People v. Grant CA3

Filed 6/16/14 P. v. Grant CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yolo) ----

THE PEOPLE, C073058

Plaintiff and Respondent, (Super. Ct. No. CRF123015)

v.

VERNON DAVID GRANT,

Defendant and Appellant.

A jury convicted defendant Vernon David Grant of unlawful taking or driving a vehicle (dump truck); delaying a peace officer, a misdemeanor; and hit and run, a misdemeanor; and acquitted him of felony vandalism. In bifurcated proceedings, the court found four prior prison terms and one strike prior to be true. After denying defendant’s request to strike the strike prior pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), the court denied probation and sentenced defendant to state prison for an aggregate term of eight years, that is, the midterm of two years, doubled for the strike prior, for the vehicle-taking offense and one year each for the four prior prison terms. The terms for the delaying and hit-and-run misdemeanor offenses were ordered to be served concurrently.

1

Defendant appeals, contending that the prosecutor committed reversible misconduct in opposing defendant’s Romero request by referring to defendant’s strike prior as assault with a firearm rather than assault with a deadly weapon other than a firearm upon a peace officer. Recognizing that defense counsel did not object, defendant claims that counsel rendered ineffective assistance in that the prosecutor’s mischaracterization of the strike prior misguided the trial court during its consideration of his request to strike it. Defendant contends the trial court abused its discretion in denying his Romero request because the record does not reflect the trial court was aware that the prosecutor had mischaracterized the nature of the strike prior. We reject these contentions. FACTS The facts underlying the offense are not relevant to the issues raised on appeal. Suffice it to say that defendant stole a dump truck from a construction site and attempted to go through a drive-up window at a fast-food restaurant, resulting in damage to both the restaurant’s property and the truck. Defendant failed to stop when officers attempted to pull him over. To prove the strike prior, the prosecutor presented a Penal Code section 969b 1 packet containing an abstract of judgment reflecting defendant’s 2009 conviction for violating section 245, subdivision (c) and describing the offense as “[a]ssault w/deadly weapon upon an officer.” Another document refers to defendant’s conviction as an “ADW NOT F/ARM:PO/FIRE:GBI.” The strike prior was also alleged as a prison prior. The prosecutor stated, “Moving to Case Enhancement B [prison prior] that is shown on Page 61 of the [section 969b] package, and that is a -- shows a November 5th, 2009, felony conviction for 245(c) out of Yolo County. He received the upper term of five