Filed 2/6/14 P. v. Rosell CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,
Plaintiff and Respondent,

v.
KERRY LYNN ROSELL,
Defendant and Appellant. B242761
(Los Angeles County Super. Ct. No. YA078491)

APPEAL from a judgment of the Supe rior Court of Los Angeles County. James R. Brandlin, Judge. Affirmed.

Ralph H. Goldsen, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Ta ryle and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.

_____________ ____________2 Kerry Lynn Rosell (Rosell) was convicted on five counts of robbery (Pen. Code, § 211) 1 and one count of attempti ng to dissuade a witness (§ 136.1, subd. (a)(2)). After considering the impact of firearm enhancem ents (§ 12022.53, subd. (b)) and the Three Strikes law (§ 667), the trial court sentenced Rosell to 210 years to life in state prison. On appeal, Rosell contends: (a) there was insufficient evidence of attempted witness dissuasion; (b) he was prejudiced when the tria l court failed to proper ly instruct the jury on attempted witness dissuasion; and (c) he re ceived ineffective assi stance of counsel at sentencing because counsel failed to competen tly argue that Rosell fell outside the spirit
of the Three Strikes law and the trial court sh ould strike one of the prior serious and/or
violent felonies.
We find no e rror and affirm.
FACTS Rosell’s History Rosell was born in August 1988. At age 14, in 2002, Rosell was arrested for sexual battery (§ 243.4, subd. (d)) and issuing terrorist threats (§ 422). The petition f iled against him was sustained. In 2004, he
was arrested for assault with a deadly weapon (§ 245, subd . (a)(2)). In 2005, when he was 17 years old, Rosell was arrested for burgl ary (§ 459). The arresting officer’s report indicated that Rosell and another suspect burg larized and ransacked the victim’s home.
Not until 2006 was Rosell convict ed on the 2004 and 2005 cr imes. In connection with the 2004 crime, he was sentenced to four y ears in state prison. However, he was found unfit for state prison and ordered housed at the California Youth Authority (CYA). With respect to the 2005 crime, he received the same four years in the CYA. He was paroled on February 27, 2010.
The Information In an information filed by the Los Ange les County District Attorney, Rosell was charged with five counts of second degree robbery (§ 211) and one count of attempting to

1 All further statutory references are to the Penal Code unless otherwise indicated.3 dissuade a witness (§ 136.1, subd. (a)(2)). Re garding the robberies, it was alleged that Rosell personally used a firear m (§ 12022.53, subd. (b)). It was further alleged that Rosell had two prior serious fe lony convictions or juvenile adjudications within the meaning of section 667, subdivision (a)(1), s ection 667, subdivisions (b) through (i) and section 1170.12, subdivisions (a) through (d)), and that he suffered a prior prison term within the meaning of section 667.5, subdivision (b).
Evidence Presented at Trial
The robberies Rosell approached two sisters on a street in Culver City and demanded their purses. When they did not comply right away , Rosell took out a gun and pointed it at the
head of one sister. He took their purses, and also one si ster’s keys, then ran away. About a week later, in the City of Gardena, Rosell robbed Rachel Cho (Cho) and two friends at gunpoint and absconded with Cho’s pursue, the first friend’s wallet and the second friend’s money clip. Rosell’s attempt to dissuad e Cho from testifying After his arrest, Rosell was housed in the North County Corr ectional Facility in dormitory No. 922. From July 21, 2010, th rough August 30, 2010, Michael Amon (Amon) was housed there, too. Inmates were allowed to congregate in the dormitory’s day area. Consequently, Rosell and Amon had opportunities to interact with each other. Amon had several tattoos, one of which was a swastika. Typically, that tattoo signifies “white power.” Rosell is Black. On August 31, 2010, police officers from the City of Torrance detained Amon and searched him because he was on parole. Th ey recovered a note with the name “Rachel Cho” on it. It listed her college address in Northern California, the City of Gardena address where she was robbed, her date of birt h and her telephone numb er. Then the note stated: “This is [the] one that identified me in the six pack lineup. . . . [She] stays [in Northern California]. Th e [City of Gardena addre ss] is where the 211 o ccurred. [¶] . . . [¶] ‘Where the 211 occurred . . . I think is her parents’ house. I just need you to scare her to the point she doesn’t come to court, and leaves this case alone. She is the only one4 holding me.” Torrance Police Officer Nichol as Gambaiani thought somebody in Gardena might be in trouble, and that the note ma de it look like “either the subject we had contacted had already gone and somehow intimidated somebody, or was on his way to intimidate somebody [into] not showing up to court.” The Torrance police officers fo rwarded the note to Dete ctive Pam Robinson in the Gardena Police Department. She went to the North County Corre ctional Facility and searched a bag that contained various items that belonged to Rosell, including documents
that had been recovered from his cell. On e of the documents came from the Parole Boards Corrections Department and pertained to Amon. His name, address and phone
number was handwritten on the back of th e document. A second document was a printout of the following query on a legal advice Web site: “‘Will the case be dismissed if a witness does not show up in court.’” A forensic document examiner compared four documents taken from Rosell’s cell
to the note recovered from Amon. The ex aminer concluded that the handwriting came
from the same author. The Verdict; Findings on the Special Allegations The jury found Rosell guilty on all six counts and found the fi rearm allegation in each robbery count to be true. After a benc h trial on the prior conviction allegations, the trial court found that Rosell had two prior se rious felony convictions, and that he had served one prior prison term. Sentencing The prosecution filed a brief requesting th at Rosell be sentenced consecutively and to the maximum due to the following factor s in aggravation under California Rules of Court, rule 4.421(a) and (b): Rosell robbed five different victims at gunpoint. In the first robbery, he pushed one of the si sters. In the second robbery, he threatened to shoot one of Cho’s friends if he did not comply w ith Rosell’s demands. The robberies occurred over the course of about two weeks, and his pattern of conduct demonstrated a serious danger to society. After he was arrested a nd jailed, he obtained the assistance of a fellow inmate to scare Cho so she would not testify. He was convicted of assault with a firearm5 (§ 245, subd. (a)(2)) and first degree reside ntial burglary (§ 459) on February 28, 2006, and when he was a minor in 2002, a juvenile court sustained allegations that he issued a criminal threat (§ 422) and perpetrated two sexual batteries (§ 243.4, subd. (d)). Rosell served concurrent state prison sentences as a re sult of two criminal cases. At the time he committed the robberies, he was on parole, making his pr ior performance on parole unsatisfactory. Based on the foregoing, the pr osecution asked the trial court to sentence Rosell to an indeterminate sentence of 200 ye ars to life with a cons ecutive and additional terms of 11 years. At the hearing, Rosell’s counsel argued fo r what the trial court perceived to be a 45-year second strike sentence. It stated: “I guess the question that I would have of you is in order to reach a second strike sentence, I would have to make, in essence, a factual finding that [Rosell] falls outside of the sp irit of the Three Strikes Law. [¶] As you know, the court is required to look at his prior criminal history, the facts of this case, and any mitigating circumstances offered by the defe nse. [¶] His prior criminal history is significant. And he’s a young man, but even at age 14, he had a juvenile petition for sexual battery and for terrorist threats. [¶] In 2004, he had a conviction that resulted in a CYA commitment for shooting into an inhabited dwelling and assault with a firearm. [¶] And then in 2005, is this ot her burglary case in which he was sentenced to the Youth Authority, presumably for that co ncurrent term. [¶] And then on this case, while he’s in custody, he affirmatively attemp ts to intimidate a w itness. [¶] It’s pretty hard to see mitigating circumstances based on that conduct. [¶] I’m really concerned about the public safety issues that are involved w ith an individual who commits repeated
robberies.” In response, Rosell’s counse l argued that a 45-year sentence would be an adequate punishment. He pointed out that the victims of the charged crimes were not brutalized, and then stated: “I know [Rosell’s] crimes , which took place early on in his particular life—we have the two things in Compton whic h were on the same date that he took the plea. And we have the juven ile matters. [¶] I’m asking th e court to simply give him some mercy at this time.”6 Following this colloquy , the trial court stated: “First with regards to the motion to strike under [ People v. Superior Court ( Romero ) (1996) 13 Cal.4th 497], . . . section 1385, I do not find that [Rosell] falls outside the spirit of the Three Strikes Law. [¶] Given the aggravated facts of this particul ar case, I think it would be an abuse of discretion to strike [one of the priors].” The trial court imposed sentences of 25 ye ars to life on each of the six counts, all to run consecutively. Regarding the robbery counts, the sentences were enhanced by10 years due to the firearm allegations. Fi nally, the trial court imposed five-year enhancements under section 667, subdivision (a)(1) based on the two prior serious felony convictions. Based on an aggreg ation of all the sentences, Rosell was sent to state prison for 210 years to life with 870 days of credit. This timely appeal followed.
DISCUSSION I. Attempted Witness Dissuasion.
Rosell contends that there was insuffici ent evidence to conv ict him of witness dissuasion pursuant to section 136.1, subdiv ision (a)(2). Thus, we are called upon to apply the substantial evidence test. Accordi ngly, we “‘must review the whole record in the light most favorable to the judgment below to determine whether it discloses
substantial evidence —that is, evidence which is reas onable, credible, and of solid
value—such that a reasonable trier of fact could find the defe ndant guilty beyond a reasonable doubt.’” ( People v. Cuevas (1995) 12 Cal.4th 252, 260.) “The standard of review [is not altered] in ca ses in which the prosecution re lies mainly on circumstantial evidence. [Citation.] ‘“Althou gh it is the duty of the jury to acquit a defendant if it finds
that circumstantial evidence is susceptible to two interpreta tions, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which
must be convinced of the defendant’s guilt beyond a reasonable doubt.”’” ( People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Section 136.1, subdivision (a)(2) provid es that a person is guilty of a public offense if he “[k]nowingly and maliciously atte mpts to prevent or di ssuade any witness or7 victim from attending or giving testimony at any trial, procee ding, or inquiry authorized by law.” Regarding all attempts, section 21a provides: “An attempt to commit a crime consists of two elements: a specific inte nt to commit the crime, and a direct but
ineffectual act done toward its commission.” To qualify as an attempt, an act “must go beyond mere preparation and show that the [d efendant] is putting his or her plan into action; it need not be the last proximate or ultimate step toward commission of the crime or crimes [citation], nor need it satisfy any element of the cr ime [citation].” ( People v. Superior Court ( Decker ) (2007) 41 Cal.4th 1, 8.) It ma y be enough that the defendant takes the first step toward committing a crime after the preparations have been made. ( Ibid .) Our Supreme Court has “long recognized that ‘[w]henever the design of a person to commit [a] crime is clearl y shown, slight acts in furtherance of the design will constitute an attempt.’ [Citations.]” ( Id . at p. 9.)
Case law establishes that a trier of fact must measure, to a degree, the probability that the defendant’s actions will actually resu lt in a crime if the facts are as he or she believes them to be. As explained in In re Ryan N. (2001) 92 Cal.App.4th 1359, 1383– 1384 ( Ryan N. ): “‘[W]hen commission of the substan tive offense is factually impossible, a defendant may be convicted of an attempt to commit the offense when it is proven that he had the specific intent to commit the offense and did thos e acts he believed necessary
to consummate it but failed to commit the statutory offense because, unknown to the actor, one or more of the essential elements of the offense were lacking.’ [Citation.] Thus, a defendant may be convicted of an attempt to commit a crime where there is
sufficient evidence to demonstrat e that the means used by th e defendant, together with the surrounding circumstance s, made the intended crime apparently possible . ‘“If there is an apparent ability to commit the crime in the way attempted, the attempt is indictable, although, unknown to the person making the attempt, the crime cannot be committed, because the means employed are in fact unsuitable, or because of extrinsic facts, such as the nonexistence of some essential object, or an obstruction by the intended victim, or by a third person.”’ [Citations.]”8 Regarding the public policy behind punishing a defendants who attempts to commit a crime, People v. Toledo (2001) 26 Cal.4th 221, 230 ( Toledo ), had this to say: “‘One of the purposes of the criminal law is to protect society from those who intend to injure it. When it is estab lished that the defendant intende d to commit a specific crime and that in carrying out this intention he committed an act th at caused harm or sufficient danger of harm, it is immateri al that for some collateral re ason he could not complete the intended crime.’ [C itation.]” From Ryan N. and Toledo , we glean that an attempt is not a
crime unless it creates a danger of harm. According to Rosell, his conviction for attempted dissuasion should be reversed because there is no evidence permitting a jury to conclude beyond a reasonable doubt that he asked Amon to scare Cho, or that Amon a ssented. In particular, Rosell argues that Amon’s possession of a note written by Rose ll does not establish that they ever communicated. He labels Amon a white supremac ist and argues that it is improbable that he would help a black man. Rosell suggest s that a more likely explanation for why Amon possessed the note was that he stole it w ith the intention of blackmailing Rosell to further some racist agenda. In addition, Rosell suggests that there was no attempt unless
Amon intended to dissuade Cho. We cannot accede to Rosell’s position. He co ntends that the only evidence offered by the prosecution of attempted witness di ssuasion was Amon’s possession of the note and Officer Gambaiani’s testimony that the note suggested to him that Amon had already intimidated Cho, or was about to. The jury , however, was also presented with evidence that Rosell possessed parole paperwork pert aining to Amon, and also Amon’s name, address and telephone number. This eviden ce suggests that Rosell had communicated with Amon, and it undermines Rosell’s speculation that Amon possessed the note because he stole it. Moreover, the fact th at Rosell had Amon’s co ntact information and Amon was carrying the note with him after being released from jail supports the
reasonable inference that Rosell solicited Amon’ s participation in a scheme to dissuade Cho from testifying, and that Amon ag reed to participate. Based on Ryan N. and Toledo
, Amon’s intent is immaterial. What matter s is whether Rosell be lieved he had done9 everything necessary to make the crime appare ntly possible. The reasonable inferences
establish that belief. Next, Rosell contends: “Assuming, arguendo, that the evidence in this case could support a verdict of solicitation, [Rosell] submits that solicitati on is not invariably sufficient to prove an attempt. ” By this, we take Rosell to mean that he was guilty of criminal solicitation, at most. It is a crime punishable by no more than a year in jail to solicit another to dissuade a witness from testifying. (§ 653f, subd. (a ).) To prove solicitation, the prosecution must show that a soliciting message was rece ived by the intended recipient. ( People v. Saephanh (2000) 80 Cal.App.4th 451, 458.) On a continuum between solicitation of a crime and an attempted crim e, there is overlap. ( Decker, supra, 41 Cal.4th at p. 12 [When discussing attempted murder, the cour t explained that there can be overlap
“between evidence that would tend to prove solicitation to murder and that which would tend to prove attemp ted murder”].)
The evidence here was sufficient to show a solicitation. The que stion is whether it also showed an attempt. The answer is yes. Like here, the defendant in People v. Foster (2007) 155 Cal.App.4th 331 ( Foster ) argued that he was guilty of a solicitation at most. The court concluded otherwise. It found an attempted dissuasion when the defenda nt asked a third party to inform a witness of “the consequences she woul d suffer if she testified.” ( Id . at p. 335.) According to the court, the defendant “went beyond mere pr eparation and committed an attempt when he put his ‘plan into action’ by co nveying the threat he wanted [the third party] to deliver. [Citation.] . . . By soliciting a third party to convey his wishes to the victim, [the defendant] accomplished ‘“some appreciable fragm ent of the crime . . . .”’ [Citation.] He directed how [the victim] would be dissuad ed and controlled the content of the threats by giving [the third party] (1) instructions on how to contact [the victim]; (2) the precise messages to deliver; and (3) obtaining [the thir d party’s] assurance that she would deliver them. . . . [The defendant’s] directions to [the third party] constituted an attempt to dissuade because they were ‘“act s done in furtherance of [h is] design”’ [citation] and her10 agreement to deliver the messag es ‘made the intended crime apparently possible ’ [citation]. [The defendant] co mmitted his attempt notwithstandi ng that [the third party] did not follow through. [Citation.] [The defendant] did everything necessary to ensure that his threat was carried out.” ( Id . at p. 336.) In the case at bar, Rosell put his plan into action by (1) researching where Cho lived while away at college a nd while at home with her parent s, her date of birth and her telephone number; (2) researching whether a case will be dismissed if a witness does not appear to testify; (3) discovering that Ch o had identified him during a six-pack lineup; (4) asking Amon to dissuade Cho from testifying; (5) telli ng Amon where Cho could be located in college and in Gardena; (6) givi ng Amon the specific instruction to scare Cho to the point she did not go to court; and (7 ) securing Amon’s consent to dissuade Cho, making the crime apparently possible. Under Foster , Ryan N. and Toledo , the direct and circumstantial evidence was enough to show an attempt because Rosell believed he did everything necessary to dissuade Cho.
Rosell would have us use the facts in Decker as the one and only yardstick for assessing the overlap between so licitation and attempt. In that case, the evidence showed
that the defendant located an a ssassin to kill his sister. “H e furnished the hired assassin with a description of his sister, her home, he r car, and her workplace, as well as specific information concerning her daily habits. He al so advised the assassin to kill [the sister’s friend] if necessary to avoid leaving a witn ess behind. [The defendant] and the hired assassin agreed on the means to commit th e murder, the method of payment, and the price. The parties also agreed that [the defendant] would pay $5,000 in cash as a downpayment. Before [he] handed over th e money, the assassin asked whether [the defendant] was ‘sure’ he want ed to go through w ith the murders. [He] replied, ‘I am absolutely, positively, 100 percen t sure, that I want to go thro ugh with it. I’ve never been so sure of anything in my entire life.’” ( Decker
, supra , 41 Cal.4th at p. 4.) To distinguish Decker , Rosell points out, inter alia, that there is no evidence that Amon
received consideration. But the Decker court never stated that consideration was a fact that tipped the scales from solic itation to attempt. It simp ly counted that as one fact11 indicating that a plan was put into action. ( Id . at p. 9.) The court made clear that the
issue was whether the defendant had knocked over the first dom ino in his plan such that there was nothing left for him to do. In ou r view, Rosell knocked over that domino once he secured Amon’s assent to the dissuasion plan. Underneath our analysis is the following idea. The relevant inquiry is not, as Rosell suggests, whether there is an accretion of threshold facts such as an agreement and consideration, but whether the circumstances in the particular case establish that witness dissuasion was apparently possible and therefor e, at least as far as the defendant was concerned, there was real danger that the witness dissuasion would actually be committed. Thus, it is conceiva ble that there are scenarios in which a jury could find an attempted dissuasion even though the defend ant never reached an agreement with a solicited party. For example, if a defend ant knows that leavi ng a voice mail message requesting help from a fellow gang member w ill result in a witness being dissuaded, and if there is a history or cultu re supporting the defendant’s be lief, that may be enough for a
conviction under section 136. 1 even though the defendant never secured an agreement from the fellow gang member to follow through. On the other hand, if a defendant solicits a stranger to dissuade a witness and does not obtain an agreement, or if a defendant obtains an agreemen t from a stranger to dissuade a witness but circumstances known to the defendant make it impossible fo r the dissuasion to occur, that may be a solicitation but not an attempt. II. The Jury Instructio n on Witness Dissuasion. After the close of evidence, the trial cour t identified the jury instructions that it planned to give to the jury . The list included CALCRIM No . 2622, but did not include
CALCRIM No. 460. 2 There was no objection. Per CALCRIM No. 2622, the trial court

2 If CALCRIM No. 460 had been given in this case, the beginning portion of it would have read as follows: “[Rosell] is charged [in Count 6] with attempted [witness dissuasion.] [¶] To prove that [Rosell] is gu ilty of this crime, the People must prove that: [¶] 1. [Rosell] took a direct but ineffec tive step toward committing [witness dissuasion]; AND [¶] 2. [Rosell] intended to commit [witness dissuasion]. [¶] A direct step requires more than merely planning or preparing to commit [witness dissuasion] or obtaining or12 instructed the jury, in ter alia, that Rosell violated sec tion 136.1, subdivision (a)(2) if he “maliciously tried to prev ent/or discourage Rachel Ch o from attending or giving testimony at a court proceeding.” 3 Rosell argues that this instruction was de ficient because it failed to convey that mere preparation is not enough for an attempt, and there is no attempt absent a direct but
ineffectual act done toward the commission of a crime. In other words, instructing that the first element of the offense required a show ing that he tried to prevent or discourage Cho from testifying is an incorrect statemen t of the law. Pushing the issue, Rosell contends that the word “attempt” does not ha ve a straightforward dictionary meaning,
and that the word was not even used in the instruction. As a result, he maintains that the instruction allowed the jury to conclude that he tried to dissuade Cho merely by writing

arranging for something needed to commit [witness dissuasion]. A direct step is one that goes beyond planning or preparation and show s that a person is putting his or her plan into action. A direct step indicates a defi nite and unambiguous inte nt to commit [witness dissuasion]. It is a direct movement towards the commission of the crime after preparations are made. It is an immediate st ep that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt.”

3 The trial court instructed: “The defendant is charged in coun t 6 with intimidating a witness, in violation of Pena l Code section 136.1. [¶] To prove that the defendant is guilty of this crime, the People must prove th at: [¶] one, the defe ndant maliciously tried to prevent or discourage Rachel Cho fro m attending or giving testimony at a court proceeding; [¶] two, Rachel Cho was a crime victim; [¶] and three, the defendant knew he was trying to prevent or discourage Rachel Cho from attending or giving testimony at a court proceeding, and intended to do so. [¶] A person acts maliciously when he or she unlawfully intends to an noy, harm, or injure someone else in any way, or intends to interfere in any way with the orderly administ ration of justice. [¶] As used here, a witness means someone, or a person the de fendant reasonably belie ved to be someone, who knows about the existence or nonexistence of facts relat[ing] to a crime, or who has reported a crime to a peace officer, or who ha s been served with a subpoena issued under the authority of any state or federal court. [¶] A person is a victim if there is a reason to believe that a federal or state crime is bei ng or has been committed or attempted against him or her. [¶] It is not a defense that th e defendant was not successful in preventing or discouraging the victim or witness. It is not a defense that no one was actually physically injured or otherwise intimidated.”13 the note. In conclusion, Rosell avers that “the instructional error of failing to define the elements of an attempt, usi ng CALCRIM 460 or lang uage similar to that instruction, was presumptively prejudicial.” The People opine that “[i]n requiring a show ing that [Rosell] ma liciously ‘tried’ to prevent or discourage the witn ess there was no danger that a jury would think that a defendant could be convicted without a showing that he had taken some step[s] to put his plan into motion. To the contrary, CALCRI M No. 2622 sufficiently conveyed the legal principle that a slight act performed in fu rtherance of a design to commit a crime will constitute an attempt. Accord ingly, the trial court had no sua sponte duty to clarify what was meant by the wo rd[] ‘tried.’” Assuming without deciding that CAL CRIM No. 2622 was in complete in the context of this case, or th e instruction was ambiguous ( Estelle v. McGuire (1991) 502 U.S. 62, 77, or the trial court otherwise e rred by not giving sua sponte instructions on the principles applicable to attempt crimes ( People v. Breverman (1998) 19 Cal.4th 142, 154), we find no basis to reverse. A trial court’s failure to in struct on all elements of an
offense is not reversible error under the fe deral Constitution if it was harmless beyond a reasonable doubt. ( People v. Bell (2009) 179 Cal.App.4th 428, 439.) If a trial court gives an instruction that “is potentially ambiguous or misleading, the instruction is not
reversible error unless there is a reasonable likelihood that the juro rs misunderstood or misapplied the pertinent instruction. [Citations.]” ( People v. Iboa (2012) 207 Cal.App.4th 111, 121.) Under either standa rd, Rosell’s conviction for violating section 136.1, subdivision (a)(2) must stand. Beyond a reasonable doubt, the jury w ould have convicted Rosell of attempted witness dissuasion had they be en instructed with CALCRIM No. 460 or language similar to that instruction. During closing argume nt, Rosell’s attorney stated that Rosell’s fingerprints were not on the note recovered fr om Amon, and then stated: “So we have a document that by itself, could prove [the attemp ted dissuasion count], if [the prosecution] could link [Rosell] to that piece of paper.” According to the attorn ey, the origins of the note were “hard to believe[.]” The jury coul d not have convicted Rosell on the attempted14 dissuasion count had it not believed that he wr ote the note or was somehow linked to it. As for how Amon came into possession of the note, there was only one reasonable explanation: it was given to him by Rose ll. The evidence s howed that Rosell knew about Amon’s parole and had hi s contact information, and they had access to each other while in jail. We have not been advised of any evidence suggesting that Amon stole the note out of Rosell’s cell, or even that Amon had the opportunity. The note had no intrinsic value, and there wa s no evidence that Amon tried to use it for blackmail. Thus, the only reasonable explanation for Amon’s posse ssion of the note was that he had agreed to dissuade Cho, and that Rosell gave the note to Amon as a result. Indeed, there was no apparent reason for Amon to take the note out of jail except to act on Cho’s information. Ineluctably, the evidence and reasonable infe rences pointed to the crime of attempted
dissuasion. Nor is there a likelihood that the ju ry misunderstood and misapplied CALCRIM No. 2622. The common understanding of th e word “tried” is the equivalent of “attempted” and denotes an effo rt designed to achieve a goal, an effort that makes initial use of any preparations. Preparation, in common understanding, does not qualify as trying or attempting. Thus, th ere was no realistic danger that the jury believed that Rosell committed the crime of attempted dissuasion simply by writing the note regarding Cho,
and that Rosell did not do ever ything he believed necessary, absent intervening causes,
for Cho to be dissuaded.
III. Ineffective Assistance of Counsel at Sentencing. Rosell argues “that had trial counsel iden tified and explained the mitigating effect of [Rosell’s] juvenile conduct and mental disorder, the trial court would likely have concluded that [he] fell outside the spirit of the Three Strikes law.” This argument lacks
merit.
To demonstrate ineffective assistance of counsel, a defendant must show that counsel’s action was deficient and prejudicial. To establish prejudice, a defendant must demonstrate that there is a reasonable probab ility that he or she would have obtained a
more favorable result absent de ficient representation. In general, the Court of Appeal15 will presume that counsel’s reasonable tactic al decisions meet professional standards of competence. Counsel’s decisi onmaking will be assessed on ly in the context of the available facts. ( People v. Hinton (2006) 37 Cal.4th 839, 87 6.) Typically, a claim of
ineffective assistance of counsel must be rais ed by writ of habeas corpus, not appeal. An ineffective assistance of counsel claim may be reviewed on direct appeal only when there can be no satisfactory explanation for counsel’s action or inaction. ( In re Darlice C. (2003) 105 Cal.App.4th 459, 463.) The first prong of the analysis is whet her Rosell’s counsel’s representation at the sentencing hearing was deficient because he failed to alert the trial court to facts permitting it to strike a prior serious and/or violent felony conviction. ( People v. Carmony (2004) 33 Cal.4th 367, 377.) Before striking a strike, “‘the court in que stion must consider whether, in light of the nature and circumstances of his present felonies and prior se rious and/or violent felony convictions, and the particulars of hi 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 he had not previously been convi cted of one or more serious and/or violent felonies.’ [Citation.]” ( People v. Carmony, supra , 33 Cal.4th at p. 377.) There is a presumption that “any sentence that conforms to [the] se ntencing norms is both rational and proper.” ( Id . at p. 378.) As a result, “a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not ‘aware of its discretion’ to dismiss [citation], or where th e court considered impermissible factors in declining to dismi ss [citation].” ( Ibid .) The circumstances must be extraordinary before
a career criminal will be deemed to fa ll outside the spirit of the law. ( Ibid .) Regarding Rosell’s crimes as a juvenile , he contends that counsel should have argued that this is not a case in which Rose ll committed previous armed robberies and the charged offenses can be seen as part of a pattern. He further contends that counsel “seems not to have known the details of the pr ior convictions or the legal significance of their juvenile character,” and that merely requesting mercy from the trial court was an16 unwarranted concession that on ly mercy could operate to reduce Rosell’s sentence. But, as Rosell admits, the circumstances surroundi ng his juvenile crimes were not developed in the record. It is impossi ble for us to determine the de gree to which they involved factors in mitigation or aggrav ation, except we do know th at he shot at an inhabited dwelling, suggesting a pattern of arming hims elf. The record also suggests that he ransacked a victim’s home during a burglary when he was 17 years old. At the sentencing hearing, counsel referred to Rosell’ s youth, and the record establishes that the
trial court was well aware of the crimes th at Rosell committed wh ile he was 14 to 17 years old. It is not clear what more counsel could have said to suggest that those crimes
should be discounted. Thou gh Rosell accuses counsel of not being sufficiently well versed in the facts, that is also something we cannot dete rmine from the re cord. We do
not know the nature of counsel’s research in to the case, nor are we privy to his thought process. Rosell, of course, argues that there can be no reasonable explanation for
counsel’s tactics. We are not convinced. What was Ro sell’s motive for his juvenile crimes? Did they exhibit cr iminal sophistication, or pe rhaps a callous disregard for human life? There are sufficient gray areas rega rding Rosell’s juvenile record that we are unable to conclude that the adequacy of co unsel’s representation ca n properly be assessed on direct appeal. Next, Rosell argues: “There is no psychiat ric opinion evidence in this record that [Rosell] suffered from any mental illness at th e time of the prior conv ictions or currently. However, on December 4, 2010, [Rosell’s] newly appointed APD attorney expressed ‘concerns’ about [Rosell’s] ment al health status. She specifi cally referenced a ‘previous diagnosis’ without mentioning de tails. She opined that she, personally, did not observe

any current indication of mental illness. . . . [¶ ] On January 3, 2011, the trial court’s review of a letter from [Rose ll’s] mother also revealed grounds to doubt [Rosell’s] competence to stand trial under Penal Code secti on 1368. The trial court went so far as to suggest that [Rosell’s] new attorney consider declaring a doubt regarding [Rosell’s] competency. . . . [¶] During the booking process, [Rosel l] advised the officer that he had previously been diagnosed with bipolar disord er. . . . [¶] While these record facts are17 ‘scant,’ they are certainly suffi cient to put defense counsel on notice that further inquiry and documentation is needed, and perhaps even appointment of an expert pursuant to Evidence Code section 730. . . . [¶] A mental condition that significantly reduces culpability for a crim e is a mitigating factor. . . . [¶] . . . Here, counsel had ample reason to conduct a further investigation[, but] appear s to have been indifferent or ‘busy’ with
other cases” and therefore faile d to inquire. (Fn. omitted.)
Because the record does not establish that Rosell has a mental illness, this is not a case where there is only one reasonable explan ation for counsel’s silence on the topic. We do not know what his personal observatio ns of Rosell were, nor do we know what
Rosell told counsel. Certai nly if counsel was aware of the possibility that Rosell was suffering from a mental illness, counsel had a dut y to inquire. But he may have, and he may have determined that Rosell did not have a mental illness. Thus, this issue cannot be decided on direct appeal.
Even if we concluded that counsel shou ld have argued differe ntly, we conclude that there was no prejudice. The trial court indicated that Rosell’s criminal history was significant, and that due to th e aggravated facts of the case, it would be an abuse of discretion to strike one of the priors and make this a second strike instead of a third strike case. Notably, Rosell used a firearm to co mmit five robberies while on parole, and then attempted to dissuade Cho from testifying. Given the trial court’s concern for the public’s safety, the trial court’s awareness th at the underlying strikes arose from Rosell’s conduct as a juvenile, and the paucity of evidence that Rosell suffered from bipolar disorder, it is not reasonably probable that counsel could have succeeded by advancing additional argument.18 DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______ ___________________, J. ASHMANN-GERST

We concur:

________________ _____________, P. J. BOREN

___________________ ___________, J. CHAVEZ