Opinion
D048857
12-14-2006
THE PEOPLE, Plaintiff and Respondent, v. LYMOND EARL WILLIAMS, JR., Defendant and Appellant.
Lymond Earl Williams, Jr., entered a negotiated guilty plea to selling a controlled substance (Health & Saf. Code, § 11352, subd. (a)) and admitted a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, 668) and serving five prior prison terms (Pen Code, §§ 667.5, subd. (b), 668). The court denied a motion to strike the prior strike conviction, struck the five prior prison term enhancements, and sentenced him to prison for six years: double the three-year lower term for selling a controlled substance with a prior strike conviction. The court denied a certificate of probable cause. (Cal. Rules of Court, rule 30(b).)
FACTS
Viewing the record in the light most favorable to the judgment below (People v. Johnson (1980) 26 Cal.3d 557, 576), the following occurred. On December 30, 2005, San Diego police were conducting a buy/bust operation in the area of 400 14th Street. An undercover officer approached Williams and asked if he was "serving," a street term for selling narcotics. Williams opened his hand and offered the officer a white rock-like substance, cocaine. The officer exchanged a $20 bill for the cocaine.
Williams has a number of felony convictions and juvenile true findings for felonies that span the past 25 years, including a 1988 robbery conviction, which qualifies as a prior strike. Because Williams entered a guilty plea, he cannot challenge the facts underlying the conviction. (Pen. Code, § 1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.) Accordingly, we need not recite the facts in greater detail.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible, but not arguable, issues: (1) whether Williamss guilty plea was knowing and voluntary; (2) whether Williamss trial counsel provided effective assistance; (3) whether Williams can challenge on appeal the trial courts refusal to strike the prior strike conviction; and (4) whether the trial court erred in failing to commit Williams to the California Rehabilitation Center (CRC).
Validity of the guilty plea.
Absent a certificate of probable cause, a defendant cannot challenge the validity of a guilty plea on appeal. (Pen. Code, § 1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1095.) Whether the guilty plea was knowing and voluntary is relevant only to the validity of the plea. (See People v. Pinon (1979) 96 Cal.App.3d 904, 910.)
Effective assistance of counsel.
Appellate counsel asks whether failure to request a 90-day continuance before Williams entered the guilty plea or failure to request an evaluation for CRC commitment constituted ineffective assistance of counsel. It did not. At the change of plea hearing the trial court agreed to consider committing Williams to the Delancey Street Foundation program (Delancey Street). Between the change of plea hearing and the sentencing hearing, Delancey Street apparently found Williams ineligible for its program. At the sentencing hearing while discussing this problem defense counsel remarked: "In some way I wish that I had thought to continue the case in Department 30 for a couple of months and kept it there, and, frankly, the thought of asking for a three-month continuance in an F.D.C. department just never occurred to me, and perhaps if I had thought of that, the offer would have remained the same." Additionally, counsel never requested that Williams be evaluated for CRC.
Defendants have a constitutional right to effective counsel in criminal cases. (Gideon v. Wainwright (1963) 372 U.S. 335.) The burden is on the defendant to prove he received ineffective assistance of counsel. To do so, the defendant must show counsel failed to act in a manner to be expected of a reasonably competent attorney and that counsels acts or omissions prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692.) Given Williamss lengthy history of criminality, Williams has not shown that competent counsel would have acted differently or that he was prejudiced by his trial counsels conduct.
Refusal to strike the prior strike conviction.
Whether to strike a prior strike conviction is in the trial courts discretion. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) A trial courts decision not to strike a prior strike conviction will be upheld unless the decision is irrational or arbitrary. (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) That reasonable minds might differ or that we would have exercised discretion differently is not sufficient. (Ibid.) In ruling whether to dismiss a prior strike conviction, the court must consider whether, in light of the nature and circumstances of his present criminal activity and prior serious and/or violent felony convictions, the defendant may be deemed outside the spirit of the Three Strikes law and should be treated as though he had not committed one or more strike priors. (People v. Williams (1998) 17 Cal.4th 148, 162-163.)
Over the past 25 years, Williams has repeatedly been the subject of juvenile court true findings and convicted of criminal acts, including auto theft, two receiving stolen property convictions, escape from the juvenile ranch facility, four being under the influence of a controlled substance convictions, assault with a firearm, robbery, three convictions of petty theft with a prior theft conviction, burglary, possession of cocaine base, and the present selling a controlled substance. He does not fall outside the scheme of the Three Strikes law.
Failure to order evaluation for CRC commitment.
The trial court apparently recognized Williams had a drug problem when the court agreed to consider placement in Delancey Street.
Welfare and Institutions Code section 3051 provides in part:
"Upon conviction of a defendant for any crime in any superior court, or following revocation of probation previously granted, and upon imposition of sentence, if it appears to the judge that the defendant may be addicted or by reason of repeated use of narcotics may be in imminent danger of becoming addicted to narcotics the judge shall suspend the execution of the sentence and order the district attorney to file a petition for commitment of the defendant to the Director of Corrections for confinement in the narcotic detention, treatment, and rehabilitation facility unless, in the opinion of the judge, the defendants record and probation report indicate such a pattern of criminality that he or she does not constitute a fit subject for commitment under this section."
A determination that a defendant is not a fit subject for CRC commitment lies within the discretion of the trial court and will not be upset if supported by substantial evidence. (People v. Moreno (1982) 128 Cal.App.3d 103, 107; People v. Flores (1979) 92 Cal.App.3d 461, 469.) Here, the trial court did not err in failing to have Williams evaluated for CRC commitment because of Williamss pattern of criminality.
We granted Williams permission to file a brief on his own behalf. He has responded. Williams contends the trial court erred and denied him due process of law in using a 1988 serious felony conviction (prior strike) to increase the current sentence. He asserts that he entered the guilty plea in 1988 on conditions that did not include future use of the conviction to increase the sentence for a future crime. The contention fails as a trial court does not err in considering a prior serious felony conviction as a strike, regardless of when it was committed. (People v. Turner (1995) 40 Cal.App.4th 733, 739; People v. Green (1995) 36 Cal.App.4th 280, 283.)
Williams also contends he was denied effective assistance of counsel through his trial counsel failing to seek specific performance of the 1988 guilty plea agreement. As indicated, because a conviction may be used to increase a sentence after the initial conviction, counsel was not ineffective in failing to pursue a motion that had no merit.
A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Williams on this appeal.
DISPOSITION
The judgment is affirmed.
We Concur:
McDONALD, J.
AARON, J.