Opinion
NOT TO BE PUBLISHED
Santa Clara County, Super. Ct. No. CC767773
RUSHING, P.J.
Defendant Raul Alexander Garcia appeals from a judgment entered after he pleaded guilty to one count of petty theft with priors, (Pen. Code, § 666), and admitted two strike priors and five prison priors. (Pen. Code, §§ 667, subd. (b)-(i), 1170.12, 667.5, subd. (b).) The trial court sentenced defendant to 11 years in prison. This appeal ensued.
On appeal, appointed counsel filed an opening brief which states the case and the facts but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf within 30 days. Defendant has submitted a supplemental brief which we now consider pursuant to People v. Kelly (2006) 40 Cal 4th 106. Finding no arguable issue on appeal we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
While shopping at a Home Depot store in San Jose, defendant concealed 15 saw blades worth $224.40 in his backpack and left the store without paying. He was detained outside the store by the store’s loss investigator, the saw blades were recovered and he was turned over to the police. Although defendant initially gave police the wrong name, the officers later discovered his true identity. A parole search revealed that defendant had absconded from parole.
After he was charged with the instant crime, the defendant waived his right to a preliminary hearing and agreed to plead guilty and admit the priors. Prior to sentencing, the defendant moved, pursuant to People v. Romero (1996) 13 Cal.4th 497 (Romero), to dismiss one of his strike priors. On February 14, 2008, the trial court granted the motion and sentenced defendant to the upper term of three years, doubled to six. The court also imposed a five year enhancement, one year for each prison prior.
The defendant failed to file a timely notice of appeal. However, on September 3, 2008, this court granted defendant’s motion for relief from default and permitted him to file a late notice of appeal. After defendant’s counsel filed a Wende brief, and we notified defendant of his right to submit his own supplemental brief, he submitted an untimely brief. We granted permission to file the late supplemental brief, and now briefly address the issues raised therein.
People v. Wende (1979) 25 Cal.3d 436.
DISCUSSION
In his supplemental brief, defendant makes four distinct arguments. He first contends that he received ineffective assistance of counsel, because counsel should have moved to dismiss all of his strikes and prison priors. A defendant claiming ineffective assistance of counsel has the burden of showing (1) deficient performance under an objective standard of professional reasonableness under prevailing professional norms, and (2) prejudice i.e., “there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the petitioner. [Citations.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.]” (In re Neely (1993) 6 Cal.4th 901, 908-909; see also People v. Ledesma (1987) 43 Cal.3d 171, 215-218.)
Here, trial counsel did not make a motion to dismiss all of defendant’s strike priors and the prison priors. Instead, counsel moved to dismiss only one strike prior. Defendant argues that this failing amounts to ineffective assistance. When defendant identifies the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment, “The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Strickland v. Washington, (1984) 466 U.S. 668, 690.) “Judicial scrutiny of counsel’s performance must be highly deferential.” (Id. at p. 689.) “ ‘ “Reviewing courts will reverse... only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission.” ’ [Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 437.)
With these standards in mind, we look at counsel’s actions to determine if they lack a rational tactical purpose. This is not a case where counsel failed to make a Romero motion altogether. Counsel did make a motion, but choose to limit the request to dismissal of only one strike prior. The record on appeal supports this decision. The defendant has a long criminal history, including a variety of misdemeanor and drug offenses. His strike priors arose out of two residential burglaries dating back to 1986 and 1989. His most recent conviction and prison term in 2000 for violations of Penal Code sections 236/237, involved an assault on a 15 year old girl using a ruse. The 2000 offense had also originally been charged under the “Three Strikes” law, but the trial court dismissed one of his strike priors in that case as well. Defendant was on parole from this last offense when he committed the current offense, and he had violated that parole by failing a drug test, by failing to register as a sex offender and by absconding.
Appearing before the same trial judge who had granted the Romero motion in 2000 case, trial counsel asked the court to exercise its discretion, as it had the last time, and dismiss one strike prior despite the aggravating circumstances. Counsel argued that defendant was cooperative and working hard, the offense was relatively minor and the strike priors were very old. Everything in the record indicates that counsel was acutely aware of the difficulties and aggravating circumstances of this case. Her decision to limit the motion to a request that was most likely to be granted was likely a tactical one. We would be hard pressed to say that she had had no rational purpose for doing so.
Further, given the prosecutor’s opposition to the motion based on the 2000 offense and defendants continued criminality, had counsel asked the court to dismiss both strikes, it is highly improbable that the court would have granted the motion. Therefore, even if we found counsel’s representation deficient, defendant could not show prejudice.
Defendant next contends that the Three Strikes law, as applied to him, violates the “Separation of Powers” provisions of California’s Determinate Sentencing Law, and the California and federal Constitutions. (Cal. Const., art. III, § 3.) Courts have unanimously rejected this claim. (People v. Gray (1998) 66 Cal.App.4th 973, 994; People v. Kilborn (1996) 41 Cal.App.4th 1325, 1332-1333.) The Legislature may properly limit the scope of the prosecutor’s discretion in charging crimes. (People v. Kilborn, supra, 41 Cal.App.4th at pp. 1332-1333.).
Defendant also argues that he is being subjected to cruel and unusual punishment and is being denied equal protection of the law because of prison overcrowding. This is not a cognizable argument on appeal. Because such issues are outside the scope of the record on appeal, they are properly raised by petition for habeas corpus. (See generally People v. Pope (1979) 23 Cal.3d 412, 426, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; In re Alvernaz (1992) 2 Cal.4th 924, 938.)
Finally, defendant argues that he is being denied his rights to receive his earned participation credits off his sentence equally as compared to other prisoners. Defendant fails to provide any citation to the record or to legal authority for such a proposition. If defendant is contending that the application of Penal Code section 2930 et seq. violates equal protection, such claims have generally been rejected. (See generally In re Monigold (1988) 205 Cal.App.3d 1224, rehearing denied and modified, review denied; People v. Valladares (1984) 162 Cal.App.3d 312, abrogated on other grounds in In re Harris 5 Cal.4th 813, 849-850; In re Stinnette (1979) 94 Cal.App.3d 800; see also Contero v. Tilton (2007) 248 Fed.Appx. 778, unreported; Etcheverry v. Woodford (2007) 255 Fed.Appx. 277, cert denied 128 S.Ct. 1879) However, without a specific, factually based, claim of how defendant is being denied participation credits in violation of equal protection, we cannot substantively address this argument on appeal.
Pursuant to our obligation as set forth in People v. Wende, supra, 25 Cal.3d 436 and People v. Kelly, supra, 40 Cal 4th 106, we have reviewed the entire record and the arguments raised by defendant’s supplemental brief. We conclude that there are no arguable issue on appeal. Therefore, we need not seek further briefing on any issue raised in the supplemental brief.
DISPOSITION
The judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.