Filed 10/19/17 P. v. Elerick CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. GARY RUSSELL ELERICK, Defendant and Appellant.

H044144 (Santa Clara County Super. Ct. No. CC577645)

I. Introduction

In December 2006, defendant Gary Russell Elerick pleaded no contest to second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c))[1] and admitted that he had nine prior convictions that qualified as strikes (§§ 667, subds. (b)-(i), 1170.12) and five prior serious felony convictions (§ 667, subd. (a)). In March 2007, defendant was sentenced to an indeterminate term of 28 years to life consecutive to a 25-year determinate term.

In October 2014, defendant filed a petition for writ of habeas corpus alleging that one of the prior serious felony convictions should not have been used to enhance his sentence because it had previously been found invalid. The trial court issued an order to show cause and appointed counsel for defendant. Defendant subsequently moved to replace appointed counsel and, separately, moved to represent himself. The trial court denied both of those motions, but it granted habeas relief and resentenced defendant to a term of 25 years to life consecutive to a determinate term of 20 years.

On appeal, defendant contends the trial court abused its discretion by denying his motion to replace appointed counsel without holding a hearing, and that the trial court erred by denying his motion to represent himself. For reasons that we will explain, we will affirm the judgment.

II. Background

A. The 2006 Robbery Conviction

In an information filed October 6, 2005, defendant was charged with second degree robbery. (§§ 211, 212.5, subd. (c).) The information alleged that defendant had personally used a handgun in the commission of the robbery. (§ 12022.53, subd. (b).) The information further alleged that defendant had nine prior convictions that qualified as strikes (§§ 667, subds. (b)-(i), 1170.12) and five prior serious felony convictions (§ 667, subd. (a)). The five prior serious felony convictions were: a Los Angeles County robbery; two Orange County robberies; a federal bank robbery; and a Los Angeles County burglary.

On December 12, 2006, defendant pleaded no contest to second degree robbery and admitted all of the prior conviction allegations. At the sentencing hearing held on March 7, 2007, the trial court dismissed the firearm use allegation and imposed an indeterminate term of 28 years to life for the robbery[2] with a consecutive 25-year determinate term for the prior serious felony convictions.

B. Habeas Proceedings

Defendant filed a petition for writ of habeas corpus in the trial court on October 27, 2014. He alleged that one of the prior serious felony convictions—the Los Angeles County robbery—should not have been used to enhance his sentence because it had previously been found invalid during the proceedings on one of his Orange County robberies. He further contended the prosecutor had committed misconduct by alleging an invalid prior conviction and that his trial counsel had been ineffective for failing to investigate and discover the invalid prior conviction.

The trial court requested the People file an informal response. The People acknowledged that in 1986, the Orange County Superior Court had granted a motion to dismiss a prior conviction allegation regarding defendant’s Los Angeles County robbery, which was from 1974. The People also acknowledged that under People v. Howie (1995) 41 Cal.App.4th 729 (Howie), a trial court is collaterally estopped from imposing a consecutive five-year prior serious felony enhancement for a prior conviction that has been previously declared unconstitutional. (See id. at p. 734.) However, the People contended that defendant was not entitled to relief because (1) he “received the benefit of the bargain,” (2) he admitted the 1974 prior conviction in another proceeding prior to the 1986 proceeding, and (3) the Orange County Superior Court applied the wrong standard when finding the 1974 prior conviction invalid.

On May 29, 2015, the trial court issued an order to show cause and ordered counsel appointed for defendant.

The People filed two requests for extension of time to file a return. In one of the requests, filed on September 30, 2015, the prosecutor indicated the People had “decided to offer no further opposition” to defendant’s request for habeas relief and that she believed defendant was entitled to a sentence reduction to an indeterminate term of 25 years to life consecutive to a determinate term of 20 years.

C. Defendant’s Motions

On October 21, 2015, defendant filed, in pro per, a motion to replace his appointed habeas counsel. Defendant asserted that his habeas counsel had requested defendant withdraw his ineffective assistance of counsel claim. His habeas counsel had also indicated that she agreed with the District Attorney’s Office that defendant should be resentenced to an indeterminate term of 25 years to life consecutive to a determinate term of 20 years. Defendant further complained that his habeas counsel had “admitted she had not read [his] petition.” Defendant asserted that he had informed his habeas counsel that he would “never drop any claim in my petition.”

Defendant’s habeas counsel wrote to the trial court on October 30, 2015, requesting an order “as how to respond” to defendant’s claims and “a confidential hearing on the matter, similar to the Marsden^[[3]] procedure in a criminal proceeding,” or, alternatively, that she be permitted to file a declaration under seal.

Defendant wrote to the trial court on November 1, 2015, asking if his motion to replace his appointed counsel had been received and why he had not heard anything regarding that motion.

Defendant next filed a motion to represent himself “ON ALL PROCEEDINGS.” He indicated he was “unequivocally” invoking “his right to self-representation.” In that motion, defendant noted that his motion to replace his habeas counsel was pending. He complained about delays in prison mail delivery, noted that his habeas counsel agreed with the prosecutor’s resentencing recommendation, and asserted that his habeas counsel was failing to protect his interests.

Defendant also filed a motion to withdraw his plea, asserting he had never actually admitted any “three-strikes prior,” such that he could not be sentenced on any of the strike allegations and should receive a 23-year determinate term. Additionally, defendant sent a letter to the trial court complaining that his habeas counsel had not done anything he had asked her to do, such as “an amended plea or a[] supplemental brief.” He asserted that he did not trust his habeas counsel because she agreed with the prosecutor’s resentencing calculation.

D. May 2016 and July 2016 Hearings

After several continuances, the matter was set for a habeas hearing on May 27, 2016. At the habeas hearing, defendant’s habeas counsel indicated she had no objection to the proposed order submitted by the People, which specified that the parties had informally discussed the case and agreed that defendant was entitled to relief under Howie, supra 41 Cal.App.4th 729. The proposed order further indicated that the parties had “reached an agreement” regarding “the effect of granting the habeas” petition: defendant’s sentence would be reduced to an indeterminate term of 25 years to life consecutive to a determinate term of 20 years. The trial court signed the order, which specified that defendant would be resentenced to “25 years to life consecutive to 20 years” and that an amended abstract of judgment was to be prepared. The trial court set the matter “for re-sentencing in accordance with th[at] order” on July 22, 2016.

Also at the May 27, 2016 habeas hearing, the trial court addressed defendant’s outstanding motion to have “appointed counsel replaced,” noting that it was “not really a Marsden motion because . . . this is a habeas rather than a trial.” The trial court denied the motion and indicated that defendant’s other motions would be stricken because defendant had to bring motions “through counsel.” After defendant’s habeas counsel objected to the trial court’s refusal to consider defendant’s motion for self-representation, the trial court denied that motion.

Between the May 27, 2016 habeas hearing and the July 22, 2016 resentencing hearing, defendant did not file any additional motions. At the July 22, 2016 resentencing hearing, defendant’s appointed counsel represented that she had corresponded with defendant and that he had “clearly expressed he did not want to be transported for this appearance.”

At the resentencing hearing on July 22, 2016, the trial court vacated defendant’s original sentence “based on the striking of the 1974 Los Angeles County prior conviction” and imposed a sentence of 25 years to life[4] consecutive to 20 years.

III. Discussion

Defendant contends the trial court abused its discretion by denying his motion to replace his appointed habeas counsel without holding a hearing. (See People v. Smith (2003) 30 Cal.4th 581, 604 [when a defendant makes a Marsden motion, “the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance”].) Defendant also contends the trial court erred by denying his motion to represent himself because the motion was timely, unequivocal, and made knowingly and intelligently.

The Attorney General contends the trial court correctly denied defendant’s motions. The Attorney General points out that in a habeas proceeding, a defendant has no right to bring a Marsden motion or a motion for self-representation. (See In re Barnett (2003) 31 Cal.4th 466, 475 (Barnett) [there is “no constitutional right to counsel for seeking collateral relief from a judgment of conviction via state habeas corpus proceedings” and no “right to self-representation when seeking habeas corpus relief”].)

Defendant acknowledges his motions “were filed while the habeas petition was technically still pending.” He nevertheless points out that at the time he filed his motions, the People had conceded that defendant was entitled to habeas relief, and he asserts that “[h]is complaints concerned the coming sentencing hearing,” not the habeas proceedings. Defendant asserts that he had the right to bring a Marsden motion and a motion to represent himself “at the sentencing hearing” because the sentencing hearing was “part of the original criminal proceeding.” (See People v. Winbush (1988) 205 Cal.App.3d 987, 991 [a defendant may “make a Marsden-type motion posttrial, either for the purpose of sentencing or of making a new trial motion”]; People v. Miller (2007) 153 Cal.App.4th 1015, 1024 [defendant moved to represent himself after jury verdicts but two months before sentencing].)

We conclude that the trial court did not err by denying defendant’s motions at the May 27, 2016 hearing, because the motions were filed during the habeas proceedings and pertained to his appointed habeas counsel’s performance during those proceedings. (See Barnett, supra, 31 Cal.4th at p. 475.) At the time defendant brought his motions, the trial court had not yet ruled on his habeas petition. Although defendant may have had a right to bring a Marsden motion and a motion to represent himself “at the sentencing hearing,” the fact remains that defendant did not actually make any such motions at the July 22, 2016 resentencing hearing. Nor did defendant renew any of his previous motions between the May 27, 2016 habeas hearing and the July 22, 2016 resentencing hearing. Defendant also “clearly expressed he did not want to be transported” to appear at the July 22, 2016 resentencing hearing. Finally, in his motions, defendant clearly sought replacement of his habeas counsel and to represent himself during the habeas proceedings, before the trial court granted habeas relief at the May 27, 2016 hearing. On this record, the trial court properly denied the motions at that hearing.

IV. Disposition

The judgment is affirmed.

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