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People v. Bowden4/26/2004
A jury convicted defendant Michael Dennis Bowden of possessing a deadly weapon (Pen.Code, § 12020, subd. (a)(1); unspecified section references that follow are to the Penal Code) and selling a switchblade knife (§ 653k). The court found true allegations that defendant had suffered two prior prison terms (§ 667.5, subd. (b)) for drunk driving (Veh.Code, § 23152). At sentencing, the trial court ordered that defendant's sentence for his current offenses be enhanced by one year for each prior prison term.
On appeal, defendant contends that his trial counsel was ineffective for failing to ask at sentencing that the court stay or strike the prior prison term enhancements under section 1385.
Because defendant cannot show prejudice from the alleged ineffective assistance, we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
After sheriff's deputies patrolling a "Founder's Day" fair in Georgetown were informed that switchblades were being sold to children from one of the vendor's booths, they approached the booth. There they met defendant, who admitted selling knives from the booth.
Inside the booth, unlocked suitcases underneath tables held switchblades and other illegal weapons, including saps, daggers, nunchakus, expanding police batons, "throwing stars" and "throwing knives," and brass knuckles. Defendant told deputies he helped unload the van in which the suitcases had arrived that morning, knew what weapons were inside the suitcases, and "had access to" everything in the booth. But he denied "actively selling" anything in the case; he told deputies he merely referred interested buyers to the booth's owner.
Defendant was charged with possession of a deadly weapon (a felony) and selling a switchblade knife (a misdemeanor).
At trial, defendant testified and denied that he moved or handled the suitcases containing the illegal weapons or that he otherwise had access to them.
The jury found him guilty of both crimes. Thereafter, the allegation that defendant had suffered two prior prison terms was tried to the court, which found that "the proof [wa]s adequate to satisfy the conditions of Penal Code section 667.5[, subdivision] (b) as to both convictions. [ ] That will be part of any equation on sentencing."
At sentencing, defense counsel urged the court to find that unusual circumstances warranted a grant of probation: that defendant served nearly 20 years in the Air Force; that he became an alcoholic while in the service; that his two prior prison terms and parole violations are "[a]ll alcohol related"; and that he was merely a "passive participant" in the crime. In the alternative, defense counsel argued, "I would recommend the low term and I would seriously ask the Court if the Court has the power to stay the two one-year prison enhancements." Later, defense counsel repeated: "I would ask the Court to exercise mercy and leniency and follow my recommendation of either probation on a finding of unusual circumstances or a low term and, if the Court has the power, to stay the two one-year priors."
*2 In sentencing defendant, the trial court opined: "You know, it's a real tragedy, Mr. Bowden, that a person with your record of service to our country finds himself in this kind of predicament. It's, you know, to your credit that you contributed as much as you did when you were in the military to our country.
"But on the other hand, whatever trauma you may have suffered or whatever problems you may have incurred while you were in the military doesn't mean that you have the right to come back to civil society and start committing crimes that endanger the public.
"And, obviously, drunk driving is one of those and you have a felony drunk driving. That means you must have at least three priors and a current drunk driving to qualify at
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