P. v. Allen

Filed 6/26/07 P. v. Allen CA5

Opinion following remand from U.S. Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Madera County. Edward P. Moffat, Judge.

James F. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Mary Jo Graves and Michael P. Farrell, Assistant Attorneys General, Louis M. Vasquez and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Curtis Allen was convicted of possession of cocaine base for sale and possession of cocaine base. (Health & Saf. Code,  11351.5, 11350, subd. (a).)^[1] In his appeal he contends the trial court abused its discretion when it denied his motions to relieve counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 and violated his Sixth Amendment right to a jury trial when it imposed an aggravated term.

In an unpublished opinion filed on November 18, 2005, we affirmed the judgment in its entirety. Allens petition for a writ or certiorari to the United States Supreme Court was filed on April 13, 2006. On February 20, 2007, Allens petition was granted and the matter remanded to us with an order to vacate our previous opinion and reconsider the matter in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856].

Cunningham held that Californias Determinate Sentencing Law violated the Sixth Amendment to the Constitution to the extent it permitted an aggravated sentence to be imposed on factors that were found true by the judge, not the jury, and were found true by a preponderance of the evidence instead of beyond a reasonable doubt. (Cunningham v. California, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 868].) The only exception to these requirements is the fact of a prior conviction. (Ibid.)

In light of Cunningham, we will reconsider the issue of Allens sentence. We will republish the remainder of our original opinion as it is not affected by the remand from the United States Supreme Court.

FACTUAL AND PROCEDURAL SUMMARY

Allen testified he recently had been released from prison and was visiting his sister when they decided to walk to the neighborhood store. On the way to the store, Allen noticed an unmarked police vehicle on the street. Allen, who is six feet nine inches tall, believed that at least one of the officers recognized him.

While in the store, Allen was approached by his paroleofficer, who had been in the unmarked car. The officer testified he searched Allen and found a plastic bag containing 11.72 grams of cocaine base. Another officer testified that in his opinion Allen possessed the cocaine base for sale.

Allen did not dispute the contents of the bag, but argued the drugs were planted on him by his paroleofficer. Allen theorized the police decided they needed to send him to prison so they could organize the local drug trade. Allen believed he was one of the few individuals who would stand up to the illegal police activities, and that is why they wanted him in jail.

Allen was charged with possession of cocaine base for sale ( 11351.5) and possession of cocaine base ( 11350, subd. (a)). The information also alleged Allen had a previous drug conviction pursuant to section 11370.2, subdivision (a), had suffered a prior conviction (strike) pursuant to Penal Code section 667, subdivisions (b) through (i), and had served a prior prison term pursuant to Penal Code section 667.5, subdivision (b).

Allens first trial ended in a mistrial when the jury deadlocked at eight to four in favor of acquittal. The second jury did not find Allen as believable and found him guilty as charged. In the bifurcated portion of the trial, the jury found the prior conviction allegation true. The trial court sentenced Allen to an aggravated term of five years on the possession for sale count, doubled pursuant to Penal Code section 667, subdivision (e)(1), plus three years for the prior drug offense, and one year for the prior prison term, for a total term of 14 years.^[2]

DISCUSSION

The Motions to Relieve Counsel

Allen was unhappy with counsel throughout the proceedings. The public defender initially represented him. He made a Marsden motion to relieve counsel. Allen withdrew the motion at the hearing, deciding he could work with the assigned attorney. Shortly thereafter the public defenders office was excused because of a conflict.

John A. Garvin from Madera Alternate Defense was appointed to represent Allen. Allen made two Mardsen motions, both before the first trial. He contends the trial court erred in denying these motions.

Allens first motion to relieve Garvin was made on June 11, 2003. Allen was unhappy because Garvin refused to make a motion to have the prior conviction allegation stricken from the information. Allen argued he was misled when he pled guilty to battery resulting in serious bodily injury. (Pen. Code,  243, subd. (d).) Allen believed the other charge he pled to at the same time, a drug offense, would be controlling and the battery therefore would not be considered a strike. He contended they told him the battery would not be a strike at the time he pled to the offense and, had he known it would be considered a strike, he would have gone to trial. When Garvin told Allen he would not make a motion because it had no merit, Allen made his Marsden motion. The trial court denied the motion, finding counsels tactical choices were not grounds to relieve counsel.

Allens second motion to relieve Garvin as counsel was made on December 29, 2003, the day before the first trial. In the hearing, Allen again reiterated his displeasure with Garvin for refusing to file a motion to strike his prior conviction. He also argued Garvin had not contacted two potential witnesses (Daron Graham and Ricky Fuller) and that there was a lack of communication between him and Garvin. Garvin denied Allen identified any potential witnesses and did not feel there was a problem in communication. Instead, Garvin felt Allen was unhappy with his advice.

Allen explained his dissatisfaction by stating the police had falsified the reports, and he could prove so through Graham and Fuller. Allen contended the police report stated the officers saw Allen walking towards the store and then saw him in front of the store talking to Graham and Fuller. Allen insisted he never talked with either Graham or Fuller, and therefore the police fabricated the meeting to justify the search. Allen argued that if the police lied about his meeting with Graham and Fuller, everything else in the report also must be fabricated. Garvin replied that he told Allen his Fourth Amendment rights were extremely limited because he was on parole and there was no violation of his rights. The trial court denied the motion, finding not a lack of communication but unhappiness with Garvins responses to Allens arguments.

A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. [Citation.] We review a trial courts decision declining to relieve appointed counsel under the deferential abuse of discretion standard. [Citation.] (People v. Earp (1999) 20 Cal.4th 826, 876.)

That Allen did not like his lawyer, or think highly of his competence, is not enough [to show a conflict of interest]. [I]f a defendants claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law. [Citation.] (People v. Memro (1995) 11 Cal.4th 786, 857.) In the same vein, Allens refusal to cooperate with his attorney would effectively give every defendant veto power over any appointment and does not establish a conflict of interest.

Moreover, as the trial court recognized, Allen was not entitled to veto power over reasonable tactical decisions. (People v. Memro, supra, 11 Cal.4th at p. 858.) Garvins tactical decisions about which Allen complains were reasonable. Allen first complained about the refusal to file a motion to strike the prior conviction allegation. Garvin was correct that Allen not being informed he was pleading guilty to a crime that qualified as a strike under the three strikes law is not grounds for striking the prior conviction. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1526 [fact that prior conviction was a serious or violent felony need not be pled or proved in prior proceeding].) Allen does not provide any authority to suggest otherwise.

Also, as Garvin informed Allen and the trial court, the time to bring a motion to strike the prior conviction was after the trial if Allen were found guilty. Garvin made a motion to strike the prior conviction at the sentencing hearing, which was denied. Allens demand that the motion be filed immediately was unreasonable and does not justify appointing new counsel.^[3]

Nor was the decision not to call Graham and Fuller an unreasonable tactical decision. Assuming Graham and Fuller would testify that they did not talk with Allen, the point was so collateral to the proceedings as to be meaningless. Allens initial argument was that the search violated his Fourth Amendment right to be free from unreasonable searches and seizures. As a parolee, Allen was subject to a parole search condition that permitted searches at any time, with or without cause. The only limitation on parole searches is that they must not be arbitrary, capricious or harassing. (People v. Reyes (1998) 19 Cal.4th 743, 752.) There was no evidence to suggest the search of Allen was arbitrary, capricious, or harassing. There were, therefore, no grounds on which to challenge the search or suppress the evidence seized as a result of the search.

Nor was Grahams and Fullers testimony likely to provide any significant impeachment of the officers testimony. First, Allen identified Graham and Fuller as drug dealers who currently were incarcerated, thereby bringing into question their credibility. Second, Allen admitted a third individual, also identified as a drug dealer, talked with him inside the store. Third, the police report was not entered into evidence and there was no way to confirm the officers reported that Allen spoke with Graham or Fuller, although Garvin could have cross-examined the officers on this discrepancy if their testimony differed from their report.^[4] It was, therefore, not unreasonable for Garvin to decide nothing would be accomplished by calling Graham or Fuller as witnesses.

Finally, we reject the basic premise of Allens argument regarding the prejudice that allegedly resulted from his differences with counsel. Allen argues these differences prevented him from asserting his defense that the drugs were planted on him by one of the officers. Allen reasons as follows. First, Garvin did not prepare any defense of Allen. Second, Garvin refused to assist Allen in preparing the defense proposed by Allen -- that he (Allen) was innocent because the police planted the drugs on him. Third, when Garvin conceded the parole search did not violate the Fourth Amendment, Garvin also must have concluded that Allen was doing something wrong and also must have concluded the factual innocence defense proposed by Allen was a lie that Garvin would not present to the jury. Allen then asserts Garvin refused to pursue the factual innocence defense at trial.

We find no support for Allens claim in the record. Allen testified at both the first and second trials. In each trial, the trial court gave him considerable leeway in presenting his defense. Each time Allen testified that he did not possess any drugs and that the arresting officers planted the drugs on him. At the second trial, Allen presented two conflicting motives for the police action. First, he suggested the officers planted the drugs on him so that he would become an informant, apparently regarding a specific drug dealer. Later, he claimed the officers were involved in a conspiracy with other drug dealers, essentially, to eliminate all competition. Allen viewed himself as a drug dealer who would fight for his territory. According to Allen, the officers planted drugs to permit the drug dealers who were conspiring with the police to control the drug traffic in Madera.

While Garvin did not question Allen, instead permitting him to testify in narrative form, he (Garvin) argued in closing that the only issue in the case was whether the jury believed Allen or the officers. The record thereby demonstrates that the defense presented at trial was that Allen was innocent because the police planted the drugs on him, i.e., factual innocence.

The record fails to support Allens argument that the trial court erred when it denied his Marsden motions. Instead, the record affirmatively demonstrates no abuse of discretion.

Imposition of the Upper Term

As explained in the introduction, Cunningham found unconstitutional imposition of an aggravated term under Californias Determinate Sentencing Law utilizing factors not found true by a jury. The lone exception recognized by Cunningham and its predecessors is that a sentence may be increased based on a court finding that the defendant suffered a prior conviction(s). (Cunningham v. California, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 868].)

In sentencing Allen to an aggravated term, the trial court found the following aggravating factors: (1) Allen had numerous prior convictions (Cal. Rules of Court, rule 4.421(b)(2)); (2) Allen served a prior prison term (Id., rule 4.421(b)(3)); (3) Allen was on parole when he committed this crime (Id., rule 4.421(b)(4)); and (4) Allens prior performance on parole was unsatisfactory (Id., rule 4.421(b)(5)). No factors in mitigation were found.

In addition to finding Allen guilty of the charged crimes, the jury also found true the allegations that (1) he had suffered a prior conviction within the meaning of Penal Code section 667, subdivisions (b) through (i); (2) he had suffered a prior conviction for violation of Health and Safety Code section 11352; and (3) he had served a prior prison sentence within the meaning of Penal Code section 667.5.

The trial court imposed an aggravated term on two aggravating factors that were not found true by the jury using the beyond-a-reasonable-doubt standard -- that Allen was on parole when he committed the crime and that his prior performance while on parole was unsatisfactory. However, the trial court also found two aggravating factors that met the Cunningham requirements. The fact of Allens numerous prior convictions can be found by the trial court, and the jury found true the allegation that Allen had served a prior prison term using the beyond-a-reasonable-doubt standard. Since the trial court did not find any factors in mitigation, and a single factor in aggravation will justify the imposition of an aggravated sentence (People v. Osband (1996) 13 Cal.4th 622, 731-732), we find any error harmless beyond a reasonable doubt. (People v. Sayres (2007) 150 Cal.App.4th 1040, 1045.)

DISPOSITION

The judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Levy, J. and Cornell, J.

^[1] All further statutory references are to the Health and Safety Code unless otherwise stated.

^[2] The sentence on the possession count was stayed pursuant to Penal Code section 654.

^[3] We recognize a defendant may move to strike a prior conviction before trial on the basis that he or she was not informed of all of his or her rights as required by Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122. (People v. Allen (1999) 21 Cal.4th 424, 441-443.) Allen never suggested he desired to make a motion to strike the prior conviction based on the failure to inform him of his Boykin/Tahl rights. This issue, therefore, is not before this court.

^[4] Allens parole officer testified he saw Allen talking as he was walking to the store, but did not identify to whom Allen was talking.