Filed 4/1/22 P. v. Johnson CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Reversed and remanded with instructions.

Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Michael R. Johnsen and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

In 1996, a jury convicted defendant and appellant Maurice Johnson of sale or receipt of an access card to defraud (i.e., using a stolen credit card) (count one) and possession of a forged driver’s license (count two). The trial court found Johnson sustained 10 prior strike convictions. It sentenced him to 25 years to life on count one and stayed sentencing on count two.

In 2016, Johnson petitioned for resentencing under Proposition 47.[1] The trial court concluded he was eligible for resentencing on count one but ineligible on count two. The court declined to dismiss any prior strikes when resentencing on count two and imposed the previously stayed sentence of 25 years to life on that count.

On appeal, Johnson argues the trial court abused its discretion by declining to dismiss his prior strikes and by lifting the stay on count two. He also argues the court erred by not permitting him to be represented by his retained counsel of choice. We agree with Johnson’s latter contention. We therefore remand the case to the trial court for a resentencing hearing on count two. At that hearing, Johnson will have the option to be represented by retained counsel. Because we agree that the court erred in prohibiting Johnson from being represented by counsel of his choice, and because we conclude the proper remedy is a remand for a resentencing hearing, we need not address Johnson’s contention that the court abused its discretion when resentencing him on count two.

FACTUAL and PROCEDURAL background

On November 16, 1995, Johnson entered a Guess For Men store and selected $264 worth of merchandise. While checking out, he presented a credit card issued to another man. He also presented a fraudulent driver’s license that had the other man’s name with Johnson’s picture on it. Based on this incident, in 1997 a jury found Johnson guilty of the sale or receipt of an access card to defraud (Pen. Code,[2] § 484e, subd. (c); count one) and possession of a forged driver’s license (§ 470b). In a separate proceeding, the trial court found true that Johnson had sustained 10 prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and served two prior prison terms (§ 667.5, subd. (b)). The court sentenced Johnson to 25 years to life on count one. It also sentenced him to 25 years to life on count two, but stayed sentencing under section 654.[3]

In 2016, Johnson petitioned for resentencing under Proposition 47. In a written decision, the trial court found Johnson eligible for resentencing on count one but ineligible on count two.

In June 2019, Johnson filed a motion for correction of record, arguing because he had received Proposition 47 relief on count one, he was entitled to be released. The court issued an order explaining that although Johnson was eligible for resentencing on count one, no court had yet determined whether he was suitable for resentencing on that count.

In December 2019, Johnson filed a petition for alternative writ of mandate in this court seeking to require the trial court to rule on his Proposition 47 petition. This court issued an alternative writ of mandate directing the superior court to hold a Proposition 47 suitability hearing or show cause why a peremptory writ of mandate should not be issued. The trial court set the matter for hearing, and this court dismissed Johnson’s petition for writ of mandate.

After holding the hearing, the trial court issued a written memorandum of decision. It found Johnson suitable for resentencing on count one but declined to dismiss any prior strikes when resentencing on count two. The court also rejected Johnson’s contention that, because the sentence was originally stayed on count two, it should have remained stayed.

At a later hearing, the court reduced count one to a misdemeanor and resentenced Johnson, imposing a sentence of 364 days on count one and 25 years to life on count two.

Johnson timely appealed.

DISCUSSION

1. The Trial Court Erred by Not Permitting Johnson to Be Represented by His Retained Counsel of Choice

1. Relevant Law

Under the Sixth Amendment, a criminal defendant has a constitutional right to be represented by counsel at all critical stages of the prosecution. (People v. Marshall (1997) 15 Cal.4th 1, 20.) “The right to effective assistance of counsel ‘encompasses the right to retain counsel of one’s own choosing. [Citations.]’ [Citations.]” (People v. Courts (1985) 37 Cal.3d 784, 789 (Courts).) “Underlying this right is the premise that ‘chosen representation is the preferred representation. Defendant’s confidence in his lawyer is vital to his defense. His right to decide for himself who best can conduct the case must be respected wherever feasible.’ [Citations.]” (Ibid.)

“[A] defendant must be given a reasonable opportunity to employ and consult with counsel; otherwise, the right to be heard by counsel would be of little worth. [Citations.]’ [Citations.]” (Courts, supra, 37 Cal.3d at p. 790.) “In addition, counsel, ‘once retained, [must be] given a reasonable time in which to prepare the defense.’ [Citation.]” (Ibid.) “Failure to respect these rights constitutes a denial of due process.” (Ibid.)

“In view of the importance of these rights and the severe consequences which flow from their violation, the trial courts are required to ‘make all reasonable efforts to ensure that a defendant financially able to retain an attorney of his own choosing can be represented by that attorney.’ [Citation.]” (Courts, supra, 37 Cal.3d at p. 790.) “Any limitations on the right to counsel of one’s choosing are carefully circumscribed.” (Ibid.) “Thus, the right ‘can constitutionally be forced to yield only when it will result in significant prejudice to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.’ [Citations.]” (Ibid., italics in original.) “The right to such counsel ‘must be carefully weighed against other values of substantial importance, such as that seeking to ensure orderly and expeditious judicial administration, with a view toward an accommodation reasonable under the facts of the particular case.’ [Citation.]” (Ibid.)

“Limitations on the right to continuances in this context are similarly circumscribed.” (Courts, supra, 37 Cal.3d at p. 790.) “Generally, the granting of a continuance is within the discretion of the trial court. [Citation.]” (Ibid.) “A continuance may be denied if the accused is ‘unjustifiably dilatory’ in obtaining counsel, or ‘if he arbitrarily chooses to substitute counsel at the time of trial.’ [Citation.]” (Id. at pp. 790-791.)

“However, ‘a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.’ [Citation.]” (Courts, supra, 37 Cal.3d at p. 791.) “For this reason, trial courts should accommodate such requests – when they are linked to an assertion of the right to retained counsel – ‘to the fullest extent consistent with effective judicial administration.’ [Citation.]” (Ibid.)

“In deciding whether the denial of a continuance was so arbitrary as to violate due process, the reviewing court looks to the circumstances of each case, “‘particularly in the reasons presented to the trial judge at the time the request [was] denied.’” [Citation.]” (Courts, supra, 37 Cal.3d at p. 791.) “The erroneous deprivation of a defendant’s right to counsel of his choice results in automatic reversal.” (People v. Woodruff (2018) 5 Cal.5th 697, 728.)

2. Relevant Proceedings

On January 14, 2016, Johnson petitioned the trial court for resentencing under Proposition 47. On June 13, 2016, the court issued a written decision finding Johnson was eligible for resentencing on count one but ineligible on count two. Four years later, in compliance with this court’s alternative writ of mandate, the trial court set a suitability hearing for June 8, 2020. The case was continued to July 21, 2020, under the Governor’s emergency COVID-19 order. The case was then continued again to July 28, 2020, with agreement from the parties.

On the day of the hearing, July 28, 2020, attorney Steven Seiden filed a motion to continue the case so he could be substituted in as Johnson’s counsel. Mr. Seiden had represented Johnson at his original trial. In his motion, Mr. Seiden asked that the case be continued to a date convenient for the court and all parties. The court stated it was not inclined to substitute Mr. Seiden as counsel at that point because it already intended to grant Johnson’s Proposition 47 petition on count one. Mr. Seiden stated he, like the court, did not want to prolong the matter
Johnson’s appointed counsel, Mojgan Aghai, indicated she wanted to file a Romero[4] motion, and suggested Johnson could switch counsel for that. The court told Ms. Aghai that she should have prepared the Romero motion in anticipation of the hearing that day, and that she could still make an oral Romero motion. Ms. Aghai stated she did not previously have access to her client, and therefore did not yet have time to prepare the Romero motion. She added that in order to prepare the Romero motion, she needed to have a psychosocial evaluation conducted for her client. She also informed the court that she had not been given notice the Romero motion would be heard that day. At that point, the court said, “First of all Mr. Seiden, I’m not going to let you substitute in because you’ve indicated you couldn’t be ready for 90 days. I’m not going to put this out 90 days.” Mr. Seiden stated he previously had cancer twice and did not want to go to the courthouse during the ongoing COVID 19 pandemic. Based on his health concerns, Mr. Seiden asked to handle the case telephonically. The court responded: “The courthouse is open unfortunately.” Mr. Seiden reiterated his health concerns, and the court replied: “I understand your reasons. I’m not faulting you for your reasons. [¶] . . . [¶] But you want 90 days and I’m not inclined to do that.”

The court stated it was willing to allow the defense a maximum of two weeks to file its Romero motion. The parties then discussed who would represent Johnson for the Romero motion if that hearing would be held in two weeks:

“Ms. Aghai: May I inquire does Mr. Seiden want to sub in if it’s in two weeks or you’re not going to allow him?

“The Court: I’m not going to allow him. It’s on the day of the hearing and there’s no reason his family has to pay Mr. Seiden for this if he’s being paid.

“Mr. Seiden: Your Honor, I was being paid. However, I understand the court’s ruling. I’m in agreement with the court because [Johnson’s] been waiting a long time and that’s why he hired me to move the thing along. And the thing is being moved along now. So with the worse [sic], two weeks more is not a long time to do the Romero and go from there so I understand the court—

“The Court: Mr. Seiden, here’s what I’m going to do: I’m going to continue your motion to sub in and your motion to continue for two weeks. We’ll see if we are ready in two weeks . . . . [¶] . . . [¶] You’re counsel of record, Ms. Agahi. [You’ve] not been relieved by me and at [sic] this close to the hearing, I believe it’s within my discretion. On the other hand, I don’t want to slam the door in Mr. Seiden’s face. If something happens in two weeks, you can’t go forward, I might be inclined to allow him to substitute in.”

Ms. Aghai confirmed she would draft the Romero motion. Mr. Seiden asked if he should call in for the Romero hearing. The court said, “Well if you want to pursue substituting in, I think I have to let you call in.” Mr. Seiden said, “I’ll call in just to check and hopefully he won’t have to spend money for me and everything will be taken care of fine.”

On August 4, 2020, Ms. Aghai filed a Romero motion arguing that the prior strikes were committed 40 years ago when Johnson was a juvenile, at a time when his adolescent brain was still developing, which mitigated those crimes. On August 7, 2020, the People filed a sentencing brief opposing the Romero motion.

At the next hearing, on August 13, 2020, Mr. Seiden appeared telephonically. The court asked Mr. Seiden whether it had allowed him to substitute in as counsel, and Mr. Seiden said the court had not yet made that determination. The parties discussed the Romero motion. Ms. Aghai wanted the court to consider Johnson’s achievements in prison, but she had not yet submitted them to the court or prosecution. She apologized for her mistake. The court asked Ms. Aghai if she visited Johnson while he was in local custody, and she stated she had not done so and apologized. The court stated Ms. Aghai had to give the People the exhibits in advance of the hearing, remarking: “It’s called due process.” The court expressed frustration that it could not get to a final decision because “everything keeps dribbling in.” The court put the matter over for several more weeks.

On September 3, 2020, the parties attended another hearing, as did Mr. Seiden. The court indicated that Mr. Seiden was “still proposing” to substitute in as counsel. Johnson had filed a Marsden[5] motion with the court. When the court informed Johnson that it intended to grant his proposition 47 petition, however, and that he had gotten everything he could get from Ms. Aghai, Johnson withdrew his request for a Marsden hearing.[6]

The parties then discussed the Romero motion. The court stated that a large packet had been filed by Ms. Aghai: “For Mr. Seiden it’s a little hard, it’s a large [,] about a quarter of an inch [thick,] packet of documents. I’d estimate . . . [it] may be 80 to 100 pages of a variety of things, of letters of other things from CDCR records.” The court reiterated it intended to reduce count one to a misdemeanor under Proposition 47. Ms. Aghai stated Johnson wanted her to argue that, because count two was originally stayed, it should remain stayed. The parties then argued about the Romero motion. (1RT 906-920)~ On November 16, 2020, the court issued a written decision granting Johnson relief under Proposition 47 on count one. It declined to strike any strikes under Romero.

At a hearing on December 1, 2020, the court stated it intended to lift the stay on count two and asked if any party wished to be heard. All counsel submitted without argument. The court lifted the stay on count two. Mr. Seiden did not appear either in person or telephonically for the hearing.

Johnson asked if he would be resentenced, and the court told him it had just done that. This confused Johnson. The court told Johnson to discuss the situation with his attorney. Johnson stated: “She never talked to me.” The court ordered Ms. Aghai to “talk to your client and explain to him what I just did.” Johnson tried to talk to the court, but was told he was represented by counsel, his attorney was to speak on his behalf, and he did not have the opportunity to litigate alongside her. Mr. Johnson responded: “Right. I attempted to hire a private attorney because I never was able to speak with Ms. Aghai. I didn’t even know this hearing was happening today, your honor.” The court asked Ms. Aghai if that was true, and she told the court she had spoken to one of Johnson’s friends, but that she had been busy in trial, and had not able to visit Johnson or discuss the case with him. The court reiterated: “Okay. Well, you’re going to need to explain to him what happened.” “You need to visit him. And he also wants you to file a notice of appeal.”

3. Analysis

We conclude the trial court proceedings violated Johnson’s right to be represented by retained counsel of his choosing. Although it is clear the trial court wished to rule on Johnson’s Romero motion and resentence him as quickly as possible, the record does not demonstrate that “a continuance would have significantly inconvenienced the court or the parties.” (Courts, supra, 37 Cal.3d at p. 794.) Given the gravity of what was at stake for Johnson (potentially spending the rest of his life in prison), and because, apparently through no fault of his own, the resolution of his Proposition 47 motion had been delayed several years, Sixth Amendment and due process concerns weighed strongly in favor of allowing him to be represented by his retained counsel of choice. (Courts, supra, 37 Cal.3d at p. 790 [“In view of the importance of these rights and the severe consequences which flow from their violation, the trial courts are required to ‘make all reasonable efforts to ensure that a defendant financially able to retain an attorney of his own choosing can be represented by that attorney.’ [Citation.]”].) The court erred in prohibiting Mr. Seiden from substituting in as Johnson’s attorney.

The Attorney General contends Johnson’s argument is forfeited because Mr. Seiden withdrew his request to substitute as counsel and never pressed for a ruling. We are not persuaded. The trial court repeatedly stated it would not allow Mr. Seiden to substitute as counsel and explicitly rejected his request for a 90-day continuance. (See People v. Chism (2014) 58 cal.4th 1266, 1291 [“‘A litigant need not object . . . if doing so would be futile.’ [Citation.]”].) The court also misinformed Johnson that there was no point bringing a Marsden motion because it intended to rule in Johnson’s favor on the Proposition 47 issue. This representation omitted the significant fact that Johnson still required representation on the Romero motion and resentencing—stages of the proceedings in which Johnson would ultimately be provided or denied relief. Johnson was never given the opportunity to voice what his wishes were regarding representation until after the court had unstayed the sentence on count two. We reject the contention that Johnson forfeited arguments concerning his rights to counsel of choice when (1) he withdrew his Marsden motion only after being misinformed by the court about what was still at stake in the proceedings; and (2) the court never explicitly asked him what his wishes were regarding representation.

We likewise reject the Attorney General’s contention that Johnson was “unjustifiably dilatory” in obtaining retained counsel. In support of this contention, the Attorney General points out that Johnson’s Proposition 47 motion had been pending for several years. The record does not, however, demonstrate that Johnson was in any way at fault for this delay. On the contrary, the record shows that he had made diligent efforts to have the matter resolved.

Because the error requires automatic reversal (People v. Woodruff, supra, 5 Cal.5th at p. 728), we need not address the ways in which Johnson may have been prejudiced. It is worth noting, however, that the error apparently resulted in Johnson’s appointed counsel not having enough time to defend him with the full force she wished. For example, Ms. Aghai did not have a psychosocial evaluation conducted on Johnson. And, perhaps because she was engaged in trial, she did not consult with Johnson to prepare for the critical hearing nor even successfully communicate to Johnson the date of the hearing. She submitted without arguing on Johnson’s behalf at the resentencing hearing. It would be difficult to conclude Johnson was not prejudiced.

On remand, the trial court is directed to allow Johnson to obtain counsel of his choice. The court shall permit counsel sufficient time to file a thorough Romero motion, and have Johnson evaluated if counsel believes it is advisable. Counsel must be afforded an opportunity to brief and argue any other relevant issues prior to resentencing on count two. (Courts, supra, 37 Cal.3d at p. 790 [“[C]ounsel, ‘once retained, [must be] given a reasonable time in which to prepare the defense.’ [Citation.]”].)

DISPOSITION

The sentence is vacated. On remand, the trial court is directed to hold a resentencing hearing. At that hearing, Johnson will have the option to be represented by retained counsel. The court is directed to allow Johnson’s counsel sufficient time to file a thorough Romero motion and have him psychologically evaluated if counsel believes it is advisable.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J.

We concur:

WILLHITE, Acting P.J.

MICON, J.*

[1] Proposition 47, the Safe Neighborhoods and Schools Act, took effect in 2014. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) Subject to certain exceptions, the law reduced some low-level drug and theft offenses to misdemeanors. (Id. at p. 1091.) It also created a statutory provision to allow those already serving a sentence for an affected felony offense to petition the trial court to recall the sentence and reduce the felony to a misdemeanor. (Id. at p. 1092; see Pen. Code, § 1170.18.)

[2] All further undesignated statutory references are to the Penal Code.

[3] It also stayed sentencing on the prior prison term findings.

[4] People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

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

[6] The court did not clarify to Johnson that it had not yet ruled on his Romero motion or resentenced him.

* Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.