P. v. Warnock

Filed 6/13/08 P. v. Warnock CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Butte)

----

In case No. CM025513 (the drug case), defendant Kevin Paul Warnock pled no contest to possession of heroin and admitted a strike prior in exchange for dismissal of the remaining counts (possession of methamphetamine, possession of a smoking device, and possession of a hypodermic needle or syringe) and allegations of four prior prison terms. On October 5, 2006, the court suspended imposition of sentence and granted Proposition 36 probation for a term of three years.

A petition for revocation of probation filed a month later alleged that defendant violated probation in that his whereabouts was unknown.

A complaint filed March 14, 2007, in case No. CM026508 (the theft case) charged defendant with unlawful taking of a vehicle, being a felon in possession of a firearm after having been convicted of burglary, possession of ammunition, and two counts of receiving stolen property. A strike prior was also alleged.

On May 31, 2007, defendant pled no contest to the charges except one count of receiving stolen property and the possession of ammunition count and admitted the prior conviction. The court also found defendant in violation of probation in the drug case.

The court denied defendants motion to strike the prior and sentenced defendant to state prison. In the drug case, the court imposed six years (the upper term of three years, doubled for the strike prior) for possession of heroin. In the theft case, the court imposed eight months (one-third the midterm of two years) for each offense (vehicle theft, receiving stolen property, and felon in possession of a firearm). The court also resentenced defendant in two Glenn County cases.

Defendant appeals. He contends the court failed to exercise an informed discretion in denying his motion to strike the strike prior pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and in imposing the upper term for possession of heroin in that it erroneously relied upon facts occurring after granting probation. Defendant argues defense counsel rendered ineffective assistance to the extent his failure to object is deemed a forfeiture of the foregoing claims. We will affirm the judgment.

FACTS

The Drug Case

On August 26, 2006, having received a report of a drunk driver at an apartment complex, a police officer found defendant slumped over the steering wheel of a parked truck. He admitted having used methamphetamine and consented to a search of his person which revealed two knives and a container with 2 grams of methamphetamine and .2 grams of heroin. A search of the truck revealed a smoking device, two syringes (one with heroin), two spoons, and cotton swabs.

The Theft Case

On November 24, 2006, defendant fled in a flatbed truck from pursuing officers, crashed into a tree and planter in front of a residence, and then ran. The truck had been reported as stolen. Officers searched the truck and found two knives, three flashlights, binoculars, a Benelli shotgun, a Marlin rifle, and shotgun ammunition. The shotgun had been reported as stolen. Several other items in the truck had been stolen in a burglary at the same time as the shotgun.

On December 6, 2006, defendant was in custody in Glenn County on an unrelated vehicle theft which occurred on November 25, 2006. Although the officers positively identified defendant as the driver, defendant denied knowing about the November 24, 2006, incident.

Procedural Background

Defendant contends that the trial court abused its discretion in denying his Romero motion. As defendant acknowledges, the trial court denied his Romero motion without comment. Relying upon the probation report and the courts statement of reasons in imposing sentence, defendant argues the courts exercise of discretion in denying his Romero motion was misinformed in that the court imposed sentence following revocation of probation in the drug case (upper term of three years for possession of heroin, doubled for the strike prior) based on facts which occurred after the original grant of probation, violating California Rules of Court, rule 4.435(b)(1)^[1]. Defendant makes a similar argument in challenging the courts imposition of the upper term to which there was no objection. Anticipating that this court would deem these claims forfeited, defendant argues that counsel rendered ineffective assistance in failing to object to the probation reports recommendation of the maximum without acknowledging the limits of rule 4.435 and in failing to seek clarification of the basis for the courts denial of his Romero motion. Because defendant raises an ineffective assistance of counsel claim, we will reach the merits. We conclude that defendant has failed to demonstrate that counsels performance was deficient.

The probation report recounts the criminal history of the almost 50-year-old defendant. He has 11 felony and 4 misdemeanor convictions. Defendant was committed at the age of 18 years to the then California Youth Authority for vehicle theft, a felony.

Five years later, in Oregon, defendant was granted probation for felony convictions of distributing and delivering controlled substances. He sustained misdemeanor convictions for driving while intoxicated and driving on a suspended license. He violated probation in the felony cases and committed additional felonies for failure to appear. He sustained felony convictions for failure to appear (two) and driving on a suspended license. He was sentenced to state prison in 1986.

Back in California, defendant had three felony convictions for second degree burglary and was sentenced to state prison in 1989. In 1994, he had a felony conviction for burglary and was apparently committed to the California Rehabilitation Center (CRC). In 1996, defendant was sentenced to state prison for a felony conviction for forgery with a strike prior. In 1999, he was sentenced to state prison for a felony conviction for accessory with a strike prior. Defendant has several violations of parole. He also has misdemeanor convictions for possession of a hypodermic needle or syringe in 1991 and possession of a controlled substance in 1996; for both, he received jail time.

The probation report recounted the sentencing imposed in the two Glenn County cases (an aggregate term of four years and eight months) upon which the court here resentenced.

Defendant stated to the probation officer that he had borrowed the flatbed truck from someone he knew and knew the truck had been stolen. When officers pursued him, he attempted to escape. His decision making was impaired because he was strung out on heroin. When he fled, he stole another truck which had its keys in the ignition. He was found sleeping in it the next day. He knew the items in the flatbed truck had been stolen but declined to explain further. Defendant claimed he was a heroin addict, ingesting about two grams per day. He considered CRC a joke but was interested in a drug treatment program. He expected to be sent to state prison based on his criminal background and his prison sentence imposed in Glenn County.

The probation officer noted that defendant was eligible for probation only if the court found defendants case to be an unusual one and the interests of justice would be served. The probation officer was of the opinion that the case did not appear to be unusual: Although the current offense is not viewed as more serious than the defendants prior convictions, the defendant has not been free from incarceration and serious violations of the law for a substantial time before the current offense. The defendant participated in the crime without great provocation or duress. He does not appear to be suffering from a mental condition and reported no prior mental or emotional problems. The defendant is neither youthful nor aged.

The probation officer recommended against a grant of probation. Defendant admitted he knew the vehicle as well as the items in the vehicle were stolen. He was an active participant. He fled and then stole another vehicle in order to escape. The probation officer claimed [t]hese deliberate acts appear to demonstrate criminal sophistication and professionalism. Defendants prior criminal history is extensive, dating back to 1977, and it reflects a pattern of regular and increasingly serious criminal conduct. Despite opportunities, defendant had failed at CRC, on probation, on parole, and on Proposition 36 probation by failing to comply with terms or by committing new offenses. The probation officer also noted that defendant had already been sentenced to state prison out of Glenn County and would not be able to comply with a grant of probation. The probation officer found that defendant was not remorseful.

In recommending the upper term for possession of heroin and the aggregate 10 year 4 month state prison sentence, the probation officer concluded: In aggravation, the defendants prior convictions are numerous, increasing in seriousness, and his prior performance on probation and parole were unsatisfactory. He has eleven (11) prior felony convictions and was on probation at the time the instant offense was committed. As previously addressed, the manner in which the crime was carried out indicates criminal sophistication and professionalism. The probation officer concluded there were no factors in mitigation.

Defense counsel filed a sentencing brief and motion to strike the strike prior. Acknowledging defendants horrible criminal record, defense counsel stated that defendant doesnt dispute anything except the effects of his strike prior, noting that not only did it double the term in one case, it imposed an unfair 20-percent time credit limitation on everything. Defense counsel argued that the strike prior was not a factor in the Glenn County case and was not considered in the Butte County cases until late in the drug case to accommodate a plea bargain that put [defendant] into Proposition 36 treatment. Defense counsel claimed that initially the strike prior would have been dismissed. When it was learned that the four prior prison term allegations did not apply because of a washout period, the strike prior was substituted but with the understanding that defendant would still receive Proposition 36 treatment. Defense counsel also argued that the strike prior, a 13-year-old burglary conviction, was dismissed in the theft case in exchange for defendants plea. Defense counsel stated, It appears now that Glenn County and the two deputies representing the People in the Butte County cases currently before this court all were willing to exercise discretion to avoid the consequences of the aging strike prior in separate plea bargains. It shows up only because we used it to bargain [defendant] into rehabilitation. Unfortunately for him that effort for rehabilitation didnt take.

The prosecutor opposed the motion to strike the strike prior and argued that the probations recommended sentence was appropriate. The prosecutor disputed defense counsels statement that the People did not take defendants strike prior into account in resolving the theft case, noting that defendant had already admitted the strike prior in the drug case. Based on his criminal history, the prosecutor was confident that defendant would be sentenced to state prison with the 20 percent credit limitation.

At the initial sentencing hearing, the court stated that it had reviewed defendants motion to strike and the prosecutors opposition and asked whether either party wished to be heard. Defense counsel stated that he had nothing further to state unless the Court has questions other than what weve presented. The prosecutor submitted the matter. The court denied the motion to strike.

At the continued sentencing hearing the court announced its intended disposition, [u]pper term CDC, and defense counsel submitted the matter, stating that [defendant] indicates he just wants to get it over with. The court stated that it had read and considered the probation report and defendants sentencing brief and Romero motion. The court found that defendants case did not meet the criteria for an unusual one and even if statutorily eligible, the court denied probation based on [d]efendants prior record of criminal conduct indicates a pattern of regular and increasin[g]ly serious criminal conduct, probation was revoked and terminated unsuccessfully in [the drug case], and probation is denied in [the theft case]. The court designated the possession offense in the drug case as the principal term and imposed the upper term. The court also imposed the upper term for all but one offense in the three other cases (one Glenn County offense) but sentenced defendant to consecutive one-third the midterms except for two counts in the Glenn County cases where the upper terms were run concurrently. In imposing the upper terms, the court found the factors in aggravation outweighed those in mitigation. In aggravation, the court cited the following factors: the crimes involved great monetary value, the defendant[]s priors are numerous, the defendant has served prior prison terms, and the defendants prior performance on probation and parole was unsatisfactory. The court found that there were no factors in mitigation. The court then imposed the upper term, doubled for the strike prior, for possession of heroin in the drug case. Defense counsel had no comments on the foregoing sentencing choices.

DISCUSSION

I

Denial Of The Romero Motion To Strike

Romero, supra, 13 Cal.4th 497 held that Penal Code section 1385, subdivision (a) allows a [trial] court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law. (Romero, at pp. 529-530.) Romero explained that the exercise of discretion is limited by the concept of furtherance of justice, requiring the court to consider both the defendants constitutional rights and the interests of society. (Id. at p. 530.) People v. Williams (1998) 17 Cal.4th 148 clarified the standard governing a decision to strike a strike prior: [I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, in furtherance of justice pursuant to Penal Code section 1385(a), or in reviewing such a ruling, 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 schemes 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. (Id. at p. 161.)

Defendants criminal record demonstrates that he is well within the spirit of the three strikes law. His multiple prior felony and misdemeanor convictions, his violations of parole, and his continued life of crime support the trial courts decision to deny his motion to strike. Indeed, defense counsel acknowledged that defendants record is horrible. We reject defendants claim that the record reflects that the trial court was misinformed when it denied the motion to strike. The court did not err.

II

Imposition Of Upper Term

With regard to imposition of the upper term, the trial court imposed the upper term for numerous offenses, not just the possession of heroin offense, and did not parse out the reasons for each upper term imposed. The courts statement of reasons lumped the reasons for all upper terms imposed: the crimes involved great monetary value, the defendant[]s priors are numerous, the defendant has served prior prison terms, and the defendants prior performance on probation and parole was unsatisfactory. The Advisory Committee comment to rule 4.435 states: The restriction of subdivision (b)(1) is based on In re Rodriguez (1975) 14 Cal.3d 639, 652: [T]he primary term must reflect the circumstances existing at the time of the offense. Defendants priors were numerous prior to his conviction for possession of heroin. He committed offenses beginning when he was a young adult and has committed offenses almost nonstop since. Defendant served prior prison terms prior to his conviction for possession of heroin. When defendant entered his plea to possession of heroin and admitted the strike prior, he entered a Harvey^[2]waiver entitling the court to consider the dismissed counts and allegations which included four prior prison terms. Defendant was first sentenced to state prison in 1986 and the last time in 1999. Defendants performance on parole was unsatisfactory prior to his conviction for possession of heroin. The record does not reflect that the trial court abused its discretion in imposing the upper term for possession of heroin and in fact relied on facts existing at the time of the suspension of imposition of sentence in the drug case. The court did not err.

III

Ineffective Assistance of Counsel

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, 687-696 [80 L.Ed.2d 674, 693-699]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) Since the trial court did not err in denying the motion to strike and imposing the upper term, defendant has failed to demonstrate that counsels performance was deficient in failing to object.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

SCOTLAND, P.J.

SIMS , J.

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^[1] Rule 4.435 provides in relevant part:

(a) When the defendant violates the terms of probation or is otherwise subject to revocation of probation, the sentencing judge may make any disposition of the case authorized by statute.

(b) On revocation and termination of probation under section 1203.2, when the sentencing judge determines that the defendant will be committed to prison:

(1) If the imposition of sentence was previously suspended, the judge must impose judgment and sentence after considering any findings previously made and hearing and determining the matters enumerated in rule 4.433(c).

The length of the sentence must be based on circumstances existing at the time probation was granted, and subsequent events may not be considered in selecting the base term or in deciding whether to strike the additional punishment for enhancements charged and found.

All further undesignated rule references are to the California Rules of Court.

^[2]People v. Harvey(1979) 25 Cal.3d 754.