P. v. Hernandez

Filed 6/22/07 P. v. Hernandez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Appellant was charged with five counts of committing lewd acts on a child under the age of 14, with an allegation of substantial sexual conduct as to one count, and one count of dissuading a witness. Following a court trial, appellant was sentenced to 10 years in prison. He contends that the trial court erred in denying his motion to substitute counsel and in sentencing him to the aggravated term. We reverse. Appellant has also filed a petition for writ of habeas corpus contending that he received ineffective assistance of counsel. By separate order filed this day, we issue an order to show cause returnable to the superior court.

Background

Appellant was charged with five counts of committing a lewd act on a person under 14 and one count of dissuading a witness. (Pen. Code,  288, subd. (a), 1203.066, subd. (a)(8), 136.1, subd. (c)(1).) Appellant made a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118, which the trial court denied. Some months later, appellant made another Marsden motion which was denied. Appellant agreed to waive his right to a jury trial with the understanding that he could suffer no more than two convictions and that the maximum penalty that could be imposed was 10 years.[1] The information was amended to allege two lewd act counts and the dissuading a witness count.

The evidence at trial showed that in July 2003 appellant and his brother Miguel shared a room in a garage behind the house in which six-year-old Jane Doe lived. Family members became concerned about certain behaviors that Jane Doe was exhibiting. Jane Doe testified at trial that appellant and Miguel invited her into the garage, laid her on the bed without her clothes, and took off their clothes. When Miguel took a shower, appellant touched her private part. He touched her with his hands and touched her private part with his tongue. Jane Doe testified that appellant had tattoos, including one of a star near his penis.

Other witnesses testified that appellant had no problems with any of the children living in the house. Appellant testified and denied inviting Jane Doe into the garage or having any inappropriate contact with her. The parties stipulated that appellant had no tattoos.

The trial court convicted appellant of the two lewd act counts and granted the prosecutor's motion to dismiss the count charging dissuading a witness. At sentencing, defense counsel noted that appellant maintained his innocence of the charges and observed that the trial court had said that this was a "close case." Defense counsel argued that appellant was a hard working person and submitted many letters attesting to the "high esteem" in which appellant was held by his employer and many others, some of whom were parents.

When appellant was asked if he wished to address the court, appellant said, "Even if I were tortured today to get me to plead, I would still continue to plead innocent. I think my attorney and the district attorney worked together to find me guilty. . . . [] Your Honor, the proper investigation necessary were [sic] never carried out nor was a psychologist sent to see me in order to do an evaluation and no one even wanted to examine the supposed victim, never did a specialist interview her. . . . [] . . . I was found guilty without having an attorney who would defend my rights."

Defense counsel said, "Before the Court imposes sentence, this is the first I heard of this. It strikes me that what he has indicated in that letter is the basis for what we would call a Marsden motion, motion to remov[e] counsel, and also he's raising issues that he feels is incompetence of counsel. [] And the appropriate . . . procedure at this point, I would ask that the Court would continue the sentencing and perhaps either appoint counsel to have him go over some of those issues. [] If I would have known -- obviously, it's not a Marsden that's being conducted in chambers or here in open court, but it does appear, at this point, I'm not sure that it's even appropriate for me to continue representing him. He certainly has raised issues and perhaps that's something that should be looked at by independent counsel before the Court imposes sentence and I would ask the Court to do that." The court responded, "That request is denied."

The court then described the impact of appellant's offenses on the victim and said, "As far as your attorney's concerned, your attorney has done her best and that's clear to the Court as well. To do the best job to minimize, actually, the impact on you and to get your trial and to obtain a complete and thorough trial for you."

The court said that "the age of this child" was an aggravating circumstance and that the "manner that the crime was carried out indicates planning, sophistication. . . . [T]here isn't any question that the manner in which this crime was carried out is a factor in aggravation." The trial court said that there was no mitigation "other than no prior record." The trial court imposed an upper term of eight years on one count and a consecutive two-year term on the second count for a total term of 10 years.

Counsel

Appellant contends, "The trial court's prejudicial denial of the motions to substitute counsel and to accede to defense counsel's declaration of a conflict at the critical new trial motion stage further violated appellant's right to effective, conflict-free assistance of counsel guaranteed by the Sixth and Fourteenth Amendments."

Criminal defendants are entitled to competent representation at all stages of the proceedings, including post-conviction. (People v. Smith (1993) 6 Cal.4th 684, 694-695.) "When a defendant moves for substitution of appointed counsel, the court must consider any specific examples of counsel's inadequate representation that the defendant wishes to enumerate." (People v. Webster (1991) 54 Cal.3d 411, 435; see also People v. Hill (1983) 148 Cal.App.3d 744, 753 ["Depending on the nature of the grievances related by defendant, it may be necessary for the court also to question his attorney"].) A defendant is entitled to substitution of counsel if the defendant shows that trial counsel is not providing adequate representation, or that the defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. (People v. Valdez (2004) 32 Cal.4th 73, 95.)

"[A] trial court's duty to permit a defendant to state his reasons for dissatisfaction with his attorney arises when the defendant in some manner moves to discharge his current counsel. The mere fact that there appears to be a difference of opinion between a defendant and his attorney over trial tactics does not place a court under a duty to hold a Marsden hearing." (People v. Lucky (1988) 45 Cal.3d 259, 281, fn. omitted.) "[A] proper and formal legal motion" is not required, but the defendant must provide "at least some clear indication . . . that he wants a substitute attorney." (Id. at p. 281, fn. 8.) "Mere grumbling" about counsel's failures is insufficient to invoke a Marsden hearing. (People v. Lee (2002) 95 Cal.App.4th 772, 780.)

In Lucky, the court found no error in the failure to hold a Marsden hearing. Because "defendant never moved for the discharge or substitution of his court-appointed attorney, and declined several opportunities afforded him by the court to state any grounds for dissatisfaction" with his counsel, the trial court was not under a duty to make a further inquiry. (Lucky, supra, 45 Cal.3d at p. 283.) In People v. Kelley (1997) 52 Cal.App.4th 568, the defendant complained about his counsel's performance in a motion for a new trial and cited counsel's failure to allow him to testify and to call several material witnesses. (Kelley, supra, 52 Cal.App.4th at p. 579.) Because defendant's statements "set forth an arguable case of the attorney's alleged incompetence," the court found a Marsden hearing was required to determine if new counsel was needed to aid in the new trial motion; "[o]bviously, counsel would have a conflict of interest representing [the defendant] on a motion for new trial based on a prima facie showing of incompetence." (Id. at p. 580.)

Respondent argues that appellant merely "reiterated his past grievances with his attorney and the criminal justice system in general. He did not request substitute counsel and said nothing to indicate he had any complaints that the trial court had not heard and rejected during the two previous Marsden hearings." This argument does not take into account appellant's new and specific complaint that he had not been evaluated by a psychologist "to do an evaluation."[2] This topic was not discussed during the previous Marsden hearings. Such an evaluation would have been admissible under People v. Stoll (1989) 49 Cal.3d 1136, 1161. Furthermore, appellant's comments, considered fairly and taken as a whole, contain the implicit assertion that his counsel's performance has been so inadequate as to deny him the effective assistance of counsel. Certainly defense counsel understood them that way. The appropriate course of action is to remand to the trial court to allow it to fully inquire into appellant's allegations concerning counsel's performance.

Sentencing

Appellant contends that the trial court erred in relying on the victim's age in imposing the upper term. Although California Rules of Court, rule 4.421(a)(3) authorizes use of the victim's age as a factor in aggravation, rule 4.420(d) proscribes the use of an element of the crime to aggravate the sentence. (People v. Quinones (1988) 202 Cal.App.3d 1154, People v. Ginese (1981) 121 Cal.App.3d 468, 477.) He further contends that the trial court "erroneously found only one mitigating factor, no prior record, when other mitigating circumstances existed."

Citing Blakely v. Washington (2004) 542 U.S. 296, andApprendi v. New Jersey(2000) 530 U.S. 466, appellant contends, "Appellant was deprived of his Fifth and Fourteenth Amendment right to due process when the People failed to charge any factors in aggravation in the information, his Sixth and Fourteenth Amendment right to a jury trial, and his Fifth and Fourteenth Amendment right to application of the proof beyond a reasonable doubt standard when the trial court imposed count one's aggravated sentence pursuant to the preponderance of the evidence standard." He also contends that he was "entitled to a jury trial and application of the proof beyond a reasonable doubt standard regarding the trial court's decision to impose the upper term." In his opening brief, appellant acknowledged that this claim had been rejected in People v. Black (2005) 35 Cal.4th 1238.[3] Appellant states, "It is appellant's expectation that Black will be overruled . . .  while this appeal is pending." Indeed, the United States Supreme Court has now held that a judge may not impose an upper term sentence because the aggravating sentencing

factors to support such a sentence must be tried by a jury. (Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856].)

Blakely describes three types of facts that a trial judge can properly use to impose an aggravated sentence: (a) " 'the fact of a prior conviction' " (Blakely, supra, 542 U.S. at p. 301); (b) "facts reflected in the jury verdict" (id. at p. 303, italics omitted); and (c) facts "admitted by the defendant" (ibid., italics omitted). The factors in aggravation relied upon by the court here, the victim's age and the planning and sophistication involved, do not fall into any of these categories. Nothing in Cunningham places the actual sentencing decision in the hands of the jury. (Cunningham v. California, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 857] [it is the "sentence-elevating fact-finding" inherent in DSL that violates the defendant's right to a jury trial].) Blakely error is subject to a harmless error analysis. (Washington v. Recuenco (2006) --- U.S. ---- [126 S.Ct. 2546, 2553] ["[f]ailure to submit a sentencing factor to the jury . . . is not structural error" and is subject to the harmless error rule]; People v. Sengpadychith (2001) 26 Cal.4th 316, 327.)

We note that although appellant waived his right to a trial by jury, his waiver was limited to the determination of his guilt or innocence of the charged offenses. He did not waive the right that he also had, under Blakely, to both a jury's determination and proof beyond a reasonable doubt of the aggravating factors. On this record, we cannot conclude beyond a reasonable doubt that the aggravating factors here were "uncontested and supported by overwhelming evidence." (Neder v. United States(1999) 527 U.S. 1 [119 S.Ct. 1827].) Whether or not the victim's age was an appropriate consideration, this factor was not presented to a jury for a finding. What evidence of planning and sophistication was far from compelling, appellant had no reason to dispute either factor at trial, and nothing in the trial court's determination of appellant's guilt speaks to these factors. Excluding these factors in aggravation from consideration, and given the remaining factor in mitigation, it is reasonably probable appellant would have received a more favorable sentence. Accordingly, the trial court may not rely on these factors in aggravation upon resentencing.

Disposition

The matter is remanded to the trial court for a hearing on appellant's allegations concerning counsel's performance. If the court finds that appellant has presented a colorable claim of ineffective assistance of counsel, then the court must appoint new counsel to fully investigate and if appropriate present a motion for new trial based on ineffective assistance of counsel. If the court does not find a colorable claim of ineffective assistance of counsel, the court shall proceed to resentencing.

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ELIA, J.

WE CONCUR:

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RUSHING, P. J.

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PREMO, J.

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[1] Defense counsel explained that, in addition to these conditions, the prosecutor "is not filing what we would call an enhancement that could lead to a 25-year-to-life sentence." However, when the court specifically asked "Now is this a slow plea?" counsel answered, "No."

[2] We note that defense counsel mentioned "what he has indicated in that letter" but that parties have not directed us to a document to which counsel was referring.

[3] In light of Black, any objection by appellant at sentencing based on Blakely, Apprendi, or the United States Constitution almost certainly would have been futile. Accordingly, we reject respondent's claim appellant waived the issue by failing to object.