P. v. Nguyen

Filed 6/21/07 P. v. Nguyen CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Phu Ngoc Nguyen was charged with three drug-use or possession violations along with violation of Vehicle Code section 14601.2, subdivision (a), driving while his license was suspended or revoked as a result of a previous conviction of driving under the influence (DUI). At trial, defendant moved under Penal Code section 1385[1] to dismiss the Vehicle Code violation in order to make him eligible for probation and drug treatment under Proposition 36The Substance Abuse and Crime Prevention Act of 2000.[2] The court denied the motion and defendant was subsequently convicted by a jury on all counts. He later received a prison term of three years. On appeal, defendant contends that the court abused its discretion in refusing to dismiss the Vehicle Code violation since that was the only obstacle in the way of his Proposition 36 eligibility, and he as well as society would benefit from him, an addict, undergoing drug rehabilitation. He further contends that he received ineffective assistance of counsel for his attorneys failure to have renewed the motion to dismiss at sentencing. We reject these contentions and affirm the judgment.

STATEMENT OF THE CASE

I. Factual Background

Just after 2:00 a.m. on March 10, 2006, while driving in his police car, San Jose Police Officer Lee Tassio saw a Honda ahead of him make an illegal left turn from San Antonio Road to King Road in San Jose. The car cut too sharply in making the turn and crossed over the double-yellow line on King Road. It veered into an oncoming lane and then corrected itself after proceeding for about 100 yards. Officer Tassio stopped the car, which was not owned but was being driven by defendant, who was then on parole. There was also a passenger in the front seat of the car.

While conducting the traffic stop, Officer Tassio perceived that defendant seemed nervous. As a result, the officer asked defendant if he had any drugs or weapons in the car, to which, according to the officer, defendant replied,  I dont know.  Because of his behavior, the officer asked defendant to step out of the vehicle so he could pat-search him for weapons. Once he determined that defendant had no weapons on his person, the officer asked defendant if there were any drugs in the car. Defendant motioned to the drivers side door and replied that there was a crack pipe, which the officer understood to be a glass pipe used for smoking cocaine base, otherwise known as crack cocaine.

After other officers arrived on the scene, defendants passenger was also asked to step out of the car so it could be searched. Officer Tassio retrieved the pipe from the compartment pocket of the drivers side door and also found a small rock or piece (weighing .02 grams[3]) of cocaine base sitting next to it. The officer showed defendant the piece of crack and asked him what it was, if it was his, and some other questions. Defendant said that it was not his but he did not respond to any of the officers other inquiries. The officer evaluated whether defendant was under the influence of drugs and concluded that he was since defendant was nervous and twitchy, his pupils were constricted and nonreactive to light, and his pulse was about 90 beats per minute. While evaluating him, the officer asked defendant if he had smoked any cocaine and defendant replied that he had done so about five hours before. Defendant was arrested and later tested presumptively positive for cocaine use.

II.                 Procedural Background

Defendant was charged by information with possession of cocaine base (count 1, Health & Safety Code, 11350, subd. (a)); using or being under the influence of cocaine, a misdemeanor (count 2, Health & Safety Code, 11550, subd. (a)); possession of controlled substance paraphernalia, a misdemeanor (count 3, Health & Saf. Code,  11364); and driving while his license was suspended or revoked for a DUI conviction, a misdemeanor (count 4, Veh. Code, 14601.2, subd. (a)). The information also alleged that defendant had served four prior prison terms for felony convictions within the meaning of section 667.5, subdivision (b). These were three convictions of petty theft with a specified prior conviction ( 666) and one conviction of auto theft (Veh. Code,  10851, subd. (a)).

Prior to trial, the district attorney served a written notice of defendants ineligibility for probation and treatment under Proposition 36 ( 1210.1) with respect to counts 1-3 were he to be convicted of count 4, driving with a suspended license, since this would be a conviction in the same proceeding of a misdemeanor not related to the use of drugs as provided at section 1210.1, subdivision (b)(2).

At trial, defendant asked the court to exercise its discretion under section 1385 and he moved for dismissal of count 4 under this section in order to make him eligible for probation and drug treatment under Proposition 36. The court initially responded, Why should I do that? I mean, hes beenhes been charged with having, I think, four prior petty thefts with a felony; hes charged with possession of a controlled substance. Why would it be in the interest of justice . . . for me to dismiss that charge? Defense counsel argued in response that despite his lengthy rap sheet and prison priors, drug treatment would be something that is appropriate for [defendant] at this point in his life.

The court inquired if dismissal of the Vehicle Code section 14601.2 violation under section 1385 were an available option through the time of sentencing if defendant were to be convicted in this case, to which defense counsel replied that such an option was available at all times, including the time of sentencing. The court said that if defendant were to be convicted, the court would be ordering up a probation report, and at that time, [it would] have a better understanding of what the drug issues are.

The court then requested the People to respond to defendants motion to dismiss. The prosecutor highlighted that defendant had had a suspended drivers license since 1997 and yet had repeatedly driven; that defendant had four prior non-drug related felony convictions and was on parole when he was arrested for the instant offenses; that appellants drug problem could be treated even if he were in prison; and that defendant had recently been arrested on another occasion for possessing a small amount of crack cocaine and a crack pipe and the People had declined to charge him for that offense, instead referr[ing] the matter to parole for them to handle his drug problem, yet he had proceeded to commit new crimes. The court then denied the motion.

Before the start of trial, defense counsel also noted for the record that defendant had rejected a plea bargain that would have required him to plead to all four counts and admit the four prison priors in exchange for a year in county jail with probation to be terminated upon release, with other pending but unrelated misdemeanor charges additionally wrap[ped] in to that sentence. The court made clear that if defendant were to proceed to trial and be convicted of the instant offenses, and with the benefit of a probation report, the courts view on what would be an appropriate sentence at that point could very well be different from what the court was then prepared to pronounce consistently with the offer.

After a three-day trial, the jury convicted defendant on all counts, and he admitted the prior prison term allegations. The court requested a full pre[-]sentencing report and incorporated into the sentencing in this case the three other unrelated probation and Vehicle Code violation cases then pending against defendant. As to these other matters, defendant expressed his desire to plead and to be sentenced simultaneously with the instant offenses.

The probation report listed defendants many prior parole and probation violations. It noted that his prior performance on parole ha[d] been extremely poor and that his parole agent had opined that defendant should be returned to State Prison as he simply refuses to participate in the parole process, primarily by his repeated failures to report as directed. The report further offered that defendants prior record is of serious concern, consisting as it does of some 29 misdemeanors, many of which are Vehicle Code violations, and five felonies, resulting in four separate prison terms. At the time of the present offense, the defendant was on parole and was performing poorly. His probation history is as dismal as his parole history. The report also reflected that defendant had attributed his poor parole performance to his drug use. The report further observed that defendant was ineligible for probation absent a finding by the Court that this is an unusual case, which the report recommended against, noting that defendant is an extremely poor candidate for probation.

In light of defendants extensive record and the fact he was on parole when the present offense was committed, the report finally recommended an aggravated prison term of three years and further recommended that the court strike the additional punishment for the [four] Prison Priors in light of the small quantity of cocaine involved.

At sentencing, the court acknowledged having considered the probation report. The prosecutor suggested that rather than following the reports recommendations, the court impose the midterm of two years on the felony count 1 and strike all but one of the prison priors for a total term of three years. Defense counsel, for his part, agreed with the prosecutor that the midterm on count 1 should be imposed, but also agreed with the probation recommendation that the court strike all four prison priors, for a total term of two years. Counsel did not renew defendants prior motion to dismiss count 4, the Vehicle Code violation, in order to render defendant eligible for probation and treatment under Proposition 36. In the end, the court denied probation and followed the prosecutors suggestion, imposing the midterm of two years for the felony count 1, imposing 90 days to run concurrently for each of the misdemeanor counts 2 through 4, and striking all but one of the prison priors for a total prison term of three years.

This appeal followed.

DISCUSSION

I.                    Defendant Has Not Shown Abuse of Discretion

Proposition 36 provides that persons convicted of certain nonviolent drug offenses shall be ordered to probation and receive drug treatment in lieu of incarceration. (People v. Orabuena (2004) 116 Cal.App.4th 84, 88 (Orabuena) In other words, the initiative resulted in a sentencing statute which makes probation mandatory under certain circumstances and imposes drug treatment as a mandatory condition of that probation. In enacting Proposition 36, the electorate expressed the purpose and intent to divert nonviolent defendants charged with simple drug possession and drug use offenses from incarceration into community-based substance abuse treatment programs, to halt the expenditure of hundreds of millions of dollars to incarcerate and re-incarcerate nonviolent drug users better served by community-based treatment, to enhance public safety by reducing drug-related crime and reserving jails and prisons for serious and violent offenders, and to improve public health by treatment of drug abuse and dependence through proven and effective drug treatment strategies. (Prop. 36, 3, subds. (a)-(c); see Historical and Statutory Notes [foll. 1210].) (Canty, supra, 32 Cal.4th at pp. 1280-1281.)

The statutes enacted as a result of the passage of Proposition 36 provide that any person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program. . . . A court may not impose incarceration as an additional condition of probation. ( 1210.1, subd. (a).) The term nonviolent drug possession offense means the unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance identified in [Sections 11054-11058] of the Health and Safety Code, or the offense of being under the influence of a controlled substance in violation of Section 11550 of the Health and Safety Code. ( 1210, subd. (a).) (Orabuena, supra, 116 Cal.App.4th at p. 90.)

Proposition 36s alternative sentencing scheme excludes five classes of defendants, including those who, in addition to one or more nonviolent drug possession offenses, ha[ve] been convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony. ( 1210.1, subd. (b)(2).) An offense is defined as one not related to the use of drugs if it does not involve the defendants simple possession or use of drugs or drug paraphernalia, presence where drugs are being used, or failure to register as a drug offender, or any similar activity. ( 1210, subd. (d).) (Canty, supra, 32 Cal.4th at p. 1273.) We have previously held that driving while on a suspended or revoked license, as defendant was convicted of here, is an offense that is not related to drug use or possession for purposes of Proposition 36. (Orabuena, supra, 116 Cal.App.4th at pp. 89-90.) Thus, under section 1210.1, subdivision (b)(2), defendant is not eligible for treatment under Proposition 36 since he was convicted of this offense in the same proceeding in which he was also convicted of other qualifying drug offenses. But we have also held that a trial court retains discretion under section 1385 to strike a non-drug related misdemeanor conviction in order to make a defendant eligible for treatment under Proposition 36 and that the retention of this discretion foster[s] the goals of [the Act] by admitting to the program some defendants who would otherwise be ineligible for . . . treatment. (Orabuena, supra, at p. 96.)

Section 1385, subdivision (a), authorizes a trial court to order an action to be dismissed if that result is in furtherance of justice. The courts power to dismiss under this section while broad, is by no means absolute. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530.) The limitation that the dismissal be in furtherance of justice  requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal. [Citations.] [Citations.] At the very least, the reason for dismissal must be that which would motivate a reasonable judge. [Citations.] [Citation.] Courts have recognized that society, represented by the People, has a legitimate interest in the fair prosecution of crimes properly alleged. [Citation.] [A] dismissal which arbitrarily cuts those rights without a showing of detriment to the defendant is an abuse of discretion. [Citations.]  [Citation.] (Id. at pp. 530-531.)

The California Supreme Court in People v. Williams (1998) 17 Cal.4th 148, 159-160, further elucidated the concept of furtherance of justice in the application of section 1385. There, the court pronounced that content is given to this amorphous concept by looking to the legal scheme in question, in that case the Three Strikes Law, and thereby identifying the letter of the law to be applied and ascertaining its spirit, i.e., the purposes and objectives which are to be achieved through its scope and operative terms. (People v. Williams, supra, at pp. 159-160.) It is only with the particular legal scheme in mind that the concept of justice can be informed and furthered in the exercise of the courts discretion under section 1385. Factors which are external to the particular scheme, such as the mere desire to ease court congestion or bare antipathy to the consequences for any given defendant are not to be considered. (People v. Williams, supra, at pp. 160-161.)

Thus, when evaluating a motion under section 1385 to dismiss a non-drug related count in order to render a defendant eligible for probation and treatment under Proposition 36, it is appropriate for a trial court to have in mind the letter and spirit of that legislation, which we have already identified as drug treatment and diversion in lieu of incarceration for nonviolent defendants charged with simple drug use and possession offenses; fiscal savings by avoiding the repetitious incarceration of nonviolent drug users who would be better served by treatment; the enhancement of public safety by the reduction of drug-related crime and the reservation of prisons for serious and violent offenders; and the improvement of public health by treatment of drug use and dependence with effective rehabilitation strategies. (Canty, supra, 32 Cal.4th at pp. 1280-1281.) With these purposes as context, the court must consider, whether, in light of the nature and circumstances of a defendants present charges and the particulars of his [or her] background, character, and prospects, the defendant may be considered to fall within the spirit of Proposition 36, and hence should be deemed as eligible for treatment under that legislation, notwithstanding his or her technical disqualification under section 1210.1, subdivision (b)(2). (People v. Williams, supra, 17 Cal.4th at p. 161.)

We review the trial courts ruling denying a motion to dismiss under section 1385 for abuse of discretion with the same above factors in mind. Reversal is appropriate only where abuse of discretion is affirmatively shown. (People v. Fuhrman (1997) 16 Cal.4th 930, 945; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 [reviewing court must presume the sentencing court acted to achieve legitimate sentencing objectives].) In determining whether the lower court abused its discretion, the reviewing court asks in substance whether the ruling in question falls outside the bounds of reason under the applicable law and the relevant facts. [Citations.] (People v. Williams, supra, 17 Cal.4th at p. 162.)

Defendant here in essence contends that since he, as an addict, would benefit from drug treatment, the trial court abused its discretion in declining to dismiss the Vehicle Code violation (count 4) that disqualified him from Proposition 36 eligibility. ([A] reasonable judge would have found that [defendant] came within the spirit of Proposition 36 despite the fact he was being charged with a non-drug-related misdemeanor offense, and a reasonable judge would have struck the driving with a suspended license charge in the interests of justice so as to render [defendant] eligible for Proposition 36 treatment.) This contention fails to demonstrate that the trial court abused its discretion or that the courts decision was somehow unreasonable.

In considering the section 1385 motion and questioning why dismissal of count 4 would be in the interests of justice, the court referred to defendants criminal history, which was largely composed of non-drug related offenses. (Why should I do that? I mean, hes been . . . charged with having . . . four prior petty thefts with a felony . . . . Why would it be in the interest of justice . . . for me to dismiss that charge?) In ultimately denying the motion, the court did not specify additional reasons for its action. But just before that, the People had highlighted in argument that defendant had a history of driving on a suspended license, had four non-drug related felony convictions, had not responded favorably in the past to being referred to parole for drug treatment in lieu of being charged with drug violations, and was on parole when he committed the instant offenses. All of these factors tend to take defendant outside both the letter and spirit of Proposition 36 since they demonstrate serious criminality and recidivism, and that defendant was not just an addict repeatedly committing non-serious drug offenses. For these reasons, they also show that probation and treatment as mandated under Proposition 36 would not necessarily be the appropriate sentence for defendant, notwithstanding his drug addiction. Accordingly, it was not unreasonable for the court to have denied the motion to dismiss.

While it may be true that defendant could benefit from drug treatment, and that society might also benefit from him being treated, this benefit alone does not render the exercise of the courts discretion under section 1385 the only reasonable result. Indeed, in light of all of the other above negative factors established in the record, the court acted well within its discretion in ruling as it did. In sum, it was reasonable for the court to have concluded under section 1385 that defendants background, character, and prospects took him outside the spirit of Proposition 36 and that dismissal of the Vehicle Code violation (count 4) would not be in furtherance of justice. (People v. Williams, supra, 17 Cal.4th at p. 161.)

II. Defendant Has Not Demonstrated Ineffective Assistance of Counsel Defendant claims that he received ineffective assistance of counsel because his lawyer inexplicably did not renew at sentencing the motion under section 1385 to dismiss the Vehicle Code violation in the face of what he characterizes as the courts stated willingness to reconsider the issue upon review of the probation report. This contention rests on an overly optimistic rendering of the courts pretrial comments about its receptivity to later reconsideration of the motion. It also ignores the subsequent recommendations of the probation report, which, contrary to defendants representation, did not conclude that defendants inability to comply with parole conditions had been a  function of his drug use. [4] The reports discussion about defendants dismal parole and probation history, and its recommendations for an aggravated term and against a finding that this is an unusual case in order to make defendant eligible for probation together defeat a showing that defendant was prejudiced by any failure of counsel to have renewed the motion.

An ineffective assistance of counsel claim requires a showing that counsels action was, objectively considered, both deficient under prevailing professional norms and prejudicial. (People v. Seaton (2001) 26 Cal.4th 598, 666, citing Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) [T]he burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsels failings. (People v. Lewis (1990) 50 Cal.3d 262, 288; see also People v. Weaver (2001) 26 Cal.4th 876, 961.) This means that the defendant must show both that his counsels performance was deficient when measured against the standard of a reasonably competent attorney and that counsels deficient performance resulted in prejudice to [the] defendant in the sense that it so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. [Citations.]  (People v.Kipp (1998) 18 Cal.4th 349, 366, quoting Strickland, supra, 466 U.S. at p. 686.)

The first element of an ineffective assistance claim requires a showing that counsels representation fell below an objective standard of reasonableness. [Citations.] (In re Marquez (1992) 1 Cal.4th 584, 602-603, quoting Strickland, supra, 466 U.S. at p. 688.) In determining whether counsels performance was deficient, a court must in general exercise deferential scrutiny . . . and must view and assess the reasonableness of counsels acts or omissions . . . under the circumstances as they stood at the time that counsel acted or failed to act. [Citation.] Although deference is not abdication [citation], courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight. (People v. Scott (1997) 15 Cal.4th 1188, 1212.)

Further, [i]f the record does not shed light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation. (People v. Scott, supra, 15 Cal.4th at p. 1212.)  It is against this backdrop that we examine defendants claim of ineffective assistance of counsel.

The crux of defendants argument here is that since the court asked if it could still consider dismissal of count 4 at sentencing in the event of conviction, ipso facto the court certainly would have reconsidered the motion and probably would have granted it had it been renewed. But in making this pretrial inquiry, the court did not invite renewal of the motion or affirmatively suggest that it was open to post-conviction reconsideration, let alone reconsideration that would likely lead to defendant obtaining relief. Rather, upon confirmation of counsels view that it was legally proper for the court to entertain the motion post-conviction, the judge merely observed that if defendant were to be convicted, he would be ordering up a probation report, and at that time[, he would] have a better understanding of what the drug issues are. This is hardly the invitation for renewal or promise of relief upon which defendants ineffective assistance of counsel claim rests.

Moreover, the court followed up on this colloquy by stating for the record that defendant had rejected an offer to plea bargain and that if he were to be convicted after trial, the courts post-conviction views on sentencing, which would have the benefit of a probation report, could very well be different, i.e., harsher, from what the court was then prepared to pronounce. This suggests that the court intended to give credence to the probation reports recommendations, which in this case plainly did not support dismissal of the driving on a suspended license count in order to make defendant eligible for Proposition 36 treatment. Our reading of the report does not comport with defendants gloss that it reflected that [defendant] fell within the spirit of Proposition 36. On the contrary, even if defendant could show that he received ineffective assistance of counsel by his lawyer not having renewed the dismissal motion at sentencing, the contents of the probation report eviscerate the possibility that any such error was prejudicial. The report does not show that it was reasonably probable that the court would have granted a renewed motion. Indeed, the report confirms that the opposite result was more likely.

Finally, we disagree with defendants assertion that there was no conceivable tactical reason for trial counsels failure to renew the section 1385 motion as to count 4 at the time of sentencing. While the record does not affirmatively speak to counsels reasons, or lack thereof, for not renewing the motion post-conviction, at sentencing, the difference of one year in the likely two or three-year term was at play. As respondent points out, and especially in light of the probation report, defense counsel could very well have elected at that point to focus the judge on her argument that the court should impose the midterm of two years on count 1 and should, as the report recommended, dismiss the four prior prison term allegations in view of the small amount of cocaine involved. Under the circumstances, an attorneys strategic choice to highlight an aspect of the probation report that might be deemed favorable to defendant while avoiding its many unfavorable aspects might well have been a tactic that was within the range of reasonableness. On the state of this record, which sheds no light on why counsel acted or failed to act in the manner challenged[,] we must reject defendants claim. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

We conclude that defendant has failed to meet his burden of showing either that counsels performance was deficient or prejudicial.

DISPOSITION

The judgment is affirmed.

Duffy, J.

WE CONCUR:

Rushing, P.J.

Mihara, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

[1] Further unspecified statutory references are to the Penal Code.

[2] This Act, which we sometimes refer to simply as Proposition 36, is codified at sections 1210, 1210.1, and 3063.1 and Health and Safety Code section 11999.4 et seq. (People v. Canty (2004) 32 Cal.4th 1266, 1273, fn. 1 (Canty).)

[3] The officer initially weighed the cocaine base together with a bag that he had put it in for protective purposes. The recorded weight of the two items was .04 grams.

[4] The probation report did acknowledge that defendant had made this assertion. (When asked about his apparent inability to comply with parole conditions, the defendant advised this is a function of his drug use as, when under the influence, he distrusts others, including his parole agent. But the report itself made no such finding.