Filed 6/30/15 P. v. Milward 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                        (Lassen)
                                                            ----




THE PEOPLE,                                                                                  C076534

                   Plaintiff and Respondent,                                     (Super. Ct. No. CH030375)

          v.

GEORGE ANTHONY MILWARD,

                   Defendant and Appellant.




          A jury found defendant George Anthony Milward guilty of possession of a sharp
instrument while an inmate at a penal institution (Pen. Code, § 4502, subd. (a))1 and
found true the allegations that defendant had two prior strike convictions (§§ 667, subds.
(b)-(i), 1192.7). The trial court sentenced him to a consecutive term of 25 years to life in
prison.




1   Further undesignated statutory references are to the Penal Code.

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       Defendant contends the judgment should be reversed because he received
ineffective assistance of counsel in pretrial plea negotiations and at sentencing. On the
record before us, we find defendant has failed to demonstrate the requisite prejudice.
Accordingly, we affirm the judgment.
                                      BACKGROUND
       The facts underlying defendant’s conviction are not relevant to this appeal. It
suffices to say that the jury found him guilty as set forth above. Before his sentencing,
defendant asked the trial court to strike one of his prior strike convictions pursuant to
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). In that motion,
defendant’s counsel argued defendant had rejected an initial plea offer of four years in
prison, consecutive to the life terms he was already serving. Without evidentiary support,
defendant’s counsel wrote: “A very reasonable offer was made to resolve this matter.
However, it was rejected. At the time, counsel believed that [defendant] faced a
maximum sentence of eight years. Upon review to [sic] the probation report, it came to
the attention of all parties . . . that . . . a sentence of twenty-five to life was mandated.”
       Defendant’s probation report indicated that in addition to juvenile adjudications
for petty theft, grand theft auto, and obstructing or resisting a public officer, defendant
was convicted of first degree and second degree murder in 1993 in Riverside County and
of assault by a life prisoner in 1993 in Sacramento County. (This description was slightly
incorrect, as we describe post.)
       At the sentencing hearing, the trial court recounted defendant’s criminal history as
including two murder convictions in 1993, and that while he was serving a life sentence
he assaulted another inmate, for which he was sentenced to life yet again. The trial court
also indicated the mandated sentence of 25 years to life seemed harsh for a weapon
possession, but recognized that it was required in light of defendant’s multiple prior strike
convictions. Based on its understanding of defendant’s criminal history, the trial court



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found no valid grounds to strike a prior conviction, and sentenced defendant to the
mandated term of a consecutive 25 years to life.
                                      DISCUSSION
       Defendant contends his counsel was constitutionally ineffective: (1) prior to trial,
when counsel misadvised defendant that he would face a maximum penalty of eight
years, allegedly causing defendant to reject the prosecutor’s four-year plea offer; and
(2) at sentencing, when counsel failed to object to the probation report or the prosecutor’s
argument, which included the incorrect information regarding defendant’s criminal
history. He argues that he had only been convicted of one murder (in 1993) and one
assault (in 2007).2 We address his second claim first.
       Importantly, our review of the record agrees with the Attorney General’s argument
on this appeal that indeed defendant was convicted of both murder and attempted murder
in 1993--two different counts constituting two strikes--as well as assault in 2007. We
affirmed his 2007 conviction on appeal; the factual recitations in our opinion in that case,
(People v. Milward (2010) 182 Cal.App.4th 1477, 1479, review granted July 11, 2010,
S182263), in the subsequent Supreme Court opinion (People v. Milward (2011) 52
Cal.4th 580, 583), and in the unpublished opinion on remand (People v. Milward (May 7,
2012, C058326 [nonpub. opn.])), all indicate defendant had two prior strike convictions--
one for murder and one for attempted murder--when he was convicted in the 2007 case.
Thus, to the extent that the probation report provided the trial court with erroneous
information, to which counsel failed to object, the discrepancies were minor--that one


2 Appellate counsel purported to withdraw this claim at oral argument after we
confronted her with evidence of defendant’s prior convictions, described immediately
post. We nonetheless elect to decide the claim on its merits, to clarify defendant’s record
in the event that this same claim is later brought by petition for writ of habeas corpus.
We denied counsel’s untimely request to continue oral argument in order to complete an
investigation for writ purposes and to seek consolidation of any resulting writ with this
direct appeal.

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count of murder was instead attempted murder, and the assault conviction was entered in
2007 rather than 1993.
       To prevail on his claim of ineffective assistance of counsel, defendant must show
(1) that his counsel’s representation was deficient, i.e., that it “fell below a standard of
reasonable competence,” and (2) that prejudice resulted, i.e., that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” (Strickland v. Washington (1984) 466 U.S. 668, 687-688,
694 [80 L.Ed.2d 674, 693, 698].) “If the defendant makes an insufficient showing on
either one of these components, the ineffective assistance claim fails.” (People v.
Rodrigues (1994) 8 Cal.4th 1060, 1126.)
       Defendant’s claim appears to be that had counsel objected to probation’s
inaccurate representation of defendant’s criminal history, the trial court would have
exercised its discretion pursuant to section 1385 to strike one of defendant’s priors. His
argument relies solely on his interpretation of the trial court’s commentary during the
sentencing hearing. We disagree.
       The trial court initially stated that it had no basis “under the law” to strike any of
defendant’s prior strike convictions. It then noted that defendant’s case was a “little
different in two respects”; citing the “effect of the sentence that [it] would otherwise
impose” and the claim of counsel’s “misadvice as to the penalty.” The court concluded
that the only basis to grant defendant’s Romero motion would be “to accommodate
judicial convenience” because of the anticipated protracted litigation surrounding the
aforementioned issues. It added it had “absolutely no grounds upon which to base any
discretion in striking a strike.”
       The trial court is not permitted to strike a strike “solely ‘to accommodate judicial
convenience,’ ” (Romero, supra, 13 Cal.4th at p. 531), and the trial court correctly
declined to do so. The record does not indicate, and defendant has not shown, that had
the trial court been accurately advised of defendant’s criminal history--that one of the two

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reported murder convictions was for attempted murder and that the assault conviction
was much more recent (2007 rather than 1993) than reported--it would have exercised its
discretion to strike defendant’s prior strike conviction. (People v. Stephenson (1974) 10
Cal.3d 652, 661 [proof of counsel’s “inadequacy or ineffectiveness must be a
demonstrable reality and not a speculative matter”].)
       Defendant also claims to have rejected a plea bargain based on his counsel’s error.
To prevail in this context, he must establish both that counsel’s representation fell below
an objective standard of reasonableness and that “but for the ineffective advice of counsel
there is a reasonable probability that the plea offer would have been presented to the
court (i.e., that the defendant would have accepted the plea and the prosecution would not
have withdrawn it in light of intervening circumstances), that the court would have
accepted its terms, and that the conviction or sentence or both, under the offer’s terms
would have been less severe than under the judgment and sentence that in fact were
imposed.” (Lafler v. Cooper (2012) 566 U.S. __, __ [182 L.Ed.2d 398, 407]; see
Missouri v. Frye (2012) 566 U.S. __, __ [182 L.Ed.2d 379, 391]; see also (In re Alvernaz
(1992) 2 Cal.4th 924, 938.) Here, despite the assertion of counsel’s mistaken belief and
advice, the record does not establish that defendant would have accepted the offer had
counsel properly advised him or that the trial court would have accepted the plea. Thus
defendant has not shown prejudice.
       To the extent defendant’s claim relies on facts outside the appellate record, he
must seek relief, if at all, by petition for writ of habeas corpus (People v. Waidla (2000)
22 Cal.4th 690, 743-744), as he concedes in his reply brief and at oral argument.




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                                 DISPOSITION
     The judgment is affirmed.




                                               DUARTE   , J.



We concur:



     MAURO              , Acting P. J.



     HOCH               , J.




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