Filed 7/29/14 P. v. Jones 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                                           NOT TO BE PUBLISHED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
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                       THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----


THE PEOPLE,

                   Plaintiff and Respondent,                                                  C061487

         v.                                                                       (Super. Ct. No. 95F05910)

TRACY MAXXIZZINE JONES,

                   Defendant and Appellant.

         This appeal has a long and convoluted history. In the background section of this
opinion, we trace the procedural history from the January 1996 entry of a guilty plea by
defendant Tracy Maxxizzine Jones to her present appeal. For now, it suffices to note
defendant entered into a negotiated plea agreement in which several charged felonies
were dismissed with a Harvey waiver1 in exchange for her admission of one count of
assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1))2
and two prior serious felony convictions (strikes) for assault with a deadly weapon
(§ 667, subds. (b)-(i)).




1        People v. Harvey (1979) 25 Cal.3d 754 (Harvey).
2        Undesignated statutory references are to the Penal Code.

                                                              1
       Defendant’s opening brief contends (1) she should be allowed to withdraw her
plea because the plea hearing judge assured her she would be able to change her plea
if the sentencing judge did not “abide by the plea bargain,” (2) she should also be allowed
to withdraw the plea because the prosecutor misrepresented the sentencing consequences
of the charged counts at the plea hearing, (3) there was no factual basis for her guilty
plea, (4) the trial court erred in considering the dismissed charges when sentencing her,
(5) she received ineffective assistance of counsel because her trial attorney ineptly argued
for sentencing the admitted assault as a misdemeanor, (6) the trial court denied
defendant’s right to due process when failing to disclose the contents of an “ex parte”
memorandum, and (7) the trial court erred in sentencing defendant for two prior
strikes even though both convictions arose out of the same incident.
       Defendant subsequently filed a supplemental opening brief in which she argued
her trial attorney was ineffective when misadvising her to accept the plea agreement on
assurances the trial court would reduce her charge to a misdemeanor or allow her to
withdraw the plea. Defendant also filed a second supplemental opening brief in which
she argued she is entitled to immediate resentencing under Proposition 36, an initiative
known as the Three Strikes Reform Act of 2012 (§§ 667, 1170.12, 1170.126; Prop. 36,
as approved by voters, Gen. Elec. (Nov. 6, 2012) (Proposition 36)).
       While this appeal was pending, defendant also filed in this court a petition for
writ of habeas corpus in which she claimed she received ineffective assistance of counsel
in several respects because her trial attorneys failed to properly advise or represent her
during the plea and sentencing hearings. Determining the allegations in the petition
stated a prima facie case for relief, we stayed this appeal and issued an order to show
cause we made returnable to the superior court. After the superior court appointed new
trial counsel for defendant, she informed the trial court she “no longer wishe[d] to pursue
the instant habeas corpus petition.”




                                              2
       Shortly after the dismissal of her habeas corpus petition, defendant informed us
she wished to withdraw the first three claims in her opening brief as well as the argument
in her first supplemental opening brief. We accept the withdrawal of these issues by
defendant.
       As to the remaining issues, we conclude the trial court did not err in considering
dismissed charges when deciding whether to sentence defendant for a felony or
misdemeanor. Defendant did not receive ineffective assistance of counsel at the
sentencing hearing. Her attorney at that hearing tendered valid arguments in the face
of difficult facts for defendant. The trial court did not violate defendant’s rights in
considering a research memorandum prepared by the court’s staff attorney. The trial
court did not err in refusing to dismiss one of her prior strikes when sentencing
defendant. Finally, we conclude passage of Proposition 36, which amended the three
strikes law, does not entitle her to resentencing in this appeal. Her remedy under
Proposition 36 is to file a petition to recall the sentence.
       Accordingly, we affirm the judgment.
                                      BACKGROUND
                                             Facts
       We draw the facts of defendant’s underlying offense from the probation officer’s
report prepared in connection with defendant’s March 12, 1996, sentencing hearing.
       Around May 12, 1995, defendant and her accomplice, Renee Vasquez, went to
Laura Aguayo’s home to offer Aguayo $100 to participate in check-cashing fraud.
Aguayo declined to participate. About four days later, Aguayo received another visit
from defendant and Vasquez. This time, defendant and Vasquez brought along several
men. Defendant and her accomplices entered Aguayo’s home. Defendant pointed a
sawed-off shotgun at Aguayo and her husband, Nels Kephart, while defendant’s
accomplices removed property from the house. Defendant and her accomplices left with




                                               3
Aguayo’s car. Before leaving, defendant threatened to kill Aguayo and Kephart if they
reported the crime.
                                  Guilty Plea and Sentencing
          Defendant was charged by amended information with two counts of robbery
(§ 211), burglary (§ 459), carjacking (§ 215, subd. (a)), vehicle theft (Vehicle Code,
§ 10851, subd. (a)), and receiving stolen property (§ 496, subd. (a)). The information
further alleged defendant had two prior strikes. (§ 667, subds. (b)-(i).)
          On January 8, 1996, defendant pled guilty to assault with force likely to produce
great bodily injury as a reasonably related offense to the first charged robbery.
Defendant admitted the two prior strike convictions. The remaining charges were
dismissed with a Harvey waiver. A month later, Judge James L. Long, who presided
over the plea hearing, recused himself after learning he knew some of defendant’s family
members. Defendant waived her right to be sentenced by Judge Long.
          On March 12, 1996, defendant appeared for sentencing before Judge Gary E.
Ransom. The trial court rejected defendant’s argument in favor of characterizing the
admitted assault as a misdemeanor and sentenced her to serve 25 years to life in state
prison.
            First Habeas Corpus Petition in Sacramento County Superior Court
          In June 1996, the California Supreme Court issued its decision in People v.
Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), to hold trial courts have
discretion to dismiss prior strikes under section 1385. In response, defendant filed a
petition for writ of habeas corpus in Sacramento Superior Court case No. 98F01339
on February 13, 1998. We take judicial notice of the March 12, 1998, order entered in
Sacramento Superior Court case No. 98F01339. (Evid. Code, §§ 452, subd. (d)(1), 459.)
In that order, Judge Ransom denied the petition because defendant had “not set forth any
circumstances which support striking one or more of her prior convictions.” Judge
Ransom also rejected defendant’s contention she had received ineffective assistance of


                                               4
counsel because her trial attorney failed to argue her two prior strikes could not serve as
separate enhancements. As Judge Ransom explained, “The record establishes that the
prior assault convictions involved two victims. ‘Multiple punishment for violent offenses
involving different victims is not barred by section 654.’ (People v. Higareda (1994) 24
Cal.App.4th 1399, 1413.)”
        Second Habeas Corpus Petition in Sacramento County Superior Court
       Defendant filed a second petition for habeas corpus in the superior court. We take
judicial notice of the June 10, 1999, order entered in Sacramento Superior Court case
number 98F011056. (Evid. Code, §§ 452, subd. (d)(1), 459.) In that order, Judge Peter
Mering denied the second petition as “essentially, a duplication of the petition filed in
this court on February 13, 1998.” After examining the transcripts from the plea and
sentencing hearings, Judge Mering found no merit to claims the sentencing judge
misunderstood his discretion to strike the priors or the two prior strikes could not both
serve as sentence enhancements.
       Third and Fourth Habeas Corpus Petitions in Sacramento Superior Court
       Defendant filed a third and fourth petition for habeas corpus in Sacramento
Superior Court case Nos. 99F06018 and 01F00600. Both petitions were denied as
successive and untimely. We take judicial notice of both orders denying these petitions.
(Evid. Code, §§ 452, subd. (d)(1), 459.)
                          Habeas Corpus Petition in this Court
       In April 2001, defendant filed a petition for writ of habeas corpus in this court in
case No. C038074. On July 12, 2001, this court accepted the People’s stipulation the
record showed the sentencing court was unaware of its discretion to dismiss prior strikes
in the interests of justice. Accordingly, we remanded the case “to the trial court for the
limited purpose of allowing the trial court to exercise its discretion whether to strike one
or more” of defendant’s strikes.




                                              5
       On March 14, 2002, the trial court held a new sentencing hearing to allow Judge
Ransom to exercise his discretion pursuant to this court’s order. After considering the
arguments of the parties, Judge Ransom denied the motion and explained: “It’s a tough
call but I feel in considering the facts of the case and her prior record and the Harvey
waiver matters I’m not going to grant the motion.”
                Habeas Corpus Petition in the California Supreme Court
       Thereafter, defendant filed a petition for writ of habeas corpus in the California
Supreme Court. We take judicial notice of the order entered on June 9, 2004, in
California Supreme Court case No. S114292. In that order, the Supreme Court
summarily denied the petition.
                             Federal Habeas Corpus Petition
       In January 2006, defendant filed an amended petition for writ of habeas corpus in
the United States District Court for the Eastern District of California. In September 2008,
United Sates Magistrate Judge Gregory G. Hollows held an evidentiary hearing. On
November 24, 2008, Magistrate Judge Hollows issued an order and findings and
recommendations that found defendant received ineffective assistance of counsel in that
her attorney failed to timely request a certificate of probable cause to allow her a direct
appeal after being sentenced on her negotiated plea.
       In January 2009, the United States District Court adopted the findings and
recommendations of the magistrate. As a result, the district court ordered defendant was
“permitted to initiate the appeal process in state court by seeking a certificate of probable
cause.” In all other respects, the federal habeas corpus petition was denied.
       The People filed an appeal with the Ninth Circuit Court of Appeals in case No. 09-
15550. Defendant filed a cross-appeal. On December 7, 2011, the Ninth Circuit denied
the People’s appeal. As to defendant’s cross-appeal, the Ninth Circuit remanded the case
to the district court with instructions to stay further proceedings in federal court while
defendant pursued her state court appellate rights.


                                              6
                                    The Present Appeal
       In March 2009, Judge Ransom granted defendant’s request for a certificate of
probable cause. This appeal followed.
                                        DISCUSSION
                                              I
              The Sentencing Court’s Consideration of Dismissed Charges
       Defendant contends the sentencing court erred in considering the dismissed
charges when deciding whether to sentence her to a felony or a misdemeanor. Defendant
acknowledges a Harvey waiver was part of the negotiated plea agreement. However, she
contends the Harvey waiver allowed consideration of the dismissed charges only for
purposes of determining restitution and enhancing her sentence. Asserting “sentence
enhancement” was unrelated to deciding between a felony and a misdemeanor, she urges
us to conclude the trial court violated the terms of the plea agreement. We reject the
argument.
                                              A.
                                        Plea Colloquy
       As part of the plea hearing, the trial court clarified the terms of the deal by
inquiring of the prosecutor as follows:
       “THE COURT: Is it your understanding Count One[3] would be a wobbler
offense?
       “[Prosecutor]: That’s correct, your Honor.
       “THE COURT: Which would mean that it can be disposed of either as a felony or
a misdemeanor?
       “[Prosecutor]: That’s correct.
       “THE COURT: All right. Thank you. What [are] the other understandings?


3      Defendant pled guilty to Count One as assault with force likely to produce great
bodily injury. (§ 245, subd. (a)(1).)

                                              7
       “[Prosecutor]: That the rest of the counts will be dismissed with a Harvey waiver.
That is, that the Court can consider the remaining counts with the exception of Five and
Six at judgment and sentencing. Five and Six will be dismissed in the interest of justice
in lieu of the plea given that Counts Five and Six occurred at a different time than the
case –- count that she is pleading to.
       “THE COURT: In terms of Count Two, Three, Four and Five and Six, if, in fact,
if there are enhancements alleged within those counts, is it understood that they are going
to be dismissed, too, in light of the plea to Count One?
       “[Prosecutor]: That’s dismissed with a Harvey waiver, your Honor.
       “THE COURT: The enhancements?
       “[Prosecutor]: That’s correct.
       “THE COURT: As to the priors, what’s the understanding?
       “[Prosecutor]: People are asking for an admission to Count Two –- excuse me, to
prior conviction number two and prior conviction number four and given that she is
pleading to a –- to the present offense which is not a serious felony, the five year prior
allegation will be stricken by operation of law.
       “THE COURT: Then the legal consequence would be then if she pleads to the
two serious felonies, if Count One remains a serious felony, it would have the legal effect
of a twenty-five year to life in State’s Prison sentence?
       “[Prosecutor]: That’s correct, you Honor.”
       After the prosecutor articulated these terms of the plea in open court, the trial court
inquired of defendant to ensure she personally understood the consequences of the plea
agreement. The trial court asked:
       “THE COURT: Now, ma’am, the further understanding is that all the counts, the
substantive charges and the enhancements other than Counts Five and Six will be
dismissed with a Harvey waiver which means although those enhancements and counts
are dismissed, the Court may consider it for purposes of restitution and for purposes of


                                              8
enhancing your sentence on the count that you are going to plead guilty to. Do you
understand?
       “THE DEFENDANT: Yes.” (Italics added.)
       The trial court further inquired of defendant to ensure she understood the
consequences of the Harvey waiver by noting the court would sentence her in light of
the circumstances giving rise to the charge in Count One as well as her prior criminal
record:
       “THE COURT: Now, ma’am, I want to make it so you understand, you and your
lawyer understand that I am not promising you that I’m going to reduce this down to a
misdemeanor. I’m not making you that promise. I will evaluate Count One in terms of
whether it should be a misdemeanor in light of what’s represented in terms of what
occurred in Count One as well as your prior record including felony and/or other
misconduct in terms of making my decision. [¶] Do you understand that, ma’am?
       “THE DEFENDANT: Yes.
       “THE COURT: You have no guarantee that I’m going to reduce it to a
misdemeanor. Do you understand?
       “THE DEFENDANT: Yes.”
       At the sentencing hearing, both sides addressed the circumstances surrounding the
assault of Aguayo. The trial court noted it was “aware of its discretion to reduce [the
admitted assault] to a misdemeanor.” The court concluded: “I listened very carefully to
everything that was said by both sides, and, having done so, it is my ruling that the
motion to reduce [the admitted assault] to a misdemeanor is denied.”
                                             B.
                          Extent of Defendant’s Harvey Waiver
       As this court has previously explained, Harvey waivers arose out of a case in
which “the Supreme Court held that, in imposing sentence under a plea bargain, the court
may not consider evidence of any crime as to which charges were dismissed as a


                                             9
‘circumstance in aggravation’ supporting the upper term on the remaining counts.
(Harvey, supra, at p. 758.) The court deemed it ‘improper and unfair’ to permit the
sentencing court to consider any of the facts underlying dismissed counts because, absent
an agreement to the contrary, a plea bargain implicitly includes the understanding that the
defendant will suffer no adverse sentencing consequences by reason of the facts
underlying, and solely pertaining to, dismissed counts. (Ibid.) [¶] To avoid the Harvey
restriction, prosecutors often ‘condition [] their plea bargains upon the defendant agreeing
that the sentencing court may consider the facts underlying the not-proved or dismissed
counts when sentencing on the remainder.’ (People v. Myers (1984) 157 Cal.App.3d
1162, 1167.) Defendants may accept this relatively minor potential consequence in order
to avoid other convictions or sentencing enhancement terms. (Ibid.) This agreement is
known as a ‘Harvey waiver.’ (Ibid.) A Harvey waiver permits the sentencing court to
consider the facts underlying dismissed counts and enhancements when determining the
appropriate disposition for the offense or offenses of which the defendant stands
convicted. (People v. Moser (1996) 50 Cal.App.4th 130, 132–133.)” (People v. Munoz
(2007) 155 Cal.App.4th 160, 166-167.)
       Here, defendant’s Harvey waiver was limited because the plea agreement
disallowed consideration of Counts Five and Six, the dismissed charges of vehicle theft
and receiving stolen property. As the prosecutor explained, Counts Five and Six related
to offenses committed on an occasion separate from defendant’s admitted assault with
force likely to produce great bodily injury. Nonetheless, the dismissed charges of
robbery, burglary, and carjacking could be considered by the trial court under the terms
of defendant’s Harvey waiver.
       Defendant contends the Harvey waiver was further limited when the trial court
stated the dismissed charges could be considered only “for restitution” and “for
enhancing your sentence.” Thus, defendant argues the dismissed counts could not be
used in deciding whether to sentence her for a felony or a misdemeanor. We disagree.


                                            10
       Defendant pled guilty before the California Supreme Court declared trial courts
retain jurisdiction to dismiss a prior strike in the interests of justice. (Romero, supra, 13
Cal.4th 497.) Indeed, this court granted defendant habeas corpus relief in July 2001,
based on a stipulation by the People that the sentencing court had not been aware of its
discretion to strike prior convictions under section 1385. Consequently, the only purpose
for considering the dismissed counts under a Harvey waiver “for enhancing [defendant’s]
sentence” was to decide whether the admitted assault should be a felony or a
misdemeanor. During the plea colloquy the trial court explained to defendant that if
sentenced to a misdemeanor she would serve a full year without any credit for time
served. However, if defendant were sentenced for a felony, she would be sentenced to
serve a term of 25 years to life. On the record, defendant stated she understood.
       The Harvey waiver would have been meaningless as to sentence enhancement if
the dismissed charges could not be considered on the only decision the trial court
believed it had to make regarding selection of sentence, namely whether defendant
committed a felony or a misdemeanor. Accordingly, we conclude the trial court did not
err in considering the dismissed charges in Counts Two through Four at sentencing.
                                              II

    Ineffective Assistance of Counsel Regarding Request to Reduce the Felony to a
                                    Misdemeanor
       Defendant claims her trial attorney’s argument for sentencing her assault as a
misdemeanor was so “incoherent” it was constitutionally deficient. This contention is
substantively identical to the argument presented in her first supplemental opening brief –
- an argument she has abandoned. Even though the abandonment of the claim in the first
supplemental opening brief arguably waives the claim presented in her original opening
brief, we consider the claim on the merits in light of the extensive history of the litigation.
On the merits, we reject the claim.




                                              11
                                             A.
                 Constitutional Right to Effective Assistance of Counsel
       A criminal defendant has the right to the assistance of counsel under both the Sixth
Amendment to the United States Constitution and article I, section 15, of the California
Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215 (Ledesma).) This right
“entitles the defendant not to some bare assistance but rather to effective assistance.
[Citations.] Specifically, it entitles him [or her] to ‘the reasonably competent assistance
of an attorney acting as his [or her] diligent conscientious advocate.’ [Citations.]” (Ibid.,
quoting United States v. DeCoster (D.C. Cir. 1973) 487 F.2d 1197, 1202.) “ ‘In order to
demonstrate ineffective assistance of counsel, a defendant must first show counsel’s
performance was “deficient” because his [or her] “representation fell below an objective
standard of reasonableness . . . under prevailing professional norms.” [Citations.]
Second, he [or she] must also show prejudice flowing from counsel’s performance or lack
thereof. [Citation.] Prejudice is shown 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 in
the outcome.” ’ ” (In re Harris (1993) 5 Cal.4th 813, 832–833; accord, Strickland v.
Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].)
       Defendant bears the burden of proving a claim of ineffective assistance of counsel.
(People v. Camden (1976) 16 Cal.3d 808, 816.) In determining whether counsel’s
performance was deficient, we must exercise “deferential scrutiny” (Ledesma, supra, 43
Cal.3d at p. 216) and refrain from engaging in “the perilous process of second-guessing”
counsel’s rational tactical decisions. (People v. Miller (1972) 7 Cal.3d 562, 573.)
Where, as here, the record does not contain an explanation for the challenged aspect of
representation, the judgment must be affirmed on appeal unless counsel was asked for an
explanation and failed to provide one or there simply could be no satisfactory
explanation. (People v. Pope (1979) 23 Cal.3d 412, 425, overruled on another ground in


                                             12
People v. Ortiz (2012) 208 Cal.App.4th 1354, 1372.) Thus, we 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. Zapien (1993) 4 Cal.4th 929, 980.)
                                              B.
                                          Analysis
       In examining the performance of defendant’s trial attorney, we note the high
hurdle he faced in arguing for treating the assault as a misdemeanor. At the plea hearing,
the factual basis for the plea was set forth as follows:
       “THE COURT: Would you describe the nature of the assault, please?
       “[Prosecutor]: Certainly. Laura Aguay[o] and the defendant knew each other for
many years, your Honor, and the victim Laura Aguay[o] did not report the offense to the
authorities until a month later. What happened is the defendant –- and this is the People’s
view of the evidence, the defendant along with a co-defendant by the name of Rene[e]
Vasquez who had already pled guilty to the offense and numerous other people forcibly
entered an inhabited dwelling house of Laura Aguay[o] and Nels Kephart. [¶]
Defendants held two victims, Laura Aguay[o] and Nels Kephart who they had known for
many years, hostage for a time by means of force and fear. The defendant Jones
personally, according to Nels Kephart and Laura Aguay[o], personally used a sawed-off
shotgun pointing it toward Nels Kephart. [¶] The defendants removed property from the
residence and fled.”
       Upon questioning by the court, defendant agreed to this version of the events
except she noted Aguayo “invited” her into the house.
       The probation officer’s report added the following details to the incident:
Defendant and Vasquez took along several men when they went to Aguayo’s house at
10:00 p.m. Brandishing a sawed-off shotgun, defendant demanded $2,500 from Aguayo
for the amount of money they claimed to have deposited into the checking account of
Aguayo’s housemate. The amount was deposited into the housemate’s checking account


                                              13
as part of a scheme that involved deposits with fraudulent checks. Defendant and her
accomplices searched Aguayo’s home. When Aguayo’s husband, Nels Kephart, emerged
from the back of the house, defendant pointed the shotgun at him and told him to stand in
the corner. While the accomplices carried property out of the house, defendant
demanded Aguayo write a bill of sale for her car –- which was ultimately taken by
defendant. Defendant instructed Kephart “to take a seat on the sofa, with the victim’s
children, while continuing to point the shotgun at him.” After the bill of sale was
completed and the property taken out of the house, defendant threatened Aguayo,
“indicating if the crime were reported, the defendant would kill the victims.”
       The probation report recounted that “the defendant reportedly stated that she had
previously been to prison and was not frightened to return. The victim indicated she was
threatened if she reported the crime and feels fortunate that defendant did not shoot
anybody. The victim described the defendant as a ‘hateful’ person. The victim reported
she has known the defendant for 12 to 13 years as they both form[er]ly dated the same
individual.”
       Against this backdrop, defendant claims her trial attorney’s rambling and
incoherent presentation at the sentencing hearing did not even address whether the assault
should be considered a misdemeanor. She also claims there might have been additional
evidence her trial attorney could have presented if the case had gone to trial.
       We quickly dispose of the second assertion because it relies on claims that cannot
be established with the appellate record in this appeal. Indeed, defendant raised exactly
the same contention –- she would have been acquitted at trial –- in her petition for writ of
habeas corpus filed in this court. In this appeal, defendant’s speculation about
exonerating evidence cannot be established on this appellate record. The appellate record
sheds no light on whether defense counsel might have had a reason –- such as witness
unreliability or recantation –- for not introducing the purportedly extant exonerating




                                             14
evidence. Consequently, this appeal affords no relief on the claim. (People v. Diaz
(1992) 3 Cal.4th 495, 558.)
       As to the claim of incoherent and ineffective presentation, we are also not
persuaded. Defense counsel demonstrated he knew he was arguing for sentencing a
misdemeanor when concluding: “Your Honor, I would submit it and hope the Court will
take a good look at this conduct and see what a good look at this conduct speaks to. It
do[es]n’t speak to 25 years to life. If you are going to send her away 25 years to life, gee,
let’s not have this kind of factual sequence with no injuries, a clear cut motive on the part
of the victims to fabricate and lie, which they did.” This summed up a reasonable
strategy in light of difficult facts for the defense by (1) pointing out no one was
physically injured by the assault, and (2) characterizing the victims as motivated to
exaggerate the facts of the incident.
       Defense counsel laid out the following argument “before we call this . . . crime
that she pled to a felony”: Aguayo was the one who was the thief because she took the
money from her housemate that came from defendant. Thus, defendant was only trying
to get her money back. It took Aguayo three weeks to report the theft and carjacking.
The car itself was not even stolen because Kephart later told defense counsel he had sold
it to a third party for a $100 profit. And, Aguayo was a drug dealer who gave her own
daughter illegal drugs. Aguayo’s housemate had stated Aguayo and Kephart wanted
defendant’s money for themselves and they were willing use violence for it.
       This argument by defense counsel did not fall below an objective standard of
reasonableness. Instead, it represented a direct attack on the seriousness of the situation
by attempting to undermine the victims’ credibility and by pointing out the assault did not
result in physical injury. Defendant’s trial attorney did not render constitutionally
deficient representation.




                                             15
                                            III
           The Trial Court’s Consideration of a Staff Research Memorandum
       As we have noted in the background section of this opinion, the trial court
considered whether to dismiss one or both of defendant’s prior strikes after this court
granted defendant’s petition for a writ of habeas corpus in July 2001. Thus, the trial court
held a sentencing hearing on March 14, 2002, to consider defendant’s Romero motion.
Before that hearing, the trial court received a confidential memorandum prepared by a
court research attorney. The memorandum bore the stamp, “Legal Research DO NOT
FILE” and discussed whether the motion should be granted or denied. The court research
attorney’s memorandum concludes: “My recommendation would be that Your Honor not
strike even one of the ‘strikes.’ ”
       Defendant contends the trial court violated her due process rights by considering
this “ex parte” communication without notice to her, thereby depriving her of the
opportunity to respond to its analysis and conclusion.4 We reject the argument.
       A research memorandum prepared by a court staff attorney for consideration by a
trial judge does not constitute an ex parte communication. It is well settled courts may
conduct their own legal research and independently assess the records of its proceedings.
(Giraldo v. Department of Corrections & Rehabilitation (2008) 168 Cal.App.4th 231,
251.) Indeed, such independent research has been described as indispensable. (Ibid.) To




4       We note defendant does not contend the contents of the memorandum are so
erroneous as to require reversal. Such a contention would fail. A court research
attorney’s memorandum cannot be used to undermine the legitimacy of a trial judge’s
later decision after considering the moving papers and hearing arguments of counsel.
Indeed, even a tentative decision by the trial court cannot be used to impeach a judgment
because “a tentative statement of decision is not binding on the trial court and can be
modified or changed as the judge sees fit before entry of judgment.” (FLIR Systems, Inc.
v. Parrish (2009) 174 Cal.App.4th 1270, 1284.) Even more so than a trial court’s
tentative decision, a trial judge is free to disregard or even ignore a research
memorandum prepared by court staff.

                                            16
this end, courts have central staffs of attorneys to aid in assessing the merits of legal
contentions and to check the accuracy of parties’ citations to the court record. (Ibid.)
       A court’s decision “should represent the end-product of an internal evaluation by
the court and its staff sufficient to ensure that the disposition reflects the correct legal
result. Ordinarily, the process will include substantiation of the material facts cited by
the parties and confirmation of the controlling law, whether or not cited by the parties,
and a thorough analysis of the arguments of the parties based upon the material facts and
the applicable law.” (People v. Garcia (2002) 97 Cal.App.4th 847, 854, italics added.)
Such internal evaluation by the court and its staff is not ex parte communication. The
California Code of Judicial Ethics expressly provides that “[a] judge may consult with
court personnel or others authorized by law, so long as the communication relates to that
person’s duty to aid the judge in carrying out the judge’s adjudicative responsibilities.”
(Cal. Code Jud. Ethics, cannon 3(B)(7)(a).)
       Here, the challenged communication was not an ex parte communication with
anyone outside the court. Thus, we find inapposite defendant’s cited authority involving
communications between judges and attorneys for parties and other persons not
employed on the court’s own staff. (See, e.g., In re Calhoun (1976) 17 Cal.3d 75, 83
[trial court erred in receiving ex parte communication from the prosecutor]; People v.
Webster (1983) 143 Cal.App.3d 679, 685 [trial court erred by initiating telephone call
with Youth Authority officials to ascertain what the proper sentence should be].) The
research memorandum mistakenly included in the trial court’s file did not constitute an
ex parte communication, nor did it undermine defendant’s due process rights.
                                               IV
              The Trial Court’s Refusal to Dismiss One of the Prior Strikes
       Defendant contends the trial court erred in denying her motion to dismiss one of
her prior strikes because they were both committed on the same occasion and thus should
be treated as a single sentence enhancement. We disagree.


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                                              A.
                                 Defendant’s Prior Strikes
       The probation report described defendant’s two prior strikes as follows: On
July 30, 1990, “defendant went to another female’s residence and a physical altercation
ensued with respect to a male both were apparently dating. The defendant struck the
victim about the head and face and also caused injuries to the victim’s children. All of
the children and the victim sustained bruises and swelling, the weapon used was a knife
and a telephone.”
                                              B.
                                           Analysis
       Defendant argues multiple strike sentence enhancements are not allowed for a
single criminal act. In support, she cites People v. Burgos (2004) 117 Cal.App.4th 1209,
1212 (Burgos). In Burgos, the defendant and his accomplice “approached a man at a gas
station and . . . demanded the victim’s car while one of the companions told the victim
that he had a gun. [The defendant] and his companions were frightened off before they
took the victim’s car.” (Id. at p. 1212, fn. 3.) On these facts, the Burgos court concluded
the trial court abused its discretion in failing to dismiss one of defendant’s prior strike
convictions for robbery and carjacking. Burgos states “that the failure to strike one of the
two prior convictions that arose from a single act constitutes an abuse of discretion.”
(117 Cal.App.4th at p. 1214, fn. omitted.) The decision reasons that “where the two
priors were so closely connected as to have arisen from a single act, it would necessarily
constitute an abuse of discretion to refuse to strike one of the priors.” (Id. at p. 1215.)
       Here, the trial court was presented with defendant’s admission of two prior strikes
that did arise on the same occasion. However, unlike Burgos, supra, 117 Cal.App.4th
1209, defendant’s strikes involved multiple victims. Defendant personally used a knife
and a telephone to strike the victim and all of her children. The injuries were not
insignificant. Instead, “[a]ll of the children and the victim sustained bruises and


                                              18
swelling.” Given the multiple acts of violence against multiple victims –- including
children –- the trial court was not required to dismiss one of defendant’s prior strikes.
“Striking a prior serious felony conviction ‘ “is an extraordinary exercise of discretion,
and is very much like setting aside a judgment of conviction after trial.” [Citation.]’
(People v. McGlothin (1998) 67 Cal.App.4th 468, 474.) Accordingly, such action is
reserved for ‘[e]xtraordinary’ circumstances. (People v. Strong (2001) 87 Cal.App.4th
328, 332.)” (People v. Philpot (2004) 122 Cal.App.4th 893, 907.) This case does not
warrant the extraordinary remedy of dismissing one of defendant’s prior strikes.
                                             V
                           Resentencing Under Proposition 36
       In her second supplemental opening brief, defendant contends we must vacate her
three-strikes sentence and resentence her to a determinate term. Specifically, defendant
argues that in light of the voter’s approval of Proposition 36 on November 6, 2012
(codified as §§ 667, 1170.12 and 1170.126), and the principles established in In re
Estrada (1965) 63 Cal.2d 740 (Estrada), she is entitled to automatic, nondiscretionary
resentencing. Under Estrada, a legislative amendment that lessens criminal punishment
is presumed to apply to all cases not yet final (the Legislature having deemed its former
penalty too severe) unless there is a “saving clause” providing for prospective
application. (Id. at pp. 742, 745, 748.)
       The same argument was rejected in People v. Yearwood (2013) 213 Cal.App.4th
161, 170. In Yearwood, the court held the Estrada rule does not apply to Proposition 36
because section 1170.126 operates as the functional equivalent of a “saving clause” and
defeats the presumption of retroactivity. Thus, Yearwood determined the voters intended
a petition for recall of sentence to be the sole remedy available for prisoners who were
serving an indeterminate life sentence imposed under the former three strikes law on
Proposition 36’s effective date without regard to the finality of judgment. (Id. at pp. 171–
172.) Accordingly, the Yearwood court held Proposition 36 cannot be interpreted to


                                             19
require automatic resentencing. (Id. at p. 176.) We agree. For the reasons stated in
Yearwood, we reject defendant’s argument.5
                                     DISPOSITION
      The judgment is affirmed.



                                                      HOCH        , J.



We concur:



     RAYE            , P. J.



      MURRAY          , J.




5     We note this issue is currently pending before the California Supreme Court.
(People v. Conley (2013) 215 Cal.App.4th 1482; People v. Lewis (2013) 216 Cal.App.4th
468.)

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