Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F05674
SCOTLAND, P. J.
A jury found defendant Jawan Warrack guilty of failing to properly register as a sex offender (Pen. Code, § 290; further section references are to the Penal Code). Finding that defendant had a prior serious or violent felony within the meaning of the “three strikes law,” the court sentenced him to state prison for a term of four years (double the middle term of two years).
On appeal, defendant contends that, although his attorney made an unsuccessful Romero motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (hereafter (Romero)) prior to trial, the attorney’s failure to renew the Romero motion when presented with the opportunity to do so after trial resulted in prejudicial ineffective assistance of counsel. We disagree and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 1981, defendant was committed to the California Youth Authority for assault with the intent to commit rape. He was paroled in 1983.
In January 1984, while on parole, defendant was convicted as an adult of numerous serious and violent felonies, including forcible rape, which required him to register as a sex offender pursuant to section 290. Committed to state prison, he was discharged from parole in 1996.
In May 1996, defendant was convicted of brandishing a weapon and making criminal threats. He was placed on probation and ordered to serve 26 days in county jail.
In March 1997, while on probation, defendant was convicted of failing to register as a sex offender. He was reinstated on probation and ordered to serve 360 days in county jail.
In May 2006, defendant was arrested for domestic violence. Although witnesses stated that defendant was living in a home on Tabor Avenue, police discovered that defendant had registered as a sex offender on three separate occasions stating that he was a transient. Defendant was convicted of failing to properly register as a sex offender. Again, he was placed on probation and was ordered to serve 180 days in county jail.
On March 7, 2007, defendant notified his Solano County probation officer of his intent to move to a specific address on Fruitridge Road in Sacramento County. He met with his probation officer on March 12, 2007, and again on April 9, 2007, and May 7, 2007, each time confirming his residence as a specific address on Fruitridge Road. At each meeting, defendant was asked to produce his registration card, but failed to do so.
In June 2007, the probation officer investigated defendant’s sex offender registration and learned that when he registered in Sacramento County, defendant listed his address as “transient.” Further investigation confirmed that defendant was residing at the address on Fruitridge Road. Thus, he was arrested for falsely registering as a transient.
DISCUSSION
Based upon his failure to list his Fruitridge Road address when registering in Sacramento County as a sex offender, defendant was convicted of violating section 290, a felony, and the trial court found he had a prior serious felony conviction (§ 667, subds. (b)-(i)) for rape in 1983.
After scheduling the matter for sentencing on October 19, 2007, the court stated: “[I]f the defense anticipates filing any motions, Romero motion, motion for new trial, could I have the motions filed by Friday, October 5th [?] . . . [¶] . . . [¶] What I’m saying is if the defense is going to be filing any motions, any reason why judgment and sentencing should not be imposed on the 19th or any motions that you want me to consider in judgment and sentencing -- I don’t know if you’re going to do a Romero motion or something like that -- what I’d like is for the motions to be filed by Friday, October 5th so the People could respond by Friday, October 12th so we could all be prepared to go on Friday, October 19th.”
At the later sentencing hearing, the trial court noted it had “not received any other sentencing materials, any other statements, letters, or anything else,” and asked counsel if there was anything else relevant to sentencing. Defense counsel replied, “No, your Honor. The Romero motion was actually argued in Department Four prior to the trial.”
Defendant claims his trial attorney should have made a renewed Romero motion when given the opportunity after trial, and failure to do so constituted ineffective assistance of counsel.
The contention fails because, as we will explain, his trial attorney reasonably could have concluded it would have been futile to renew the Romero motion that had been denied by another judge prior to trial. (See Strickland v. Washington (1984) 466 U.S. 668 [80 L.Ed.2d 674] [to establish ineffective assistance of counsel, it must be shown that (1) counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms, and (2) defendant was harmed by the alleged error].)
Defendant makes no effort to show a “reasonable probability that . . . the result of the proceeding would have been different” if his trial attorney had renewed the Romero motion. (People v. Williams (1997) 16 Cal.4th 153, 215.) He simply argues there was “nothing to lose,” but “a potentially substantial benefit to gain” by doing so. At most, he suggests it is “possible” the trial court “may have reached a different conclusion” than did the judge who denied the pretrial Romero motion. This is so, he speculates, because, in his view, the trial court “virtually extended an invitation to [defense counsel to] file a Romero motion[.]”
The premise of his contention is faulty. That the trial court gave defense counsel a date certain in which to file any post-verdict motions, such as a motion for new trial or a Romero motion, cannot be construed as an invitation to file such a motion or an indication that the court was inclined to grant a motion for new trial or a Romero motion. The court simply established an orderly process for defense counsel to make, the prosecutor to respond to, and the trial court to rule on any post-verdict motions that defense counsel might choose to make.
Under the totality of the circumstances of this case, defense counsel reasonably could have concluded it would be futile to renew a Romero motion not simply because such a motion had already been denied prior to trial, but because a motion to strike defendant’s prior serious felony conviction for purpose of sentencing had no likelihood of success following trial. (People v. Constancio (1974) 42 Cal.App.3d 533, 546 [“It is not incumbent upon trial counsel to advance meritless arguments or to undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel”].)
In voting to approve the three strikes law, the electorate determined as a matter of public policy that to protect public safety, recidivist offenders should receive longer sentences for their crimes. In order to grant a Romero motion and depart from this legislative determination of the appropriate punishment for repeat felons, the trial court “must consider whether, in light of the nature and circumstances of his present felon[y] 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.) This 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.)
Consequently, the “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, the continuation of which the law was meant to attack[.]” (People v. Carmony, supra, 33 Cal.4th at p. 378.) Absolutely nothing in this case would support a finding that, in committing his latest violation of the sex offender registration law, defendant fell outside the spirit of the three strikes law.
The nature and circumstances of defendant’s present felony are not favorable to him. (People v. Williams, supra, 17 Cal.4th at pp. 161, 163.) Twice previously he had been convicted of failing to properly register as a sex offender. The second time was for listing himself as a transient while he was living at a particular resident. His present and third conviction for failing to properly register as a sex offender again was for lying that he was a transient when, in fact, he was living at a particular residence. There is no question that defendant understood his obligation to register his resident address, but knowingly and willingly lied about it, apparently to thwart law enforcement’s ability to keep track of him in part to deter him from committing other serious and/or violent sex crimes.
Likewise, the nature and circumstances of defendant’s prior serious felony and violent conviction found true by the trial court--forcible rape--is not favorable to him. While on parole following his confinement as a juvenile to the California Youth Authority for assault with intent to rape, defendant “committed a series of violent crimes against women involving force, weapons, and sexual assault. These crimes [including assault with a deadly weapon, burglary, robbery in an inhabited dwelling, and three counts of forcible rape] were committed . . . on different dates against different victims and involved the use of a knife, scissors, and a firearm. In one instance, the defendant was with two other subjects when they broke into a residence. The female victim came home during the [crime] and was tied up by one of the perpetrators. [Defendant’s accomplices] left but defendant stayed behind and raped the victim.”
Nor is there anything about “the particulars of his background, character, and prospects” that are favorable to defendant such that he should be deemed outside the spirit of the three strikes law and treated as though he had not previously been convicted of serious and violent felonies. (People v. Williams, supra, 17 Cal.4th at p. 161.) The probation report reflects that when he was sentenced for his most recent crime, defendant was 42 years old, was unemployed, was “not financially responsible for any [of his] minor dependents,” i.e., the six children he had fathered, and had “tried to manipulate the system” in the past. Defendant had ten prior felony convictions, including rapes, burglary, and use of deadly weapons, and four misdemeanor convictions, including criminal threats.
In light of defendant’s serious record, poor character, and dismal prospects for the future, defense counsel reasonably could conclude it would be folly to try once again to make a Romero motion because this is not an “extraordinary” case justifying departure from the three strikes sentencing scheme. (People v. Carmony, supra, 33 Cal.4th at p. 378.) In other words, reasonable defense counsel would conclude a renewed Romero motion had no hope of succeeding because of the nature and circumstances of defendant’s present felony, his prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects. (People v. Williams, supra, 17 Cal.4th at p. 161.)
In sum, defendant’s trial counsel was not ineffective because his decision not to renew an unmeritorious Romero motion did not fall below an objective standard of reasonableness under prevailing professional norms and, in any event, it is not reasonably probable the trial court would have granted the renewed motion if it had been made. Indeed, it would have been an abuse of discretion to do so.
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the abstract of judgment by deleting the “X” in the box indicating that a “consecutive full term” was imposed for the current conviction for violating Penal Code section 290, and to send a copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: BLEASE , J., DAVIS , J.