Filed 8/28/18 P. v. Bowen CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent, A150716

v. (Alameda County

Super. Ct. No. C175082)

JAMES FRANK BOWEN,

Defendant and Appellant.

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In 2016, a jury convicted James Frank Bowen of first degree murder, possession of firearm by a felon, and shooting at an occupied vehicle. The jury found true numerous enhancement allegations, including that during the murder, Bowen personally and intentionally discharged a firearm causing personal injury and death (Pen. Code, § 12022.53 subd. (d)).[1] The trial court sentenced Bowen to 107 years to life in prison, which included a mandatory enhancement under section 12022.53, subdivision (d).

On appeal, Bowen contends the court erred by failing to hold a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Bowen also argues—and the Attorney General agrees—his case must be remanded to allow the court to exercise its discretion under section 12022.53, subdivision (h), and to conduct proceedings pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin). We accept the Attorney General’s concession and order a limited remand. In all other respects, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2014, the prosecution charged Bowen with several crimes arising out the September 2014 killing of Alex Breggs, and alleged numerous sentencing enhancement allegations. In November 2014, the court suspended proceedings after defense counsel declared a doubt about Bowen’s competency. In June 2015, the court found Bowen incompetent to stand trial; in late 2015, the court determined Bowen had been restored to competency and reinstated criminal proceedings. Bowen pled not guilty and waived his speedy trial rights. Trial was set for May 2016, but rescheduled for July because defense counsel was in trial on another case. In July 2016, the trial date was reset for October 3, 2016.

Proceedings on October 3, 2016

On the morning of October 3, 2016, the parties appeared before Judge Paul Delucchi. Defense counsel waived Bowen’s appearance and the parties declared ready for trial. Judge Delucchi sent the case to Judge Vernon Nakahara’s courtroom for trial, but noted trial would not begin immediately because Judge Nakahara was presiding over a preliminary hearing. On that same date, Bowen filed the following handwritten letter:

“Honorable Judge Delucchi [¶]: I will make this brief as possible for I know you’re a very busy man.[2] To no fault of mine my attorney . . . hasn’t come to see me in 18 months and has waived my jury trial twice without my permission. I’m ready for trial October 3rd 2016. Due to my attorney’s full out of [sic] not effectively representing me I’d say it’s safe to assume I am a victim of ineffective counsel. I’d like to waive his counsel and at this time I’d like for you to assign a more effective counsel so I can be given a chance at freedom I’ve been locked up 22 months and I asked for a speedy trial, there are numerous inconsistencies in the case I am being held in custody for. It will take a more savvy attorney to fight for me, I’ve made the appropriate steps to get this attorney to represent me. But he just won’t. He has not made his self available for calls or attorney client correspondence. If possible, I’d like for you to advance my court date so we can discuss my options. Until I see you I will be diligently seeking your approval of getting me an effective counsel, thank you and have a wonderful day. [¶] Cordially, James Bowen [¶] BHW397.” At the bottom of the page, Bowen wrote: “I’m ready for trial October-3-2016 please do not let him push my trial over again for 90 more days I was scheduled for trial May 31-2016. He put it over for July 11-2016 now its Oct-3-2016. He won’t answer my calls or come visit it’s been close to 2 years.”

On November 3, 2016, the parties appeared in Judge Nakahara’s courtroom and discussed trial procedures. At the beginning of the hearing, the court said: “Mr. Bowen, . . . if you have any questions, then you need to make sure you understand everything. So if you have any questions about anything, ask your attorney or ask me.” The parties discussed jury selection, in limine motions, exhibits, and other matters; at the conclusion of the hearing, the court asked whether there were “[a]ny other issues . . . that we have not covered,” or whether there were questions, and the attorneys responded there were none. Then the court asked Bowen, “do you have any questions for the Court” and Bowen responded, “No, sir.”

Bowen did not mention his letter or raise any concerns regarding defense counsel when the parties discussed motions in limine the next day, November 4, 2016, or when the parties finalized the jury questionnaire and again discussed in limine motions on November 7. Bowen appeared during four of the five days of jury selection; he did not mention the letter or raise any complaints about defense counsel. The prosecution began its case-in-chief on November 29; the trial lasted seven court days. Bowen did not mention his letter or complain about appointed counsel during trial or at sentencing.

Overview of Trial

On the evening of September 20, 2014, 18-year-old Alex Breggs was sitting in a car in the parking lot of an Oakland apartment complex when a man—later identified as Bowen—shot him several times. Another man, Kevin McCullom, stood near Bowen as he shot Breggs. Afterwards, Bowen fled to his car with the gun. McCullom got in a car and drove away. Breggs died from multiple gunshot wounds, some of which pierced vital organs.

In recorded jailhouse telephone calls, Bowen claimed he would be acquitted because police did not have a “murder weapon,” there were no eyewitnesses who would be “willing to testify,” and because “nine times out of ten” witnesses would not “come forward in Oakland . . . on no murder . . . .”

Verdict and Sentence

In 2016, the jury convicted Bowen of first degree murder (§ 187, subd. (a) (Count 1)), possession of a firearm by a felon (§ 29800, subd. (a)(1) (Count 2)), and shooting at an occupied vehicle (§ 246 (Count 3)). As to Counts 1 and 3, the jury found various enhancement allegations true, including that Bowen personally and intentionally discharged a firearm causing personal injury and death (§ 12022.53, subd. (d)). The court found Bowen’s prior convictions and prison sentence allegations true.

At the February 2017 sentencing hearing, the court sentenced Bowen to 107 years to life in state prison, comprised of the following: on Count 1, 75 years to life, plus a mandatory consecutive term of 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)), and on Count 2, seven years. On Count 3, the court imposed and stayed a 14-year term, and imposed and stayed 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)). The court also imposed and stayed various other enhancements.

DISCUSSION

I.

Bowen Abandoned His Marsden Motion

Bowen contends the court erred by failing to hold a Marsden hearing in response to his letter. “When a defendant seeks new counsel on the basis that his appointed counsel is providing inadequate representation—i.e., makes what is commonly called a Marsden motion [citation]—the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance.” (People v. Smith (2003) 30 Cal.4th 581, 604.) “ ‘[A] proper and formal’ ” Marsden motion is not required—the defendant need only clearly indicate to the trial court ‘in some manner’ that he or she is requesting the discharge and replacement of the appointed counsel. [Citations.] Direct correspondence with the trial court is an acceptable manner for the defendant to make the request.” (People v. Armijo (2017) 10 Cal.App.5th 1171, 1178 (Armijo).) “[O]nce the defendant clearly indicates to the trial court a request for the discharge and replacement of appointed counsel, the court must hold a hearing to allow the defendant to explain the basis for the request.” (Id. at p. 1179.)

Bowen’s letter “triggered his right to a Marsden hearing.” (Armijo, supra, 10 Cal.App.5th at p. 1179.) Bowen complained that defense counsel had not called or visited him in a substantial period of time, and stated: “Due to my attorney’s . . . not effectively representing me I’d say it’s safe to assume I am a victim of ineffective counsel. I’d like to waive his counsel and at this time I’d like for you to assign a more effective counsel . . .” Bowen also wrote: “It will take a more savvy attorney to fight for me” and “[u]ntil I see you I will be diligently seeking your approval of getting me an effective counsel.” These statements “put the trial court on notice” of Bowen’s desire to replace appointed counsel. (People v. Reed (2010) 183 Cal.App.4th 1137, 1146.)

Selectively quoting the letter, the Attorney General claims Bowen did not clearly articulate his desire to discharge and replace defense counsel. We disagree. The letter did address delays in bringing the case to trial, but taken as a whole, it clearly stated Bowen’s desire to discharge defense counsel and obtain a new attorney. He wrote that he wanted to “waive” defense counsel and to be “assign[ed] a more effective counsel.” We fail to discern what more Bowen could have written to trigger a Marsden hearing. (See Armjio, supra, 10 Cal.App.5th at p. 1181.) Nor are we persuaded by the Attorney General’s suggestion that no hearing was required because Bowen’s letter was too “general.” (See Id. at p. 1182.)

We agree with the Attorney General, however, that Bowen abandoned his request to substitute counsel. A defendant who makes a timely Marsden motion may, by his postmotion conduct, abandon his request for a Marsden hearing. (People v. Vera (2004) 122 Cal.App.4th 970, 981–982; People v. Jones (2012) 210 Cal.App.4th 355, 361 (Jones).) Moreover, when a “court’s failure to hear or rule on [a] motion appears to be inadvertent,” a defendant will be deemed to have waived or abandoned the motion unless the defendant “make[s] some appropriate effort to obtain [a] hearing or ruling.” (People v. Braxton (2004) 34 Cal.4th 798, 813; Jones, supra, 210 Cal.App.4th at pp. 361–362.)

Here, the court’s failure to conduct a Marsden hearing was inadvertent. The letter was addressed to Judge Delucchi and was filed on the day the case was assigned to another courtroom for trial. It is likely—as Bowen acknowledges—Judge Delucchi was unaware of the letter. When Bowen appeared before Judge Nakahara on November 3, 2016, he did not mention the letter, nor complain about appointed counsel, even when encouraged by the court to ask questions “about anything” and when asked directly by the court, “do you have any questions[.]” Bowen did not mention the letter or raise concerns about defense counsel at any point during trial—not when the parties discussed motions in limine on November 4, nor when the parties finalized the jury questionnaire on November 7, not during jury selection, not at any point during the seven-day trial in late November and early December. Despite stating in his letter that he would “seek[] . . . approval of getting . . . an effective counsel” when he saw the judge, Bowen remained silent and failed to remind the court he had sought to replace counsel. Instead, he accepted defense counsel’s assistance without complaint throughout the remainder of the proceedings. Under the circumstances, we conclude Bowen abandoned his Marsden motion, and the court did not err by failing to hold a Marsden hearing

Jones, supra, 210 Cal.App.4th 355 is on point. There, the “defendant raised the Marsden issue by filing a handwritten motion” but the court did not conduct a Marsden hearing. The defendant “never again brought the matter to the trial court’s attention despite having been present in court a dozen times before his trial began. The trial court’s failure to conduct a hearing on the motion appears to have been the inadvertent result of the repeated continuances.” (Id. at p. 362.) Jones determined the defendant abandoned his Marsden motion. It observed: “ ‘ “ ‘[I]n the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them.’ ” ’ ” (Id. at p. 361.)

The Jones court held the defendant “had the duty of bringing his motion to the trial court’s attention at a time when the oversight could have been rectified” and that his “failure to raise the issue before the matter proceeded to trial constituted abandonment of his claim.” (Jones, supra, 210 Cal.App.4th at p 362.) The same is true here. Bowen had ample time and opportunity to follow up on his Marsden request, but failed to do so. As a result, Bowen is deemed to have abandoned the motion. (Ibid.; see also People v. Skaggs (1996) 44 Cal.App.4th 1, 7–8 [defendant abandoned purported request for self-representation by failing to raise it in subsequent proceedings and silently acquiescing to representation by appointed counsel].)

Bowen’s reliance on Armijo does not alter our conclusion. In that case, the defendant wrote a letter to the court claiming counsel “was unavailable and failed to keep in touch with him” and stating “I am requesting that you assign my case to a state-appointed attorney.” (Armijo, supra, 10 Cal.App.5th at pp. 1176–1177, 1182.) The defendant wrote the letter on April 16, 2015, but the court did not receive it until after the defendant appeared at the pretrial hearing on April 21. (Ibid.) The court did not hold a Marsden hearing and the defendant pled no contest shortly thereafter. (Id. at p. 1177.) The Armijo court rejected the Attorney General’s argument that the defendant “abandoned his Marsden request because he failed to assert it at the April 21, 2015 pretrial conference.” (Id. at p. 1182.) Armijo is distinguishable. There, the defendant made only four court appearances before pleading no contest; there was no indication the court invited the defendant to address the court or ask questions. Here, Bowen appeared with defense counsel numerous times and failed to mention his request to substitute counsel, despite invitations from the court to ask questions and raise any issues.

II.

Limited Remand for Section 12022.53, Subdivision (h)

At the time of Bowen’s crime and sentencing, section 12022.53, subdivision (d) imposed a mandatory additional and consecutive prison term of 25 years to life for personally and intentionally discharging a firearm causing great bodily injury during the commission of certain enumerated felonies, including murder. In October 2017, the Governor approved Senate Bill No. 620, which amended section 12022.53 effective January 1, 2018. (Stats. 2017, ch. 682, §§ 1 & 2.) Under the amendment, a trial court now has discretion to strike or dismiss a firearm enhancement. The statute expressly applies “to any resentencing that may occur pursuant to any other law.” (§ 12022.53, subd. (h).)

Bowen claims he is entitled to remand under the amendment to section 12022.53, subdivision (h). The Attorney General concedes the amendment applies and we should remand to allow the trial court to exercise its discretion whether to strike the enhancement. (See People v. Robbins (2018) 19 Cal.App.5th 660, 678; People v. Mathews (2018) 21 Cal.App.5th 130, 132.) We accept the concession and remand to allow the trial court to exercise its discretion.

III.

Limited Franklin Remand

In October 2017, the Governor signed Assembly Bill No. 1308, which amended section 3051 to extend the right to youth offender parole hearings to individuals who were age 25 or younger at the time they committed the controlling offense. (Stats. 2017, ch. 675, § 1.) Bowen was 24 when he committed the charged offenses. Bowen argues he is entitled to a limited remand to place additional evidence on the record for a future youth parole suitability hearing pursuant to section 30511 and Franklin, supra, 63 Cal.4th 261. The Attorney General concedes a limited remand is appropriate. We accept the concession and remand for this limited purpose. (See People v. Perez (2016) 3 Cal.App.5th 612, 619.)

DISPOSITION

The judgment of conviction is affirmed. The matter is remanded for the limited purposes of: (1) allowing the trial court to exercise its discretion under section 12022.53, subdivision (h); and (2) permitting the parties to present evidence relevant to Bowen’s future parole hearing. (Franklin, supra, 63 Cal.4th 261.)

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Jones, P.J.

We concur:

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Simons, J.

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Needham, J.