Opinion
A155164
02-04-2020
THE PEOPLE, Plaintiff and Respondent, v. DARRYL ANDRE SIMON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR1800467)
Defendant Darryl Andre Simon pleaded guilty to fleeing a peace officer while driving recklessly (Pen. Code, § 2800.2, subd. (a)), and admitted that he had suffered one prior strike conviction (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)). After the trial court denied defendant's motion to strike the prior conviction, it sentenced him to the aggravated term of three years, doubled to six years for the prior strike offense. On appeal, defendant argues that he was provided ineffective assistance of counsel in the presentation of his motion to strike. We affirm.
Further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
The facts regarding the offense are taken from the probation officer's report. --------
On November 2, 2017, a Eureka police officer was responding to an unrelated call when he observed a car stopped in the middle of an intersection. The driver—later identified as defendant—was talking to the driver of another car facing the opposite direction. As the officer approached the intersection, defendant drove away. The officer ran defendant's license plate and discovered that it had expired the prior month.
The officer later returned to the area and observed defendant's car partially parked in the road. As he approached the car, defendant sped away in the opposite direction. The officer activated his emergency lights and gave chase, and defendant eventually pulled over. A records check revealed that defendant was on post-release community supervision (PRCS) with a search condition.
As a second officer arrived, defendant became visibly nervous and placed his hand on the gearshift. The officer asked defendant to step out of the vehicle, at which point defendant shifted into drive and pulled away at a high rate of speed. The officers—with lights and sirens activated—chased defendant, who drove over 50 miles per hour and failed to stop at stop signs posted at several intersections. The officers eventually abandoned their pursuit out of concern for maintaining a high-speed chase in the area.
Believing defendant would return home, Eureka police conducted a search of defendant's residence pursuant to his PRCS search condition. They located multiple small plastic baggies with "420" printed on them, a methamphetamine pipe with a white crystalline substance on it, and a box of .380-caliber ammunition containing 41 live rounds. While the search was being conducted, the lead officer was told that a person matching defendant's description had been observed disposing a bag of suspected narcotics near a school. Officers located the bag, which contained 13.88 grams of methamphetamine and several types of prescription pills, including oxycodone, Xanax, and ecstasy. Defendant's unoccupied car was located and searched, revealing clothing he had been wearing at the time of the initial stop and a red binder containing a digital scale and more small plastic baggies with "420" printed on them. Defendant was arrested on December 30, 2017.
The district attorney filed a complaint charging defendant with fleeing a peace officer while driving recklessly (Veh. Code, § 2800.2, subd. (a); count 1), unlawful possession of ammunition (§ 30305, subd. (a)(1); count 2), and possession of a controlled substance for sale (Health & Saf. Code, § 11378; count 3). The complaint also alleged that defendant had suffered five prior strike convictions (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)), one prior prison term commitment (§ 667.5, subd. (b)), and 10 prior felony convictions (§ 1203, subd. (e)(4)).
Defendant filed a motion under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 asking the trial court to dismiss the allegations of prior strike convictions. The prosecution filed opposition papers, including lengthy exhibits.
Pursuant to a negotiated agreement, defendant pleaded guilty to fleeing a peace officer while driving recklessly (count 1) and admitted that he had suffered one prior strike conviction. It was agreed that defendant could argue his Romero motion at sentencing. The trial court granted the prosecutor's motion to dismiss the remaining counts and allegations. At the sentencing hearing, the trial court denied defendant's Romero motion and sentenced him to six years in prison. This appeal followed.
DISCUSSION
Defendant argues trial counsel was ineffective at the hearing on his Romero motion because counsel failed to dispute the prosecution's assertion that over the past 23 years, the longest that defendant had remained out of prison was 468 days (one year, 103 days). The prosecution's own exhibits showed that defendant had remained free from incarceration for 1,352 days (three years, 257 days), from February 10, 2009 to October 24, 2012. Defendant ascribes the court's denial of his Romero motion to his trial counsel's failure to challenge this erroneous statement. We are not persuaded.
The right to effective assistance of counsel derives from the Sixth Amendment. (Strickland v. Washington (1984) 466 U.S. 668, 686-688 (Strickland); see Cal. Const., art. I, § 15.) To demonstrate ineffective assistance, appellant must show (1) "counsel's performance was deficient when measured against the standard of a reasonably competent attorney" (People v. Mayfield (1997) 14 Cal.4th 668, 783-784, disapproved on another point in People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2), and (2) the prejudice resulting from counsel's performance " 'so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' " (Id. at p. 784.) Prejudice is shown where it is reasonably probable that, but for counsel's errors, a defendant would have obtained a more favorable result. (In re Harris (1993) 5 Cal.4th 813, 833.) A reasonable probability means a "probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694.) In establishing prejudice, 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. Williams (1988) 44 Cal.3d 883, 937.)
Defense counsel did not contest the prosecution's assertion about the length of time defendant had spent unincarcerated over the previous 23 years. Instead, defense counsel argued in favor of dismissing the admitted strike conviction. She urged that defendant's offenses had "become less serious over time," noting that he was 59 years old and suffered from a number of health issues. She also stated that he had "recognized that he has had a drug issue that's plagued him the entirety of his adult life." She argued that there was "no additional benefit of locking him up for as long as possible," and that "giving him the opportunity to address his drug problem would be the best, not only for him, but for the community."
Even if we assume, without deciding, that counsel's failure to challenge the prosecution's misstatement was deficient, defendant falls short of showing that he suffered any prejudice by this omission. (See Strickland, supra, 466 U.S. at p. 697 [ineffectiveness claim may be disposed of on any ground, including the absence of prejudice].) Given defendant's lengthy criminal history, the nature of his current offenses, and the trial court's sentencing rationale, defendant fails to establish any possibility that the court would have granted his Romero motion had his counsel corrected the prosecution's error.
All of defendant's strike priors were from his 1995 convictions for carjacking (§ 215, subd. (a)), two counts of robbery (§ 211), grand theft of a vehicle (§ 487h, subd. (a)), assault with a deadly weapon (§ 245, subd. (a)(1)), evading a peace officer (Veh. Code, § 2800.2), and first degree burglary (§ 459), and included several deadly weapon enhancements (former § 12022, subd. (b)). He was sentenced to serve 10 years, four months in state prison. After his release in 2004, he was reincarcerated for violating his parole. He later served time in prison for felony welfare fraud (Welf. & Inst. Code, § 10980, subd. (c)(2)), possession of a controlled substance (Heath & Saf. Code, § 11377, subd. (a)), and possession of ammunition as a convicted felon (§ 30305, subd. (a)(1)). Several of his offenses were committed while he was on postconviction supervision or parole. He had most recently been released in March 2017 and committed the instant offense in November 2017.
In order to grant a Romero motion, 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.) It is a very "stringent" standard because the statutory scheme "carefully circumscribes the trial court's power to depart from [the Three Strikes law sentencing] norm." (People v. Carmony (2004) 33 Cal.4th 367, 377-378.) A trial court's refusal to dismiss a prior strike conviction allegation under section 1385, subdivision (a) is reviewed under the deferential abuse of discretion standard: "[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, at p. 377.)
The prosecution's discussion of the length of time defendant remained free from incarceration was not the determinative factor in the trial court's ruling on defendant's Romero motion. On the contrary, the court declined "to go through the historical record of [defendant's] . . . prior felony convictions, the amount of time he's been in custody, the amount of time he's been free from custody without having been returned." The court instead emphasized that "there has to be extraordinary circumstances for the Court to deviate from the—from the three strikes sentencing requirement." After noting the factors courts use in evaluating Romero motions, including the nature of the current offense, the nature of the defendant's prior convictions, the defendant's potential to be successful should he not be incarcerated, and public safety, the court weighed defendant's stated desire to address his drug problem against "the long and continuous criminal career that [defendant has] been involved in."
Observing that defendant had endangered the community by driving recklessly through the center of Eureka, the court concluded: "[I]f I have to choose between [defendant's] ability to deal with his drug issue and [the] protection of society, I'm in favor of the protection of society in every case. And when I look at the nature of the prior offenses, the length of time between this offense and the prior offenses, given the continuous incarceration during that timeframe, the ability of [defendant] to successfully obtain—obtain sobriety and whether that could ever occur, even though he feels sincerely that he could if he had the opportunity, and I look at the ability of—to protect society, I'm gonna err on that side. So I'm gonna deny the Romero motion."
The trial court's decision to deny the Romero motion rested on a multitude of factors, not least of which was the need to protect society from defendant's dangerous conduct. Given his long criminal history, repeated failure to abide by the terms of his supervised release, and the danger to which he subjected the community by his reckless driving, the record amply supports the court's determination that defendant did not merit a departure from the Three Strikes sentencing scheme. Accordingly, it is not reasonably probable that the court would have granted the Romero motion had his counsel pointed out the prosecution's mistake.
DISPOSITION
The judgment is affirmed.
/s/_________
Sanchez, J. WE CONCUR: /s/_________
Margulies, Acting P. J. /s/_________
Banke, J.