Filed 4/15/14 P. v. Ruff CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D063378

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCS249394)

GARY RUFF,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Kathleen

M. Lewis, Judge. Affirmed.



         Kessler & Seecof and Daniel J. Kessler, under appointment by the Court of

Appeal, for the Defendant and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Julie L. Garland, Assistant

Attorneys General, Barry Carlton, James H. Flaherty III, Deputy Attorneys General, for

the Plaintiff and Respondent.
       A jury convicted Gary Ruff of assault with a firearm (Pen. Code,1§ 245, subd.

(a)(2)) and possession of a firearm by a felon. (§ 12021, subd. (a)(1).) The jury also

found true that Ruff personally used a firearm (§ 12022.5, subd. (a)) and personally

inflicted great bodily injury on his victim in committing the assault. (§ 12022.7, subd.

(a).) Ruff moved to dismiss two strike priors under People v. Superior Court (Romero)

(1996) 13 Cal.4th 497 (Romero). The court denied the motion. It sentenced him to 48

years to life in prison.

       Ruff contends the court abused its discretion in denying his request for a

continuance. Ruff also contends his counsel rendered ineffective assistance by failing to

verify during sentencing that one of his previous burglary convictions was of a vehicle

and not a residence. We affirm.

                                     BACKGROUND2

       On the day set for trial to commence, Ruff's newly retained counsel requested a

90-day continuance to prepare a defense. The court denied the request, stating, ''There is

no good cause to continue the case at this point. And I find that it's also a delay tactic to

file—which is exactly on the eve of trial.'' The court stated, ''We've already had pretrial

motions in the case. Today has been the date set for trial. We've met . . . three times . . .

and I've never been advised that [Ruff] was seeking retained counsel.'' The court further

1       All statutory references are to the Penal Code unless otherwise specified.
2       We omit the facts of the underlying convictions because they are immaterial to the
issues we decide on appeal. We are cognizant that the facts of the present offense are
relevant for purposes of the court's Romero analysis, but Ruff's claim is limited to defense
counsel's failure to correct the nature of one of his priors, and he does not challenge the
trial court's findings concerning this present offense.
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stated, ''It's prejudicial to the People, and it's prejudicial to the court to continue to have

the file continue and continue and continue. It's already been a year.'' It explained that

100 jurors were prescreened for a two-week trial, appointed counsel was ready for trial,

and the People had summoned witnesses.

       Ruff moved for a new trial on various grounds, including that the court abused its

discretion in denying his requested continuance. The court denied the new trial motion as

untimely. It added: ''Defense counsel does not claim that [Ruff] tried multiple times to

retain him . . . only that he was unhappy with this court-appointed counsel. [¶] The

defense motion [concedes] that [Ruff] was unhappy with his representation, and

therefore, requested several Marsden [(People v. Marsden (1970) 2 Cal.3d 118)] hearings

and then subsequently decided to hire [retained counsel].''

       Ruff filed a Romero motion seeking to dismiss two burglary strike priors from

1984 and 1985 on grounds they were stale.3 The People opposed the motion, incorrectly

claiming that in 1990 Ruff had pleaded guilty to residential burglary. In fact, Ruff

pleaded guilty in 1990 to vehicular burglary.4 Defense counsel failed to correct the error.

       In evaluating the Romero factors, the court deemed the nature of the present

offense, ''extremely serious, violent, vicious, and could have resulted in the loss of life to

the victim. . . . [T]he victim suffered very serious injuries and could have died as a



3      In his Romero motion, Ruff stated the burglary convictions were both from 1985.
However, the record identifies 1984 and 1985 as the years in which he suffered his
convictions.
4      We previously granted Ruff's request for judicial notice of the charging document
and plea agreement showing his 1990 guilty plea was for vehicular burglary.
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result.'' It added that ''the victim was especially vulnerable in that [Ruff] was armed with

a firearm while the victim was completely unarmed.''

       The court found Ruff did not assume responsibility for his actions: ''[Ruff]

expresses absolutely no remorse or responsibility for his actions and, in fact, continues to

blame the victim for shooting him. He denies intentionally shooting the victim, blames

the victim for the entire incident, taking no responsibility himself, denies leaving the area

to escape arrest and denies everything else that indicates culpability on his part.'' The

court pointed out Ruff ''was armed with a firearm that he was not allowed to carry and

witnesses reported that he always carried firearms despite the fact it was unlawful for him

to do so because he was a convicted felon.'' It added, ''[Ruff] was heard repeatedly

threatening to shoot the victim prior to the gunshot, indicating planning and

premeditation.''

       Further, the court observed that Ruff's strike offenses were stale, but found Ruff

had a continuous and lengthy criminal history spanning 20 years. It explained, ''[Ruff],

since . . . beginning of his criminal record in 1984, . . . [has] suffered 10 felony

convictions . . . . His strike convictions occurred on different dates and in different years.

Although they occurred in 1984 and 1985, [Ruff] has failed to remain law abiding and

change his life since that time. He has felony convictions in 1984, 1985, 1990, 1992,

1994, 1999, and 2011.'' Finally, the court stated, ''[Ruff] has been to prison three times,

the last time being in 1999. By his own admission, he was not dismissed from parole

until 2006. Only five years later, he shot his son causing serious bodily injury. . . . [¶]

By the account of the witnesses, [Ruff] continued to violate the law during the latter

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2000's and that he was always seen with a firearm and threatened several people.'' The

court declined to dismiss Ruff's strike priors because he falls squarely within the "Three

Strikes" law.

                                             DISCUSSION

                                                      I.

       Ruff contends the court abused its discretion in denying a continuance because the

prosecution would not have been prejudiced by the delay.

       A criminal defendant has the right to retain counsel of his or her own choosing.

(People v. Courts (1985) 37 Cal.3d 784, 789; U.S. Const., 6th Amend.; Cal. Const, art. I,

§ 15; Pen. Code, §§ 686, 859, 987; Gideon v. Wainwright (1963) 372 U.S. 335, 344-345.)

However, the right to counsel of choice is not absolute and it may yield when it ''result[s]

in significant prejudice to the defendant himself or in a disruption of the orderly

processes of justice unreasonable under the circumstances of the particular case.''

(Courts, at pp. 790-791.) ''The right to such counsel 'must be carefully weighed against

other values of substantial importance, such as that seeking to ensure orderly and

expeditious judicial administration, with a view toward an accommodation reasonable

under the facts of the particular case.' '' (Ibid.)

       The burden is on the defendant to establish an abuse of discretion. (People v.

Blake (1980) 105 Cal.App.3d 619, 624.) There is no mechanical test for deciding

whether a denial of a continuance is so arbitrary as to violate due process. (Ibid.) Rather,

the issue must be decided on the facts of each case. (Ibid.) The reviewing court will not

disturb the trial court's ruling absent an abuse of discretion. (Ibid.)

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       Considering the lateness of Ruff's request for a continuance, we do not second-

guess the court's stated concern for an expeditious judicial administration of justice. As

we stated in another case: ''[w]here a continuance is requested on the day of trial, the

lateness of the request may be a significant factor justifying denial absent compelling

circumstances to the contrary.'' (People v. Jeffers (1987) 188 Cal.App.3d 840, 851.)

Ruff has not persuaded us the court's decision was arbitrary or beyond reason. We

conclude the court did not abuse its discretion in denying Ruff's requested continuance.

                                             II.

       Ruff contends his counsel rendered ineffective assistance by failing to verify that

Ruff's 1990 conviction was for vehicular burglary.

       A defendant seeking reversal for ineffective assistance of counsel must prove both

deficient performance and prejudice. (Strickland v. Washington (1984) 466 U.S. 668,

687.) The proper measure of attorney performance is ''reasonableness under prevailing

professional norms.'' (Id. at p. 688.) The court ''must judge the reasonableness of

counsel's challenged conduct on the facts of the particular case, viewed at the time of

counsel's conduct.'' (Id. at p. 690.) ''Judicial scrutiny of counsel's performance must be

highly deferential.'' (Id. at p. 689.) ''[E]very effort [must] be made to eliminate the

distorting effects of hindsight.'' (Ibid.) Prejudice occurs when there is a ''reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability sufficient to

undermine confidence of the outcome.'' (Ibid.) ''Failure to make the required showing of



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either deficient performance or sufficient prejudice defeats the ineffectiveness claim.''

(Id. at p. 700.)

       The purpose of the Three Strikes law is to ''ensure longer prison sentences and

greater punishment for those who commit a felony and have been previously convicted of

one or more serious and/or violent offense.'' (§ 667, subd. (b).) A defendant who

commits any felony with one strike prior must be sentenced to twice the base term of the

current felony. (§667, subd. (e)(1).) A defendant who commits any felony and has two

or more strike priors on his or her record must be sentenced to a minimum of 25 years to

life in prison for the current felony. (§ 667, subd. (e)(2).)

       Section 1385, subdivision (a) allows a court to dismiss strike priors in ''furtherance

of justice.'' However, a court's discretion is limited. (Romero, supra, 13 Cal.4th at

p. 530.) Specifically, a defendant convicted of the requisite strike triggering a second or

third conviction is presumed to fall within the provisions of the Three Strikes law. (Id. at

p. 508.) A court's refusal to dismiss a defendant's strike priors is reviewed under the

highly deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th

367, 377.) It is not enough to show that reasonable people might disagree about whether

to strike a prior conviction. (Ibid.) Only extraordinary circumstances justify finding a

career criminal outside the purview of the Three Strikes law. (Ibid.) Thus, ''[T]he

circumstances where no reasonable people could disagree that the criminal falls outside

the spirit of the [T]hree [S]trikes scheme must be even more extraordinary.'' (Ibid.)

       In deciding whether to dismiss a strike prior in furtherance of justice, "the court in

question must consider whether, in light of the nature and circumstances of [the

                                               7
defendant's] present felonies and prior serious and/or violent felony convictions, and the

particulars of [the defendant's] 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 [the defendant] had not previously been convicted of one or more serious and/or

violent felonies.'' (People v. Williams (1998) 17 Cal.4th 148, 161.)

       Ruff's claim fails because he has not shown prejudice. Even if his counsel had

clarified that Ruff's conviction was for vehicular rather than residential burglary, there

was no reasonable probability that the court would have granted the Romero motion. The

record shows the trial court balanced all the relevant factors in applying the Three Strikes

law. Because of Ruff's lengthy and continuous criminal history, whether Ruff's 1990

burglary conviction involved a vehicle or a residence was of little consequence in the

court's decision declining to dismiss Ruff's 1984 and 1985 strike priors. Ruff had

suffered 10 felony convictions between 1984 and 2011 and despite serving three prison

terms, continued to break the law by carrying a firearm and threatening several people

with it. The court also deemed the nature of the present offense extremely serious and

violent, finding the victim was especially vulnerable and Ruff intended to shoot him. It

found Ruff lacked remorse and failed to take responsibility for the crime.

       In light of the court's thorough analysis of the Romero factors, we conclude it did

not abuse its discretion. In fact, Ruff does not dispute the court's analysis; to the

contrary, he concedes in his opening brief that ''in refusing to strike the strike, the trial

court emphasized the gravity of the instant case and the fact that [Ruff] possessed an

illegal weapon.'' Accordingly, Ruff's claim for ineffective assistance of counsel fails.

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                                  DISPOSITION

      The judgment is affirmed.




                                                O'ROURKE, J.

WE CONCUR:


McCONNELL, P. J.


IRION, J.




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