Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD198029, Melinda J. Lasater, Judge.
HUFFMAN, J.
A jury found Colin Alden Strickland guilty of robbery (Pen. Code, § 211) with personal use of a deadly or dangerous weapon (a knife) (§ 12022, subd. (b)(1)). He admitted two strikes (§ 667, subds. (b)-(i)) (one based on a California conviction and one based on an Arizona conviction for aggravated assault), two serious felony prior convictions (§ 667, subd. (a)) (based on the same two convictions as the strikes), and four prior prison terms (§ 667.5, subd. (b)). The court dismissed the prison priors and the knife use enhancement and sentenced Strickland to 25 years to life plus 10 years in prison: 25 years to life for robbery with two strikes and five years for each serious felony prior. Strickland appeals, contending the case must be remanded for a retrial on the strike and the serious felony prior based on the Arizona conviction. We affirm.
Statutory references are to the Penal Code.
BACKGROUND
On March 14, 2006, Strickland entered a store, placed cartons of cigarettes in a bag and attempted to leave the store without paying. When an employee confronted him, Strickland threatened him with a knife. The employee and others detained Strickland until the police arrived.
On December 7, 2006, after the jury began deliberating, the court asked defense counsel "what [Strickland] wants to do about the trial on the priors." Counsel told the court, "if there's a conviction, [Strickland] would ask for a bench trial." Strickland then waived his right to a jury trial on the priors. After a short discussion concerning scheduling of the bench trial, defense counsel said that Strickland had raised a concern about "the effect of admission of his priors on the Romero issue" [People v. Superior Court (Romero) (1996) 13 Cal.4th 497]. Defense counsel told the court that he had explained to Strickland "that Romero is not affected by the admission of the priors" and Strickland was "willing to actually waive the pending trial and would be waiving his priors so you can convict him." The court brought up the validity of the Arizona prior, saying, "[H]e can still admit it, and then if you want to challenge the validity of that prior, that can be discussed separately. And if it's on a valid prior, then it would be stricken, isn't it [sic]?" Defense counsel said, "That's true." The court said it would use the applicable portions of a change of plea form for the admission. The court took Strickland's admission of the priors, using the change of plea form.
At sentencing, defense counsel asked the court to dismiss the California strike. The court denied the request.
DISCUSSION
Strickland contends the case must be remanded for retrial on the strike and the serious felony prior based on his Arizona conviction of aggravated assault because the prosecutor presented insufficient evidence the Arizona conviction qualified as a strike or a serious felony prior under California law. Strickland argues there was insufficient evidence he "personally used" the weapon as required by section 1192.7, subdivision(c)(23) and the Arizona statute applies to use of a "deadly weapon or dangerous instrument" and is therefore broader than section 1192.7, subdivision(c)(23). Strickland also argues to the extent the probation report constituted sufficient evidence of personal use, and trial counsel was ineffective for failing to interpose a hearsay objection.
Strickland's initial premise is faulty. There was no trial on the priors, and thus no presentation of evidence. Rather, Strickland admitted the priors. Furthermore, he never challenged the validity of the Arizona prior in the court below, as was contemplated at the time he admitted the priors. Thus, he has forfeited the right to raise the issue now. (People v. Saunders (1993) 5 Cal.4th 580, 589-590.)
Strickland also contends, for the first time in his reply brief, that trial counsel was ineffective because he failed to argue that the Arizona prior did not qualify as a strike or a serious felony prior. The appellate record does not provide an adequate basis from which to determine whether this failure constituted ineffective assistance of counsel. The issue would be more appropriately addressed in a habeas corpus proceeding. (People v. Jones (1998) 17 Cal.4th 279, 310.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J. NARES, J.