IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
November 9, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MICHAEL CHRISTOPHER HELTON, JR., DEFENDANT AND APPELLANT.
(Super. Ct. No. CM031846)
The opinion of the court was delivered by: Mauro , J.
P. v. Helton
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appointed counsel for defendant Michael Christopher Helton, Jr., asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error, we will affirm the judgment and direct the trial court to make two corrections to the abstract of judgment.
Defendant was found in possession of a prescription medicine bottle containing 10 individually packaged baggies of methamphetamine. He was also found in possession of a black canvas bag containing more methamphetamine, two glass smoking devices, and a digital scale.
Represented by counsel, defendant pleaded no contest to possession of methamphetamine for sale (Health & Saf. Code, § 11378). He also admitted a February 2000 strike conviction for assault with a deadly weapon other than a firearm (Pen. Code, § 245, subd. (a)(1)).*fn1 The trial court dismissed the other charges and allegations against him in this case and in two pending traffic matters.
Prior to sentencing, defendant filed a motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) asking the trial court to dismiss his prior strike conviction. After hearing argument from counsel, the trial court denied defendant's Romero motion and sentenced him to an aggregate term of four years in prison (the middle term of two years, doubled pursuant to the Three Strikes law). The trial court awarded defendant 13 days of presentence custody credit (nine actual days plus four conduct days) and imposed various fines and fees.
The trial court granted defendant's request for a certificate of probable cause.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant filed a supplemental brief.
Defendant first contends that his lawyer did a poor job preparing the Romero motion, spending "very little time preparing" it and failing to mention positive factors in defendant's favor. He claims he was prejudiced by his attorney.
Assuming that defendant is claiming ineffective assistance of counsel, he must show that his attorney's actions were, objectively considered, both deficient under prevailing professional norms and prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) We need not determine whether counsel's performance was deficient if we can dispose of the ineffectiveness claim on the ground of lack of sufficient prejudice. (Id. at p. 697 [80 L.Ed.2d at p. 699].) To establish prejudice, a defendant must show that counsel's errors were so serious as to deprive him of a fair result. (Id. at p. 687 [80 L.Ed.2d at p. 693].) As we shall explain, defendant cannot demonstrate prejudice and thus cannot establish a viable claim of ineffective assistance of counsel.
In making the Romero motion, defendant's trial counsel explained that defendant had difficulty with drug abuse and that his prior strike for assault with a deadly weapon "occurred approximately eleven years ago" and "is completely different" from the current offense. Counsel argued that the strike arose from "one act of violence" for which defendant "paid his very heavy sentence." Defense counsel pointed out that defendant had a difficult upbringing, including a car accident that resulted in "a head injury as a young child," and added that since his prior conviction, defendant had only one parole violation (possession of alcohol). Counsel characterized defendant as someone the Three Strikes law was not intended to address.
Defendant nonetheless claims his trial counsel failed to mention his other achievements, including his good behavior in prison, the fact that he earned his GED, his participation in Alcoholics Anonymous, Narcotics Anonymous, arts in corrections, and anger management classes while in custody, his two years of employment with a company in Placerville after his initial release from prison, his one and a half years of employment at a Sacramento company after 10 months of incarceration for a parole violation, and the fact that he excelled in computer science classes at Butte College.
But defendant does not establish prejudice, because even if his attorney failed to mention certain accomplishments, those facts were detailed in the probation report and the attachments to the report, which the trial court read and considered. The record also shows that defendant was convicted of assault with a deadly weapon (§ 245, subd. (a)(1)) in February 2000 and that he was sentenced to five years in prison. Upon release he violated parole in August 2005 and was returned to prison. He was convicted of misdemeanor possession of marijuana in a motor vehicle (Veh. Code, § 23222, subd. (b)) in October 2009, and then committed the current offense, possession of methamphetamine for sale, on January 6, 2010. Although the current offense was nonviolent, defendant committed that offense within several years after his release from prison.
The trial court denied the Romero motion, explaining: "The defendant was engaged in sales of methamphetamine. He had been to state prison and his parole had been revoked. He had not [sic], it had not been a sufficient length of time between his release from prison and this offense for the Court to consider the time frame factor that's being argued by [the] defense. Other than the fact or facts that the defendant has complied with the law since he was arrested, the Court feels there's [sic] no factors which points to the exercise of its discretion in the defendant's favor. Therefore, the motion is denied."
A sentencing court has discretion under section 1385 to dismiss a prior strike allegation. (Romero, supra, 13 Cal.4th 497.) However, dismissal of a strike is a departure from the sentencing norm. "In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, '"[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review."' [Citations.] Second, a '"decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.'"' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
On this record, we find no ineffective assistance of counsel and no abuse of discretion.
Defendant next contends that his trial attorney had a conflict of interest. He alleges that 10 years earlier, his attorney dated the mother of a co-defendant (defendant's ex-girlfriend) but did not disclose that fact to the trial court.
However, defendant does not provide any details explaining how the alleged relationship created a conflict of interest or resulted in prejudice to him. It is the appellant's burden to support all appellate arguments with legal analysis and appropriate citations to the material facts in the record, and to show exactly how the contention amounted to a miscarriage of justice. We need not consider defendant's claim because it is not supported by factual or legal analysis. (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19 [reviewing court may disregard contentions not adequately briefed, e.g., claims perfunctorily asserted without development].)
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
We have, however, identified two errors in the abstract of judgment. Defendant pleaded no contest to count 1, charging a violation of Health and Safety Code section 11378. But the abstract indicates he pleaded to count "2" and references Health and Safety Code section "11350(a)." We will direct the trial court to correct the abstract of judgment.
The judgment is affirmed. The trial court is directed to correct the abstract of judgment to reflect that defendant pleaded no contest to count 1, charging a violation of Health and Safety Code section 11378. The trial court is also directed to forward a certified copy of the corrected abstract of judgment to the California Department of Corrections and Rehabilitation.
We concur: ROBIE , Acting P. J. BUTZ , J.