P. v. Park

Filed 5/4/11 P. v. Park 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,
Plaintiff and Respondent,
v.
AARON SUNG-UK PARK,
Defendant and Appellant.
D056619
(Super. Ct. No. SCD210936)
APPEAL from a judgment and order of the Superior Court of San Diego County,
Francis M. Devaney, Judge. Affirmed.
A jury convicted Aaron Sung-Uk Park of attempted voluntary manslaughter based
on heat of passion (Pen. Code,1 §§ 192, 664)) as a lesser included offense of attempted
murder, and assault with a semiautomatic firearm (§ 245, subd. (b) (hereafter § 245(b)).
As to both counts, the jury found true allegations that Park personally used a firearm
(§ 12022.5, subd. (a)) and personally caused great bodily injury (§ 12022.7, subd. (a)).
Park admitted the allegation in the fourth amended information (the information) that in
1 All further statutory references are to the Penal Code.

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2003 he suffered a prior serious felony conviction for assault with a deadly weapon
(§ 245, subd. (a)(1), hereafter § 245(a)(1)) within the meaning of sections 667,
subdivision (a)(1) (hereafter section 667(a)), 668 and 1192.7, subdivision (c), which also
qualified as a prior strike conviction within the meaning of the Three Strikes law (§§ 667,
subds. (b)-(i), 668, 1170.12). At the hearing, both defense counsel and Park informed the
court that the prior serious felony conviction had been reduced to a misdemeanor.
Park brought both a motion under People v. Superior Court (Romero) (1996) 13
Cal.4th 497 (Romero) and section 1385 to strike the prior serious felony and strike
conviction, and a motion for new trial based on ineffective assistance of counsel,
prosecutorial misconduct, and other claims of error. The court denied both motions.
The court sentenced Park on the assault with a semiautomatic firearm conviction
to the middle term of six years, doubled to 12 years under the Three Strikes law as a
result of Park's prior strike conviction, plus consecutive terms of four years for his
personal use of a firearm, three years for causing great bodily injury, and five years for
having a prior serious felony conviction─for a total prison term of 24 years. As to the
attempted voluntary manslaughter conviction, the court imposed, then stayed under
section 654, one-third of the middle term of three years (i.e., one year), doubled to two
years under the Three Strikes law. The court also stayed under section 654 a term of one
year four months for the personal use of a firearm enhancement and a term of one year
for the great bodily injury enhancement.
Park appeals, contending (1) his section 667(a) five-year sentence enhancement
for his prior serious felony conviction should be stricken because that prior conviction

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was reduced to a misdemeanor under section 17, subdivision (b) (hereafter section 17(b)),
and then dismissed under section 1203.4; (2) the court abused its discretion by denying
his Romero motion to dismiss his prior strike conviction; and (3) if this court determines
the trial court's exercise of discretion in refusing to dismiss his prior strike conviction was
"impacted by the absence of documentation" that his prior conviction had been reduced to
a misdemeanor, then his trial counsel provided constitutionally ineffective assistance "in
failing to provide documentation for the trial court's consideration."
We conclude that Park's admitted prior serious felony conviction is a prior serious
felony conviction for purposes of section 667(a) notwithstanding its 2006 reduction to a
misdemeanor under section 17(b)(3), and thus the court did not err by imposing the five-
year serious felony enhancement under section 667(a), the court's order denying Park's
Romero motion was not an abuse of discretion, and Park's ineffective assistance of
counsel claim is unavailing. Accordingly, we affirm the order and judgment.
FACTUAL BACKGROUND
A. The People's Case
In September 2007 a group of passers-by, including victim Eric Joseph, attempted
to stop a fight in which defendant Park was involved.
B. The Defense Case
The defense presented no witnesses and offered no evidence other than the
following stipulation, which the court received in evidence:
"On September 17th, 2007, San Diego Police Department Officer,
Tim Peterson, interviewed [Joseph] at the hospital. Mr. Joseph had
been admitted to the hospital and medicated. Mr. Joseph stated that

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he stepped in front of his friend to protect him. He said he hit the
Asian male in the face. [The] [s]uspect then pulled out a black
handgun and shot at him three times. The next day[,] on September
18th, 2007, Detective Hoover spoke to [Joseph] in the hospital. Mr.
Joseph said he stepped between [his friend] and the shooter. The
shooter pulled out a gun. [Joseph] did not tell Detective Hoover that
he hit the shooter."
DISCUSSION
I. FIVE-YEAR PRIOR SERIOUS FELONY CONVICTION ENHANCEMENT
Park contends that the five-year sentence enhancement the court imposed under
section 667(a) for his prior serious felony conviction for assault with a deadly weapon
(§ 245(a)(1))2 should be stricken because that conviction, a wobbler,3 was reduced to a
misdemeanor in 2006 under section 17(b)(3)4 and dismissed under section 1203.4,
2 Section 245(a)(1) provides: "Any person who commits an assault upon the person
of another with a deadly weapon or instrument other than a firearm or by any means of
force likely to produce great bodily injury shall be punished by imprisonment in the state
prison for two, three, or four years, or in a county jail for not exceeding one year, or by a
fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment."
3 A wobbler is an offense that can be punished "as a felony or misdemeanor
depending upon the severity of the facts surrounding its commission." (People v.
Superior Court (Perez) (1995) 38 Cal.App.4th 347, 360, fn. 17.) Assault with a deadly
weapon in violation of section 245(a)(1) is a wobbler because it can be punished as a
felony or misdemeanor depending upon the severity of the facts surrounding its
commission, as shown by the provisions of that statute (see fn. 2, ante).
4 Section 17, subdivision (b)(3) provides: "(b) When a crime is punishable, in the
discretion of the court, by imprisonment in the state prison or by fine or imprisonment in
the county jail, it is a misdemeanor for all purposes under the following circumstances:
[¶] . . . [¶](3) When the court grants probation to a defendant without imposition of
sentence and at the time of granting probation, or on application of the defendant or
probation officer thereafter, the court declares the offense to be a misdemeanor." (Italics
added.)

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subdivision (a) (hereafter section 1203.4(a)),5 and thus the five-year enhancement is an
unauthorized sentence. We reject this contention.
A. Background
In 2003 Park was convicted in People v. Park (Super. Ct. Los Angeles County,
No. VA075018-03) of one felony count of assault with a deadly weapon (§ 245(a)(1)).
The court in that case suspended imposition of sentence and placed Park on formal
probation for three years on condition that he serve 180 days in jail, be subject to gang
conditions, receive violence counseling, among other terms and conditions.
On September 20, 2006, after Park completed his probation, his conviction was
reduced to a misdemeanor under section 17(b) and then dismissed under section 1203.4.
In the present case, Park's prior section 245(a)(1) conviction was alleged in the
information as a separately brought and tried serious felony conviction within the
5 Section 1203.4(a) provides in part: "In any case in which a defendant has fulfilled
the conditions of probation for the entire period of probation, . . . or in any other case in
which a court, in its discretion and the interests of justice, determines that a defendant
should be granted the relief available under this section, the defendant shall, at any time
after the termination of the period of probation, if he or she is not then serving a sentence
for any offense, on probation for any offense, or charged with the commission of any
offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo
contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea
of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court
shall thereupon dismiss the accusations or information against the defendant and except
as noted below, he or she shall thereafter be released from all penalties and disabilities
resulting from the offense of which he or she has been convicted, except as provided in
Section 13555 of the Vehicle Code. . . . However, in any subsequent prosecution of the
defendant for any other offense, the prior conviction may be pleaded and proved and
shall have the same effect as if probation had not been granted or the accusation or
information dismissed." (Italics added.)

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meaning of the five-year sentence enhancement provision set forth in section 667(a).6
After the jury returned its verdicts, Park waived his right to a jury trial with respect to that
enhancement allegation. When discussing Park's plea regarding that allegation, both Park
and his counsel indicated that the prior felony conviction had been reduced to a
misdemeanor. The court indicated, however, that the prior conviction was alleged as a
felony conviction and asked Park whether he wanted to "admit to having suffered that
felony conviction." Park replied, "Yes, Your Honor." The court asked him, "You
understood that you had the right to have the jury determine whether you had been
previously convicted of a felony?" Park responded, "Yes, Your Honor." Park also
answered "yes" when the court asked, "You waived that right to me earlier. Do you
understand that?"
The court also explained to Park the consequences of admitting he had suffered
that prior felony conviction. Specifically, the court stated that the prior conviction was "a
first serious felony prior and . . . a strike prior" and explained that it "dictates to me at
sentencing what I can do. Having a strike prior on your record at sentencing causes me to
deny you probation, deny you the right to bail. It also causes me to double any sentence
that I may impose upon you on the charges that the jury just returned the verdicts on."
6 Section 667(a)(1) provides: "In compliance with subdivision (b) of Section 1385,
any person convicted of a serious felony who previously has been convicted of a serious
felony in this state or of any offense committed in another jurisdiction which includes all
of the elements of any serious felony, shall receive, in addition to the sentence imposed
by the court for the present offense, a five-year enhancement for each such prior
conviction on charges brought and tried separately. The terms of the present offense and
each enhancement shall run consecutively." (Italics added.)

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The court asked Park, "Do you understand those are the consequences of having this
strike prior and this serious felony prior on your record?" Park replied, "Yes, Your
Honor." Knowing and understanding those facts, Park freely and voluntarily admitted
the existence of that prior felony assault with a deadly weapon conviction.
The prosecutor then stated, "I just also want to make clear [Park's] admitting it as a
serious felony prior as well under [section] 667(a)(1), 668 and 1192." (Italics added.)
The court responded, "[W]e'll note that," and then asked defense counsel, "You concur in
your client's admission?" Park's counsel answered, "Yes, your honor."
The court then made the following findings: "[Park] has knowingly and
voluntarily given up his right to jury trial on the prior. He has admitted to the prior. I
will . . . accept his admission and find that [Park] has previously been convicted of the
felony identified, and it's also alleged and will be found to be a first serious felony prior
pursuant to [sections] 667(a)(1), 668 and 1192.7[, subdivision ](c)." (Italics added.)
Before sentencing, Park moved for a new trial and brought his Romero motion to
strike the prior strike conviction. The court denied both motions, and sentenced Park to
a prison term of 24 years, which included a five-year term under section 667(a) for his
prior serious felony conviction.
B. Analysis
In support of his claim that the section 667(a) five-year enhancement is an
unauthorized sentence that should be stricken, Park relies on the provision of section
17(b)(3) that indicates that, when a court reduces a felony wobbler offense to a

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misdemeanor under the circumstances specified in that subdivision (see fn. 4, ante), it "is
a misdemeanor for all purposes." (Italics added.)
Thus, Park suggests that because his prior serious felony conviction was reduced
under section 17(b)(3) to a misdemeanor "for all purposes" that conviction now must be
deemed a prior misdemeanor conviction for purposes of section 667(a), which, as Witkin
explains, "applies when a defendant convicted of a serious felony in the present case has
a prior conviction of a serious felony in California." (3 Witkin & Epstein, Cal. Crim.
Law (3d ed. 2000) Punishment, § 340, p. 439, italics added.) Thus, he contends, his five-
year enhancement is an unauthorized sentence because his prior serious felony conviction
is now only misdemeanor conviction and section 667(a) does not apply.
Park's contention is unavailing. As the record shows his prior serious felony
conviction was dismissed under section 1203.4 after it was reduced to a misdemeanor
under section 17(b)(3), we must consider the provisions of section 17(b)(3) together with
those of section 1203.4 in determining the effect of the section 17(b)(3) reduction of that
conviction to a misdemeanor on the applicability and operation of section 667(a) in this
case. Of particular significance here is the provision in section 1203.4(a) (see fn. 5, ante)
that, "in any subsequent prosecution of the defendant for any other offense, the prior
conviction . . . shall have the same effect as if probation had not been granted or the
accusation or information dismissed." (Italics added.)
Thus, although Park's prior serious felony conviction was reduced to a
misdemeanor under section 17(b)(3) and then dismissed, under the plain language of
section 1203.4(a) that prior serious felony conviction has "the same effect" in the current

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prosecution "as if probation had not been granted or the accusation or information
dismissed." Construing sections 17(b)(3) and 1203.4(a) together, we conclude for
purposes of section 667(a) in the instant criminal prosecution that Park's admitted prior
serious felony conviction continues to be a prior serious felony conviction
notwithstanding its 2006 reduction to a misdemeanor under section 17(b)(3).
Our conclusion is consistent with People v. Feyrer (2010) 48 Cal.4th 426, in
which the California Supreme Court recently explained that, "[w]hen a trial court grants
probation without imposing a sentence, sections 17 and 1203.4, read together, express the
legislative purpose 'that an alternatively punishable offense remains a felony . . . until the
statutory rehabilitation procedure has been had, at which time the defendant is restored' to
his or her former legal status in society, subject to use of the felony for limited purposes
in any subsequent criminal proceeding." (Feyrer, supra, at pp. 439-440, italics added,
quoting People v. Banks (1959) 53 Cal.2d 370, 391.)
Our conclusion that Park's admitted prior serious felony conviction continues to be
a prior serious felony conviction for purposes of section 667(a), notwithstanding its 2006
reduction to a misdemeanor under section 17(b)(3), also finds support in the provisions of
article I, section 28, subdivision (f)(4) of the California Constitution, which were
originally enacted in 1982 as section 28, subdivision (f) of that article as part of The
Victims' Bill of Rights (Proposition 8) (People v. Castro (1985) 38 Cal.3d 301, 305) and
were recodified without change as a result of the voters' approval of Proposition 9 in
2008. (See Cal. Const., former art. I, § 28; cf. Cal. Const., art. I, § 28, subd. (f)(4).)
Article I, section 28, subdivision (f)(4) provides in part:

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"Any prior felony conviction of any person in any criminal
proceeding, whether adult or juvenile, shall subsequently be used
without limitation for purposes of . . . enhancement of sentence in
any criminal proceeding." (Italics added.)
Under the foregoing plain language of California Constitution article I, section 28,
subdivision (f)(4), "[a]ny" prior felony conviction "shall" be used in any subsequent
prosecution "without limitation for purposes of . . . enhancement of sentence." Thus,
Park's prior serious felony conviction must be used "without limitation for purposes
of . . . enhancement of sentence" in the current criminal prosecution notwithstanding the
2006 reduction of that conviction to a misdemeanor under section 17(b)(3).
Furthermore, to the extent they cannot be reconciled, California Constitution,
article I, section 28, subdivision (f)(4) prevails over Penal Code section 17(b)(3). It is
well established that when two laws "governing the same subject matter cannot be
reconciled the later in time will prevail over the earlier." (Los Angeles Police Protective
League v. City of Los Angeles (1994) 27 Cal.App.4th 168, 178; Fuentes v. Workers'
Comp. Appeals Bd. (1976) 16 Cal.3d 1, 7.) "Subdivision (b)(3) of section 17 was added
by amendment in 1963." (People v. Wood (1998) 62 Cal.App.4th 1262, 1270, citing
Stats. 1963, ch. 919, § 1, pp. 2169-2170.) As already discussed, the provisions now
found in article I, section 28, subdivision (f)(4) of the California Constitution were
enacted in 1982 with the voters' approval of Proposition 8. (See People v. Castro, supra,
38 Cal.3d at p. 305.) Thus, as section 17(b)(3) predates those provisions, the latter
prevails to the extent its provisions cannot be reconciled with those of the former.

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We are also persuaded that our holding is supported by sound public policy.
Placing a criminal defendant on probation for a serious felony wobbler provides that
person an opportunity for rehabilitation, including the opportunity to have that felony
reduced to a misdemeanor under section 17(b)(3) and then dismissed under section
1203.4(a), if his or her performance on probation demonstrates rehabilitation. (See
People v. Feyrer, supra, 48 Cal.4th at pp. 439-440.) If a defendant knows that his or her
serious felony wobbler will be treated as a serious felony in the future, even if it has been
reduced to a misdemeanor under section 17(b)(3) and dismissed under section 1203.4(a),
the defendant will know that any subsequent serious felony conviction he or she suffers
may result in a five-year sentence enhancement under section 667(a). Such a rule
provides the defendant with a strong incentive to not reoffend.
Finally, Park's reliance on People v. Marshall (1991) 227 Cal.App.3d 502 is
unavailing. The Marshall court held that the trial court erred when it used the defendant's
prior felony conviction for burglary to impose a five-year sentence enhancement under
section 667(a) because the defendant's honorable discharge from the California Youth
Authority rendered his prior felony conviction a misdemeanor for all purposes by
operation of law under section 17, subdivision (c), which was added in 1976.7
(Marshall, supra, at pp. 504-505.) Marshall is inapposite as it did not address the import
7 Section 17, subdivision (c) provides: "When a defendant is committed to the
Youth Authority for a crime punishable, in the discretion of the court, by imprisonment in
the state prison or by fine or imprisonment in the county jail, the offense shall, upon the
discharge of the defendant from the Youth Authority, thereafter be deemed a
misdemeanor for all purposes."

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of Proposition 8 with respect to the issue presented here of whether a recidivist
defendant's prior serious felony conviction that has been reduced to a misdemeanor under
section 17(b)(3) and dismissed under section 1203.4 may be used in a prosecution for a
subsequent serious felony offense to impose a five-year sentence enhancement under
section 667(a).
II. ROMERO MOTION TO STRIKE THE PRIOR STRIKE CONVICTION
Park next contends the court abused its discretion by denying his Romero motion
to dismiss his prior strike conviction. We reject this contention.
A. Applicable Legal Principles
Section 1385, subdivision (a) (hereafter section 1385(a)) provides in part that a
trial court "may, either of [its] own motion or upon the application of the prosecuting
attorney, and in furtherance of justice, order an action to be dismissed. The reasons for
the dismissal must be set forth in an order entered upon the minutes."
In Romero, supra, 13 Cal.4th 497, the California Supreme Court held that section
1385(a) permits a court acting on its own motion to strike prior felony conviction
allegations in cases brought under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12).
(Romero, supra, at pp. 529-530.) The Romero court emphasized that "[a] court's
discretion to strike prior felony conviction allegations in furtherance of justice is limited.
Its exercise must proceed in strict compliance with section 1385(a), and is subject to
review for abuse." (Romero, at p. 530.) Although the Legislature has not defined the
phrase "in furtherance of justice" contained in section 1385(a), Romero held that this
language requires a court to consider both the constitutional rights of the defendant and

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the interests of society represented by the People in determining whether to strike a prior
felony conviction allegation. (Romero, at p. 530.)
In People v. Williams (1998) 17 Cal.4th 148, 161 (Williams), our state Supreme
Court further defined the standard for dismissing a strike "in furtherance of justice" by
requiring that the defendant be deemed "outside" the "spirit" of the Three Strikes law
before a strike is dismissed: "[I]n ruling whether to strike or vacate a prior serious and/or
violent felony conviction allegation or finding under the Three Strikes law, on its own
motion, 'in furtherance of justice' pursuant to . . . section 1385(a), or in reviewing such a
ruling, the court in question must consider whether, in light of the nature and
circumstances of his present felonies and prior serious and/or violent felony convictions,
and the particulars of his 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 he had not previously been convicted of one or more serious and/or violent
felonies ."
In People v. Carmony (2004) 33 Cal.4th 367 (Carmony), our high state court held
a trial court's decision not to dismiss a prior conviction allegation under section 1385 is
reviewed under "the deferential abuse of discretion standard." (Carmony, at p. 371.)
Carmony explained that when reviewing a decision under that standard, an appellate
court is guided "by two fundamental precepts. First, ' "[t]he burden is on the party
attacking the sentence to clearly show that the sentencing decision was irrational or
arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to
have acted to achieve legitimate sentencing objectives, and its discretionary

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determination to impose a particular sentence will not be set aside on review." '
[Citation.] Second, a ' "decision will not be reversed merely because reasonable people
might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting
its judgment for the judgment of the trial judge.' " ' [Citation.] Taken together, these
precepts establish that a trial court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree with it." (Id. at pp. 376-
377.)
B. Background
In support of his Romero motion to strike his 2003 prior serious felony and strike
conviction for assault with a deadly weapon (§ 245(a)(1), Park cited his background,
character, and prospects, noting that he had been working in Las Vegas in a position of
trust at the Mirage Casino at the time of his arrest in this matter, he was a youth pastor, he
had completed two years of college, and he wanted to work in casinos upon his release.
1. Ruling
Following oral argument, the court denied the motion, finding that Park is a
"violent felon [and] repeat offender" who "does not fall outside the spirit of the Three
Strikes law." In exercising its discretion, the court reviewed the factors discussed in
Williams, supra, 17 Cal.4th 148 (hereafter referred to as the Williams factors), and found
that Park's 2003 prior offense was violent in that he used "some type of stick or pole" and
the offense was not remote in time, his current offense was "extremely violent" because
he "took three shots at an unarmed victim," the two offenses were similar in that they
both involved the use of violence, Park has a criminal record both as a juvenile and as an

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adult, and his offenses "are increasing in severity" because he "went from stolen cars and
theft offenses to an armed assault" with a pole, which is a deadly weapon, and now to
assault with a gun.
The court noted that, "on the other side of the coin," there was "no issue of drug
addiction [and] no gang affiliation"; Park expressed willingness to rehabilitate himself.
He was educated and intelligent, held a job, and had family support.
C. Analysis
Applying the deferential abuse of discretion standard, as we must (Carmony,
supra, 33 Cal.4th at p. 371), we conclude Park has failed to meet his burden on appeal of
showing the court's denial of his Romero motion was an abuse of discretion. The record
shows the court understood both the scope of its discretion to strike the prior conviction
and the various Williams factors it was required to consider, which it did consider in
exercising its discretion. The court examined whether Park should be deemed outside the
spirit of the Three Strikes law, as it was required to do (Williams, supra, 17 Cal.4th at p.
161), and determined that Park is a violent recidivist felon who does not fall outside the
spirit of the Three Strikes law. In making this determination, the court made findings,
supported by the record, that Park's prior and current offenses were similar in that they
both involved the use of violence; Park has a criminal record both as a juvenile and as an
adult, and his offenses are "increasing in severity." The court did not neglect to consider
Park's positive attributes, such as his expressed willingness to rehabilitate himself, his
employment, education, and family support, and the fact that he is not addicted to drugs
and has no gang affiliation.

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As discussed, ante, an appellant does not carry his burden on appeal by merely
showing reasonable people might disagree on whether to strike a prior conviction
allegation. (Carmony, supra, 33 Cal.4th at p. 378.) Here, at best, Park has merely shown
reasonable people might disagree on whether to strike the prior conviction allegation.
Accordingly, we affirm the court's order denying his Romero motion.
III. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
Last, Park contends that, if this court determines the trial court's exercise of
discretion in refusing to dismiss his prior strike conviction was "impacted by the absence
of documentation" that his prior conviction had been reduced to a misdemeanor, then his
trial counsel provided constitutionally ineffective assistance "in failing to provide
documentation for the trial court's consideration." This contention is unavailing.
A. Applicable Legal Principles
Generally, in order to show that defense counsel provided ineffective assistance at
trial, the burden is on the defendant to show both " 'that [his] counsel's performance fell
below an objective standard of reasonableness; and . . . that there is a reasonable
probability that, but for counsel's unprofessional errors, a determination more favorable
to defendant would have resulted. [Citations.] If the defendant makes an insufficient
showing on either one of these components, the ineffective assistance claim fails."
(People v. Holt (1997) 15 Cal.4th 619, 703.)
B. Analysis
Park asserts that, "[a]lthough it was mentioned in [his Romero motion] papers that
[his] prior conviction had been reduced to a misdemeanor, that information was not

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corroborated in the probation report, and was not mentioned by the trial court as a factor
it considered in determining whether to strike [Park's] prior strike conviction." He
contends "[t]hese circumstances suggest the trial court may not have fully considered the
circumstance that the prior conviction was ultimately deemed a misdemeanor, and
dismissed" (italics added), and thus, "[t]o the extent this Court finds the trial court's
exercise of discretion to have been impacted by the absence of documentation concerning
the ultimate disposition of the prior, then trial counsel was ineffective in failing to
provide documentation for the trial court's consideration."
The record shows the court carefully and properly considered the circumstances
underlying the prior conviction, not its legal status as a felony or misdemeanor. The
record shows the court read Park's Romero motion papers, which expressly informed the
court that "[t]he 2003 conviction that [he] admitted to was reduced to a misdemeanor by
the sentencing court, which was aware of all the facts and circumstances of that case.
Knowing about those circumstances, the court in that case deemed that the offense was a
misdemeanor." The court was thus aware of the reduction of the prior felony conviction
to a misdemeanor, which, in any event, was not relevant to its ruling on Park's Romero
motion. While the circumstances underlying the prior conviction were relevant under
Williams, supra, 17 Cal.4th at page 161, which requires the trial court to consider "the
nature and circumstances of [the defendant's] . . . prior serious and/or violent felony
convictions," the reduction of the prior conviction to misdemeanor status was not.
Park's ineffective assistance of counsel claim is based on mere speculation that
defense counsel's failure to document that the prior serious felony conviction had been

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reduced to a misdemeanor contributed to the court's well-supported decision to deny
Park's Romero motion. We conclude Park has failed to meet his burden of demonstrating
either that his counsel's performance fell below an objective standard of reasonableness
or that, assuming counsel committed the alleged unprofessional error, there is a
reasonable probability that, but for that assumed error, a determination more favorable to
Park would have resulted.
DISPOSITION
The judgment and order are affirmed.
NARES, J.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.

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