Filed 11/5/18 P. v. Duran CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

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Defendant Samuel Duran pleaded guilty to three counts of attempted murder of police officers. (Pen. Code, §§ 664, subd. (f), 187, subd. (a).)[1] Defendant also admitted a firearm enhancement. (§ 12022.53, subd. (d).)

On appeal, defendant contends the trial court erred in denying his motion to withdraw his plea. He further contends the matter should be remanded to permit the trial court to exercise its discretion to strike the firearm use enhancement, pursuant to section 12022.53, subdivision (h) (Sen. Bill No. 620 (2017-2018 Reg. Sess.) eff. January 1, 2018 (Stats. 2017, ch. 682, §§ 1-2)). The People concede section 12022.53, subdivision (h), applies retroactively, but argue it would be futile to remand the matter.

Also, we note the trial court did not orally dismiss the remaining charges and enhancements as had been agreed between the parties, and, in the interests of judicial economy, we will do so. We will remand this case to the trial court to exercise its discretion to strike the firearm enhancements. The judgment is otherwise affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

On the afternoon of October 25, 2013, Special Agent R. Kennedy and Officers M. Ryland and Sidebottom were driving in a neighborhood and investigating prostitution activity. As they drove, Sidebottom saw defendant sitting on a bicycle. The three officers were familiar with defendant because he was from the neighborhood and had run away from officers earlier that week. In addition, Ryland had previously arrested defendant and was aware defendant was a parolee at large. The officers pulled up to defendant and said hello, but defendant headed in the other direction. As Kennedy and Ryland pursued defendant on foot, defendant got off the bike, reached toward the front of his waistband, and ran into the carport of a nearby house that officers believed was inhabited by defendant’s relatives. Defendant shot at Kennedy and Ryland three times, with Kennedy getting hit in the right leg. Ryland also felt a bullet pass by his left side. Ryland returned fire, but defendant ran away.

Investigator K. Quaratolo subsequently found defendant hiding underneath a bush. Defendant got up and pointed a gun at her. Quaratolo fired at defendant, who jumped a fence and ran away.

M.M. told police he was home with his wife, L.M., and their 16-month-old child, when he heard shooting outside. M.M. briefly went outside to find out what was going on and then returned inside and locked all the doors and windows. At one point, he moved his family into a bedroom. About 90 minutes later, M.M. heard loud banging sounds and realized an intruder (later identified as defendant) had opened an exterior door. Fearing defendant had broken into his house, M.M. barricaded the bedroom door with a wooden dresser. Gunshots flew through the bedroom walls. Defendant unsuccessfully tried to open the door by pushing it and threatened to kill M.M. if he tried to escape. M.M. saw the intruder holding a Glock handgun. With the help of the police, M.M., L.M., and the child escaped out the bedroom window.

Meanwhile, a SWAT team was conducting yard-to-yard searches looking for defendant. As officers were investigating the house of M.M. and his family, a male fired three shots through a window and hit Officer D. Szeto in the face, causing life-threatening injuries. Glass from the window shattered next to the six other SWAT team members, hitting them. The officers returned fire. Defendant eventually came out of the house to surrender.

Defendant was taken to the hospital, where he told police he was afraid and did not know it was the police chasing him.

Defendant was charged with three counts of attempted willful, deliberate, premeditated murder of a peace officer (§§ 664, 187, subd. (a); counts one, three & ten), nine counts of assault on a peace officer with a semiautomatic firearm (§ 245, subd. (d)(2); counts two, four, eleven, twelve, thirteen, fourteen, fifteen, sixteen & seventeen), first degree residential burglary (§ 459; count five), two counts of false imprisonment by violence (§ 236; counts six & eight), two counts of criminal threats (§ 422; counts seven & nine), possession of a firearm by a felon (§ 29800, subd. (a)(1); count eighteen), receipt of stolen property (§ 496, subd. (a); count nineteen), and cruelty to a child (§ 273a, subd. (a); count twenty). With respect to counts one through four and ten through seventeen, it was also alleged defendant personally used and discharged a firearm and proximately caused great bodily injury. (§§ 12022.5, subd. (a), 12022.53, subds. (b)-(d).) It was also alleged defendant had two prior serious felonies and two prior prison terms. (§§ 667, subds. (a)-(i), 667.5, subds. (a)-(b), 1170.12, subd. (a).)[2]

Defendant’s motions to continue the trial

In November 2016, defense counsel Amber Lunsford moved to continue defendant’s trial that had been set for February 2017. (§ 1050.) Lunsford informed the court she had a second murder trial in Stanislaus County that was also scheduled to proceed in February 2017, and her client would not waive time. The prosecution objected, arguing there was not good cause. According to the prosecution, during a recorded jail phone call on October 31, 2016, defendant said his lawyer told him she would ask the court to withdraw from representing him because the case was “too much” for her and she “couldn’t handle it” because of her other case in Stanislaus County. On November 21, 2016, the trial court denied defendant’s motion. In January 2017, the trial court granted defendant’s renewed request to continue the trial to April 2017.

On March 15, 2017, Lunsford informed the trial court she was unable to proceed to trial in April 2017 due to recently finishing a different homicide trial in Stanislaus County that resulted in a hung jury and had to be retried in May 2017. Lunsford stated, “I cannot effectively represent [defendant] beginning April 3,” because she could “not effectively recuperate and prepare to effectively represent [defendant]” in time. In addition, defendant’s trial would likely run longer than the scheduled May 2017 trial in Stanislaus County. The prosecution opposed the motion and proposed appointing the public defender. The trial court denied the motion, and Lunsford stated she “need[ed] to move to withdraw,” given her “ethical duty to make sure [her] client is effectively represented throughout the process.” The court informed Lunsford she needed to put any request to withdraw in writing.

On March 17, 2017, the trial court held a trial confirming conference. Lunsford informed the court her Stanislaus County client had agreed to trail defendant’s trial, although she remained “concerned” about the length of defendant’s trial and potential schedule conflicts with her other case in Stanislaus County, since defendant’s case was “very complicated,” and there were likely to be “more than 50 witnesses.” Still, she had decided not to file a motion to withdraw, having instead spent the time preparing for trial. The court noted Lunsford was a “very competent” and “excellent attorney” and said she had shown “a great deal of preparation in this case.” Lunsford accepted the trial court’s offer for accommodation, including postponing trial by one week. Lunsford also said she was “very committed to [defendant’s] case.” The prosecutor stated he was “concerned about [defendant] getting constitutionally competent representation considering the fact that two days ago [Lunsford] said she was wholly unprepared to do this trial.” The court responded the issue was Lunsford having two conflicting trials at the same time. Since defendant’s case was now going first, Lunsford had enough time to focus and prepare. In addition, noted the trial court, Lunsford had never moved to withdraw. Lunsford reiterated she had enough time to prepare, especially with the court’s accommodations.

On March 24, 2017, defendant filed another motion to continue, again pointing to Lunsford’s time limitations given her Stanislaus County trial. In Lunsford’s supporting affidavit, she stated she was still locating and interviewing witnesses and securing evidence and discovery, including several recently discovered videos of the incident taken by private individuals that were provided to the public defender’s office. After holding a hearing, the trial court denied defendant’s motion, since Lunsford had repeatedly stated she was prepared to go to trial.

Defendant’s guilty plea

On April 6, 2017, defendant pleaded guilty to three counts of willful, deliberate, and premeditated murder of a police officer. (§§ 664, subd. (f), 187, subd. (a); counts ten, one & three.) With respect to count ten, defendant also admitted a firearm use allegation. (§ 12022.53, subds. (b)-(d).) The parties agreed the remaining charges would be dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754, 758. The plea was open, with a potential sentence of between 40 years to life to 70 years to life, depending on whether counts one and three would run concurrent.

During the plea hearing, defendant responded yes when the trial court asked defendant if he had sufficient time to discuss the plea with his attorney, including the consequences and any defenses, and Lunsford confirmed. Defendant also said he understood what his attorney had told him, including the consequences of the plea. Defendant confirmed there was nothing else promised to him in exchange for the deal, and no one had threatened or induced him to take the deal.

At the conclusion of the hearing, the trial court noted it had “conducted a lengthy voir dire of [defendant], and I’m convinced that he knows what’s going on, that he’s made an intelligent decision, that he’s competent, that his attorney had plenty of time to discuss with [him] the consequences. I find he’s made a full and knowing decision. I find no evidence he’s suffering from any mental defect; he’s not under the influence of anything right now. He appears calm and collected. [¶] There’s no evidence the Court can discern that he’s been under pressure or anything like that, and so I am very confident that it is a knowing, intelligent, and voluntary waiver.”

Defendant also signed a plea form, stating he had enough time to speak with his attorney, who had explained his rights, defenses, and consequences of his plea. Defendant also stated he was entering the plea “freely and voluntarily.” Lunsford also signed the form, stating she had enough time to discuss the plea with defendant, including his potential defenses and the consequences of his plea.

Marsden hearing

On May 25, 2017, defendant moved to withdraw his plea and requested “relief of counsel.” On June 7, 2017, Lunsford moved to be relieved as defense counsel given “conflict of interest and inability to communicate effectively with the client.” That same day, the trial court held a hearing regarding defendant’s motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). During the hearing, defendant stated Lunsford had provided ineffective assistance of counsel, including failing to obtain discovery in a timely fashion and not adequately reviewing discovery with him. Defendant also claimed Lunsford said she would not represent him if he chose to reject the plea deal and move forward with the case. Lunsford agreed there was a conflict between herself and defendant that substantially impeded their relationship, but argued she had provided adequate representation, was “on top of new evidence,” and was “ready to go and to proceed.” The trial court found there was a conflict, relieved Lunsford, and appointed the public defender. The court also noted defendant felt Lunsford provided ineffective assistance of counsel and suggested new defense counsel should investigate whether there were grounds to withdraw defendant’s plea.

Defendant’s motion to withdraw his plea

In July 2017, defendant moved to withdraw his plea. Defendant argued he had insufficient time to review discovery prior to trial, including the new videos. He further argued Lunsford had not adequately reviewed late discovery. In addition, Lunsford “push[ed] him to take a deal,” and stated she would not represent him if he wished to go forward to trial. Further, Lunsford refused to present defendant’s witnesses, because their proposed testimony was contradicted by recently received video evidence. According to defendant, Lunsford “exerted undue pressure on him” to take the deal, so she could work on the trial in Stanislaus County. The supporting affidavit was sworn by defense counsel.

During the hearing, defense counsel also pointed to the transcript from the Marsden hearing, which was unsealed only for purposes of defendant’s motion to withdraw his plea and subsequently resealed. According to defense counsel, Lunsford did not deny defendant’s statement during the Marsden hearing that she had threatened to not represent him if he wanted to proceed to trial.

The trial court denied defendant’s motion, finding defendant had failed to show good cause. The court noted it had granted defendant’s Marsden motion on the basis of the conflict between Lunsford and defendant, and had “made no finding regarding whether or not [Lunsford] was ineffective or not.” Moreover, the court had “overall” found Lunsford to be “very effective.” She was prepared and had done “an effective job [at] all stages of every proceeding in this case.” None of the late discovered evidence described by defendant, including the videos, had “any relevance to the actual shooting.” In sum, Lunsford had “plenty of time to investigate” and seemed prepared to proceed to trial in an effective manner.

In addition, defendant’s statement that Lunsford had pressured him into taking the plea deal was “not credible” because he had failed to provide a declaration under oath. Also, during the plea hearing, defendant had denied feeling threatened to take the deal, and stated it was of his own free will. Defendant repeated the plea deal to the court, who asked if he had any questions. Lunsford stated she had fully discussed with defendant the consequences of his plea and advised him of any defenses. The court “carefully” observed defendant during the plea change hearing to “make sure there w[ere] not any issues of him being pressured.” Defendant was “very calm” and said, “guilty,” rather than “no contest.” The court “never saw any evidence of duress.” Moreover, in the written plea form, defendant also represented he had enough time to speak with his attorney, and Lunsford stated she had discussed the consequences with defendant and his defenses.

Sentencing

The trial court sentenced defendant to serve an aggregate state prison term of 70 years to life, as follows: 15 years to life for count ten (§§ 664, subd. (f), 187) plus 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)),[3] and 15 years to life consecutive each for counts three and four (together, 30 years to life) (§§ 664, subd. (f), 187). In selecting consecutive terms for counts one and three, the trial court noted defendant’s “entire course of conduct that day was very violent,” including forcing his way into an occupied residence while he was armed with a handgun. In addition, defendant’s record “is replete with violent offenses in the past,” with multiple prior prison terms. Defendant was also aware he was shooting at police officers and had the objective to kill each officer.

Although the trial court noted during the sentencing hearing the parties had agreed to dismiss the remaining enhancements and allegations, it did not rule orally on this issue.

Defendant filed a timely appeal and obtained a certificate of probable cause.

DISCUSSION

I

Motion to Withdraw Plea

Defendant contends the trial court erred in denying his motion to withdraw his plea. Defendant points to Lunsford’s repeated motions to continue the case due to her conflicting schedule in the Stanislaus County trial and statements she was unable to represent defendant effectively. According to defendant, Lunsford was unprepared and unable to proceed. Defendant argues this evidence confirms his statements during his jailhouse phone calls and the Marsden hearing that Lunsford pressured him into accepting the deal so she could focus on her Stanislaus County trial. We disagree.

We review a trial court’s refusal to allow a defendant to withdraw his or her plea for abuse of discretion. (People v. Wharton (1991) 53 Cal.3d 522, 585.) A defendant wishing to withdraw his or her plea must show good cause by “clear and convincing evidence.” (Ibid.; see also § 1018.) “Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citations.]” (People v. Cruz (1974) 12 Cal.3d 562, 566.) “ ‘Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.’ [Citation.]” (People v. Weaver (2004) 118 Cal.App.4th 131, 146.)

Despite defendant’s contentions, sufficient evidence supports the trial court’s finding defendant had failed to show good cause. The trial court properly relied on its own observations of defendant’s demeanor during the plea hearing, including that defendant appeared “calm and collected.” (See People v. Fairbank (1997) 16 Cal.4th 1223, 1254 [in determining defendant’s motion to withdraw his plea, it is within a trial court’s discretion to consider its observations of the defendant during the plea hearing].) Defendant also said during the hearing that no one had threatened or induced him with promises in order to make the plea. Defendant told the court he had sufficient time to discuss with Lunsford the consequences of his plea and any potential defenses, and Lunsford confirmed. The court concluded there was “no evidence” defendant was “under pressure or anything like that.”

In addition, the trial court did not abuse its discretion in concluding defendant’s self-serving statements regarding being pressured by Lunsford to accept the plea deal were unreliable. Defendant did not testify during the hearing or provide a sworn affidavit in support of his motion. Although Lunsford made statements in support of her motions to continue the trial that she was unable to provide effective assistance given the conflicting schedule of her trial in Stanislaus County, the trial court had found Lunsford to be doing an “effective job” throughout the case. Moreover, Lunsford repeatedly assured the trial court she was prepared to proceed to trial. Despite defendant’s arguments that Lunsford was still gathering evidence, the trial court reasoned the late discovered videos were not very relevant. In granting defendant’s Marsden motion, the trial court never found Lunsford was ineffective. We conclude the trial court did not err in denying defendant’s motion to withdraw his plea.

II

Firearm Enhancement

Senate Bill No. 620 (2017-2018 Reg. Sess.), which went into effect on January 1, 2018, (Stats. 2017, ch. 682, §§ 1-2) amends section 12022.53 to remove the bar on striking a firearm enhancement and grants the trial court discretion pursuant to section 1385 to strike or dismiss an enhancement. “The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.” (§ 12022.53, subd. (h).)

At issue is whether the amendments to section 12022.53, potentially providing for lesser punishment, are retroactive to cases not yet final. (See In re Estrada (1965) 63 Cal.2d 740; People v. Francis (1969) 71 Cal.2d 66, 75-76.) In People v. Woods (2018) 19 Cal.App.5th 1080, 1091, this court explained: “ecause there is nothing in the amendment to suggest any legislative intent that the amendment would apply prospectively only, we must presume that the Legislature intended the amendment to apply to every case to which it constitutionally could apply.” (Accord, People v. Robbins (2018) 19 Cal.App.5th 660, 679.) As both parties acknowledge, since defendant’s conviction was still on appeal and therefore not yet final, the amended section 12022.53 applies to his case.

[u] /s/

HOCH, J.

We concur:

/s/

HULL, Acting P. J.

/s/

RENNER, J.