Filed 4/20/17 P. v. Smith 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID REY SMITH,

Defendant and Appellant.
H043945 & H044018
(Santa Clara County
Super. Ct. No. C9807357)

In 1999, appellant David Rey Smith was convicted of five felonies: two counts of pimping (Pen. Code, § 266h, counts 1, 3), one count of pandering (§ 266i, subd. (a)(1), count 4), one count of lewd conduct on a child 14 or 15 years of age (§ 288, subd. (c)(1), count 5), and one count of unlawful sexual intercourse with a minor under the age of 16 by a person over the age of 21. (§ 261.5, subd. (d), count 6.) The trial court sentenced appellant under the “Three Strikes” law to an indeterminate term of 50 years to life, consisting of consecutive 25 years to life sentences on each of the pimping convictions and concurrent 25 years to life sentences on the three remaining convictions.
In 2013, appellant petitioned for resentencing under the Three Strikes Reform Act of 2012 (Proposition 36.) On June 5, 2013, the trial court denied the petition, concluding that appellant was ineligible for resentencing because his lewd conduct conviction required mandatory sex offender registration. Appellant appealed that order. On November 6, 2014, while the appeal was pending, Deputy Public Defender Michelle Vasquez requested that the superior court appoint counsel to represent appellant on his resentencing petition. The court denied the request because appellant’s appeal was still pending.
In People v. Smith H040188, filed on August 11, 2015 [nonpub. opn.], this court reversed the trial court, holding that pursuant to People v. Johnson (2015) 61 Cal.4th 674, appellant was entitled to have his eligibility for resentencing calculated on a count by count basis. This court also held that appellant’s concurrent sentences for lewd conduct and unlawful sexual intercourse were unauthorized. Instead, his sentence on the lewd conduct conviction should have been stayed under section 654. After the matter was remanded to the trial court, the court granted the public defender’s earlier request to be appointed to represent appellant, and she appeared in court on December 7, 2015, representing appellant.
On May 9, 2016, appellant, acting in pro per, filed two pleadings: a pleading entitled “Request for the Court to Take Judicial Notice,” asking the court to take judicial notice of a legal summary of Prop. 36, and a motion entitled, “Motion: Affirmative Defense: Statutory Proviso / Exception in Pen. Code §§ 667 subd. (e)(2)(C) Incorporated in 1170.126 subd. (s) (e) & (I),” raising “constitutional, procedural and substantive due process, and jeopardy bars” to the superior court’s actions. In the latter pleading, appellant argued that the denial of his resentencing petition violated the separation of powers doctrine and due process. He asked the superior court to grant the motion and schedule a resentencing hearing. On May 27, 2016, the superior court issued on order describing appellant’s motion as “essentially incomprehensible.” The court also held that since appellant was represented by counsel it would not consider his pro-per motion.
On July 19, 2016, appellant filed another pro per pleading entitled, “Motion to Vacate Judgment,” citing Code of Civil Procedure sections 473, 475 and 668 et seq. Appellant argued that the court had failed to follow this court’s directions to evaluate the resentencing petition on a count by count basis. The motion asked the court to vacate it’s May 27, 2016 “final judgment,” initiate resentencing proceedings, and recognize appellant’s pro per status pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta). On July 25, 2016, the superior court denied the motion. It noted that the civil procedure statutes appellant had cited in the motion were inapplicable to criminal cases. Referring to the order issued on May 27, 2016, the court also stated, “Defendant was represented by counsel and had not been granted pro per status, and . . . the submission was essentially incomprehensible and not did set forth any legal or factual grounds for action by this court.”
On August 22, 2016, the trial court held a post-remand hearing on appellant’s resentencing petition. After the trial court overruled appellant objection to the validity of the strike prior on timeliness grounds, it resentenced appellant. It imposed a 12-year sentence for count 1 (pimping), and a consecutive two-year-eight-month sentence (one-third the mid-term) for count 3 (pimping). It also imposed an eight year concurrent sentence for count 4 (pandering.) It imposed a consecutive 25-year-to-life three strikes sentence for count 6 (unlawful sexual intercourse). A 25-to-life three strikes sentence on count 5 (lewd conduct with a child) was stayed pursuant to section 654.
On August 23, 2016, in appeal number H043945, appellant timely appealed the resentencing order. On September 23, 2016, in appeal number H044018 appellant timely appealed the order dated July 25, 2016, denying the pro per motion to vacate judgment.
We appointed counsel to represent appellant in this court in both appeal numbers H043945 and H044018. Appointed counsel filed an opening brief pursuant to People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano), which states the case and the facts but raises no specific issues in both appeals. Pursuant to Serrano, on December 1, 2016, we notified appellant of his right to submit written argument in his own behalf within 30 days. On January 27, 2017, we received a supplemental brief from appellant as well as a request for judicial notice. In his brief, the appellant contends that the trial court abused its discretion when it failed to conduct a bifurcated “defeasance” trial. He further contends that the court erred by depriving him of his “state and federal constitutional and statutory right to be present” during resentencing proceedings, by failing to provide him notice, by failing to properly appoint counsel and by failing to process his petitions for redress. He requests that we remand the case back to “proceed under the statutory defeasance.”
None of appellant’s contentions raise an arguable issue. On remand from this court, the trial court was not required to conduct a trial. Our opinion directed the trial court to conduct a resentencing hearing, consistent with our opinion. The trial court did just that. Further, appellant’s contention that he was deprived of his constitutional right to counsel, to be notified of hearings and to be present is not supported by the record. Counsel was appointed on December 7, 2015, and appellant was present at the resentencing hearing held on August 22, 2016.
Nor did the trial court fail to process his petitions for redress. The court addressed every petition he filed in a timely manner. The court ruled on appellant’s May 9, 2016 motion on May 27, 2016, deeming the pro per motion incomprehensible and improper. The court held that because appellant was represented by counsel, it would not consider his motion. The court also ruled on appellant’s July 19, 2016 motion to vacate on July 25, 2016. Noting that appellant had neither filed a Faretta motion, nor been granted pro per status thereunder, the Court found that appellant’s motion to vacate was without merit because it relied on civil code sections. There is no support for the contention that the trial court was required to hold hearings on these motions. Not only were the motions without substantive merit, but the appellant was represented by counsel at the time he filed the motion. The trial court was within its rights to not consider the pro per motions on their merits. (People v. Brown (1986) 179 Cal.App.3d 207, 215.)
Finally, appellant complains that he did not hear from his attorney until May 13, 2016. To the extent he is attempting to assert an ineffective assistance of counsel claim, the record does not support such a claim on appeal. To show ineffective assistance of counsel on appeal, a defendant must show that counsel’s performance was deficient and that he was prejudiced thereby. (Strickland v. Washington (1984) 466 U.S. 668, 687.) There is neither evidence of deficient performance nor prejudice on the record before us. Appellant’s counsel sought to initiate representation 2014 while the prior appeal was still pending in this court. The court declined to appoint counsel until shortly after remand in 2015. According to appellant, counsel did not contact him until May 2016. May was well before the August 22, resentencing hearing. Counsel represented appellant at the August resentencing hearing and the trial court complied with this court’s directions in resentencing appellant. Even if defendant could show some deficiency, he cannot show any prejudice.
As nothing in appellant’s supplemental brief raises an arguable issue on appeal, we must dismiss it. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.)
DISPOSITION
The appeal is dismissed.
 
_____________________________________
RUSHING, P.J.






WE CONCUR:






_________________________________
PREMO, J.






_________________________________
ELIA, J.











People v. Smith
H043945 & H044018