Filed 10/17/17 P. v. Caldera CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

James M. Kehoe, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christen Somerville, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION

Defendant Eddie Gabriel Caldera and his cohort each threw a full two-liter bottle of soda at a Circle K employee after defendant’s EBT card was declined. Following a jury trial, defendant was convicted of assault with a deadly weapon, to wit, a soda bottle, in violation of Penal Code[1] section 245, subdivision (a)(1). In a bifurcated proceeding, defendant admitted he had suffered three prior prison terms (§ 667.5, subd. (b)), one prior serious felony conviction (§ 667, subd. (a)), and one prior strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)). Defendant was sentenced to a total term of 11 years in state prison (the middle term of three years, doubled to six years due to the prior strike conviction, plus an additional five years for the prior serious felony conviction) to run concurrent to a six-year sentence in an unrelated felony case. Defendant’s sole contention on appeal is that he received ineffective assistance of counsel at sentencing. We disagree and affirm the judgment.

II

FACTUAL AND PROCEDURAL BACKGROUND

On November 27, 2013, defendant and a female friend attempted to make a purchase at a Circle K convenience store in Riverside when defendant’s EBT card was declined. Defendant became angry at the cashier, who attempted to run the EBT card again. A long line formed behind defendant, and others began to become frustrated. In a spur-of-the-moment-type situation, defendant’s cohort threw a full two-liter bottle of soda at the cashier. The soda bottle hit the cashier on the head, causing a laceration on her head and swelling on her forehead above her right eye. Defendant joined in by calling the cashier offensive names, and then threw a second soda bottle at the cashier, which grazed her chest after she moved to avoid it. After defendant threatened the cashier, he and his cohort left the store while laughing.

The cashier identified defendant from a photographic lineup. When law enforcement located defendant, defendant was in prison serving a six-year sentence in an unrelated case from San Bernardino County.

Following a jury trial, defendant was convicted of assault with a deadly weapon, to wit, a soda bottle, in violation of section 245, subdivision (a)(1). In a bifurcated proceeding, defendant admitted he had suffered three prior prison terms (§ 667.5, subd. (b)), one prior serious felony conviction (§ 667, subd. (a)), and one prior strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)).

Defendant’s sentencing hearing was held on May 23, 2016. Defendant’s maximum prison exposure was 16 years, and the probation officer recommended a prison sentence of 14 years. At the sentencing hearing, the trial court noted that after defendant was charged in this case but before he proceeded to trial, defendant had pleaded guilty to felony assault in another case in San Bernardino and was sentenced to prison for six years. The trial court indicated that it could either impose a consecutive prison term of a mandatory 10 years to the six-year San Bernardino sentence, resulting in an aggregate term of 16 years, or it could impose a concurrent prison term of a discretionary 11 years, resulting in only five additional years to defendant’s San Bernardino sentence. Specifically, if the trial court chose to run defendant’s sentence concurrently, it would exercise its discretion to strike defendant’s three prior prison term enhancements, and would impose six years (the middle term of three years doubled to six years due to the prior strike conviction) for the assault conviction, plus five years for the prior serious felony conviction. The trial court indicated that it would impose a concurrent sentence so that defendant would serve a low term on this case. Defense counsel recognized that defendant would serve less time if the court imposed a concurrent rather than consecutive sentence, and then submitted to the court’s 11-year concurrent indicated sentence. Following a discussion with the prosecutor, the court sentenced defendant to 11 years in this case to be served concurrently with defendant’s sentence in the San Bernardino case, and struck defendant’s three prior prison term enhancements pursuant to section 1385. This appeal followed.

III

DISCUSSION

Defendant argues his trial counsel was prejudicially ineffective for failing to make any challenges to his sentence despite the trial court’s statement it intended to impose the lowest possible term. Specifically, defendant asserts his trial counsel failed to file a sentencing brief, did not object to the imposition of the middle term of imprisonment and request the low term instead, and failed to file a motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to strike the prior strike conviction.

A defendant claiming ineffective assistance of counsel must establish both that his counsel’s performance fell below an objective standard of reasonableness under prevailing professional standards and that a more favorable outcome was reasonably probable in the absence of counsel’s deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) In assessing counsel’s performance, we indulge a strong presumption of the reasonableness of counsel’s actions or inactions. “Competent counsel is not required to make all conceivable motions or to leave an exhaustive paper trail for the sake of the record. Rather, competent counsel should realistically examine the case, the evidence, and the issues, and pursue those avenues of defense, that, to their best and reasonable professional judgment, seem appropriate under the circumstances.” (People v. Freeman (1994) 8 Cal.4th 450, 509.) On direct appeal, if the record is silent as to why counsel acted or failed to act in the manner challenged, we reject the assertion of deficient performance unless counsel was asked for an explanation and failed to provide one or unless there simply could be no satisfactory explanation. (People v. Kelly (1992) 1 Cal.4th 495, 520.)

To establish prejudice, defendant must show a reasonable probability sufficient to undermine confidence in the outcome that, but for the allegedly deficient performance, the result of the proceeding would have been different. (Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.) We need not determine if each purported failure of counsel, whether considered individually or collectively, rise to the level 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.’ [Citation.]” (People v. Cox (1991) 53 Cal.3d 618, 656, overruled on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Defendant has not met his burden of establishing prejudice.

Here, it is not reasonably probable that the trial court would have imposed the low term rather than the middle term even if trial counsel had requested a low term at the time of the sentencing hearing or in a sentencing brief. The record shows that the trial court had already indicated a low term sentence. The trial court stated it would sentence defendant to a concurrent term to his San Bernardino case after striking defendant’s three prior prison term enhancements. Defendant places great weight on the trial court’s comment “—I’ve indicated this to counsel in the past—I intend to sentence the defendant to state prison for the lowest possible term on this case . . . .” However, after this comment was made, it was immediately followed by a discussion that defendant had picked up a new felony conviction for assault after this case was charged. In addition, imposition of an 11-year term concurrent to his six-year term in the San Bernardino case would constitute a low term. The court’s comment does not suggest that the court intended to sentence defendant to the lowest possible term he was statutorily eligible for, but to a term appropriate under the totality of the circumstances of this case. Indeed, the court’s reasons in imposing the middle term concurrent to defendant’s sentence in the San Bernardino case supports the court’s comment to impose the lowest possible term appropriate under the circumstances of this case. Additionally, in examining defendant’s sentence in this case together with his sentence in the San Bernardino case, it appears defendant received the “lowest possible term” in this case, i.e., merely five years, despite his prior serious felony conviction and prior strike conviction.

Furthermore, the record shows the trial court was aware of its sentencing discretion to impose either a low, middle, or upper term for the assault. The low term is four years, the middle term is six years, and the upper term is eight years. The trial court considered the probation report in imposing the middle term. The probation report noted defendant’s criminal history, defendant’s background, the aggravating circumstances, and the three possible sentencing ranges. The probation report also noted that there were no factors in mitigation. Thus, the trial court was aware of all relevant sentencing factors.

In addition, even if trial counsel had filed a Romero motion to strike defendant’s prior strike conviction, there was no reasonable probability the trial court would have granted the Romero motion. Romero stands for the proposition that under section 1385, subdivision (a), a trial court may, either on its own motion or by motion of the prosecuting attorney, dismiss a defendant’s priors in the furtherance of justice. (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) There is no indication that the trial court was unaware of its discretion to strike a prior strike, and it was not an abuse of discretion for it to decline to strike defendant’s prior conviction under the circumstances of this case.

As noted, section 1385 grants a trial court the discretion to strike a prior strike on its own motion, without request of defense counsel or motion by the prosecution. Given this authority, defendant’s claim of ineffective assistance of counsel can only prevail if he demonstrates that the trial court was unaware of its discretion to strike priors, or that the trial court was aware of its discretion under section 1385 but abused its discretion in declining to strike his prior strike conviction. Accordingly, even if defendant’s trial counsel failed to bring a Romero request, if the trial court was fully aware of its discretion to strike prior strikes, and did not abuse its discretion by declining to do so, defendant would be unable to demonstrate the prejudice required for a successful claim of ineffective assistance. (Strickland, supra, 466 U.S. at p. 694.) We find that this is the case here.

The record in this case demonstrates that the trial court was fully aware of its discretion to strike defendant’s prior strikes. In fact, as defendant acknowledges, the trial court struck defendant’s three prior prison terms in the interest of justice pursuant to section 1385, and stated its reasons for doing so. Defendant, nevertheless, argues that it was reasonably probable the trial court, “if properly challenged, would have lowered [defendant’s] sentence” by striking his prior strike conviction. We disagree.

In reviewing the trial court’s decision not to strike defendant’s prior strike, we recognize that the “Three Strikes” law is intended to limit the discretion of a trial court in sentencing certain habitual offenders. (Romero, supra, 13 Cal.4th at p. 528.) Under the Three Strikes law, there is but one sentence to be given, unless the trial court decides to exercise its discretion in striking a defendant’s strike priors in the furtherance of justice. This discretion is limited, and is upheld to a stringent standard. (Carmony, supra, 33 Cal.4th at p. 377.) In order to strike a prior conviction, the trial court must make the determination that the defendant is outside the spirit of the Three Strikes law by weighing factors such as the nature and circumstances of the present offense, the defendant’s prior serious or violent felony convictions, and the defendant’s background, character, and prospects. (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)

In reviewing a trial court’s decision declining to strike a prior conviction under section 1385, it is “ ‘not enough to show that reasonable people might disagree about whether to strike one or more’ prior conviction allegations.” (Carmony, supra, 33 Cal.4th at p. 378.) If the record is silent on the issue, the presumption is that the trial court applied the law correctly. (Ibid.) Furthermore, “[b]ecause 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’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. Of course, in such an extraordinary case—where the relevant factors described in Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ—the failure to strike would constitute an abuse of discretion.” (Ibid.)

The record in this case demonstrates that the trial court reviewed all of the relevant factors prior to making its sentencing determination. Defendant notes that the trial court stated that the offense involved no planning, that defendant did not enter the market with the intent to assault, that defendant’s actions did not cause the victim any injury, and that the crime was far less serious than other similar assault cases. However, defendant fails to address the factors weighing against the trial court striking his prior strike conviction. The record indicates that defendant has a lengthy and serious criminal history, beginning when he was a juvenile, and that he had been in and out of jail or state prison since 1999. Defendant had repeatedly reoffended almost immediately upon his release from jail or prison. Defendant also repeatedly violated formal probation and parole and continued to commit crimes while on probation or parole, including violent crimes. In 2004, defendant was convicted of voluntary manslaughter and sentenced to prison for five years. Upon his release, he violated parole three times, returning to prison each time. Even after defendant committed the instant assault in 2013, defendant committed another felony assault in San Bernardino. In 2014, defendant was convicted of felony assault causing great bodily injury after he kicked a girl in the face. The record indicates defendant’s consistent inability or unwillingness to live a law-abiding life, even after having repeatedly served time in prison. Considering the serious and lengthy nature of defendant’s criminal history, his repeated parole violations, and his inability to follow the law, there is no reasonable probability the trial court would have determined defendant fell outside the spirit of the Three Strikes law.

Accordingly, we do not find the trial court abused its discretion in declining to strike defendant’s prior strike conviction. As a result, defendant cannot demonstrate he was prejudiced from his trial counsel’s failure to bring a Romero request before the trial court. We find defendant’s claim of ineffective assistance of trial counsel fails.

IV

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

MILLER

Acting P. J.

SLOUGH

J.