P. v. Detore

Filed 8/30/07 P. v. Detore CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

In 1997, defendant Ernest Leonard Detore was convicted of numerous counts of child molestation and sentenced to 39 years in prison. In 2006, after discovering several sentencing errors, the trial court vacated the original sentence and imposed a corrected sentence of 34 years.

We appointed counsel to represent defendant on appeal. In May 2007, counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.

In June 2007, defendant filed a Supplemental Opening Brief and Request for Substitution of Appellate Counsel requesting substitution on the grounds that his appellate attorney erroneously failed to raise the following claims on appeal: (1) the trial court failed to inform defendant of his right to a Marsden^[1]hearing once he requested substitute counsel, (2) defendant suffered ineffective assistance of counsel when his attorneys failed to alert the court that the sentence was improperly entered, and (3) defendants sentence violated Cunningham v. California (2007)549 U.S. ___ [127 S.Ct. 856, 860, 166 L.Ed.2d 856] (Cunningham).

This court denied defendants request for substitution of appellate counsel. However, we will address the issues raised in his supplemental opening brief, in addition to undertaking a review of the entire record as required by Wende, and will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 1997, a jury in case No. 97F04988 found defendant guilty of 14 counts of lewd acts with a child under the age of 14 (Pen. Code, 288, subd. (a)),^[2]and found true a special allegation that he had a prior serious felony conviction ( 667, subd. (a)).

The court sentenced defendant to an aggregate term of 39 years in prison, comprised of the upper term of eight years for the principal offense, plus consecutive two-year terms for each of the 13 remaining molestation counts and a consecutive five-year term for the prior serious felony conviction enhancement ( 667, subd. (a)).^[3]

In June 1999, this court affirmed the judgment of the trial court.

In July 1999, this court reaffirmed the judgment on rehearing with the exception of the prior serious felony conviction finding, which was vacated (along with the related five-year sentence) and remanded for either a request for new trial or dismissal within 30 days.

In January 2000, the trial court dismissed the prior conviction allegation for failure of the People to demand a new trial on that issue within the 30-day period. The courts order, however, stated the original judgment and sentence is confirmed.

In October 2006, in the process of reviewing defendants second petition for writ of habeas corpus, the trial court discovered its error in the January 2000 order confirming the original judgment instead of confirming the remainder of the original judgment after dismissal of the prior serious conviction allegation. The court also noted that it had failed to specifically pronounce sentence on the 14th count despite imposition of sentence as to that count in both the court minutes and the abstract of judgment.^[4] The court denied defendants petition for writ of habeas corpus, but vacated the sentence as unlawful and set the matter for resentencing to correct those errors.^[5]

Prior to the resentencing hearing, defendant filed written objections to the courts October 2006 rulings, including an objection to reappointment of the public defenders office and a request that counsel should be appointed, but not the same body of attorneys, meaning defendant wanted an attorney appointed from some other source other than the public defenders office.

In November 2006, the court conducted three hearings; two in response to defendants objections and one where it resentenced defendant. On November 2, 2006, the court denied defendants written objections which it construed as a motion for reconsideration.

At a November 17, 2006 hearing, the following colloquy took place between defendant and the court:

THE COURT: [B]efore I get to that, though, Mr. Detore, there was in the papers that you sent to the Court, there was a mention by you that you had a problem or you were objecting or you were not happy that for purposes of this proceeding the public defender had been brought back in the case.

THE DEFENDANT: Yes, sir.

THE COURT: And I talked to Mr. Cress earlier this morning, and he indicated that, at least so far as we know, you are okay with them being on the case for this purpose; is that right?

THE DEFENDANT: Well --

MR. CRESS: I was directing that to me, it didnt seem he had a problem with me.

THE DEFENDANT: I talked to nobody from the Public Defenders office at all.

THE COURT: All right, thats fine. You will have a chance to talk to him between now and our next court date hopefully. But I do want to make sure that at this point then you are not, at least as of now, Im not going to preclude you in the future, but as of right now, as you sit here right now, you are not pursuing what they call a Faretta^[6]motion to represent yourself.

THE DEFENDANT: No judge.

THE COURT: Fair enough. So the public defender remains on the case . . . .

At the November 28, 2006 resentencing hearing, defendant was represented by public defender Cress. In case No. 97F04988, the court sentenced defendant to an aggregate prison term of 34 years, correcting the original sentence to specifically state a two-year consecutive term for count 14 and removing the five-year sentence for the dismissed prior serious felony conviction allegation. In all other respects, the court reaffirmed and incorporated by reference the remainder of the original sentence as pronounced on December 5, 1997. The court also corrected the sentence in case No. 93F07187, imposing a two-year term to run concurrently to the sentence in case No. 97F04988. The court awarded 163 days of presentence custody credits, deferring to the Department of Corrections and Rehabilitation to determine the amount of credits for time served.

Defendant filed a timely notice of appeal.

DISCUSSION

I.

Right to Marsden Hearing

Defendant first contends the trial court failed to inform him of his right to a Marsden hearing following his written request to appoint counsel other than the public defenders office, inquiring only as to whether he intended to assert his right of self-representation under Faretta. We disagree.

Marsden holds that the trial court must afford the defendant an opportunity to express the specific reasons why he believes he is not being adequately represented by his current counsel when he makes a request for the appointment of new counsel. (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1400.)

A trial court has no obligation to initiate the Marsden inquiry sua sponte. A trial courts duty to conduct the inquiry arises only when the defendant asserts directly or by implication that his counsels performance has been so inadequate as to deny him his constitutional right to effective counsel. (People v. Leonard (2000) 78 Cal.App.4th 776, 787, italics omitted, quoting People v. Molina (1977) 74 Cal.App.3d 544, 549.) A request for substitution of counsel under Marsden must be clear and unequivocal. (People v. Rivers (1993) 20 Cal.App.4th 1040, 1051, fn. 7.) Although no formal motion is necessary, there must be at least some clear indication by defendant that he wants a substitute attorney. (People v. Mendoza (2000) 24 Cal.4th 130, 157, quoting People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8.)

Here, defendant objected, prior to the resentencing hearing, to the Courts intention to reappoint the Public Defenders Office. Defendant requested appointment of counsel not employed by the public defenders office, claiming present counsel permitted the trial court to commit all the errors complained of and expressing concern that the public defenders office may attempt to hide or correct the mistakes committed by past counsel during the resentencing hearing.

The complaints about the adequacy of representation set forth in the written objection are vague and do not assert, either directly or impliedly, performance so inadequate as to be unconstitutionally ineffective. (People v. Leonard, supra, 78 Cal.App.4th at p. 787.) In any event, the colloquy between defendant and the court at the November 17, 2006 hearing demonstrates that the problem had apparently been resolved--i.e., defendant was agreeable to representation by public defender Joe Cress for purposes of resentencing. Indeed, when the court confirmed that, the public defender remains on the case, defendant did not object, nor did he raise an objection at the subsequent sentencing hearing on November 28, 2006. Under the circumstances, the trial court had no duty to initiate a Marsden inquiry.

II.

Ineffective Assistance of Counsel

Defendant contends resentencing counsel failed to inform the court that the original sentence as pronounced was intended to be an aggregate of 10 years (i.e., eight years for the principal term plus two-year terms for each of the remaining 13 counts, each running consecutively to the principal term, but not consecutively to one another), not an aggregate term of 34 years as erroneously recorded by the clerk. Defendants claim that the court intended to impose an aggregate term of 10 years is not supported by the record. In imposing the original sentence, the court stated each of the two-year terms for the subordinate counts will be run consecutive[ly] to the principal count, and pronounced an aggregate prison term of thirty-nine years, leaving no doubt that it intended for each of the 13 subordinate counts to be consecutive to the principal term and to one another. We conclude there was no error in recordation of the sentence as pronounced and therefore reject defendants claim of ineffective assistance of counsel.

III.

Cunningham

Defendant also contends his appellate counsel ignored resentencing counsels attempt to raise a Cunningham decision [sic]. Because defendant provides no facts and cites no authority for that proposition, we need not address his claim. (People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2 [a reviewing court need not discuss claims that are asserted perfunctorily and insufficiently developed]; People v. Hardy (1992) 2 Cal.4th 86, 150 [same]; People v. Galambos (2002) 104 Cal.App.4th 1147, 1159 [appellate contentions must be supported by analysis]; People v. Sangani (1994) 22 Cal.App.4th 1120, 1135-1136 [the appellants legal analysis must be connected to the evidence in the case]; People v. Coley (1997) 52 Cal.App.4th 964, 972 [appellant bears burden of showing both error and prejudice].)

In any event, the sentence imposed in 1997, including the eight-year upper term, was affirmed by this courts July 1999 opinion on rehearing. At the November 28, 2006 hearing, the court undertook to clarify and correct limited aspects of the original sentence--i.e., it imposed an aggregate sentence of 34 years so as to reflect dismissal of the section 667, subdivision (a) enhancement, and clarified the two-year consecutive term for count 14--noting that, in all other respects, what was said and what happened at the December 97 hearing is incorporated by reference and made a part of the record in this case and they are reaffirmed. Because Blakely does not apply retroactively (In re Consiglio (2005) 128 Cal.App.4th 511, 516[Blakely is not retroactive to cases that are already final]), we must reject defendants Cunningham objection to an upper term sentence imposed by the trial court in 1997 and affirmed by this court in 1999.

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

SCOTLAND, P.J.

DAVIS , J.

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^[1]People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

^[2]Hereafter, undesignated references are to the Penal Code.

^[3]The court also found that defendant violated probation in case No. 93F07187 and revoked probation in that case, sentencing defendant to a three-year prison term for violation of section 245, subdivision (a)(1) to run concurrently to the sentence in case No. 97F04988.

^[4]After imposing eight years as to count 1, the court stated: For each of Counts Two through Thirteen, Im going to impose one-third the mid[-]term or two years each. That is twenty-six years. And each of those counts will be run consecutive[ly] to the principal count because each one is a separate offense committed at different times. (Italics added.)

^[5]The court also pointed out several clerical errors to be corrected in the abstract of judgment.

^[6]Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta).