P. v. Taylor

Filed 11/2/07 P. v. Taylor CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Counsel appointed for defendant Darwin B. Taylor has asked this court to independently examine the record in accordance with People v. Wende (1979) 25 Cal.3d 436, to determine if there are any arguable issues that require briefing. Defendant was apprised of his right to file a supplemental brief, which he did on September 19, 2007. Defendant asserts two errors: (1) that his defense counsel provided ineffective assistance by failing to file a Romero motion; and (2) that the trial court violated his right to due process by enhancing his sentence pursuant to Penal Code section 1170.12, subdivision (c)(1) without a jury finding as required by Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856] (Cunningham).[1]

We conclude that defendants arguments are without merit. We have also reviewed the entire record and conclude there are no other arguable issues. Accordingly, we affirm.

I. Background

On October 22, 2006, defendant was observed by Daly City police officers driving a carlater determined to be stolenwith a shattered driver-side wing window. Defendant was speeding through a 25-mile-per-hour zone at 45 miles per hour. The officers began a pursuit of defendant, activating their emergency lights and siren. Rather than stopping, defendant accelerated, driving through a stop sign and eventually exiting the car while it was still moving. Defendant ran off, leaving the car to roll down the street, where it sideswiped one car before crashing into another and finally coming to rest. One of the officers gave chase on foot, following defendant through housing units before losing sight of him. Scanning the houses around him, the officer spotted an open garage and then heard screams emanating from the garage. The officer found defendant hiding inside, and he was taken into custody without further incident.

Defendant initially provided a false name to the police, but later revealed his true identity. He admitted knowing that the car was stolen but claimed he had picked it up from some friends just prior to encountering the officers. Defendant claimed that he fled because he was under the influence of drugs and had panicked.

By information filed December 26, 2006, the San Mateo County District Attorney charged defendant with felony auto theft in violation of Vehicle Code section 10851, subdivision (a) (count 1); felony operating a motor vehicle with the intent to evade a police officer in violation of Vehicle Code section 2800.2 (count 2); felony hit and run in violation of Vehicle Code section 20002, subdivision (a) (count 3); and misdemeanor providing false information to a police officer in violation of Vehicle Code section 31 (count 4). The information also alleged two prior convictions for auto theft; five prior felony convictions within the meaning of Penal Code section 1203, subdivision (e)(4); three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b); and a prior strike conviction within the meaning of Penal Code section 1170.12, subdivision (c)(1).

On February 5, 2007, pursuant to a negotiated plea agreement, defendant pleaded no contest to count 1 and admitted that he had suffered a prior conviction for the same offense, that he had five prior felony convictions, and that he had a prior strike conviction and was presumptively ineligible for parole. In exchange, all remaining counts and allegations were dismissed, and it was agreed defendant would receive a maximum of six years in prison and the court would consider a Romero motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

For reasons not evident from the record, defense counsel never filed a Romero motion. At a March 14, 2007 sentencing hearing, the court denied probation and sentenced defendant to the lower term of two years on count 1, doubled to four years pursuant to Penal Code section 1170.12, subdivision (c)(1).

This timely appealed followed.

II. Discussion

A. Defense Counsel Did Not Provide Ineffective Assistance

Defendant contends his counsels representation was ineffective in that he failed to file a Romero motion as was contemplated by the plea agreement. To establish ineffective assistance of counsel, defendant must demonstrate that counsels performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687, 691-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)

In order to strike the strike prior, the trial court must consider whether, in light of the nature and circumstances of [defendants] present felonies and serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [Three Strikes laws] spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. (People v. Williams (1998) 17 Cal.4th 148, 161.)

Defendants criminal record would not support such a finding. Defendants lengthy adult criminal history[2] began in 1984 when he was convicted of cocaine possession. Since that time, defendant has three different convictions for vehicle theft, as well as convictions for first degree robbery, possession of a controlled substance, first degree burglary, domestic battery, and arson. Further, as described in the probation departments report, The defendants criminal behavior dates back to 1984 and was supervised by the [p]arole [d]epartment from June 12, 1986 until his most recent discharge on January 8, 2005. The defendants adjustment while on parole was extremely poor.^[[3]] Since August 2, 2005, the defendant has been on supervised probation by San Francisco County. Again, his adjustment under supervision was extremely poor. His probation has been violated on two occasions. On September 19, 2006, his probation was revoked and reinstated under the same terms and conditions. At that time, the defendants probation officer recommended the defendant be committed to the Department of Corrections. The [c]ourt gave the defendant one last opportunity to rehabilitate himself. However, a month later, he committed the present offense. Defendant, who acknowledges a cocaine addiction, has been afforded several opportunities to undergo treatment, but he has failed to complete a drug treatment program. Defendant has also failed to register as an arson offender in violation of a court order.

In light of this record, it cannot be said that defendant is outside the spirit of the Three Strikes law. Accordingly, a Romero motion would have been futile. And counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile. (People v. Price (1991) 1 Cal.4th 324, 386-387; People v. Anderson (2001) 25 Cal.4th 543, 587.)

B. The Doubling of Defendants Sentence Based On His Strike Prior Did Not Violate Due Process

Defendant next argues that the sentencing court erroneously enhanced [his] sentence without a finding of guilt by a reasonable doubt by a jury. In Cunningham, supra,127 S.Ct. 856, the United States Supreme Court recently stated, [U]nder the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established by a beyond a reasonable doubt, not merely by a preponderance of the evidence. (Cunningham, supra, 127 S.Ct. at pp. 863-864.) Defendant is wrong that Cunningham mandated a jury trial on the prior strike allegation for at least two reasons.

First, as a term of the plea agreement, defendant admitted the prior strike allegation. Second, in Apprendi v. New Jersey (2000) 530 U.S. 466, the United States Supreme Court held, Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Id. at p. 490.) The Cunningham court reaffirmed that the right to a jury trial on facts used to aggravate a sentence does not apply to the fact of a prior conviction. (Cunningham, supra, 127 S.Ct. at p. 868.)

C. No Other Arguable Issues

Pursuant to our obligations under People v. Wende, supra, 25 Cal.3d 436, we have reviewed the entire record. The scope of reviewable issues on appeal after a plea of no contest, however, is very limited. It is restricted to matters based on constitutional, jurisdictional, or other grounds going to the legality of the proceedings leading to the plea; guilt or innocence are not included. (People v. DeVaughn (1977) 18 Cal.3d 889, 895-896.)

Defendants change of plea complied with Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122.

Defendant was represented by competent counsel who guarded his rights and interests.

The sentence imposed is authorized by law.

III. Disposition

Having rejected the issues raised by defendant, and our independent review having found no arguable issues that require briefing, the judgment of conviction is affirmed.

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Haerle, J.

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[1] Defendant also raises a third issue, in which he seeks the California Supreme Court ruling on I/Ms who received increased punishment through so-called enhancements should be resentenced under the same guidelines enacted when the legislature passed passed [sic] a new sentencing law. As best as we can understand, this is simply a reiteration of his Cunningham argument. Because it is redundant of his second claimed error, we do not address is separately.

[2] As a minor, defendant also received extensive services from juvenile authorities in San Francisco County.

[3] Between 1986 and 2005, defendant has been on parole on four different occasions, returning to custody at least 10 times due to parole violations.