mathis v. United States (2016) 579 U.S. ___ (Mathis), defendant further contends the trial court engaged in impermissible judicial factfinding in determining the second assault conviction qualifies as a strike, in violation of his rights under the Sixth Amendment.
During the pendency of this appeal, our Supreme Court decided People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo), which considered the effect of Descamps and Mathis on the role of judicial factfinding in determining whether a prior felony conviction qualifies as a strike. The parties submitted supplemental briefs addressing the trial court's evaluation of the second assault conviction in light of Gallardo. Not surprisingly, defendant's supplemental brief argues the trial court engaged in the type of judicial factfinding deemed impermissible in Gallardo. The People's supplemental brief argues the trial court merely considered the plea underlying the second assault conviction, which is permissible under Gallardo. On the record before us, we agree with the People. We also agree with the People that defendant fails to establish ineffective assistance of counsel at sentencing.
The trial court's error with respect to the first prior assault conviction had no effect on the sentence in view of the court's finding that the second prior assault conviction qualifies as a strike. Accordingly, we will affirm.
I. BACKGROUND
Defendant was arrested for DUI in September 2013, following a near collision with another vehicle. His blood alcohol level was .36 percent. An amended complaint (later deemed an information) charged defendant with felony DUI (Veh. Code, § 23512, subd. (a)—count one), felony driving with a blood alcohol content of .08 percent or more (Veh. Code, § 23152, subd. (b)—count two), misdemeanor driving with a suspended license (Veh. Code, § 14601.2, subd. (a)—count three), and misdemeanor evasion of an officer (Veh. Code, § 2800.1, subd. (a)—count four). In connection with counts one and two, the complaint alleged that defendant had sustained a prior DUI conviction within the preceding 10 years that was punished as a felony within the meaning of Vehicle Code section 23550.5.
We dispense with a more detailed recitation of the facts underlying defendant's offenses as they are immaterial to our resolution of the issues on appeal.
The complaint further alleged that defendant had two prior serious felony convictions that were also strikes within the meaning of the three strikes law (§§ 667, subds. (b)-(i) & 1170.12): (1) a 1982 conviction for assault with a deadly weapon in violation of former section 245, subdivision (a) (the 1982 conviction), and (2) a 1990 conviction for assault in violation of former section 245, subdivision (a)(1) (the 1990 conviction). The complaint also alleged that defendant had served a prior prison term in connection with the prior DUI conviction. Defendant pleaded not guilty and denied the enhancement allegations.
In the months leading to trial, defendant filed a motion inviting the trial court to strike the 1982 conviction pursuant to People v. Superior Court (1996) 13 Cal.4th 497 (Romero). The prosecution opposed the motion, which was set for hearing, continued several times, and then dropped without explanation.
Defendant was tried by jury and found guilty of counts one and two. The jury also found true the allegation that defendant had suffered a prior DUI conviction within the preceding 10 years. (Veh. Code, § 23550.5.) The jury was unable to reach a verdict on counts three and four, and the trial court declared a mistrial on those counts.
Defendant waived his right to a jury trial on the prior assault convictions and prior prison term. In a bifurcated proceeding, the prosecutor presented court records reflecting defendant's prior prison term and 1990 conviction. As relevant here, the prosecutor offered the abstract of judgment and transcript of plea hearing for the 1990 conviction. The plea transcript for the 1990 conviction contains several references to the 1982 conviction; however, the prosecutor did not offer any other court records reflecting the 1982 conviction.
The abstract of judgment indicates that defendant was convicted of aggravated assault under former section 245, subdivision (a)(1). The offense is described on the form as "AWDW/LIK/GBI."
The plea transcript contains the following colloquy regarding defendant's understanding of the plea:
"MAGISTRATE: Counsel, have you discussed with your client the elements of the crimes and the possible defenses that he may have?
"[DEFENSE COUNSEL]: Yes.
"MAGISTRATE: Have you explained his rights?
"[DEFENSE COUNSEL]: Yes.
"MAGISTRATE: Have you explained the direct consequences of his respective pleas of guilty?
"[DEFENSE COUNSEL]: Yes.
"MAGISTRATE: As well as admission of the prior?
"[DEFENSE COUNSEL]: Yes.
"MAGISTRATE: Are you satisfied Mr. Oakley understands those things?
"[DEFENSE COUNSEL]: Yes.
"MAGISTRATE: Do you understand those things, Mr. Oakley?
"THE DEFENDANT: Yes.
"MAGISTRATE: In particular, do you understand the nature of the crimes, that is, the elements of 245(a)(1) of the Penal Code?
"THE DEFENDANT: Yes.
"MAGISTRATE: Do you realize, as charged, this is a serious felony, within the meaning of section 1192.7(c)(23)?
"THE DEFENDANT: Yes."
The plea transcript also contains the factual basis for the plea, which the prosecutor described as follows:
"On the date alleged in the Complaint, within the County of Sacramento . . . , defendant and victim engaged in verbal argument, at which time the defendant took his vehicle and ran over the victim, causing her to fly over the roof of his car. Victim became unconscious."
The following colloquy then took place:
"MAGISTRATE: Counsel, have the People accurately summarized their evidence?
"[DEFENSE COUNSEL]: That's their evidence.
"MAGISTRATE: Any comment or amendment either you or he would like to make at this time?
"[DEFENSE COUNSEL]: No."
Following further admonitions and waivers of rights, defendant entered a guilty plea and admission as follows:
"MAGISTRATE: 90F04319, People versus Keith Earl Oakley. It is alleged on the 13th day of May, 1990, in the County of Sacramento, State of California, you did violate Section 245(a)(1) of the Penal Code , a felony, in that you did willfully and unlawfully commit an assault upon [the victim], with a deadly and dangerous weapon, that is, an automobile, with means of force likely to produce great bodily injury, this being a serious felony, within the meaning of Penal Code section 1192 .7(c)(23). Your plea?
"THE DEFENDANT: Guilty.
"MAGISTRATE: Case No. 90F04239. It is alleged you had previously been convicted of a felony, assault with a deadly weapon, that is, 245 of the Penal Code, on or about the 10th day of August, 1982, in the Sacramento Superior Court. Do you admit or deny that element of the crime?
"THE DEFENDANT: I admit." (Emphasis added.)
Defendant then entered additional pleas and admissions, none of which are relevant here. The magistrate accepted defendant's pleas and waivers, and found they were made knowingly, intelligently, and voluntarily.
During the bifurcated proceeding, defense counsel argued that the abstract of judgment and plea transcript were not sufficient to prove that the 1990 conviction was a serious felony within the meaning of section 1192.7, subdivision (c)(23). The prosecutor countered that the magistrate specifically advised defendant that he was pleading guilty to a serious felony. The trial court agreed with the prosecutor, reading the italicized language from the plea transcript into the record, and concluding: "That together with the other admonitions given by the court and recognizing that Mr. Oakley was represented by the [a]ssistant [p]ublic [d]efender . . . at the time, the Court does find there is sufficient factual basis in the file the Court has taken judicial notice of to conclude that Mr. Oakley did have knowledge of and, in fact, was convicted of a serious felony constituting what we now call a strike. So with the—with that and with the exhibits admitted into evidence, the Court finds all three priors to be true." The trial court then proceeded with sentencing.
During the sentencing hearing, defense counsel urged the trial court to consider the fact that defendant's prior assault convictions were remote in time, and there was nothing else in defendant's record to suggest that he engaged in violent conduct that presented a danger to society. Defense counsel also urged the trial court to consider the fact that defendant had an addiction to alcohol, which he had acknowledged, and sought treatment for. Defense counsel also asked the trial court to consider the fact that defendant had completed a pre-apprenticeship program at a community college and hoped to become a productive member of society. Defense counsel urged the trial court to exercise leniency by, for example, selecting a lesser term or staying imposition of the one-year enhancement for the prior prison term. Defense counsel did not renew defendant's previously filed Romero motion.
The prosecutor responded that defendant posed a danger to society by virtue of his many prior DUI convictions. Although the prosecutor acknowledged that defendant had not committed a violent offense since 1990, she emphasized that defendant has accumulated 10 DUI convictions since that time. The prosecutor also noted that defendant's blood alcohol level at the time of the current offense was .36 percent, and "at least" .20 percent at the time of the offense that gave rise to the immediately preceding DUI conviction. The prosecutor also questioned defendant's commitment to recovery, noting that he attended meetings in 2011, but had not appeared to have done anything to promote his recovery in the two years preceding the offense.
The trial court sentenced defendant to seven years in prison, imposing the upper term of three years for the violation of Vehicle Code section 23152, subdivision (a) (count one), doubled for the strike (§§ 667, subds. (b)-(i) & 1170.12), plus one year for the prior prison term (§ 667.5, subd. (b).) The trial court stayed defendant's seven-year sentence for driving with a measurable blood alcohol level of .08 percent or more (Veh. Code, § 23152, subd. (b)—count two), pursuant to section 654.
Defendant filed a timely notice of appeal.
II. DISCUSSION
On appeal, defendant argues (1) insufficient evidence supports the finding that the 1982 conviction qualified as a serious felony and a strike, (2) the trial court erred in finding the 1990 conviction qualified as a serious felony and a strike, and (3) defendant's trial counsel rendered ineffective assistance of counsel in failing to ask the trial court to strike the prior assault convictions. We address these contentions in turn. A. The 1982 Conviction
Defendant argues insufficient evidence supports the trial court's finding that the 1982 conviction was a serious felony and a strike. The People do not address the 1982 conviction at all. We agree with defendant.
To qualify as a strike under the three strikes law, a prior conviction must be a serious felony, as defined in section 1192.7, subdivision (c), or a violent felony, as defined in section 667.5, subdivision (c). The prosecution must prove the serious or violent nature of the offense beyond a reasonable doubt, and may do so with court documents prepared contemporaneously with the conviction by a public officer charged with that duty, such as an abstract of judgment. (People v. Delgado (2008) 43 Cal.4th 1059, 1066 (Delgado).) "However, if the prior conviction was for an offense that can be committed in multiple ways, and the record of the conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense." (Ibid.)
In 1982, former section 245, subdivision (a) provided, in relevant part: "Every person who commits an assault upon the person of another with a deadly weapon or instrument or by any means of force likely to produce great bodily injury is punishable by imprisonment in state prison . . . ." Thus, former section 245, subdivision (a) described two ways of committing aggravated assault within the same subdivision: (1) by use of a deadly weapon or instrument, or (2) by means of force likely to produce great bodily injury.
In 2012, the Legislature amended section 245 by deleting the phrase "or by any means of force likely to produce great bodily injury" from subdivision (a)(1) and placing it in newly enacted subdivision (a)(4). (Stats. 2011, ch. 183, § 1.) Thus, the current version of the statute separates the two ways in which an aggravated assault can occur.
Assault with a deadly weapon is a serious felony and constitutes a strike under the three strikes law. (§§ 1192.7, subd. (c)(31), 667, subd. (d)(1), 1170.12, subd. (b)(1).) However, assault by means of force likely to produce great bodily injury is not a serious felony or a strike. (Delgado, supra, 43 Cal.4th at p. 1065; see also Gallardo, supra, 4 Cal.5th at p. 125 ["If defendant committed assault with a deadly weapon, the prior conviction counted as a strike; if she committed assault by any means of force likely to produce great bodily injury, it did not"].) Accordingly, the mere fact of a conviction for aggravated assault under former section 245, subdivision (a) does not, without more, establish the prior conviction was a serious felony. (Delgado, supra, at p. 1065.)
"Where, as here, the mere fact that a prior conviction occurred under a specified statute does not prove the serious felony allegation, otherwise admissible evidence from the entire record of the conviction may be examined to resolve the issue." (Delgado, supra, 43 Cal.4th at p. 1065.) "A common means of proving the fact and nature of a prior conviction is to introduce certified documents from the record of the prior court proceeding and commitment to prison, including the abstract of judgment describing the prior offense. [Citations.]" (Id. at p. 1066.)
With the exception of the plea transcript from the 1990 conviction, which contains passing references to the 1982 conviction, the prosecution offered no records reflecting the serious felony nature of the 1982 conviction. Neither party addresses whether the plea transcript constitutes sufficient evidence of the serious felony nature of the 1982 conviction. On the record before us, we conclude it does not.
Because the 1982 conviction could have rested on either an assault with a deadly weapon or an assault by means of force likely to produce great bodily injury, it was insufficient, in and of itself, to prove defendant guilty of a prior serious felony conviction beyond a reasonable doubt. Without further evidence of the surrounding circumstances, it must be presumed that the 1982 conviction under former section 245, subdivision (a) was for the least serious form of the offense, that is, assault by means of force likely to produce great bodily injury. (Delgado, supra, 43 Cal.4th at p. 1066.) We therefore conclude that the trial court's true finding that the 1982 conviction was a serious felony was not supported by substantial evidence. B. The 1990 Conviction
Next, defendant argues the trial court erred in finding the 1990 conviction was a serious felony and a strike. Specifically, defendant argues the trial court engaged in impermissible factfinding in determining that the 1990 conviction rested on assault with a deadly weapon, rather than assault by means of force likely to produce great bodily injury. This time, we disagree.
The 1990 conviction was based on former section 245, subdivision (a)(1), which provided: "Every person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury is punishable by imprisonment in the state prison . . . ." Former section 245, subdivision (a)(1) is, for our purposes, the same as former section 245, subdivision (a). Both versions of the statute describe two ways of committing the same offense, within the same subsection: use of a deadly weapon or use of force likely to produce great bodily injury. Consequently, the mere fact of a conviction for aggravated assault under former section 245, subdivision (a)(1) does not prove the offense was a serious felony. (Delgado, supra, 43 Cal.4th at p. 1065.)
As indicated above, California case law has long authorized the trial court to examine the record of the prior criminal proceeding to determine whether the conviction qualified as a serious felony. (Delgado, supra, 43 Cal.4th at p. 1065.) Where the alleged strike prior rested on a plea of guilty or no contest, the court could examine the record of conviction to determine whether the crime "realistically may have been based on conduct" that qualified as a strike and serious felony under California law. (People v. McGee (2006) 38 Cal.4th 682, 706 (McGee), disapproved by Gallardo, supra, 4 Cal.5th at pp. 134-136.) This practice raised significant constitutional concerns, however, as under the Sixth Amendment, "only a jury, and not a judge, may find facts that increase a maximum penalty, except for the simple fact of a prior conviction." (Mathis, supra, 136 S.Ct. at p. 2252, citing Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi).)
Our Supreme Court attempted to reconcile these concerns in McGee. There, the court concluded that the trial court could review preliminary hearing transcripts from two Nevada cases to determine whether the defendant's prior robbery convictions qualified as strikes under California law. (McGee, supra, 38 Cal.4th at pp. 687-689, 707.) The court drew a distinction between "sentence enhancements that require factfinding related to the circumstance of the current offense . . .—a task identified by Apprendi as one for the jury—and the examination of court records pertaining to a defendant's prior conviction to determine the nature or basis of the conviction—a task to which Apprendi did not speak and 'the type of inquiry that judges traditionally perform as part of the sentencing function.' " (Id. at p. 709.) The court acknowledged "the possibility that the United States Supreme Court, in future decisions, may extend the Apprendi rule" to "the inquiry involved in examining the record of a prior conviction to determine whether that conviction constitutes a qualifying prior conviction for purposes of a recidivist sentencing statute," but absent clear guidance from the high court was "reluctant to assume, in advance of such a decision . . . , that the federal constitutional right to a jury trial will be interpreted to apply in the . . . context" of judicial strike determination procedure. (Ibid.)
The United States Supreme Court spoke to the question raised in McGee in Descamps and Mathis, the cases on which defendant relies. In Descamps, the Supreme Court considered how a sentencing court should determine whether a prior conviction qualifies as a violent felony under the Armed Career Criminal Act (ACCA) (18 U.S.C. § 924(e)) which increases sentences of federal defendants with three such prior convictions. (Descamps, supra, 570 U.S. at p. 257.) The Descamps Court endorsed a "categorical approach," under which the sentencing court "compare[s] the elements of the statute forming the basis of the defendant's conviction with the elements of the 'generic' crime—i.e., the offense as commonly understood. The prior conviction qualifies as an ACCA predicate only if the statute's elements are the same as, or narrower than, those of the generic offense." (Ibid.) "[W]hen a prior conviction is for violating a so-called 'divisible statute[,]' . . . [one that] sets out one or more elements of the offense in the alternative[,] . . . the [so-called] modified categorical approach permits sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction. The court can then do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime." (Ibid.) The Court noted that, under either approach, the "focus [is] on the elements, rather than the facts, of a crime." (Id. at p. 263.)
The Descamps Court offered three justifications for its "elements-centric" approach: (1) the ACCA's text and history, (2) avoidance of the "Sixth Amendment concerns that would arise from sentencing courts' making findings of fact that properly belong to juries," and (3) " 'the practical difficulties and potential unfairness of a factual approach.' " (Descamps, supra, 570 U.S. at p. 267.) With respect to the Sixth Amendment, the Court stated that because a sentencing "court's finding of a predicate offense indisputably increases the maximum penalty," such a "finding would (at the least) raise serious Sixth Amendment concerns if it went beyond merely identifying a prior conviction." (Id. at p. 269.) In the court's view, Sixth Amendment concerns "counsel against allowing a sentencing court to 'make a disputed' determination 'about what the defendant and state judge must have understood as the factual basis of the prior plea,' or what the jury in a prior trial must have accepted as the theory of the crime." (Ibid.)
The Descamps court criticized the Ninth Circuit's approach to the ACCA, which authorized the sentencing court "to try to discern what a trial showed, or a plea proceeding revealed, about the defendant's underlying conduct." (Descamps, supra, 570 U.S. at p. 269.) The court explained, "The Sixth Amendment contemplates that a jury—not a sentencing court—will find such facts, unanimously and beyond a reasonable doubt. And the only facts the court can be sure the jury so found are those constituting elements of the offense—as distinct from amplifying but legally extraneous circumstances." (Id. at pp. 269-270.) Similarly, the court explained, "when a defendant pleads guilty to a crime, he waives his right to a jury determination of only that offense's elements; whatever he says, or fails to say, about superfluous facts cannot license a later sentencing court to impose extra punishment." (Id. at p. 270.)
The United States Supreme Court revisited the question of how sentencing courts should determine whether a prior conviction constitutes an ACCA predicate in Mathis. In affirming the approach laid out in Descamps, the court stated that, under the Sixth Amendment and Apprendi, "a judge cannot go beyond identifying the crime of conviction to explore the manner in which the defendant committed that offense. [Citations.] . . . He can do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of." (Mathis, supra, 136 S.Ct. at p. 2252.)
Our Supreme Court reconsidered McGee in light of Descamps and Mathis in Gallardo. (Gallardo, supra, 4 Cal.5th at p. 124.) There, the defendant was alleged to have sustained a prior strike conviction for aggravated assault under another version of former section 245, subdivision (a)(1), which similarly combined assault with a deadly weapon and assault by means of force likely to produce great bodily injury in the same subdivision. (Gallardo, supra, at p. 125.) There, as here, the prior conviction followed a guilty plea. (Id. at p. 136.) There, the defendant "did not specify that she used a deadly weapon when entering her guilty plea." (Ibid.) Accordingly, the trial court examined the transcript of the preliminary hearing from the prior proceeding and determined, on the basis of the victim's testimony, that the defendant had, in fact, been convicted of assault with a deadly weapon. (Id. at pp. 126, 136) Consequently, the trial court found true the allegation that the defendant had been convicted of a serious felony, and doubled the base term of the defendant's sentence. (Id. at p. 126.)
The Gallardo court, upon consideration of Descamps and Mathis, concluded the trial court had engaged in constitutionally impermissible factfinding. (Gallardo, supra, 4 Cal.5th at pp. 134-137.) The court explained: "The trial court's role is limited to determining the facts that were necessarily found in the course of entering the conviction. To do more is to engage in 'judicial factfinding that goes far beyond the recognition of a prior conviction.' " (Id. at p. 134, quoting Descamps, supra, 570 U.S. at p. 255.) Therefore, "a court considering whether to impose an increased sentence based on a prior qualifying conviction may not determine the 'nature or basis' of the prior conviction based on its independent conclusions about what facts or conduct 'realistically' supported the conviction. [Citation.] That inquiry invades the jury's province by permitting the court to make disputed findings about 'what a trial showed, or a plea proceeding revealed, about the defendant's underlying conduct.' [Citation.] The court's role is, rather, limited to identifying those facts that were established by virtue of the conviction itself—that is, facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea." (Gallardo, supra, at p. 136.)
The Gallardo court criticized the trial court's reliance on the preliminary hearing transcript, noting: "While Descamps does permit courts to rely on certain documents to identify the precise statutory basis for a prior conviction, the documents listed in Descamps—'indictments and jury instructions' [citation]—differ from the preliminary transcript here in a meaningful way. An indictment or jury instructions might help identify what facts a jury necessarily found in the prior proceeding. [Citation.] But defendant's preliminary hearing transcript can reveal no such thing. A sentencing court reviewing that preliminary transcript has no way of knowing whether a jury would have credited the victim's testimony had the case gone to trial. And at least in the absence of any pertinent admissions, the sentencing court can only guess at whether, by pleading guilty to a violation of . . . section 245, subdivision (a)(1), defendant was also acknowledging the truth of the testimony indicating that she had committed the assault with a knife." (Gallardo, supra, 4 Cal.5th at p. 137.)
Relying on Gallardo, defendant argues the trial court "engaged in an impermissible inquiry (and a speculative one, at that) by relying on the plea transcript to determine [' "]what the defendant and state judge must have understood as the factual basis of the prior plea.[" '] (Gallardo, supra, 4 Cal.5th at p. 137.)" We are not persuaded. Contrary to defendant's contention, the record indicates the trial court relied on defendant's plea, which included an admission that the prior offense was a serious felony. Although defendant may not have adopted the prosecutor's factual basis, he specifically admitted, after consultation with counsel, that the prior offense was "a serious felony, within the meaning of . . . section 1192.7[, subdivision ](c)(23)." In effect, defendant made a section 969f admission, a procedure endorsed by our Supreme Court. (Delgado, supra, 43 Cal.4th at p. 1072.) If a defendant makes a section 969f admission as part of a guilty plea, he or she concedes an offense is a serious felony, and "the serious felony nature of the offense will become an explicit part of the record of conviction, leaving no room for confusion if and when the issue becomes relevant to the sentence for a subsequent felony." (Delgado, supra, at p. 1072.) Although section 969f would not become effective until January 1, 1991, some six months later, defendant similarly admitted the serious felony nature of the offense. (See generally People v. Leslie (1996) 47 Cal.App.4th 198, 204 [§ 969f contemplates that a defendant pleading guilty to a charged offense will separately admit or deny whether the offense qualifies as a serious felony, thereby "pre-qualifying" the offense as a serious felony].) On the record before us, we see no reason why such an admission should not be binding.
We do not understand defendant to argue that the trial court could not properly examine the plea transcript; rather, we understand him to argue that the trial court relied on the plea transcript to make impermissible findings of fact. To the extent defendant intends the former argument, we reject it. (See Shepard v. United States (2005) 544 U.S. 13, 15 [sentencing court may consider written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented].) --------
Far from supporting an inference that the trial court engaged in speculation or prohibited factfinding, the record establishes that the court relied on defendant's binding admission. Although Gallardo prohibits a sentencing court from invading the jury's province by making disputed findings about " 'what a trial showed, or a plea proceeding revealed, about the defendant's underlying conduct,' " nothing in the opinion requires a sentencing court to turn a blind eye to a defendant's binding admission. (Gallardo, supra, 4 Cal.5th at p. 133.) To the contrary, Gallardo makes clear that a sentencing court may rely on "those facts that were established by virtue of the conviction itself," including "facts . . . admitted by defendant when entering her guilty plea," and "pertinent admissions." (Id. at pp. 136, 137.) The trial court could rely on defendant's binding admission without exceeding the bounds imposed by the Sixth Amendment.
On the record before us, where nothing indicates the admission was anything other than knowing and voluntary, we conclude the trial court was entitled to rely on it, and did not engage in prohibited factfinding in so doing. We therefore reject defendant's claim of error. C. Ineffective Assistance of Counsel
Defendant also argues his trial counsel rendered ineffective assistance of counsel in (1) failing to contest the trial court's determination that the 1982 conviction was a strike, and (2) failing to request that the trial court exercise its discretion to strike either of the prior assault convictions pursuant to Romero. We find no ineffective assistance or resulting prejudice.
To establish a claim of ineffective assistance of counsel, the defendant must show by a preponderance of the evidence that (1) his or her counsel's performance was deficient under prevailing professional norms, and (2) it is reasonably probable the defendant would have realized a more favorable result absent the deficiency. (Strickland v. Washington (1984) 466 U.S. 668, 687-692.) "We presume 'counsel's conduct falls within the wide range of reasonable professional assistance' [citations], and accord great deference to counsel's tactical decisions." (People v. Lewis (2001) 25 Cal.4th 610, 674.) "Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile." (People v. Price (1991) 1 Cal.4th 324, 387.) On appeal, the defendant must show his counsel had no rational tactical purpose for the challenged act or omission. (People v. Mickel (2016) 2 Cal.5th 181, 198.)
On the record before us, defense counsel reasonably could have concluded that it would have been futile to contest the trial court's determination that the 1982 conviction was a strike. Not only was the trial court unlikely to change a finding made moments before, any such change would have profited him nothing given the court's determination that the 1990 conviction was also a strike. (§ 667, subd. (e)(1).) Under the circumstances, we cannot say that defense counsel was ineffective in failing to contest the strike determination. But even assuming, arguendo, that she was, defendant could not have been prejudiced, as his sentence would still have been subject to doubling under the three strikes law.
Nor can we say that defense counsel was ineffective in failing to ask the trial court to exercise its discretion to strike the prior assault convictions. Here, too, defense counsel reasonably could have concluded that any such request would have been futile. In deciding whether to strike a defendant's prior conviction, the trial court "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." (People v. Williams (1998) 17 Cal.4th 148, 161.) Defendant's criminal record does not support such a finding.
Defendant's lengthy criminal record spans more than three decades, beginning with the 1982 conviction. Defendant observes that the prior assault convictions are remote in time. That may be so, but defendant's criminal history reveals an almost continuous course of criminal conduct since 1982, including six felony convictions, eleven misdemeanor convictions, and multiple parole violations. Of greatest significance, defendant's criminal record reveals numerous prior DUI convictions, with blood alcohol levels ranging from .11 percent to .23 percent. Defendant's criminal record also reveals that he was on active parole and driving with a suspended license at the time of the present offense, when his blood alcohol level was measured at .36 percent, over four times the legal limit. Against this background, defendant's trial counsel could have reasonably concluded that the trial court would be unlikely to exercise its discretion to strike the prior assault convictions. And such a judgment would not have been misplaced. As the trial court explained, in imposing the upper term: "[The] Court has selected the upper term in this matter because pursuant to [Cal. Rules of Court, rule] 4.421(b)(2) there are numerous priors in this case. I think [the prosecutor] indicated ten, just the DUIs themselves. But we do have a long history of criminal conduct, and those DUIs are to be taken very, very seriously."
Defendant also notes that his other offenses are nonviolent, and largely attributable to his alcohol addiction, for which he has sought treatment. However, the fact that many of defendant's offenses appear to have involved alcohol does not relieve him from the operation of the three strikes law. Drug or alcohol addiction "is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment." (People v. Martinez (1999) 71 Cal.App.4th 1502, 1511.) Indeed, defendant's prolonged alcohol abuse and repeated alcohol-related offenses suggest his prospects for rehabilitation are uncertain. (People v. Gaston (1999) 74 Cal.App.4th 310, 322; People v. Martinez, supra, at p. 1511; see also In re Handa (1985) 166 Cal.App.3d 966, 973-974 ["Drug use or drug addiction at the time of an offense is an example of a disputable factor in mitigation. The sentencing court may find that drug use did not significantly affect the defendant's capacity to exercise judgment or, in the case of an addiction of long standing, that the defendant was at fault for failing to take steps to break the addiction"].) Here, the record reveals that defendant has had multiple opportunities to address his problems with alcohol, over a period of many years. Indeed, defendant's first DUI conviction was in 1988, some 25 years before the current offense. Despite defendant's decades-long struggle with alcohol addiction, the record suggests only a sporadic effort to seek treatment. Specifically, the record indicates that defendant (1) completed an outpatient substance abuse program in August 2011 (three years before the present offense), (2) attended eight Narcotics Anonymous or Alcoholics Anonymous meetings, also in August 2011 (and possibly as part of the aforementioned outpatient program), and (3) applied for, and gained acceptance to, the Jericho Project, a residential substance abuse treatment program, while in custody for the current offense. Defendant's trial counsel could have reasonably concluded that the trial court was unlikely to be impressed by the intensity of defendant's commitment to recovery. Indeed, the trial court specifically noted, "I really didn't find anything in mitigation. I appreciate the fact that in 2011 he took some steps, but I also didn't find anything of significant mitigating factors under the Rules of Court."
Finally, defendant's trial counsel could have reasonably concluded that the trial court would have been unlikely to strike the prior assault convictions, despite the fact that defendant's current offense was nonviolent. (See People v. Strong (2001) 87 Cal.App.4th 328, 344 [reversing order granting Romero motion based on nonviolent nature of current offense because "the nonviolent or nonthreatening nature of the felony cannot alone take the crime outside the spirit of the law"].) Defendant's many alcohol-related driving offenses over the course of a quarter century—including the current offense, in which he nearly collided with another vehicle—demonstrate a significant disregard for the lives and safety of others. Under the circumstances, defendant's trial counsel could reasonably conclude that the trial court would be unlikely to grant a request to strike the prior assault convictions. Defendant's trial counsel did not render ineffective assistance of counsel.
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
RAYE, P. J. /S/_________
MAURO, J.