People v. Covert CA3 ( 2015 )

Filed 12/22/15 P. v. Covert 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C076486
Plaintiff and Respondent, (Super. Ct. No. 13F07058)
v.
JAMES COVERT,
Defendant and Appellant.
Defendant James Covert appeals from the judgment entered following a jury trial
resulting in his conviction for willful infliction of corporal injury upon a cohabitant.
(Pen. Code, § 273.5, subd. (a).)1 In a separate proceeding, the trial court found true
allegations that defendant suffered three prior convictions, including a prior domestic
1 Undesignated statutory references are to the Penal Code.
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violence conviction, and served a prior prison term. The trial court sentenced defendant
to an aggregate term of nine years in state prison.
On appeal, defendant contends the trial court abused its discretion in refusing to
reduce defendant’s felony conviction to a misdemeanor, refusing to strike defendant’s
strike prior, and refusing to strike defendant’s prior prison term enhancement. We reject
these contentions.
Defendant also contends the trial court erred in imposing a mid-term sentence of
four years pursuant to section 273.5, subdivision (f), because his previous conviction for
domestic violence took place more than seven years before the instant offense. The
People concede the error. Accordingly, we remand for resentencing with respect to this
issue only. In all other respects, the conviction and judgment are affirmed.
BACKGROUND
Nicole Gutierrez entered into a romantic relationship with defendant in November
2012. Gutierrez and her three young children lived with defendant until October 2013.
They did not have a permanent address; instead, they stayed in motels, and with friends,
and family members. Gutierrez and defendant were both drug users.
Gutierrez had no possessions, except her car. On October 17, 2013, defendant and
Gutierrez drove to a church to get food. They parked in a parking space reserved for
parents dropping off and picking up children from the church daycare center. The pastor
of the church, Shannon Fannin, approached the car and told defendant, who was seated in
the driver’s seat, that he had to move the car. Fannin saw Gutierrez, and a young boy and
a young girl in the back seat of the car. Based upon his brief interaction with them,
Fannin surmised that the couple was “having a hard time.” Defendant moved the car and
Fannin left the church to take a group of children to school. Fannin was gone for about
15 minutes.
During Fannin’s absence, the director of the daycare, Martha Mayorga, observed
some commotion involving a man and a woman in the parking lot. A short time later,
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Mayorga discovered Gutierrez hiding in a trailer used to store clothes. Gutierrez was
scared and said she was “being held” by defendant. Gutierrez asked for help, and
Mayorga called 911. Mayorga also treated bite marks on Gutierrez’s face and shoulder.
Gutierrez had a bite mark on her shoulder, which was bleeding, requiring ice, and a
bandage. She also had a bite mark on her face, which was less serious, requiring ice
only. While Mayorga was treating Gutierrez, Fannin returned to the school. After
speaking with Mayorga, Fannin found defendant in the parking lot and asked him to
leave the premises.
Sacramento City Police Officer Bryan Morrison arrived shortly thereafter. Officer
Morrison spoke with Gutierrez, noting that she appeared shaken, confused, and
concerned that the police had been called. Gutierrez told Officer Morrison that defendant
had become increasingly possessive in recent weeks, and that he tried to control Gutierrez
by taking the keys to her car and not allowing her to drive it. On the day of the incident,
Gutierrez explained, the couple was arguing because defendant told her that he planned to
sell her car. Defendant’s plan to sell the car upset Gutierrez because the car was the only
valuable thing she owned. She grabbed the keys from the ignition, and defendant
responded by pulling her head to his chest. As Gutierrez struggled to get away,
defendant bit her on the cheek. Defendant also put Gutierrez in a choke hold, and bit her
on the right shoulder. Morrison observed faint red marks on Gutierrez’s shoulder and
throat. Morrison did not see a bite mark on Gutierrez’s cheek. Gutierrez told Morrison
that her throat hurt, and it was hard for her to talk and swallow. Gutierrez also told
Morrison she was leaving town that night because defendant had gang affiliations and she
was afraid his family would retaliate against her. She did not want Morrison to take
photographs of her injuries, and told him she would do it herself.
Defendant was arrested and charged by amended information with one count of
inflicting corporal injury on a cohabitant. (§ 273.5, subd. (a).) The information further
alleged that defendant had five prior convictions for (1) domestic violence (§ 273.5), (2)
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kidnapping (§ 207), (3) terrorist threats (§ 422), (4) robbery (§ 211), and (5) assault with
a firearm (§ 245, subd. (a)(2)), all arising from the same incident in April 2001.2 The
information further alleged that defendant’s prior convictions for kidnapping and terrorist
threats qualified as “strikes” within the meaning of the “Three Strikes” law. (§§ 1192.7,
subd. (c), 1170.12, 667, subds. (b)-(i).) The information further alleged that defendant
served a prior prison term for a serious felony and failed to remain free of custody for a
period of five years following the conclusion of that term. (§ 667.5, subd. (b).)
Defendant pleaded not guilty and denied the allegations.
During the trial, Gutierrez was so overcome with emotion that she was initially
unable to testify. Upon regaining her composure, Gutierrez claimed she could not
remember anything about the incident. Even so, Gutierrez insisted that defendant had
never physically harmed her. When asked why she told Officer Morrison that defendant
had bitten her, Gutierrez responded that she was “most likely on drugs that day.” Later,
Gutierrez acknowledged that her relationship with defendant was “sick” and “toxic.”
Detective Dennis Prizmich, a domestic violence expert, testified that victims of
domestic violence frequently minimize their injuries and refuse to cooperate with law
enforcement in the prosecution of their abusers. Prizmich also testified that victims
sometimes claim they do not remember incidents of abuse.
The prosecutor introduced jailhouse recordings of conversations between
defendant and Gutierrez. The transcripts of the recordings reveal that defendant
encouraged Gutierrez not to testify against him. When Gutierrez mentioned that the
prosecution had served a trial subpoena on her, defendant suggested that she “[b]ounce”
or fail to appear. When Gutierrez observed that she could be arrested for failing to
2 As we shall momentarily discuss, the prior conviction allegations for robbery (§ 211)
and assault with a firearm (§ 245, subd. (a)(2)) were eventually dismissed on the
prosecution’s own motion.
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appear, defendant opined that the charge would be a misdemeanor. When Gutierrez
protested that she could not risk incarceration for her children’s sake, defendant
responded that he would watch the children in the event that she was made to serve time
for failure to appear. During another part of their conversation, Gutierrez told defendant
that he should “stay single if you have to.” Defendant did not testify at trial.
The jury returned a guilty verdict. During the ensuing court trial, the prosecutor
dismissed defendant’s prior convictions for robbery and assault with a firearm as having
been improperly alleged. The trial court dismissed the strike allegation associated with
defendant’s prior conviction for making terrorist threats in the interest of justice. The
trial court found the remaining prior conviction and prior prison term allegations true.
In anticipation of the sentencing hearing, the probation department prepared a
report indicating that defendant had two prior convictions for domestic violence, a
juvenile misdemeanor conviction and an adult felony conviction arising from an assault
that took place in front of the victim’s child in 2001. The probation report also indicated
that defendant served nine years in state prison as a result of the last domestic violence
conviction and was on parole at the time of the present offense.
Prior to sentencing, defendant filed a motion asking the trial court to reduce the
current felony conviction to a misdemeanor on the grounds that Gutierrez’s injuries were
relatively minor. (§ 17.) Defendant also asked the trial court to strike one or more of his
prior strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal. 4th
497 (Romero) on the grounds that the current offense was relatively minor, compared to
other domestic violence offenses, and Gutierrez’s injuries were minimal. (§ 1385.)
Defendant asked the trial court to reduce his current felony conviction to a misdemeanor
for the same reasons. (§ 17, subd. (b).) The trial court acknowledged that Gutierrez’s
injuries were relatively minor but noted that “it’s the conduct that’s more concerning to
the Court. The end result was the injuries, and they weren’t as serious as other injuries
were. But as the facts played out, she escaped, she got away. And it was the conduct
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that’s more concerning to the Court, and when I look at his record and what happened in
this case. And, especially, with regard to the continuing manipulation and control that
the Court heard in the jail calls.” The prosecution argued that Gutierrez’s injuries were
minor because she managed to escape and seek help. The prosecution also drew parallels
between defendant’s previous domestic violence conviction and the current offense,
noting that both involved manipulative and controlling behavior, substance abuse, and a
violent attack in front of the victim’s child.
The trial court denied the motion, stating: “Okay. With regard to the [section] 17
[subdivision] (b) and the Romero motion, the Court has to find that it would be in the
interest of justice to strike those strikes – strike that strike. [¶] The Court’s looking at the
defendant’s background, character, prospects to see whether he may be deemed within or
outside the spirit of the three strikes law. [¶] Looking to see whether he’s been taught
through the application of formal sanctions, his criminal conduct was unacceptable, and
whether he’s failed or learned his lesson. Those factors are set forth in People versus
Williams [(1998) 17 Cal. 4th 148, 161].”
The trial court continued: “His strikes are old, but he did receive a long sentence.
And he was on parole at the time that he committed this particular offense. [¶] He
previously had been an abscond on parole, had prior domestic violence, and then had a
very serious domestic violence. [¶] And then when he’s on parole after serving a very
lengthy prison sentence, is convicted of committing another crime of domestic violence.
“I agree with Ms. Gutierrez’s jail call when she says he just needs to stay single.
There’s something that happens in relationships. And what’s happening is the controlling
and manipulation that he is putting on the women that’s in his life. [¶] The only thing
that’s mitigating in [defendant’s] case is the extent of the ultimate injuries. But the
conduct in which those injuries were incurred, I don’t believe it is misdemeanor conduct.
Especially in light of his prior criminal history. [¶] And this isn’t just a situational
matter where he got angry with his girlfriend and struck her, pushed her or hit her. This
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is a controlling, manipulative relationship. [¶] Because of those factors, the [section] 17
[subdivision] (b) motion and Romero motion are denied.”
The trial court then sentenced defendant to nine years in state prison, stating:
“Okay. [Defendant’s] matter is a difficult situation because of his strike priors and the
triads of the case, and the count that he was convicted of. [¶] The prior prison
commitment and prior one year prior being found true, I have to impose the one year. So
issue is . . . low term doubled for four plus one for five; or mid-term of four doubled for
eight plus the one; or upper term of five doubled for ten plus the one for 11.” The trial
court then considered aggravating factors, noting that Gutierrez was particularly
vulnerable, inasmuch as defendant had control over her car. The trial court also observed
that defendant had engaged in violent conduct before, had numerous convictions, and was
on parole at the time of the present offense.
The trial court then considered mitigating factors, noting “the only circumstances
in mitigation I could find is the extent of the ultimate injuries: The bite mark on the back.
The bite mark on the cheek was gone by the time anybody else saw that. So, I am
considering that as something very de minimis, almost scratch-like if at all. [¶] But it
was the grabbing, the holding, the resisting, the biting in the back. [¶] Ms. Gutierrez was
petrified when she was in contact with the people there at the church . . . .[¶] The
children are there when this is happening --- young children in the back seat of their
vehicle. [¶] There were children in the other previous case as well. [¶] . . . [¶] And
then while in custody and these cases are pending, he puts the tremendous amount of
pressure on Ms. Gutierrez. Those jail calls were really telling as far as what their
relationship was.”
The trial court continued:
“And if this was situational in nature, this was a one time thing, . . . the Court
would be more inclined to see some mitigation. But this is a domestic violence case, it’s
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all about manipulation, all about control. It’s not situational. Even after he’s arrested, he
continues to put it all on Ms. Gutierrez.
“All the pressure was on her to: Just bounce, get out of here, it’s just a
misdemeanor, I’m going home if you do not come in and testify.
“She broke down the minute she took the stand before anybody asked her any
questions. This was a victim who has been victimized more than just this one situational
incident. It’s very – it was a very traumatic experience for her. She was petrified that he
would kill her.
“I still have concerns of his ability to be in the community and not commit crimes
of violence. The Court has concerns that he poses a great danger to the community.
“He’s a serial domestic violence abuser. And I think that’s clear.
“I did consider for a long time giving him a low term. But in light of all the
aggravating circumstances and being unable to find any mitigation circumstances, absent,
the end result of the injuries, I think the situation was extremely dangerous. He poses an
extreme danger to the community. And she’s lucky she got away, got out of that car.”
Accordingly, the trial court sentenced defendant to the midterm sentence of four
years, doubled for the prior strike conviction, plus one year for the prior prison term
enhancement, for an aggregate sentence of nine years in state prison.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Motion to Reduce Conviction to a Misdemeanor
Defendant contends the trial court abused its discretion in denying his motion to
reduce his domestic violence conviction from a felony to a misdemeanor under section
17, subdivision (b).
Section 17, subdivision (b) gives the trial court discretion to reduce a wobbler
offense from a felony to a misdemeanor. (People v. Mendez (1991) 234 Cal. App. 3d
8
1773, 1779.) To establish error, a defendant must show a clear abuse of that discretion.
An abuse of discretion occurs only when the trial court exceeds the bounds of reason in
light of all of the surrounding circumstances. (People v. Giminez (1975) 14 Cal. 3d 68,
72.)
In People v. Superior Court (Alvarez) (1997) 14 Cal. 4th 968, our Supreme Court
explained that the discretion to reduce felonies to misdemeanors in based on a “broad
generic standard,” i.e., that the discretion exercised must be controlled and guided by
fixed legal principles, conform with the spirit of the law, further rather than impede the
ends of justice, and must not be capricious, arbitrary, unreasonable, or prejudiced. (Id. at
p. 977.) The court acknowledged that the trial court’s discretion is not unlimited, and
must be based on reasoned consideration of a particular offender’s background and
circumstances. (Id. at pp. 977-978.)
In making its determination, the trial court should consider “ ‘the nature and
circumstances of the offense, the defendant’s appreciation of and attitude toward the
offense, or his traits of character as evidenced by his behavior and demeanor at the
trial.’ ” (Alvarez, supra, 14 Cal.4th at p. 978.) Further, “the fact a wobbler offense
originated as a three strikes filing will not invariably or inevitably militate against
reducing the charge to a misdemeanor. Nonetheless, the current offense cannot be
considered in a vacuum; given the public safety considerations underlying the three
strikes law, the record should reflect a thoughtful and conscientious assessment of all
relevant factors including the defendant’s criminal history. [Citations.]” (Id. at p. 979.)
Here, defendant argues the trial court abused its discretion in refusing to reduce his
conviction to a misdemeanor because Gutierrez’s injuries were relatively minor.
Defendant also argues that the assault “was likely influenced by mutual drug
intoxication,” and claims “it was an isolated incident according to Gutierrez.” We are not
persuaded.
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Despite Gutierrez’s faulty memory, there was substantial evidence that defendant
inflicted physical injury on Gutierrez and the offense was serious. Defendant grappled
with Gutierrez, placed her in a choke hold, and bit her twice, causing her to bleed. These
acts caused Gutierrez to sustain injuries, which could have been far more serious had
Gutierrez not managed to escape and seek help. On this record, the trial court could
reasonably conclude that defendant intended to cause more serious injuries, and was only
prevented from doing so because Gutierrez managed to escape.
Defendant’s possible drug use provides no justification for leniency. Even
assuming defendant was under the influence of drugs, his criminal record reveals that he
previously assaulted a woman while under the influence of alcohol, and apparently failed
to rehabilitate himself, despite a nine-year prison term. On this record, the trial court
could reasonably conclude that defendant would be unlikely to succeed in rehabilitation,
and would likely repeat the charged offense or harm someone else in a similar manner.
Indeed, the trial court expressly found that defendant is a “serial domestic violence
abuser” who poses a “great danger to the community.” Under the circumstances, we
perceive no abuse of discretion.
We flatly reject defendant’s contention that the present offense “was an isolated
incident according to Gutierrez.” Gutierrez said nothing to suggest that the present
offense was an “isolated incident.” To the contrary, Gutierrez variously denied any
memory of the incident and maintained that defendant was never violent with her, a claim
the trial court evidently disbelieved. There is absolutely nothing in the record to suggest
that defendant’s attack on Gutierrez was an “isolated incident,” and the trial court
expressly found that the incident was not “situational,” but part of a pattern of controlling
and manipulative behavior. Furthermore, defendant’s criminal record establishes that he
has engaged in such conduct before.
Relying on Alvarez, supra, defendant argues that “his ‘criminal history, although
relevant to the decision, is not dispositive.’ (Alvarez, supra, 14 Cal.4th at p. 973.)”
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Contrary to defendant’s implicit suggestion, there is nothing in the record to suggest that
the trial court focused solely on his criminal history, to the exclusion of other relevant
factors. The record confirms that the trial court properly considered the nature and
circumstances of the offense, and defendant’s appreciation and attitude towards the
offense, as evidenced by his attempts to discourage Gutierrez from testifying. Thus, the
record confirms that the trial court properly weighed all relevant factors, including
defendant’s criminal history and public safety. Under the circumstances, we find no
abuse of discretion in treating defendant’s third domestic violence conviction as a felony,
rather than reducing it to a misdemeanor.
II
Motion to Strike Prior Conviction
Defendant argues the trial court abused its discretion in denying his motion to
strike his prior kidnapping conviction pursuant to section 1385 and Romero. We
disagree.
Rulings on Romero motions are reviewed for abuse of discretion. (People v.
Myers (1999) 69 Cal. App. 4th 305, 309 (Myers).) Discretion is abused where the trial
court’s decision is “irrational or arbitrary.” (Id. at p. 310.) Discretion is also abused
when the trial court’s decision to strike or not to strike a prior is based on improper
reasons (Romero, supra, 13 Cal.4th at p. 531; People v. Benevides (1998) 64 Cal. App. 4th
728, 735, fn. 7, overruled on another ground in People v. Carmony (2004) 33 Cal. 4th
367, 375) or the decision is not in conformity with the “spirit” of the law. (People v.
Williams, supra, 17 Cal. 4th 148, 161; Myers, supra at p. 310.)
“It is not enough to show that reasonable people might disagree about whether to
strike one or more of [defendant’s] prior convictions. Where the record demonstrates that
the trial court balanced the relevant facts and reached an impartial decision in conformity
with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have
ruled differently in the first instance. [Citation.]” (Myers, supra, 69 Cal.App.4th at p.
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310.) Once the trial court has exercised its discretion and does not strike a prior
conviction, this court’s role on appeal is very limited. Thus, it is a rare case in which the
trial court abuses its discretion in declining to strike a prior conviction of a recidivist
offender.
In making such a determination, we 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 scheme’s 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, supra, 17 Cal.4th at p. 161; see also People v. Garcia
(1999) 20 Cal. 4th 490, 498-499.)
Defendant argues that the trial court failed to give due consideration to a number
of mitigating factors that, in defendant’s view, weighed in favor of striking the prior
strike conviction. Specifically, defendant claims the trial court failed to appreciate that
defendant’s “abuse of his girlfriend was an isolated incident, minor in nature, and likely
driven by drug intoxication.” As previously discussed, nothing in the record supports
defendant’s characterization of the crime as an “isolated incident.” To the contrary, the
trial court found that defendant is a “serial domestic violence abuser.” As we have also
discussed, the trial court could reasonably conclude that defendant poses a “great danger
to the community,” despite the fact that Gutierrez managed to escape with minor injuries.
And, as we have also discussed, the trial court could reasonably conclude that
defendant’s possible substance abuse should not excuse defendant’s conduct, inasmuch
as he previously assaulted a woman while under the influence of alcohol, and apparently
failed to rehabilitate himself. (See People v. Martinez (1999) 71 Cal. App. 4th 1502, 1511
[“The record demonstrates defendant has had lifelong problems with alcohol and drugs.
However, drug addiction is not necessarily regarded as a mitigating factor when a
criminal defendant has a long-term problem and seems unwilling to pursue treatment.”];
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In re Handa (1985) 166 Cal. App. 3d 966, 973-974 [“Drug use or drug addiction at the
time of an offense is an example of a disputable factor in mitigation. The sentencing
court may find that drug use did not significantly affect the defendant’s capacity to
exercise judgment or, in the case of an addiction of long standing, that the defendant was
at fault for failing to take steps to break the addiction.”].)
Here, the record reflects that the trial court was aware of its discretion and the
applicable factors it must consider in dismissing a prior strike, and appropriately applied
those factors as outlined in Williams. In light of defendant’s criminal history, the
seriousness of his past and present offenses, the fact that he committed the present
offense while on parole for a previous domestic violence offense, his manipulative
attempts to discourage Gutierrez from testifying, and his seemingly bleak prospects for
rehabilitation, we cannot say that the trial court abused its discretion in declining to strike
defendant’s prior strike convictions.
III
Prior Prison Term Enhancement
Next, defendant contends the trial court failed to appreciate its discretion to strike
his prior prison term enhancement. Specifically, defendant contends the trial court’s
statement, “I have to impose the one year,” reveals that the court “did not understand it
had discretion under section 1385 to strike the section 667.5 enhancement.” We disagree.
Under section 667.5, subdivision (b), the trial court is required to impose a
consecutive one-year term for each prior prison term served for any felony. (People v.
Savedra (1993) 15 Cal. App. 4th 738, 746-747.) Once a prior prison term allegation is
found true, the trial court must either impose a consecutive one-year enhancement term
pursuant to section 667.5, subdivision (b) or exercise its discretion to strike the allegation
pursuant to section 1385. (People v. Langston (2004) 33 Cal. 4th 1237, 1241; People v.
Campbell (1999) 76 Cal. App. 4th 305, 311; People v. Jones (1992) 8 Cal. App. 4th 756,
758.) If the trial court exercises its discretion to strike the allegation, it must provide a
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statement of reasons for doing so. (§ 1385, subd. (a); People v. Jordan (2003)
108 Cal. App. 4th 349, 368.)
Here, the trial court’s statement, “I have to impose the one year,” was technically
correct, inasmuch as the prior prison term allegation was found true. (People v. Savedra,
supra, 15 Cal.App.4th at pp. 746-747.) Although the trial court had discretion to strike
the prior prison term enhancement, defense counsel never asked the court to do so, and
did not object to the imposition of the one-year enhancement term. We therefore
conclude the trial court’s statements were not inconsistent with a proper understanding of
its discretion. We further conclude that defendant forfeited any claim based on the prior
prison term enhancement by failing to object in the trial court. (People v. Scott (1994)
9 Cal. 4th 331, 351.) Defendant contends defense counsel’s failure to object constituted
ineffective assistance of counsel. Again, we disagree.
To establish ineffective assistance of counsel, a defendant must show “ ‘ “that
counsel’s representation fell below an objective standard of reasonableness under
prevailing professional norms, and that counsel’s deficient performance was prejudicial,
i.e., that a reasonable probability exists that, but for counsel’s failings, the result would
have been more favorable to the defendant.” ’ ” (In re Crew (2011) 52 Cal. 4th 126, 150;
see Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L. Ed. 2d 674, 697, 698].)
“ ‘The burden of sustaining a charge of inadequate or ineffective representation is upon
the defendant. The proof . . . must be a demonstrable reality and not a speculative
matter.’ ” (People v. Karis (1988) 46 Cal. 3d 612, 656.)
Here, the trial court imposed the one-year enhancement term after denying
defendant’s motion to reduce the domestic violence conviction to a misdemeanor and
rejecting his invitation to strike his prior strike convictions. The trial court offered a
comprehensive statement of its reasons for refusing to reduce the felony to a
misdemeanor and refusing to strike the prior convictions, all of which would have applied
equally to a hypothetical motion to strike the prior prison term allegation. There is
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nothing in the record to suggest that the trial court would have been likely to grant a
motion to strike the prior prison term allegation. We therefore conclude that defendant
has failed to establish ineffective assistance of counsel.
IV
Sentencing Error
Finally, in a supplemental brief, defendant contends the trial court erred in
imposing a mid-term sentence of four years under section 273.5, subdivision (f) because
the instant offense occurred more than seven years after his last domestic violence
offense. The People concede the error, and we accept the concession.
Section 273.5, subdivision (f) provides: “Any person convicted of violating this
section for acts occurring within seven years of a previous conviction under subdivision
(a) . . . shall be punished by imprisonment in a county jail for not more than one year, or
by imprisonment in the state prison for two, four, or five years, or by both imprisonment
and a fine of up to ten thousand dollars ($10,000).” (§ 273.5, subd. (f)(1), italics added.)
Here, the trial court found that defendant was previously convicted of violating section
273.5 on April 11, 2001, more than thirteen years before defendant’s conviction for the
instant offense. Because defendant’s previous conviction occurred more than seven years
before the instant conviction, the trial court erred in imposing the mid-term sentence of
four years pursuant to section 273.5, subdivision (f). We therefore remand for
resentencing.
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DISPOSITION
The conviction is affirmed. The sentence is vacated and the case is remanded to
the trial court for resentencing in accordance with this opinion. In all other respects, the
judgment is affirmed.
/s/
Blease, Acting P. J.
We concur:
/s/
Robie, J.
/s/
Murray, J.
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