P. v.
Filed 10/17/13 P. v. Lyons CA4/2
TO BE PUBLISHED IN 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This opinion has not been certified for publication or ordered published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.
THE COURT OF APPEAL OF THE STATE OF
APPELLATE DISTRICT
TWO
THE
PEOPLE,
Plaintiff and Respondent,
v.
RAPHAEL
DENNIS LYONS,
Defendant and Appellant.
E054406
(Super.Ct.Nos. INF10000378 &
INF063282)
OPINION
APPEAL from
the Superior Court of
County. Edward
Forstenzer, Judge. (Retired judge of the
Mono Super. Ct. assigned by the Chief Justice pursuant
to art. VI, § 6 of the Cal. Const.)
Affirmed.
Gregory
Marshall, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, Barry Carlton and Heather M.
Clark, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Raphael Dennis Lyons appeals
following his conviction on multiple counts.
He asserts that the trial court erred by failing to hold a
in connection with his motion for new
trial and that a condition of his probation was unconstitutionally
overbroad.
We will affirm the judgment.
PROCEDURAL HISTORY
In case No. INF063282,
3, 2008, alleged
possession of hydrocodone (Health
& Saf. Code, § 11350, subd. (a); count 1); possession of methamphetamine
(Health & Saf. Code, § 11377, subd. (a); count 2); being under the
influence of a controlled substance (Health & Saf. Code, § 11550, subd.
(a); count 3); and possession of drug-using paraphernalia (Health & Saf.
Code, § 11364; count 4). The crimes
charged in counts 1 and 2 are felonies; the crimes charged in counts 3 and 4
are misdemeanors. The complaint alleged
that defendant committed counts 1 and 2 while out on bail or on his own
recognizance. (Pen. Code, § 12022.1.)
On April 8, 2009, defendant pleaded
guilty to all four counts pursuant to a plea agreement. He was placed on probation pursuant to Penal
Code section 1210.1 (Proposition 36) and ordered to enroll in a
concurrent with the probation ordered in case No. BAF006070.
On February 24, 2010, in conjunction with
the felony complaint filed in case No. INF10000378, the district attorney
filed a petition to revoke probation in case No. INF063282.
In case No. INF10000378, defendant was
charged with possession of methamphetamine (Health & Saf. Code, § 11377,
subd. (a); counts 1, 4, 7); possession of a billy club (Pen. Code, §
12020, subd. (a)(1); count 2); misdemeanor possession of drug-use paraphernalia
(Health & Saf. Code, § 11364; count 3); misdemeanor driving under the
influence of a drug and alcohol (Veh. Code, § 23152, subd. (a); count 5); and
possession of a shank while confined in a penal institution (Pen. Code, § 4502,
subd. (a); count 6). The first amended
information also alleged two enhancements pursuant to Penal Code section
12022.1, i.e., that certain felonies charged in the information were committed
while defendant was free from custody prior to the judgment becoming final on a
primary offense.
name="_ftnref3" title="">
In case No. INF10000378, defendant was
convicted by a jury on counts 2, 3, 4, 5, and 7. The jury deadlocked on count 1, and it was
later dismissed. Defendant waived jury
trial on count 6 and was found guilty on that count in a separate court
trial. The court also found that
defendant had violated his probation in case No. INF063282. In a separate proceeding, the court found the
Penal Code section 12022.1 enhancements true.
In case No. INF10000378, defendant was
sentenced to a total term of eight years in county jail, consisting of two
years of local custody and six years suspended with supervised release. (Pen. Code, § 1170, subd. (h)(5)(B).) The court imposed a concurrent term in case
No. INF063282.
Defendant filed timely
FACTS
Defendant does not raise any issues
pertaining to case No. INF063282.
Accordingly, we will limit our recitation of the facts to those
pertaining to case No. INF10000378.
1 Through 3
On February 9, 2010, officers conducted a
probation compliance check of
defendant’s residence. Officers found a
bindle containing 0.22 grams of methamphetamine underneath a mattress in one of
the rooms. Officers also found a
three-foot wooden billy club and several glass pipes of a type frequently used
to ingest controlled substances. After
being Mirandized,
the presence of another person in the residence. He told officers that he had been robbed
previously and that he had the billy club for protection.
4 and 5
On February 22, 2010, officers saw
defendant speed through an intersection against a red left turn arrow. When the officers stopped defendant, he could
not produce his driver’s license, insurance card or registration for the car,
and he was abnormally fidgety and hyperactive.
Officers asked defendant to step out of the car and noticed he had an
unsteady gait and slurred speech.
Defendant admitted to taking two “hits†of methamphetamine that
day. Defendant performed poorly on each
of four field sobriety tests and was arrested.
During a search incident to the arrest, officers found a bindle in
defendant’s pocket containing 0.10 grams of methamphetamine. When defendant was booked into jail that
night, a deputy sheriff discovered another bindle in defendant’s sock
containing 0.17 grams of methamphetamine.
Defendant’s blood tested positive for methamphetamine.
6
While in custody at the Indio jail on
March 26, 2010, defendant was escorted from a housing unit to a recreation
area. As part of the transfer procedure,
a deputy conducted a routine search and found in defendant’s pocket a “sharpened
object†consisting of the handle of a plastic spoon or toothbrush with a razor
attached to the end.
After being Mirandized, defendant said that he used the item to sharpen his
pencil.
7
At approximately 4:00 a.m., on November
29, 2010, an officer stopped a car that did not have rear license plate
lights. Defendant, who was a passenger
in the car, told the officer the car was his and gave him permission to search
it. The officer found a briefcase in the
backseat containing, among other items, a single white crystal of methamphetamine
weighing 0.07 grams. Defendant told the
officer that the briefcase and its contents belonged to him.
DISCUSSION
1.
DEFENDANT DID NOT REQUEST A
Defendant
filed a motion for new trial, alleging
ineffective assistance of trial counsel, Ronny Hettena. The trial court relieved Hettena and
appointed James Silva to represent defendant in the new trial motion. At the hearing on the motion, after argument
by counsel, defendant asked to be allowed to speak. He argued that his trial attorney, Hettena,
had failed to call witnesses and had denied him the opportunity to
testify. He then stated that he did not
think that his new attorney, Silva, had thoroughly reviewed his cases. He said that he had asked Silva to obtain the
transcripts, but that Silva had refused to do so. The court said, “All right. Let me interrupt you for a moment . . .
. If you were so intent on testifying,
why didn’t you say something when the jury was still here?†Defendant responded to this question at
length. At the conclusion of defendant’s
response, the court denied the new trial motion. Defendant did not attempt to raise his
dissatisfaction with Silva again.
Defendant now contends that the trial court abused its discretion by
failing to conduct a Marsden hearing
based on his statements pertaining to his dissatisfaction with Silva’s review
of his case in connection with the new trial motion.
In
defendant who is dissatisfied with the representation provided by appointed
counsel has a constitutional right to bring a motion to have the attorney
relieved and new counsel appointed. When
a criminal defendant seeks substitution of counsel on the ground that appointed
counsel is providing inadequate representation, the trial court must give the
defendant an opportunity to explain the reasons for the request. (Id.
at pp. 123-125.) No formal motion is
required; however, in order to trigger the trial court’s duty to hold a hearing
to allow the defendant to express the reasons for his or her dissatisfaction
with counsel, “there must be at least some clear indication by [the] defendant
that he [or she] wants a substitute attorney†(People v. Dickey (2005) 35 Cal.4th 884, 920, internal quotations
marks and citations omitted for clarity), or when the defendant “in some manner
moves to discharge his [or her] current counsel.†(People
v. Lucky (1988) 45 Cal.3d 259, 281.)
Here,
defendant did not state that he wanted a new attorney. It is arguable that by interrupting defendant
when he expressed dissatisfaction with Silva’s conduct with respect to the new
trial motion, the trial court deprived defendant of the opportunity to request
new counsel at that point. However, the
court did not prevent defendant from returning to his request for new counsel,
if that was in fact what he wanted, after the colloquy which followed the trial
court’s interruption.
During that colloquy, the trial court
explained to defendant that if he had wanted to testify, he should have spoken
up and so informed the court. In
response, referring to discussion on that subject which took place when the
court first addressed the new trial motion, defendant said, “I learned that
from the last time when you said I should have spoke up before. . . . I didn’t know I was supposed to talk
before. But now that I know I can talk,
that’s why I’m talking to you.†Since
defendant knew he could talk to the court to raise his concerns if they were not
being addressed by his attorney, the court’s interruption did not prevent
defendant from returning to the subject of his dissatisfaction with Silva and
asking for new counsel, if that was what he wanted. Moreover, defendant had made at least two
prior Marsden motions, and he was
well aware that if he asked for new counsel, he would get a hearing to air his
complaints. Under these circumstances,
even if we assume that defendant wanted to replace Silva, he forfeited his right
to a Marsden hearing by failing to
request one explicitly.
2.
THE RESIDENCE CONDITION FOR
SUPERVISED RELEASE DID NOT VIOLATE DEFENDANT’S CONSTITUTIONAL RIGHTS
As a
condition of supervised release, defendant agreed to a number of conditions,
including that he would “[i]nform the probation officer of [his] place of
residence and reside at a residence approved by the probation officer†and that
he would “[g]ive written notice to the probation officer 24 hours before
changing [his] residence and [would] not move without the approval of the
probation officer.â€
Although defendant did not object in the
trial court, he now contends that the residence condition is facially overbroad
and violates his constitutional privacy
and liberty rights. Where a claim that a
probation condition is facially overbroad and violates fundamental
constitutional rights is based on undisputed facts, it may be treated as a
question of law which is not forfeited by failure to raise it in the trial
court. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889.)
The issue defendant raises is currently
pending on review in the California Supreme Court in People v. Schaeffer (2012) 208 Cal.App.4th 1 (Fourth Dist., Div.
Two), review granted October 31, 2012, S205260.
Although Schaeffer cannot be
cited as authority, we agree with its reasoning, and we conclude, as we did in
is valid because it is narrowly tailored to further the state’s interest in
defendant’s rehabilitation.
“Trial courts have broad discretion to
set conditions of probation in order to ‘foster rehabilitation and to protect
public safety pursuant to Penal Code section 1203.1.’ [Citations.]
. . . [¶] However, the trial court’s discretion in
setting the conditions of probation is not unbounded.†(People
v. Lopez (1998) 66 Cal.App.4th 615, 624.)
A term of probation is invalid if it:
“‘(1) has no relationship to the crime of which the offender was
convicted, (2) relates to conduct which is not in itself criminal, and (3)
requires or forbids conduct which is not reasonably related to future
criminality . . . .’†(
486.)
“If a probation condition serves to
rehabilitate and protect public safety, the condition may ‘impinge upon a
constitutional right otherwise enjoyed by the probationer, who is “not entitled
to the same degree of constitutional protection as other citizens.â€â€™ [Citation.]â€
(People v. O’Neil (2008) 165
Cal.App.4th 1351, 1355.) “[W]here an
otherwise valid condition of probation impinges on constitutional rights, such
conditions must be carefully tailored [and] ‘“reasonably related to the
compelling state interest in reformation and rehabilitation . . . .â€â€™ [Citations.]â€
(People v. Bauer (1989) 211
Cal.App.3d 937, 942 (Bauer).)
Defendant relies upon
residence approval condition, which seemed designed to prevent the defendant
from living with his parents because they were overprotective. Nothing in the record suggested that the
defendant’s home life contributed to the crimes of which he was convicted
(false imprisonment and simple assault), or that his home life was reasonably
related to future criminality. (
approval condition impinged on the right to travel and freedom of association,
and was extremely broad since it gave the probation officer the power to forbid
defendant from living with or near his parents.
(Ibid.)
The present case is distinguishable. Defendant pleaded guilty in case
No. INF063282 to possessing methamphetamine and hydrocodone, being under
the influence of a controlled substance and possession of paraphernalia for
drug use. He was convicted in case No.
INF10000378 of possession of methamphetamine and driving under the influence of
drugs and alcohol, as well as possession of illegal weapons. Defendant acknowledged to the probation
officer that he had a long history of drug use.
Where defendant lives may directly affect his rehabilitation, in that
without any limitations, defendant could choose to live in a residence where
drugs are used or sold. Under these
circumstances, the state’s interest in defendant’s rehabilitation is properly
served by the residence approval condition.
Furthermore, the legal landscape has
changed since Bauer,
should be given ‘the meaning that would appear to a reasonable, objective
reader.’ [Citation.]†(Id.
at p. 382.) We view the residence
approval condition here in light of Olguin
and presume that a probation officer will not withhold approval for irrational
or capricious reasons. (
Moreover, “probation is a privilege and
not a right, and . . . adult probationers, in preference to incarceration,
validly may consent to limitations upon their constitutional rights—as, for
example, when they agree to warrantless search conditions. [Citations.]â€
(Olguin, supra, 45 Cal.4th at p. 384.)
“If a defendant believes [that] the conditions of probation are more
onerous than the potential sentence, he or she may refuse probation and choose
to serve the sentence.
[Citations.]†(
We conclude that the trial court did not
abuse its discretion in imposing the condition that defendant, as a term of his
supervised release, reside at a residence approved by the probation officer and
not move without the officer’s prior approval.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting
P. J.
We concur:
RICHLI
J.
CODRINGTON
J.
v. Marsden (1970) 2 Cal.3d 118.
do not accurately reflect the proceedings of that date as they pertain to case
No. INF063282. The sentencing minutes
state that defendant pleaded guilty to counts 1, 2, and 4, and that count 3 was
dismissed. That disposition pertains to
case No. BAF006070.
