Filed 7/28/16 P. v. Elliott CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SECOND APPELLATE DISTRICT DIVISION TWO

THE PEOPLE, B266756 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA064792) v. FORRISS LAWRENCE ELLIOTT, Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County.

Kathleen Blanchard, Judge. Affirmed.

Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Andrew S. Pruitt, Deputy Attorney General, for Plaintiff and Respondent. ****** Forriss L. Elliott (defendant) appeals his felony convictions of driving under the influence of alcohol and driving with a blood-alcohol content of 0.08 percent or higher.

He argues that his trial counsel was constitutionally ineffective for not objecting when the People amended the charging document to add a new “strike” offense after trial, and asks us to review the transcript of the trial court’s in camera hearing reviewing law enforcement personnel records. We conclude that any ineffectiveness did not prejudice defendant, and that the trial court complied with the procedures set forth in Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). Accordingly, we affirm.

FACTS AND PROCEDURAL BACKGROUND On August 23, 2013, defendant was pulled over driving a U-Haul truck. He smelled of alcohol, and a preliminary alcohol screening device indicated that his blood- alcohol content was 0.203 percent and 0.208 percent, more than twice the 0.08 percent legal limit. This was defendant’s third incident of driving under the influence in a month and his fourth in the past six years.

In the operative, first amended information, the People charged defendant with (1) driving under the influence of alcohol, as a felony because he had three prior convictions for the same crime in the last 10 years (Veh. Code, §§ 23152, subd. (a) & 23550), and (2) driving with a blood-alcohol content of 0.08 percent or higher, as a felony because he had three prior convictions for the same crime in the last 10 years (Veh. Code, §§ 23152, subd. (b) & 23550). The People further alleged that defendant’s 2008 conviction for making criminal threats (Pen. Code, § 422) was a strike within the meaning of our Three Strikes law (Pen. Code, §§ 667, subds. (b)-(j) & 1170.12, subds. (a)-(d)).

Prior to trial, defendant filed a motion asking the trial court to review the personnel records of the two Los Angeles Sheriff’s deputies who pulled him over. The

On the day before trial, defendant made an oral motion asking the trial court to strike the Three Strikes law allegation pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. He argued that the charged crimes were a product of his alcoholism, and that he used alcohol as a means of “self-medicating” for his stomach cancer. The court denied the motion. The court explained that defendant did not “fall[] outside of the statutory scheme of the [Three Strikes law],” which was designed to address “revolving door criminal[s],” because defendant’s criminal history dated back to 1985 and reflected “conviction after conviction and [probation] violation after [probation] violation.” The court nevertheless denied the motion without prejudice, acknowledging that although “the facts of the instant case seem[] particularly egregious” due to defendant’s high blood-alcohol content, the court would consider whether the facts adduced at trial painted a different picture.

Before the jury returned its verdict, defendant waived his right to have the jury decide the truth of the strike allegation. The jury then found defendant guilty of both charged crimes and found the allegations of his prior driving under the influence offenses to be true. The court then discharged the jury.

Thereafter, the People filed a second amended information alleging that defendant’s 1990 conviction for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) also constituted a strike under the Three Strikes law.

At defendant’s subsequent sentencing hearing, the trial court arraigned defendant on the second amended information. Defendant did not object to the filing of the second amended information. The court found both prior strike allegations to be true. Defendant again asked the court to strike the two Three Strikes allegations under Romero on chiefly the same grounds as his pretrial, oral motion. The court denied this second Romero motion. Again citing defendant’s extensive criminal history, the court commented that defendant “appears to be a poster child for the Three Strikes law in terms of the revolving door of the criminal justice system.” The court further noted that it would have, at most, stricken the allegation with respect to the 1990 conviction but that doing so would not affect the sentence dictated by the Three Strikes law.

The trial court then sentenced defendant to four years in state prison. As to the driving under the influence count, the court selected the mid-term sentence of two years and doubled it to four years under the Three Strikes law. The court imposed the same sentence on the driving with a blood-alcohol content of 0.08 percent or greater count, but stayed that sentence pursuant to Penal Code section 654.

Defendant timely appeals.

DISCUSSION I. Ineffective Assistance of Counsel Defendant argues that his trial counsel was constitutionally ineffective for not objecting to the People’s filing of the second amended information, which alleged a second strike offense under the Three Strikes law, because the amended pleading was filed after his jury was discharged. A criminal defendant makes out a claim that his counsel was constitutionally ineffective if he demonstrates that (1) his “‘counsel’s performance was deficient [because it] fell below an objective standard of reasonableness,’” and (2) “‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been more favorable to [the] defendant.’” (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050, quoting In re Ross (1995) 10 Cal.4th 184, 201.) As explained below, defendant has arguably established that his counsel’s performance was deficient, but has not established that her omission prejudiced him.

In People v. Tindall (2000) 24 Cal.4th 767, our Supreme Court reconciled the tension between the People’s right under Penal Code section 969a to amend charging documents to allege prior felonies and a defendant’s right under Penal Code section 1025, subdivision (b), to have all prior convictions “tried by the [same] jury that tries” the issue of guilt. The Court resolved the conflict by holding that the “prosecution may amend an information to add alleged prior convictions . . . until sentencing,” but only if the jury empanelled on the issue of guilt “has [not] been discharged.” (Tindall, at p. 776.)

However, Tindall repeatedly emphasized the prosecution could add new prior conviction allegations at any time prior to sentencing if the defendant did not object. (Id. at pp. 774, & fn. 6.) Defense counsel’s failure to object to the second amended information in this case thus precludes defendant from challenging the new strike allegation in that pleading, but ostensibly constitutes deficient performance because a Tindall-based objection—had it been made—would have been well taken.

The People counter that defense counsel’s performance may have been adequate because she may have had a tactical reason for not objecting (e.g., People v. Mai (2013) 57 Cal.4th 986, 1009), but we need not definitively resolve that issue because defense counsel’s failure to object—tactical or not—did not prejudice defendant.

Defendant concedes that his counsel’s failure to object did not affect his sentence under the Three Strikes law. Since the Three Strikes Reform Act of 2012 became effective, a court may sentence a defendant to a “third strike” minimum sentence of 25 years to life only if the current offense is a “serious” or “violent” felony, no matter how many prior strikes he may have. (Pen. Code, §§ 667, subds. (e)(1), (e)(2)(C) & 1170.12, subds. (c)(1), (c)(2)(C).) Where the current felony is neither “serious” nor “violent,” the court is to impose a “second strike” sentence by doubling the sentence otherwise prescribed by law. (Ibid.) Because the two driving under the influence offenses defendant suffered here are not “serious” or “violent” felonies, the Three Strikes law required the court to double the sentence for these offenses whether he had one prior strike or two.

Defendant nevertheless argues that the trial court might have granted his Romero motion had there been only one prior strike rather than two. To show a “reasonable

II. Pitchess Motion We conducted a review of the in camera proceedings in the manner contemplated by the decision in People v. Mooc (2001) 26 Cal.4th 1216, 1228-1230, and found the record to be adequate to permit meaningful appellate review. (See People v. Prince (2007) 40 Cal.4th 1179, 1285-1286.) We have independently determined from the entire record including the sealed in camera proceedings that the trial court properly exercised

DISPOSITION The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________________, J.

HOFFSTADT We concur: _______________________, P.J.

BOREN

_______________________, J.

CHAVEZ