Filed 5/25/17 P. v. Russell CA5




NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL ANTHONY RUSSELL,

Defendant and Appellant.

F073514

(Super. Ct. No. SF018427A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Judith K. Dulcich, Judge.
Richard Leslie Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
Michael Anthony Russell was sentenced to a prison term of four years pursuant to a plea agreement. Appellate counsel was unable to identify any arguable issues, but Russell contends defense counsel was ineffective. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
The complaint charged Russell with six felonies and two misdemeanors: two counts of unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a)), two counts of unlawfully taking a vehicle in violation of Vehicle Code section 10851 and having previously been convicted of violating the same statute (Pen. Code, § 666.5, subd. (a)) , two counts of knowingly purchasing a stolen vehicle (§ 496d, subd. (a)), and two misdemeanor counts of receiving stolen property (§ 496, subd. (a)). The felony counts also alleged as enhancements that Russell had suffered a prior conviction which constituted a strike within the meaning of section 667, subdivisions (b)-(i), and had served three prior prison terms within the meaning of section 667.5, subdivision (b).
Approximately one month after the complaint was filed, Russell entered into a plea agreement with the prosecutor. Russell agreed to plead guilty (or no contest) to one count of violating Vehicle Code section 10851. In addition, he agreed to admit he had a prior conviction which constituted a strike within the meaning of section 667, subdivisions (b)-(i). The term of imprisonment which the parties agreed to was a two-year term for the auto theft, which would be doubled as a result of the strike enhancement for a total term of four years in prison. In addition, the parties agreed the sentencing hearing would not be held for six weeks, and the remaining counts and enhancements were to be dismissed. The trial court ensured Russell understood and waived his statutory and constitutional rights, understood and accepted the terms of the plea agreement, and entered into the plea agreement voluntarily. The trial court then accepted Russell’s no contest plea.
At the sentencing hearing, Russell indicated he wished to withdraw his plea. The trial court appointed new defense counsel for the purpose of advising Russell regarding withdrawing his plea.
Prior to the continued sentencing hearing, defense counsel filed a request pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 requesting that the trial court dismiss the prior strike conviction. The prosecutor opposed the request, demanding the benefit of the bargain into which it entered when Russell accepted the plea agreement.
At the continued sentencing hearing, defense counsel explained he spoke with Russell about withdrawing his plea, but he could not find any legal basis for such a motion. He did believe, however, the plea agreement left open the possibility of requesting the prior strike conviction be dismissed, so he had filed such a request. The trial court denied the request noting the People were entitled to the benefit of their bargain, and even if it considered the merits of the request it would deny it because Russell’s prior convictions and performance on probation and/or parole did not make him a suitable candidate for such leniency. It then sentenced Russell to the stipulated term of four years in prison.
DISCUSSION
Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 asserting that after thoroughly reviewing the record he could not identify any arguable issues in the case. By letter dated June 8, 2016, we invited Russell to inform this court of any issues he wished us to address.
Russell responded to our letter asserting defense counsel was ineffective because he should have incorporated into the plea agreement the right to request that the trial court dismiss the prior strike conviction. Russell’s request for a certificate of probable cause raised the same grounds and was granted by the trial court. There is no merit to this contention.
“Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result. [Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in the outcome. [Citations.] [¶] Our review is deferential; we make every effort to avoid the distorting effects of hindsight and to evaluate counsel’s conduct from counsel’s perspective at the time. [Citation.] A court must indulge a strong presumption that counsel’s acts were within the wide range of reasonable professional assistance. [Citation.] … Nevertheless, deference is not abdication; it cannot shield counsel’s performance from meaningful scrutiny or automatically validate challenged acts and omissions.” (People v. Dennis (1998) 17 Cal.4th 468, 540-541.)
Russell entered into a very favorable plea agreement that drastically reduced the potential sentence to which he could have been exposed. Three prior prison term enhancements were dismissed, along with several other charges. It is pure speculation to suggest the prosecutor would have agreed to a plea agreement which would have provided Russell the opportunity to serve a prison term of only two years. Indeed, based on the prosecutor’s comments at the sentencing hearing, this seems unlikely. Moreover, the trial court denied the Romero request filed on behalf of Russell not only because the prosecution was entitled to the benefit of its bargain, but also because it concluded Russell’s criminal record and performance on probation and/or parole demonstrated he was not the type of individual to whom leniency should be granted. Under these circumstances, Russell cannot establish defense counsel was ineffective, or that he suffered any prejudice. His claim of ineffective assistance of counsel must be rejected.
We have also independently reviewed the record and concur with appellate counsel that there are no arguable issues in the case. Russell entered into a plea agreement at an early stage of the proceeding resulting in a very favorable outcome to the case. He was properly advised of his constitutional rights, and the consequences of his plea. There is no evidence the plea was anything other than voluntary. The trial court sentenced Russell to the term to which he agreed.
DISPOSITION
The judgment is affirmed.