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People v. Gomez1/29/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Defendant was convicted by guilty plea of felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). As part of the negotiated disposition, a misdemeanor count and strike and prison prior allegations, were dismissed. The court denied defendant probation and sentenced him to the aggravated term of three years in state prison. On appeal, defendant contends that the trial court erred in determining that he was ineligible for probation and treatment pursuant to Proposition 36 , in sentencing him to the aggravated term, and in calculating his credits. Defendant further alleges that his attorney below was ineffective for failing to investigate his prior conviction to determine if it was a strike. We find no reversible error, reject defendant's claim of ineffective assistance of counsel, and affirm.
I.
Background
Defendant was originally charged with felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and a misdemeanor charge of possession of a hypodermic needle and syringe (Bus. & Prof. Code, § 4140). A 1990 conviction for a violation of Penal Code section 245, subdivision (a)(1), assault with a deadly weapon or by force likely to produce great bodily injury, was alleged as a prior serious or violent felony, pursuant to Penal Code section 667, subdivisions (b)-(i) (the Three Strikes law). A 1994 prior conviction of Health and Safety Code section 11378 was alleged as a prison prior, pursuant to Penal Code section 667, subdivision (b). Pursuant to a negotiated disposition, defendant entered a plea of guilty to the felony methamphetamine charge. The misdemeanor charge, as well as the prior conviction allegations, were dismissed upon motion of the people. No representation was made regarding the sentence that would be imposed, as no probation report had yet been prepared. Defendant was advised that he could receive up to three years in state prison. The court denied probation and sentenced defendant to the aggravated term of three years in state prison. This timely appeal followed.
II.
Discussion
A. Application of Proposition 36.
Defendant's primary contention on appeal is that the trial court erred by denying him the benefits of probation and treatment under Proposition 36. Under the rubric of this argument he raises several challenges to the court's decision that he was ineligible for Proposition 36 treatment. We find no merit in any of the arguments and affirm the trial court's determination that the benefits of Proposition 36 were not available to defendant.
1. The dismissed strike allegation was properly considered by the court.
The court found defendant ineligible for Proposition 36 treatment under Penal Code section 1210.1, subdivision (b)(1), due to his prior conviction of a violent or serious felony without a washout period of five years during which he was free both of prison custody and the commission of an offense resulting in a felony conviction, other than a nonviolent drug possession offense. Defendant first contends that the court's decision was incorrect because the violent or serious felony prior conviction was dismissed as part of the negotiated disposition. Defendant argues that after this dismissal, the prior conviction could no longer be considered by the trial court in
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