Filed 10/16/17 P. v. Dunn CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Robert F. O'Neill, Judge. Affirmed.

Nancy E. Olsen, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,

Randall D. Eihnorn and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Emanuel Dunn, Jr. of one count of second degree murder (Pen. Code,[1] § 187, subd. (a)) as a lesser crime of a charged first degree murder. In a bifurcated trial, the court found true allegations that Dunn had suffered a prior serious felony (§ 667, subd. (a)(1)) that also constituted a strike (§§ 667, subds. (b)-(i); 1170.12). It sentenced Dunn to a total prison term of 35 years to life, consisting of 30 years to life (15 years to life doubled under the "Three Strikes Law"), plus five years for the prior serious felony. Dunn contends his counsel rendered constitutionally ineffective assistance by failing to explain to the jury the law of accessory liability and argue the evidence showed Dunn may have been, at most, an accessory after-the-fact. He further contends the trial court abused its discretion by denying his posttrial motion to replace his appointed counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), and declining to strike his prior strike conviction. We reject these contentions and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Prosecution Evidence

During the morning of June 14, 2015, a woman found Mark Preville lying in a Paradise Hills condominium complex carport, motionless and bleeding from his head and nose. Another individual had seen nothing unusual in the carport about a half hour earlier. Preville was not breathing. The woman called police, who on arriving found Preville's jacket and blood-spattered pages from a June 9, 2015 "Final Call" newspaper in the parking stall near his body. Preville had a black glove on his right hand and a splint on his left hand. Paramedics pronounced him dead. Four days earlier, Preville had been hospitalized after he reported being struck in the head with a baseball bat, but doctors did not diagnose any injuries and he was released in stable condition. On June 13, 2015, the day before Preville's body was found, a police officer arrested and cited Preville after he had an altercation with a security guard and threatened another transient, as well as the officer, at a downtown park. The officer then released Preville; he did not observe any injuries on Preville's head or face that day.

Preville's death was determined to be blunt force injury to the head by homicide. He had skull fractures and multiple impact injuries to his face and mouth, as well as rib fractures, and minor abrasions to his arms and legs. He had nonfatal puncture wounds to his face and neck. He had a blood-alcohol concentration of .17 percent and blood concentration of .25 milligrams per liter of methamphetamine, and trace amounts of substances indicating marijuana use. Detectives believed that Preville was beaten and killed elsewhere and his body dumped in the carport afterwards.

About nine days after Preville's body was found, police patrolling the mid-city area of San Diego at about 3:00 in the morning contacted Dunn and Cynthia Puetz, who were inside a parked Cadillac registered to Dunn. The officers were not aware at the time that Dunn was a suspect in Preville's homicide.

By early August, criminalists had determined that Dunn's right thumb print was on a page of the newspaper found by Preville's body.[2] This led police to locate Dunn's Cadillac, which had been repossessed on June 29, 2015. Repossession agents found bleach, air freshener, detergent, cologne, window cleaner and spray deodorant, among other items, in the car. Pages from a June 16, 2015 Final Call newspaper were found in the vehicle. Criminalists found blood transfer stains and bleach stains in the Cadillac, predominantly its left rear passenger side, and evidence that someone had tried to clean the backseat and rear passenger doors. Two of the seat belts were soaked in blood. A criminalist concluded based on DNA tests that the blood was Preville's; that Preville was transported in the vehicle bleeding or bloody, but did not sustain his injuries inside it.[3]

An expert determined that Dunn was a minor contributor to DNA found on Preville's shirt and gloves, the splint on his left hand, and a rubber wristband on his wrist. Dunn's DNA was found in fingernail scrapings taken from Preville's right hand. Cell phone records and the global positioning system (GPS) tracker from Dunn's vehicle showed that Dunn's phone and vehicle were generally in the same place; on the late evening of June 13, 2015, to the early morning of June 14, 2015, Dunn's phone activated sites in the Bonita area, then in downtown San Diego. At about 7:30 a.m. on June 14, 2015, there were four activations from Dunn's phone in the area of his father's Shorewood Drive house, where Dunn sometimes stayed. The Shorewood Drive house is about a mile and a half from the Paradise Hills condominium complex. During the 10:00 hour that morning, Dunn's phone activated a site about 1.25 miles from the Paradise Hills complex. Dunn's phone showed no activity from 4:00 to 7:00 that morning.

Defense Evidence

Dunn presented evidence of Preville's prior aggression toward others as well as Preville's reports to police that he had been attacked by other individuals, including Rudy Wells, a former gang member known as "Shorty." On June 10, 2015, Preville reported to police that Shorty had assaulted him with a baseball bat and took his wallet containing $200. An officer observed that paramedics had already bandaged Preville, who had welts on his head. Preville told the officer he wanted to see Wells arrested and press charges. A defense expert psychiatrist testified that a person with the level of methamphetamine and alcohol found in Preville's blood would exhibit violent, unpredictable and irrational behavior, as well as disruption of brain function that would impair his perception of reality.

Wells testified at trial that Preville, who referred to himself and was known on the streets by the name "Chuck Norris," was one of his best friends. On June 15, 2015, after Preville's body was found, police arrested Wells and photographed injuries on the knuckles of his hands. Wells testified he could not remember exactly how he sustained the injuries; it might have been in a fight with someone else or he had a bad seizure, and he did not recall telling detectives that he had been "jumped" by a group of baseball fans. A few months later, Wells told detectives that a drug dealer named Mohammed had bragged about killing Preville. On cross-examination, Wells denied hitting Preville, taking his wallet, or hurting him. He testified that he went to jail and detectives took his DNA, but charges were later dropped.

A defense investigator testified she contacted Wells after being assigned to the case in March 2016, and he explained he got his injured knuckles in a fight at a restaurant. He also told her that Mohammed bragged about having "tak[en] care of Chuck Norris."

Defense Counsel's Closing Arguments

Dunn's counsel argued that Dunn was not guilty because he did not kill Preville; that Preville was an intoxicated, aggressive person who inflicted violence on others for no reason, and who challenged others to fight and threatened a police officer the day before his death. She argued that whoever encountered Preville on June 13 or 14, 2015, would have encountered an aggressive, assaultive and violent man. Defense counsel argued the People had not proven Preville was murdered, much less that the crime was a first degree murder, or that it was at Dunn's hands. Counsel pointed out that the People's fingerprint expert had changed her testimony concerning whether Dunn's print on the newspaper was from sweat or blood, and that the jury was required to accept the possibility that it was a print developed from sweat, with blood seeping into it. She reminded the jury that Preville was a transient who did not shower or change clothes often, and stated he could have dug for clothing out of trash cans. Thus, she argued, the presence of Preville's blood and Dunn's DNA could have been the result of transfer from some other person or mechanism, and the bleach stains could always have been present in the car. Counsel told the jury that the amount of DNA under Preville's fingernails was less than a billionth of what would be found in a sugar packet; that Dunn's DNA was only three percent of that found, which could occur if an individual put on a glove containing the DNA of another person. She explained that DNA science was still evolving and involved some degree of subjectivity, and there was a possibility of unconscious bias in analysts who worked closely with police as the People's DNA expert did. Counsel pointed out that the cell phone and GPS data revealed nothing about who was in the car or talking on the phone, nor did the evidence place Dunn's car at the condominium complex that morning. She described what she characterized as flaws in the police investigation. Counsel stated that the presumption of innocence demanded that the jury return a verdict of not guilty.

DISCUSSION

I. Claim of Constitutionally Ineffective Assistance of Counsel

Dunn contends his counsel rendered constitutionally ineffective assistance by failing to explain accessory liability to the jury and argue to it that the evidence showed that Dunn assisted Preville's killer and was, at most, guilty of being an accessory after-the-fact to the murder. Acknowledging he was not charged as an accessory and the court did not have a sua sponte duty to instruct the jury on that theory, Dunn argues that even in the absence of such an instruction, his counsel could still make the factual argument that he assisted the killer later, which would have given the jury a plausible explanation for the forensic evidence without a necessary finding that he committed murder. According to Dunn, there is no reasonable tactical explanation for his counsel's failures, and he maintains he was prejudiced by it—that there is a reasonable chance that one or more jurors would have voted to acquit him of murder—given the absence of direct evidence he killed Preville or had any reason to kill him and the existence of evidence that others might have been involved in Preville's killing.

The People respond that the evidence did not support a defense of Dunn being an accessory after the fact, and thus his counsel was not ineffective for declining to advocate that the jury find him liable as an accessory. In particular, they argue there is no evidence Dunn knew Preville's killer or intentionally assisted whoever murdered Preville to evade arrest, trial and prosecution. The People further point out that Dunn cannot demonstrate prejudice: Because the jury was not instructed on accessory liability or given a verdict form addressing that theory, even if Dunn's defense counsel had argued such liability to the jury, it had no verdict form it could have submitted reflecting its agreement with that interpretation of the facts. Thus, Dunn cannot show he would have received a different verdict because the jury was not instructed on the law pertaining to that crime.

A. Ineffective Assistance of Counsel: Legal Principles

The state and federal Constitutions guarantee criminal defendants the right to effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People v. Mai (2013) 57 Cal.4th 986, 1009.) This right extends to closing arguments. (Yarborough v. Gentry (2003) 540 U.S. 1, 5.) To prevail on a claim of inadequate assistance, a defendant "must first show counsel's performance was deficient, in that

it fell below an objective standard of reasonableness under prevailing professional norms. . . . When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (Mai, at p. 1009; see Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); People v. Centeno (2014) 60 Cal.4th 659, 674.) "[D]eference to counsel's tactical decisions in his [or her] closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage. Closing arguments should 'sharpen and clarify the issues for resolution by the trier of fact,' [citation], but which issues to sharpen and how best to clarify them are questions with many reasonable answers." (Yarborough, at p. 6.) Thus, judicial review of a defense counsel's closing argument is highly deferential. (Ibid.)

" ' "Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts." ' " (People v. Stanley (2006) 39 Cal.4th 913, 954.) "When counsel focuses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect. [Citation.] . . . The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight." (Yarborough v. Gentry, supra, 540 U.S. at p. 8.) In view of the presumption that counsel acted reasonably, it is difficult to prevail on an appellate claim of ineffective assistance, and reversal on direct appeal is not warranted unless "(1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance [of counsel] are more appropriately resolved in a habeas corpus proceeding." (People v. Mai, supra, 57 Cal.4th at p. 1009; People v. Centeno, supra, 60 Cal.4th at p. 675; People v. Cowan (2010) 50 Cal.4th 401, 493, fn. 31)

Second, the defendant must show "resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (People v. Mai, supra, 57 Cal.4th at p. 1009.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at p. 694.) "A defendant must prove prejudice that is a

' "demonstrable reality," not simply speculation.' " (People v. Fairbank (1997) 16 Cal.4th 1223, 1241; People v. Loza (2012) 207 Cal.App.4th 332, 350.) "[W]hen considering a claim of ineffective assistance of counsel, 'a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.' " (Fairbank, at p. 1241; Strickland, at p. 697.)

B. Analysis

Dunn has not shown his counsel had " ' "no conceivable tactical purpose" ' " (People v. Cowan, supra, 50 Cal.4th at p. 493, fn. 31) in the decisions she made about presenting Dunn's defense to the jury in closing arguments or otherwise. His counsel was not prejudicially ineffective in this respect, as she plainly had a rational tactical purpose for declining to argue that the evidence showed Dunn was an accessory after the fact to Preville's murder. That is, his counsel competently argued that Dunn did not kill Preville and was not involved in his death; that the forensic evidence could be explained by other means such as the transfer of Dunn's DNA to Preville, a homeless man, from discarded clothing. The argument had the potential of completely absolving Dunn of all liability for Preville's murder.

On the other hand, a conviction for being an accessory after the fact "requires proof that a principal committed a specified felony, the defendant knew that the principal had committed a felony, the defendant did something to help the principal get away with the crime, and that as a result of this action the defendant intended to help the principal get away with the crime." (People v. Nguyen (1993) 21 Cal.App.4th 518, 536 (Nguyen); see In re Malcolm M. (2007) 147 Cal.App.4th 157, 165.)[4] "An accessory . . . must lend assistance to the principal after the commission of the offense with the intent of helping him escape capture, trial or punishment." (Nguyen, at p. 536.) "A person who unwittingly aids a perpetrator does not become an accessory when he later learns of the perpetrator's criminal purpose unless he thereafter does something to help the perpetrator get away with his crime." (Id. at p. 537.)

Dunn's counsel reasonably could conclude that arguing accessory liability would undermine the theory that Dunn was uninvolved in Preville's death, and thus made an informed strategic decision to reject that argument. The People correctly point out that "counsel does not render ineffective assistance by choosing one or several theories of defense over another." (People v. Cunningham (2001) 25 Cal.4th 926, 1007, citing People v. Thomas (1992) 2 Cal.4th 489, 531-532 ["Failure to argue an alternative theory is not objectively unreasonable as a matter of law"]; see also People v. Palmer (2005) 133 Cal.App.4th 1141, 1158-1159.) This is particularly true when the choice is between seemingly inconsistent theories, and even to theories that are not absolutely incompatible. (Cunningham, at p. 1007 [argument that the defendant was too intoxicated to form the intent to kill "would have conceded defendant was the killer, in contravention of the chief defense theory"]; see also People v. Thomas, at pp. 531-532 ["[T]he inconsistency inherent in arguing both innocence and lack of premeditation or deliberation would be apparent to the jury and would likely draw prosecutorial comment. That the two arguments are not absolutely incompatible does not vitiate a choice to make one or the other"].)

Further, counsel could have reasonably decided that there was insufficient evidence of the elements of accessory liability: there was no evidence connecting Dunn to Wells, who was initially suspected by police in Preville's death; the person named Mohammed that Wells claimed had bragged about killing Preville; or any other person who Dunn could point to as the principal in Preville's murder who he may have assisted. Dunn's silence on the matter would not be enough. "[T]he mere passive failure to reveal a crime, the refusal to give information, or the denial of knowledge motivated by self-interest does not constitute the crime of accessory." (People v. Plengsangtip (2007) 148 Cal.App.4th 825, 836.)

Thus, even though Dunn's counsel's strategy may have had risks and disadvantages, "counsel was [not] incompetent for adopting it." (People v. Hayes (1990) 52 Cal.3d 577, 624.) "The mere circumstance that a different, or better, argument could have been made is not a sufficient basis for finding deficient performance by defense counsel." (People v. Ledesma (2006) 39 Cal.4th 641, 748.) We conclude Dunn has not overcome the strong presumption that his counsel's strategic decisions in her arguments to the jury were reasonable and well within the range of reasonable professional assistance.

II. Denial of Dunn's Post-Sentencing Request for New Counsel

A. Background

After the court sentenced him, Dunn asked to speak to the court. He asserted he was innocent, and suggested his counsel was incompetent for failing to present a DNA expert. He stated that fabricated DNA was used to convict him, which his counsel did not contest, and that another individual, "Ms. Sanders," would have been a witness to attest to his innocence, to "show[] that that guy was in them [sic] apartments before."

The court stopped the proceedings and held a Marsden hearing. Answering the court's questions, Dunn stated he was asking that his attorney be relieved and another attorney appointed; that his attorney had not properly represented him. The court responded: "Now, you need to tell me why you feel that way and you have to be very specific. So you tell me in your own words how and why you feel [defense counsel] did not properly represent you. You have to be specific and you can give me examples of what you believe are issues with you." Dunn began to complain that he tried to point out evidence to his attorney who "downplayed" it. He stated she told him their defense would be to attack the DNA, but he believed she would have experts to contest the People's evidence; that "[t]his case was all forensics and I didn't have anything forensics on my side to help me do anything . . . ." He stated the detectives fabricated the search warrants and lied about the evidence found near Preville's body. He claimed he was at home with his brother at a particular time, making it impossible for him to have killed Preville. The court asked Dunn whether his counsel had done things he had asked her to not do, but Dunn repeated his contentions about his counsel's promise to obtain a DNA analyst and failure to do so, or her refusal to argue police misconduct. He claimed she refused to "recuse" herself at his request.

When the court began questioning Dunn's counsel about her background and work on the case, Dunn interjected with an additional claim: that he had not received discovery he had asked his counsel to obtain. Dunn's counsel then explained that she had visited Dunn and reviewed discovery regularly, and had retained five different experts including DNA and fingerprint experts with whom she worked extensively in analyzing the evidence and deciding how to cross-examine the People's witnesses. She explained she spent a great deal of time researching articles and familiarizing herself with forensic science, and put in requests for investigators to interview witnesses. She acknowledged she and Dunn had disagreements about how best to defend him and she had to terminate some of their meetings, but stated they were both "on board" about his best defense when they were communicating. She did not believe it was fruitful to accuse the police officers of planting evidence, but instead chose to pursue a defense that she thought had a greater likelihood of success. She denied dissuading Dunn from pursuing a Marsden request.

The court stated that at most, Dunn showed that he and his counsel differed about tactics, which was insufficient to relieve her, and that they may have developed a lack of trust or were not getting along, which were also insufficient reasons to relieve her as his counsel. It stated that if he felt his counsel did not have his best interest in mind, that was likewise not grounds for relieving her. The court stated it could not conclude, based on their comments and its observations presiding over the trial, that Dunn's counsel had not provided adequate representation or that Dunn and his counsel had become embroiled in such an irreconcilable conflict that ineffective representation was likely to result. Dunn then interjected that his counsel had not called witnesses who could "clear [him] up . . . ." The court informed Dunn that the matter was an issue for appeal, where he could allege his counsel was inadequate. The court continued: "During the trial, I must admit, as the judge and having been a prosecutor, a defense attorney, I wondered at some points in time whether there would be a defense expert as to certain issues. However, I know full well that I cannot second guess counsel on this. . . . t happened to me when I was a defense attorney, that I would retain an expert and the expert would come back and say, I can't help you. [¶] And then so I wouldn't put that expert on the stand because why should I build the people's case for them? That's not the way it works."

Dunn responded: "I understand things like that could happen and all of that, but there was no expert from the very beginning to even go through that possibility. [i]That's what I'm trying to say. Nothing was ever tested." (Emphasis added.) The court then stated: "That's part of your argument on appeal I suppose, but [defense counsel] has addressed those issues and she tells me as an officer of the court that [¶] . . . [¶] she consulted with experts and the decision whether to call one of those people to the stand is hers. It is not your decision."

The court ultimately denied Dunn's Marsden motion, finding counsel adequately represented Dunn at trial and in his sentencing.

B. Contentions

Dunn contends the court erred when it denied his request to discharge his assigned counsel and appoint new counsel. Dunn maintains that though he informed the court that there were witnesses favorable to his defense who his counsel did not call to testify at trial, the court did not further inquire into his complaint but assumed Dunn was referring only to expert witnesses, and thus it did not try to identify those witnesses or determine whether they were material to the defense, or decide what action his counsel took to contact them and her reasons for not calling them to testify. Dunn argues that without such clarification, the court did not exercise informed discretion with regard to his motion. He asks that we remand the case to the trial court for a further Marsden hearing addressing these unresolved issues.

C. Legal Principles

" 'When a defendant seeks substitution of appointed counsel pursuant to . . . Marsden, supra, 2 Cal.3d 118, "the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance." ' " (People v. Streeter (2012) 54 Cal.4th 205, 230, disapproved on other grounds as stated in People v. Harris (2013) 57 Cal.4th 804, 834.) " 'Once a defendant is afforded an opportunity to state his or her reasons for seeking to discharge an appointed attorney, the decision whether or not to grant a motion for substitution of counsel lies within the discretion of the trial judge. The court does not abuse its discretion in denying a Marsden motion " 'unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel.' " [Citations.] Substantial impairment of the right to counsel can occur when the appointed counsel is providing inadequate representation or when "the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation]." ' " (People v. Myles (2012) 53 Cal.4th 1181, 1207; see also People v Streeter, at p. 230 [record must "clearly show" grounds for Marsden relief].) Dunn " 'does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense. [Citation.] Tactical disagreements between the defendant and his attorney do not by themselves constitute an "irreconcilable conflict." ' " (People v. Rodriguez (2014) 58 Cal.4th 587, 624.) Nor is a defendant's lack of trust in or inability to get along with appointed counsel sufficient. "If a defendant's claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment, and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law." (People v. Jones (2003) 29 Cal.4th 1229, 1246.)

These principles apply equally preconviction and postconviction; a defendant has no greater right to substitute counsel at the later stage than the earlier. (People v. Sanchez (2011) 53 Cal.4th 80, 88; People v. Smith (1993) 6 Cal.4th 684, 694.) We review a court's denial of a Marsden motion for abuse of discretion. (People v. Streeter, supra, 54 Cal.4th at p. 230; Sanchez, at p. 89.) " ' "[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered." ' " (In re Oscar A. (2013) 217 Cal.App.4th 750, 755; see also People v. Kopatz (2015) 61 Cal.4th 62, 85.)

D. Analysis

We reject Dunn's challenge to the court's Marsden ruling. Its premise is that at the conclusion of the Marsden hearing when Dunn raised the issue of his counsel's failure to call witnesses who would "clear" him, the court wrongly assumed Dunn was referring to expert witnesses and not lay witnesses. That contention underlies Dunn's claim that the court did not fully inquire into Dunn's assertion to ascertain whether his counsel acted competently. The record of the hearing contradicts this interpretation. There was no suggestion from Dunn's comments that he was referring to a lay witness, and in fact his comment, "That's what I'm trying to say," made after the court referred to experts that are retained but may not testify, indicates that his entire point was that his counsel did not retain appropriate experts. Consequently, we cannot say Dunn has shown the trial court abused its discretion by failing to make a further inquiry about the identity or materiality of additional lay witnesses. We conclude to the contrary that its Marsden inquiry was proper and it exercised informed discretion in ruling on the motion; the court allowed Dunn to fully state his complaint and conducted a proper inquiry, and Dunn's counsel responded to the points. It is evident that the trial court accepted his counsel's statement that she had retained five different experts to assist her in cross-examining the People's witnesses on forensic evidence, and the court was entitled to credit counsel's representations. (People v. Myles, supra, 53 Cal.4th at p. 1207; People v. Clark (2011) 52 Cal.4th 856, 912; People v. Smith, supra, 6 Cal.4th at p. 696.) It was entitled to accept his counsel's explanation that she and Dunn disagreed at times about strategy but ultimately agreed what constituted his best defense. Such tactical disagreements to not constitute an irreconcilable conflict (Clark, at p. 912) and on this record, the court reasonably concluded they did not rise to the level of a complete breakdown in the attorney-client relationship. It did not abuse its discretion in conducting the Marsden hearing and in denying his motion.

III. The Court Did Not Abuse its Discretion by Denying Dunn's Motion to Strike His Prior Conviction

Dunn contends the court abused its discretion by declining to strike, in the interest of justice, his prior conviction involving a 1990 guilty plea to second degree robbery. Dunn maintains he is the type of defendant deserving of lesser punishment under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero); that though he has an extensive past criminal history, the majority of his prior crimes were not serious or violent under the Penal Code; his prior 1990 strike conviction was remote, committed when Dunn was 23 years old; and his sentence in the present case is significant enough that he would still face a lengthy 20-year-to-life sentence with a chance of parole when he is 68 years old. He argues the state cannot maintain an interest in keeping him incarcerated beyond the point where he is no longer likely to reoffend, and his conduct does not warrant a de facto life sentence.

A. Legal Principles

Section 1385, subdivision (a) provides in part that a trial court "may, either of [its] own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed." That provision permits a court to strike prior felony conviction allegations in cases brought under the Three Strikes law. (Romero, supra, 13 Cal.4th at pp. 529-530.) However, a "court's discretion to strike prior felony conviction allegations in furtherance of justice is limited. Its exercise must proceed in strict compliance with section 1385[, subdivision] (a), and is subject to review for abuse." (Id. at p. 530; People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony); In re Large (2007) 41 Cal.4th 538, 550.)

In reviewing for abuse of discretion, we are guided by two principles. First,

" ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary." ' " (Carmony, supra, 33 Cal.4th at pp. 376-377.) Without this showing, the trial court " ' "is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' [Citations.] Second, a ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " ' " (Ibid.) Thus, "a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it" or

if " 'the sentencing norms [established by the Three Strikes law may, as a matter of law,] produce[ ] an "arbitrary, capricious, or patently absurd" result' under the specific facts of a particular case." (Id. at pp. 377, 378.) " '[W]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance.' " (Id. at p. 378.)

To determine whether to strike an allegation "in furtherance of justice," the court must balance "the constitutional rights of the defendant, and the interests of society represented by the People." (Romero, supra, 13 Cal.4th at pp. 530-531, italics omitted.) "[A] court abuses its discretion if it dismisses a case, or strikes a sentencing allegation, solely 'to accommodate judicial convenience or because of court congestion.' [Citation.] A court also abuses its discretion by dismissing a case, or a sentencing allegation, simply because a defendant pleads guilty. [Citation.] Nor would a court act properly if 'guided solely by a personal antipathy for the effect that the [T]hree [S]trikes law would have on [a] defendant,' while ignoring 'defendant's background,' 'the nature of his present offenses,' and other 'individualized considerations.' " (Id. at p. 531.) In deciding whether to dismiss a strike prior " 'in furtherance of justice' . . . the court in question 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 [or she] had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161; see also In re Large, supra, 41 Cal.4th at p. 552.)

B. Analysis

Our role is not to decide the merits of Dunn's motion anew, but rather to assess whether the court patently abused its discretion in balancing "the nature and circumstances of the defendant's present felonies and prior serious and/or violent felony convictions, and the particulars of [the defendant's] background, character, and prospects." (People v. Williams, supra, 17 Cal.4th at p. 161.) "The concept of discretion implies that, at least in some cases, a decision may properly go either way." (In re Large, supra, 41 Cal.4th at p. 553.) In keeping with this principle, the fact Dunn can make a good argument for striking a strike prior in the furtherance of justice does not require reversal. (Carmony, supra, 33 Cal.4th at p. 378 [it is not enough to show that reasonable people might disagree about whether to strike one or more prior conviction allegations].) Thus, Dunn "finds himself in the difficult position of having to rebut the 'strong presumption' [citation] that the trial judge properly exercised his discretion in refusing to strike a prior conviction allegation." (In re Large, at p. 551.)

Dunn has not rebutted this presumption. The trial court considered Dunn's probation report acknowledging that Dunn was a "repeat offender with a history of violent behaviors as documented in his arrest history" who "poses a high risk to community safety and displayed a disregard not only for the law, but a disregard for human life as to this case."[5] It also considered the prosecutor's arguments, in which she acknowledged the age of Dunn's prior strike offense but pointed out his consistent criminal history and increasingly violent acts, including uncharged acts.[6] The court then summarized Dunn's lengthy criminal history, which began in 1984 when he was sentenced to a juvenile facility for assault with a weapon. He had convictions by guilty pleas in 1986 for misdemeanor second degree burglary and auto theft, among other charges; guilty pleas in 1987 to driving under the influence (DUI) and felony auto theft; an October 1990 guilty plea to misdemeanor hit and run; two 1990 robberies, one of which was dismissed pursuant to a plea in his prior strike case, and another plea to misdemeanor hit and run; 1993 convictions for DUI and reckless evading a police officer; 1995 and 1996 convictions for felony domestic violence and being under the influence of a controlled substance; a 1998 conviction for selling a controlled substance; 2002 and 2004 convictions for presenting a false identification to police, reckless driving and resisting an officer; 2006, 2008 and 2009 convictions for driving on a suspended license; a 2010 conviction for attempted narcotics sales; a 2011 conviction for resisting an officer, and the present second degree murder offense.

Following this review, the court stated: "In carrying out the sentencing laws, the court must look at all of the relevant factors. And the court is well aware of the objectives to be achieved in sentencing. Essentially, protecting society, punishing the defendant, deterring the defendant from future offenses, deterring others, preventing the defendant from committing further crimes by incarcerating him, and achieve uniformity in sentence. [¶] The court is not in a position under all of the facts and circumstances in this case, based on the criminality and Mr. Dunn's prior record and the facts and circumstances before the court to strike the strike in this case. So the court will deny the Romero motion for the reasons I just indicated."

Dunn cannot show the court's decision was arbitrary or capricious or the result absurd given the facts of this case. The record establishes the trial court knew the matter was within its discretion and understood the scope of its discretion; it was not required to state reasons for denying the motion. (In re Large, supra, 41 Cal.4th at p. 550.) The trial court had before it the details of Dunn's criminal history and it obviously considered the nature and date of his prior strike and the nature of his current offense. It was within reason for the court to conclude, under all of the circumstances, Dunn was not wholly "outside the scheme's spirit" (People v. Williams, supra, 17 Cal.4th at p. 161), and that it should not strike his prior 1990 strike conviction. We cannot say the court's refusal to strike the prior conviction was "so irrational or arbitrary that no reasonable person could agree with it." (Carmony, supra, 33 Cal.4th at p. 377.)

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.