P. v. Tarnowski

















Filed 7/10/13
P. v. Tarnowski CA2/1

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND
APPELLATE DISTRICT



DIVISION
ONE




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THE PEOPLE, Plaintiff and Respondent, v. JIMMY LEE TARNOWSKI, Defendant and Appellant.

B245325 (Los Angeles County Super. Ct. No. KA097452)

APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Robert M. Martinez, Judge.
Affirmed.

Jimmy Lee
Tarnowski, in pro. per.; and Ava R. Stralla, under appointment by the Court of
Appeal, for Defendant and Appellant.

No
appearance for Plaintiff and Respondent.

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clear=all >

Jimmy Lee
Tarnowski pleaded no contest to one count of href="http://www.mcmillanlaw.com/">possession of a controlled substance
(methamphetamine), in violation of Health and Safety Code section 11377,
subdivision (a), and was sentenced to eight years in href="http://www.fearnotlaw.com/">state prison. He filed a timely notice of appeal. We appointed appellate counsel to represent
Tarnowski. After examining the record,
counsel filed an opening brief
raising no issues and asking this court to independently review the
record. On May 14, 2013, we advised
Tarnowski he had 30 days in which to personally submit any href="http://www.fearnotlaw.com/">contentions or issues he wished us to
consider.

Tarnowski
filed a supplemental brief challenging
his strike conviction and his prior prison term enhancements, and requesting
that his sentence be modified to the midterm.
His arguments are without merit, and we affirm the judgment.

BACKGROUND

An
information filed May 30, 2012 charged Tarnowski with one count of felony
possession of a controlled substance, methamphetamine, in violation of Health
and Safety Code section 11377, subdivision (a).
The information also alleged that Tarnowski had three prior convictions
for first degree burglary (Pen. Code, § 459href="#_ftn1" name="_ftnref1" title="">[1])
and three prior convictions for robbery (§ 211), which were deemed serious or
violent felonies. (§§ 1192.7 &
667.5, subd. (c).) These prior
convictions also qualified as prior strikes.
(§§ 1170.12, subds. (a)–(d) & 667, subds. (b)–(i).) Tarnowski also had prior prison priors
(§667.5, subd. (b)) and felony convictions which qualified as no-probation
priors. (§ 1203, subd. (e)(4).)

Tarnowski
rejected an offer of four years imprisonment in open court and pleaded not
guilty. A jury trial began on Friday,
October 19, 2012. A police officer
testified that he executed a traffic stop after Tarnowski ran a stop sign in a
pickup truck. The officer found
methamphetamine in a balled-up piece of paper on the ground outside of the
driver’s door. When the officer reviewed
his in-car surveillance video, he saw the paper fall from Tarnowski’s lap when
he exited the car. The jurors saw the
video. Inside the car on the center of
the bench seat was a notebook with pages the same size and type of paper as the
paper with the methamphetamine, and two baggies of methamphetamine were hidden
in the seat on the passenger side.

On October
22, 2012, Tarnowski filed a change of plea form, pleading no contest to the
charge of possession of methamphetamine.
Tarnowski admitted the prior convictions. The court asked Tarnowski if he wanted to
enter an open plea with the understanding that the maximum term was 12
years. Tarnowski conferred with his
attorney and said yes. The prosecutor
advised Tarnowski about the consequences of his plea, and Tarnowski answered
yes when the prosecutor asked him whether he understood the consequences. The prosecutor also advised Tarnowski that by
pleading to the charge and the allegations, “you are potentially looking at 25
to life; but the judge has guaranteed you that . . . he . . . won’t sentence
you to anymore than 12 years,” and Tarnowski said he understood. The prosecutor asked Tarnowksi’s counsel if
he stipulated to the factual basis of the plea based on the arrest and
probation reports and the preliminary hearing transcript, and counsel answered
yes. Tarnowski pleaded no contest to the
possession charge.

The
prosecutor read Tarnowski’s strike convictions and asked him whether he
admitted them. After conferring with his
attorney, Tarnowski said, “This is for sentencing purposes. Yes, I’ll go ahead and plead guilty but I
don’t have all those strikes.” The prosecutor
responded that he had provided a strike package under section 969b and offered
the package for Tarnowski and his counsel to review. After conferring with his attorney, Tarnowski
stated: “Okay. Anyway, I’ll agree to it.” The prosecutor stated: “I am not going to have him agree just blindly
to something that he believes it’s not him.”
Tarnowski then said: “Well, I
pleaded guilty in 1988. I pleaded guilty
to three counts of robbery and that was it.
And then ’83 was the residential burglary. Anything more is not true.” The court asked whether Tarnowski wanted to
plead no contest, and defense counsel said, “Yes, your honor. That’s what he’s indicating at this time.” The prosecutor asked again whether Tarnowski
admitted the six prior strike convictions, and Tarnowski answered, “No
contest.”

Tarnowski
and his counsel conferred again after the prosecutor asked Tarnowski to admit
to prison priors. The prosecutor read
the priors, and Tarnowski admitted the prison priors. Counsel joined in the waivers and stipulated
to a factual basis for the plea. The
court found that Tarnowski’s plea was freely and voluntarily made and he had
knowingly and intelligently waived his constitutional rights regarding the alleged
priors. The court found the priors to be
true, and found there was a factual basis for the plea.

The court
stated: “Mr. Tarnowski, your sentencing
today is only partially influenced by the charge that you pled guilty to, and
the rest of it is your past catching up with you. It’s almost crazy to impose such a
significant sentence on what is relatively minor in comparison to some of the
crimes you’ve committed and, of course, some of the even more serious crimes
that others commit.” The court denied probation,
and sentenced Tarnowski to the high term of three years, doubled to six as the
strike prior. In addition, the court
imposed two one-year prison priors for a total commitment of eight years (minus
credits), and fines and fees. The court
found “the sentence it has imposed is commensurate with the charge and his past
history. The case is being dealt as a
second strike case, and all serious felonies are stricken with the exception of
a [section] 211 in case no. A097565.”
The court added: “Just so the
record is clear, I’m looking at a document here dealing with your 1988 cases,
and you did receive a term of nine years eight months for a number of robberies
. . . .” Tarnowski asked whether he
could get a court order for a copy of his strike packet, and the court told him
to ask his attorney to make some copies.
After Tarnowski again conferred with his counsel, he stated: “My strikes are no good, your honor, I can’t
come back?” He asked if he could appeal
his strikes, and the court responded that Tarnowski needed a certificate of
probable cause and the court had only used one strike conviction, striking all
the others for the purposes of sentencing.
Tarnowski continued: “I believe
all my strikes are no good.” The court
answered: “Well, looking at the prison
packages, I would say to the contrary; they are good.” Tarnowski said: “Yeah.
I mean, I wasn’t advised of my rights when I took those.”

>DISCUSSION

Tarnowski appears
to challenge the use of his strike conviction on the basis that the “Three
Strikes” law “was not law in ‘1988.’”
This is a contention that the Three Strikes law is a prohibited ex post
facto law, a contention rejected by the California Supreme Court. (People
v. Helms (1997) 15 Cal.4th 608, 614–616.)

Tarnowski
also argues that imposing two prior prison term enhancements is a prohibited
“double enhancement.” Section 667.5,
subdivision (b), provides that when a person is convicted of any felony for
which a prison sentence is imposed, “the court shall impose a one-year term for
each prior separate prison term.” Here,
Tarnowski admitted all six prior prison terms.
The trial court imposed a one-year term for each of only two of the
prior terms (striking the remaining prison terms). This is proper under the statute.

Tarnowski
argues that the strike package was inadequate to prove his prior strike
conviction in 1988 (no. A097565) because it did not contain transcripts, police
reports, and court minutes, so that a motion under People v. Superior Court (Romero)
(1996) 13 Cal.4th 497 to strike the 1988 conviction would have been
granted. Tarnowski did not make a motion
to dismiss or strike the conviction; instead he expressly admitted it. Defense counsel did not object to the strike
package. A
defendant's failure to request that the trial court exercise its discretion to
dismiss or strike a conviction under Romero “waives or forfeits
his . . . right to raise the issue on appeal.” (People v. Carmony (2004) 33 Cal.4th
367, 375–376.) Claims involving a trial
court's failure to properly make discretionary sentencing choices are waived if
counsel fails to object below. (People
v. Scott (1994) 9 Cal.4th 331, 353–354.)

In
any event, the package contained the certified prison records for the
conviction, including the abstract of judgment, a fingerprint card, and a
photograph of Tarnowski. This
was sufficient. “Under section 969b, the
People may satisfy the burden of proving a prior conviction by introducing into
evidence a certified copy of a prison record.”
(People v. Matthews (1991) 229
Cal.App.3d 930, 937.) “‘As a practical matter, . . . prior
convictions are normally proven by the use of documentary evidence alone.’ [Citation.]
‘Once the prosecutor presents this prima
facie evidence of conviction, the trial court is allowed to make reasonable
inferences from the facts presented. If
there is no evidence to the contrary, the trial court may consider the abstract
and the facts of the particular case, and utilizing the official duty presumption,
find a defendant was convicted of and served the term of imprisonment for the
listed felony.’” (>People
v. Prieto (2003) 30 Cal.4th 226, 258.)

Tarnowski requests that based on his
assigned errors, his sentence be modified to the midterm. Because we find no error, no modification is
necessary.

We have examined the entire record and
are satisfied that appellant’s counsel has fully complied with his
responsibilities and that no arguable
issues exist. (People v. Kelly (2006) 40 Cal.4th 106, 109–110; >People v. Wende (1979) 25 Cal.3d 436,
441.)

DISPOSITION

The
judgment is affirmed.

NOT
TO BE PUBLISHED.



JOHNSON,
J.



We concur:



MALLANO,
P. J.



CHANEY,
J.