P. v. Sanders

Filed 7/19/07 P. v. Sanders CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Carol C. Koppel and Christopher G. Estes, Judges. Affirmed in part; reversed in part.

Law Offices of Allen G. Weinberg and Derek K. Kowata for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________________

Defendant and appellant Steven Sanders appeals from a judgment after a jury trial in which he was convicted of willful infliction of corporal injury on a former cohabitant (Pen. Code, 273.5, subd. (a)) and possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1)). Defendant admitted one prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a); one prior serious felony conviction (strike) within the meaning of Penal Code section 1170.12; and two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). On appeal, defendant contends the trial court erred in failing to conduct a proper inquiry into his allegations of his counsels ineffective representation. We conclude the trial court did not err. Defendant also contends the sentencing court erred in imposing the upper term based on factors not found true by the jury. We remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant dated and lived with Kimeko McDow for two years. McDow is the mother of defendants child. Defendant and McDow broke up in 2004. At around 4:00 a.m. on August 20, 2005, defendant went to McDows residence, knocking on the door and window. McDow let him in. The two argued. McDow asked defendant to leave; defendant said he was staying. They continued to argue. Defendant then punched McDow in the mouth with his fist, repeatedly.^[1] Defendants blows caused McDows lip to split open; her tooth went through her lip. Defendant left and McDow called 911. McDow went to the hospital, where six stitches were required to seal the wound. Her lip was swollen and she could not talk for a week.

Three days later, defendant knocked on McDows door at 6:00 a.m. McDow pretended she was not home, and telephoned the sheriffs department. Defendant left and the deputies arrived. McDow gave the deputies a description of defendant. Deputies found defendant walking approximately a mile and a half away from McDows house. Defendant was arrested and searched. Deputies found a loaded firearm in defendants pocket. Defendant told the deputies that he had purchased the gun in an alley right before he went to McDows house. Defendant had suffered a prior felony conviction for possession of cocaine base for sale. (Health & Saf. Code,  11351.5.)

On October 12, 2005, defendant was charged by information with infliction of corporal injury on a former cohabitant and possession of a firearm by a felon. A prior strike and three prior prison terms were also alleged.^[2] Defendant entered a plea of not guilty. Thereafter, the information was amended to add an allegation that defendant had inflicted great bodily injury on McDow within the meaning of Penal Code section 12022.7.^[3] As the great bodily injury enhancement, if true, rendered the domestic violence count a serious felony, a prior serious felony enhancement under Penal Code section 667, subdivision (a) was also alleged.

At this point, defendant was facing a possible maximum sentence in excess of nineteen years. The prosecution had offered defendant a six-year sentence if he pleaded guilty to the domestic violence count and admitted the strike.

Defendant indicated an intention to speak to the trial court; the court directed defendant to speak to his appointed counsel, Attorney Herb Barish, first. After defendant consulted with counsel, defendant personally addressed the trial court, stating, Could I have well, Ive been asking him to actually have my case separated. I told him that I pleaded guilty to the gun charge, and I wanted my case separated. Im not taking the gun charge to trial. The court explained that the felon in possession of a firearm count could be separated if defendant was willing to plead guilty to that count and admit the strike and prior prison terms alleged in connection with the offense. The court explained, however, that defendants maximum sentence if he took that course of action was nine years, which exceeded the six-year offer by the prosecution.^[4] Defendant disagreed, stating that he did not have the prior convictions alleged by the prosecution. When the court stated that the prosecution believed it had evidence to support the prior conviction allegations, defendant stated that he needed to look over [his] paperwork again. The prosecutor then volunteered that she had received a certified copy of defendants prison priors packet from the Department of Corrections, and that it showed the convictions alleged.

After the court and the prosecutor explained at length the sentence enhancements to which defendant would be subject due to his prior convictions, defendant indicated he wanted to proceed to trial. After the trial court again clarified the advantages of the prosecutions offer,^[5] defendant repeated that he did not commit the domestic violence count, and wanted to take it to trial. At one point in the course of the discussion, defendant asked Attorney Barish to explain something, and the two consulted for some time off the record. Defendant again indicated his desire to proceed to trial. On Attorney Barishs motion, trial on the prior conviction allegations was bifurcated. The court inquired of defendant whether he wanted to stipulate to being a felon, with respect to the gun count. Defendant indicated he had not been paying attention as he just wanted to get all my paperwork and read all my paperwork. Attorney Barish declined the stipulation. Attorney Barish then made, and argued, an ultimately unsuccessful motion to exclude the 911 tapes. Attorney Barish then successfully moved to redact hearsay from McDows medical reports.

The case proceeded to jury selection the following day. When proceedings began the day after that, Attorney Barish indicated that defendant wanted to address the court outside the presence of the jury. The defendant then told the court that he had a conflict with Attorney Barish. The court asked defendant for the basis of the conflict, and defendant responded that there was a lack of communication. When pressed for specifics, defendant offered: (1) that he was not given all of the necessary documents; (2) that Attorney Barish refused to move to separate the two counts, requiring defendant to do so himself; and (3) that Attorney Barish conducted jury selection without listening to defendants input. Attorney Barish responded that defendant had been given all documents, with the exception of the Department of Corrections prison priors packet which he had only recently received. The court explained to defendant that the counts would not be separated because they were related, and further indicated, based on its own observations, that Attorney Barish did an excellent job in jury selection. Finding no basis to replace Attorney Barish, the court denied defendants implied Marsden^[6] motion for substitution of counsel.

The case proceeded to trial and the jury found defendant guilty of both counts; the great bodily injury enhancement was found to be true. Defendant then waived jury trial on the prior conviction allegations. He admitted a prior robbery conviction, both as a strike and as a prior serious felony within the meaning of Penal Code section 667, subdivision (a). He admitted a prior prison term for unlawful taking of a vehicle (Veh. Code, 10851, subd. (a)), and a second prior prison term for possession for sale of cocaine base.

The case proceeded to sentencing before a different judge. The prosecution submitted a sentencing memorandum identifying no factors in mitigation and five factors in aggravation: (1) the crime involved great bodily harm; (2) defendant has engaged in violent conduct indicating a serious danger to society; (3) defendants prior convictions are numerous; (4) defendant has suffered prior prison terms; and (5) defendants prior performance on probation and parole has been unsatisfactory. The prosecution calculated defendants maximum sentence as 19 years and 4 months, but recommended a sentence of 17 years, 4 months.

A probation report had been prepared. The probation report mistakenly indicated that both offenses for which defendant was convicted occurred on the same day. In other words, the report indicates that shortly after defendant punched McDow, he was arrested by police with a gun in his possession. Because of this, the probation report identified two additional factors in aggravation: (6) that defendant was armed at the time of the crime; and (7) the manner in which the crime was carried out indicates planning.

The sentencing hearing was held on January 11, 2006. The sentencing court sentenced defendant to the maximum term of 19 years, 4 months, calculated as follows. For the domestic violence, the high term of 4 years was imposed, doubled due to the strike. An additional 3 years was imposed for the infliction of great bodily injury, an additional 5 years was imposed for the prior serious felony conviction, and an additional 2 years was imposed for the 2 prior prison terms. Defendant was sentenced to a consecutive term of 1 year, 4 months for the felon in possession of a firearm offense.

As to the selection of the high term, the sentencing court specifically relied on the seven aggravating factors set forth in the probation report. Defense counsel argued that a number of the factors identified were inherent [in] the charge itself. The sentencing court was sympathetic to the argument, but stated that it had no choice. Defendant filed a timely notice of appeal.

CONTENTIONS ON APPEAL

Defendant argues the trial court erred in failing to make an adequate inquiry into his complaints regarding his attorney. We conclude the trial courts inquiry was sufficient, and defendant failed to establish the necessity of replacing his attorney. Defendant next contends the trial court erred in imposing the upper term based on aggravating factors not found true by a jury. We agree and remand for further proceedings.

1. Motion to Replace Appointed Counsel

When a defendant seeks new counsel on the basis that his appointed counsel is providing inadequate representation . . . the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. Substitution of counsel lies within the courts discretion. The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendants right to assistance of counsel. (People v. Smith (2003) 30 Cal.4th 581, 604.)

The law does not mandate that the trial court question the defendants attorney every time a defendant asks for a substitution of counsel. (People v. Penrod (1980) 112 Cal.App.3d 738, 746.) Such inquiry is required only in those situations in which a satisfactory explanation for counsels conduct or attitude toward his client is necessary in order to determine whether counsel can provide adequate representation. (Id. at p. 747; People v. Hill (1983) 148 Cal.App.3d 744, 753-754; People v. Young (1981) 118 Cal.App.3d 959, 966.)

Specific complaints showing a disagreement in tactics, but not deficient performance, are insufficient to compel discharge of counsel. (People v. Smith, supra, 30 Cal.4th at p. 606.) Indeed, a disagreement with trial counsel over counsels trial preparation and strategy is insufficient to require an inquiry of counsel. (People v. Penrod, supra, 112 Cal.App.3d at p. 748.) The defendant is not entitled to claim that an irreconcilable conflict has arisen merely because of a disagreement with counsel over reasonable tactical decisions. (People v. Lara (2001) 86 Cal.App.4th 139, 151.)

While a trial court cannot go outside the record of the immediate prosecution and base the disposition of defendants request upon observations of the attorney on other occasions (People v. Hill, supra, 148 Cal.App.3d at p. 755), when the defendants allegations relate to matters which occurred in open court, the trial court can properly rely on its own observations in denying the motion. (People v. Hines (1997) 15 Cal.4th 997, 1026.)

We set forth, at length, the course of defendants Marsden motion:

The Court: Defendant wishes to say something to the court.

The defendant: Yes, Maam.

The Court: Okay; what?

The defendant: I have a very small, I mean conflict with him.

The Court: I cant hear you, sir. Im sorry?

The defendant: I have a conflict with my attorney.

The Court: You do?

The defendant: Yes, Maam.

The Court: Why would that be?

The defendant: A very strong lack of communication. I dont know whats going on. He dont talk to me. Everyone tries to talk to you. He started making deals, getting mad, walking away from me when Im asking him to file certain motions for me. He did not do what I asked him.

The Court: What did you ask him?

The defendant: I asked him in the beginning before we came to trial that I needed all my paperwork; he can provide that for me. I asked him to separate my cases. He wouldnt do that. He wouldnt ask you about it. [] He dont tell me anything.

The Court: Well, the records very clear as to whether he did or not, and so the court is not going to waste a lot of time with this because we talked about it at great length before we started this, the trial, another motion was made by him to separate the cases; the answers no. And so the answer remains no. [] So lets go on and bring our jury in. [] And your motion

The defendant: Excuse me. I got one more thing to say.

The Court: You have. You have one other thing; okay. Go ahead.

The defendant: Hes picked my jury without me saying anything.

The Court: Did you write notes?

The defendant: All my constitutional rights is violated.

The Court: Okay. I dont see that, but if you do, then maybe later on in the event in the unlikely or maybe likely event that youre going to get convicted you can always do it/an appeal, but the court watched during the choosing of the jury. Your attorneys a very experienced attorney. He did an excellent job in not choosing the jurors that would be unhelpful, or choosing the jurors that would be helpful to you. [] So your motion in all respects is denied.

[Attorney] Barish: Your honor, I, just for the record, I provided my client with all of the [items]^[7] that I have received from the prosecution up til the time of trial. Theres been a couple of documents on priors and stuff the last few days.

The Court: Yes.

[Attorney] Barish: But everything else was provided to my client.

The Court: Did you provide him a copy of the [Department of Corrections prison priors] packet, the one he just doesnt remember having?

[Attorney] Barish: No. What I provided was a, personally when I was in the Torrance courthouse, had a printout of the conviction made, and a printout I gave him.

The Court: Im sorry; do you remember telling the court that before so this is about the second or third time Ive heard it.

The defendant: Excuse me, your honor. All that he provided, and I dont have all that Im supposed to have. This is not right here; this is nothing.

The Court: Well, this is something youll have to deal with later, maybe. Maybe no?

The defendant: I had to ask you could I separate my cases before all this.

The Court: And I said no. Remember?

The defendant: Why? Why I cant separate my cases?

The Court: Well, because they relate to each other.

The defendant: No. It doesnt. I got

The Court: Okay. Then you save that for [appeal]^[8] if you get convicted. Then youll have lots of time to sit and think about it and how youre going to appeal it and talk to the appellate court about it.

The defendant: But how are you going to make me; me and him cannot correspond with each other. How is it going to be fair when we have a very strong lack of communication. That dont make sense.

The Court: Were in trial, Mr. Sanders, in the middle of your trial. Your trial is going forward today. There is no basis in anything youve told me, and from what Ive seen during the course of this trial so far to find that there is a conflict except youre saying so.

The defendant: There is a conflict. I actually we even came to trial, I asked you personally before we came to trial.

The Court: The courts made its ruling. The ruling will stand. [] Anything else this morning? No? Then lets bring the jury in. Were going to trial.

Defendant contends the court erred by failing to make a sufficient inquiry into his complaints.^[9] We disagree. Defendant was specifically asked the basis for his allegation of a lack of communication, and also to identify the actions counsel failed to take which defendant had requested. Defendant responded with three areas of concern.^[10] Two of defendants areas of concern the failure to pursue a motion to separate the counts and counsels performance during jury selection are tactical matters on which defendants disagreement is insufficient to mandate further inquiry. Moreover, the court found no merit to defendants motion to separate on the merits and concluded, from its own observation, that Attorney Barishs performance during jury selection was excellent. As to defendants third area of concern, the alleged failure to provide documents, Attorney Barish stated that he provided all documents to defendant except those recently provided by the prosecutor. Indeed, this was confirmed by the proceedings in open court two days before, when defendant indicated being in possession of some paperwork, and the prosecutor first indicated receipt of the Department of Corrections prison priors packet. The trial court did not abuse its discretion in concluding defendant had failed to establish the necessity of substituting counsel without conducting any further inquiry.^[11]

Without any citation to authority, defendant argues that, at a minimum, the court should have . . . asked trial counsel how many times he visited appellant in jail, whether he interviewed appellant regarding any potential defenses to the charges, whether he had ascertained the identities of any potential witnesses, or whether he had performed any investigation on the matter. We disagree. Defendant did not assert any problems with counsels visits, interviews, or preparation. Defendant claimed a lack of communication based largely on counsels failure to do what defendant wanted him to do, specifically in the context of separating the prosecution on the two counts. The court was not required to inquire regarding a hypothetical lack of preparation based on an allegation of a failure to do as defendant directed. This is particularly so given the courts observations of defense counsel in open court, two days prior, in which defendant consulted with Attorney Barish with no difficulty, and Attorney Barish made several pretrial motions reflecting his familiarity with the facts and issues in this case. Under all of the circumstances, the trial courts Marsden inquiry, and denial of the Marsden motion, did not constitute error.

2. Sentencing Error

Defendant next contends the sentencing court erred in imposing the upper term based on factors not found true beyond a reasonable doubt by the jury. We agree, in part, and remand for further proceedings.

In Apprendi v. New Jersey (2000) 530 U.S. 466, the United States Supreme Court held [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Id. at p. 490.) [T]he statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations.] (Blakely v. Washington (2004) 542 U.S. 296, 303.)

When defendant committed his offenses the determinate sentencing law declared the court shall order imposition of the middle term, unless it finds by a preponderance of the evidence that there are circumstances in aggravation or mitigation of the crime. (Former Pen.Code, 1170, subd. (b); Cal. Rules of Court, rule 4.420(b).) Applying the principles announced in Apprendi and Blakely, Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856, 166 L.Ed.2d 856 held the imposition of an upper term under Californias former law generally violated a defendants constitutional rights.

In the wake of Cunningham, the California appellate courts have considered whether the Apprendi exception for the fact of a prior conviction relates solely to the mere fact of such a conviction or extends to other factors relating solely to the defendants recidivism, such as the numerosity and seriousness of prior convictions, the service of prior prison terms, and unsatisfactory performance on parole. The California Supreme Court has granted review in these cases. (People v Towne, review granted July 14, 2004, S125677, supp. briefing ordered, Feb. 7, 2007; People v. Hernandez, review granted Feb. 7, 2007, S148974; People v. Pardo, review granted Feb. 7, 2007, S148914; People v. Banks, review granted June 27, 2007, S152849.)

In this case, the four the seven factors on which the sentencing court relied related solely to his recidivism. We need not consider the propriety of these factors, however, as the remaining three factors on which the sentencing court relied were indisputably improper. The court relied on the following factors: (1) the crime involved great bodily harm; (2) defendant was armed at the time of the crime; and (3) the manner in which the crime was carried out indicates planning. Defendant suggests that none of these factors were found true beyond a reasonable doubt by the jury. This is incorrect; the jury found the great bodily injury enhancement true. However, the sentencing court enhanced defendants sentence by three years because of this finding. Therefore, the court was not permitted to rely on this factor to impose the upper term. (Pen. Code, 1170, subd. (b).) Moreover, it is highly questionable whether the other two factors were, in fact, true. There is absolutely no evidence that defendant was armed at the time he committed the domestic violence assault; indeed, all evidence indicated he did not obtain the gun until three days later. Similarly, in the absence of any evidence that defendant brought the gun to McDows home, there is no evidence that defendants attack on McDow was planned, rather than a spontaneous outburst in the course of an argument. In short, while the sentencing court relied on two aggravating factors which had not been found true by the jury, it is also apparent that the court should not have relied on those factors, and a third factor, at all.

Under these circumstances, where it is not certain whether the trial court would have imposed the upper term had the improper factors not been considered, we remand for resentencing.

DISPOSITION

The sentence is reversed and the matter remanded to the superior court with directions to conduct a new sentencing hearing consistent with the views expressed in this opinion. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J.

We Concur:

KLEIN, P. J.

KITCHING, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

^[1] Defendant had previously hit McDow when they were dating; he was convicted of misdemeanor battery. (Pen. Code, 243, subd. (e)(1).)

^[2] Four prior prison terms were alleged, but the prosecution subsequently realized that two of the convictions resulted in the same prison term.

^[3] The information alleged violation of subdivision (e) of this section, which provides an enhancement of three, four, or five years for the personal infliction of great bodily injury under circumstances involving domestic violence. The enhancement allegation was presented to the jury only as a violation of subdivision (a), which provides an enhancement of three years for the personal infliction of great bodily injury.

^[4] The prosecutor declined to make an offer with respect to the firearm possession count, and further objected to any severance of the counts.

^[5] Specifically, the court noted that the prosecution would not require defendant to admit the great bodily injury enhancement, which would mean that the domestic violence conviction would not constitute a strike.

^[6]People v. Marsden (1970) 2 Cal.3d 118.

^[7] The record reads terms. We assume a reporters error.

^[8] The record reads people. We assume a reporters error.

^[9] Defendant also contends the trial court erred in failing to exclude the prosecutor from his Marsden hearing. [A] trial court does not abuse its discretion by failing to exclude the district attorney from a hearing on a defendants motion to dismiss his court-appointed counsel, when there is no timely request to do so and no information is disclosed about the defendants case during the hearing to which the prosecution is not entitled, or which could conceivably lighten the prosecutions burden of proving its case. (People v. Madrid (1985) 168 Cal.App.3d 14, 16.) It is defendants burden, on appeal, to establish that the presence of the prosecutor inhibited him from stating any objections to his counsels representation. (Id. at p. 19.) Defendant has failed to meet that burden with anything beyond speculation.

^[10] On appeal, defendant suggests he may have had further areas of concern, but the court prevented him from identifying them. On the contrary, after the court believed defendant had finished raising all of his issues regarding counsels performance, defendant stated that he had one more thing to raise. The court allowed defendant to [g]o ahead and raise that point. Defendant made no indication that he had other issues to discuss.

^[11] Defendant also suggests the court was not taking the proceedings seriously, due to the courts comment regarding the perhaps likely event of defendants conviction. We do not see the inappropriate sarcasm defendant reads into the record, but only a court informing the defendant that he can complain on appeal if he believes the court made an incorrect ruling.