Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF122713, Edward D. Webster, Judge.
Paul R. Ward, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf, Christine Levingston Bergman, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A jury convicted defendant, Edwin Anthony Arnold, of inflicting corporal injury on his cohabitant (Pen. Code, § 273.5, subd. (a)), making terrorist threats (§ 422) and dissuading a witness (§ 136.1, subd. (c)(1)). In bifurcated proceedings, the trial court found defendant had suffered a prior conviction for which he served a prison term (§ 667.5, subd. (b)) and a serious and strike prior (§ 667, subds. (a), (c) & (e)). He was sentenced to prison for 14 years, 4 months. Defendant appealed and we affirmed his convictions, the true findings and the sentence imposed for inflicting corporal injury, but reversed his sentences for making terrorist threats and dissuading a witness and remanded the matter with directions to the trial court to stay punishment for the former under section 654 and to decide whether to impose a concurrent or a consecutive term for the latter. The court below stayed punishment for the terrorist threats conviction and elected to run the term for the dissuasion conviction consecutive to the term for inflicting corporal injury, and, under the terms of section 1170.15, was mandated to impose a full term as to it. Defendant appeals, contending that the court improperly appointed counsel to represent him during resentencing on remand and section 1170.15 violates due process and equal protection. We reject his contentions and affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
Procedural History
Defendant had been represented before and at trial by what the court minutes describe as a Conflict Defense Lawyer. However, privately retained counsel appeared for defendant after the verdicts had been rendered and the trial on the prior had concluded, including sentencing.
Following the filing of our opinion, at defendant’s first appearance, he was represented by the same attorney who represented him at trial, but now it was noted in the minutes that this attorney had been retained by defendant (hereinafter, “defense trial counsel”). A transcript of proceedings for that day, however, makes no mention of either that attorney or the one the minute order states appeared for him. Rather, a deputy public defender was present and she stated that defendant was asking the Public Defender’s Office to represent him. She said that defendant told her that he had paid his trial attorney, in other words, that defense trial counsel had been retained. A deputy district attorney who was present representing the People reported that defense trial counsel had asked the trial deputy district attorney to continue the matter until a future date. The deputy public defender said that defendant had no counsel at that time and that she would “verify we had not conflicted on this case, and if we don’t conflict, we can be reappointed.”
At the next court date, defense trial counsel told the court that defendant wanted the attorney he had retained to represent him at sentencing to be present, although defense trial counsel then said that a conflict of interest had arisen between defendant and the attorney defendant retained to represent him at sentencing, which defendant confirmed. Defense trial counsel also reported that defendant said that he thought the public defender was going to represent him and he requested such representation. The trial court said it would “reappoint” defense trial counsel if defendant did not want the attorney who represented him at sentencing. The court added that if defendant wanted, instead, a second attorney defendant had hired to represent him at sentencing, it was up to him to produce him at the next appearance. Defendant then asked if he could have a public defender. The court replied, “You [have] an attorney already... why should I appoint somebody that doesn’t know anything about the case?” The court then told defendant if he had the second attorney defendant had retained to represent him at sentencing at the next appearance, that attorney could represent defendant; otherwise, defense trial counsel would continue as his attorney. The court clerk then announced that the Public Defender had declared a conflict in the case in 2005. The court stated, “No way to get the public defender, anyway.” The minutes for that appearance state, “Court finds that the Public Defender’s Office previously declared a conflict in this matter and are not eligible to represent the [d]ef[endan]t.”
The Clerk’s Transcript for defendant’s trial shows that the attorney defendant identified to the court had drafted, but did not sign, defendant’s Romero Motion. (People v. Romero (1996) 13 Cal.4th 497.) However, the retained attorney that did represent defendant after the verdicts and trial of the prior, including at sentencing, signed the document on behalf of this attorney. Defendant informed the court that he had hired this attorney, but he “never showed up.”
A public defender had been appointed to represent defendant at his first appearance before trial. Two appearances later, on May 12, 2005, the Public Defender declared a conflict and was relieved. Defendant was thereafter represented by defense trial counsel.
Thereafter, the matter was continued numerous times, with defense trial counsel representing defendant, but defendant said nothing about his representation until September 30, 2008. On that date, and while defense trial counsel was absent due to a medical emergency, defendant expressed frustration to the trial court that the matter had dragged on as long as it had. He added, “Since day one I expressed to you I had a conflict of interest with [defense trial counsel]. I fired him as my trial lawyer. I obtained private counsel because he was my private counsel for trial. You told me the first day [of the instant proceedings] that he has to represent me.” He continued, “Since then, I’ve asked him to come visit me, to discuss all this stuff.... He’s lied to... [m]y family. He’s lying to me, throwing off the court da[te] month after month.... I haven’t wanted to waive time.... He keeps doing things.... The guy is not trying to help me.... I could basically do it myself.” The court pointed out that as a sentenced prisoner, defendant was not going anywhere, suggesting that he should not be so impatient to be resentenced. The court said, “[W]e’ll see you tomorrow. We’ll bring in [defense trial counsel]. If you want to delay, get a new attorney to... read the transcripts, get familiar with everything, it’s going to take months for a new attorney.” Defendant responded, “I could do it myself. I was there at the sentencing.” The court said, “If you want to be your own attorney, we can do it. I’m not guaranteeing it, but that’s something that could happen.” Defendant said, “I would like for it to happen tomorrow.” The court told defendant it would be discussed the next day. Defendant then said he wanted defense trial counsel to file a motion and he asked if he would have to come back the next day to have him do this. The trial court responded yes and repeated that it would see defendant the next day.
The next day, defense trial counsel “papered” the judge and the case was assigned to a different judge. At the resentencing hearing, which was the next appearance, defendant addressed the court at great length about a number of matters, but never mentioned his representation by defense trial counsel.
1. Second Resentencing Required Due to Appointment of Counsel
Defendant contends he should be resentenced again because the trial court erroneously disqualified the Public Defender’s Office and appointed an attorney with whom he had demonstrated a breakdown in the attorney-client relationship. Both of his assertions are not supported by the record. The trial court correctly found, based on the records of the trial that the Public Defender’s Office had declared a conflict.
We have taken judicial notice of those records.
Defendant’s reliance on this court’s opinion in Rhaburn v. Superior Court (2006) 140 Cal.App.4th 1566 [Fourth Dist., Div. Two] (Rhaburn) in support of his argument that the court erroneously disqualified the Public Defender’s Office is misplaced. In Rhaburn, the Public Defender’s Office insisted that there were no conflicts of interest (it involved two different cases) and this court determined that the prosecutor’s stated reasons why conflicts existed did not “hold water.” (Id. at pp. 1570-1571, 1581) Moreover, the defendant strenuously objected to the delay that would be necessitated by the disqualification of the Public Defender’s Office. (Id. at p. 1570.) Here, in contrast, it was the Public Defender’s Office, itself, that declared a conflict and with no objection by defendant or contrary evidence, the trial court accepted the declaration. Moreover, at that point, there was no demonstration whatsoever that there was a breakdown in the relationship between defendant and defense trial counsel, therefore, there was no reason for the trial court to appoint the Public Defender.
In Rhaburn, we noted, “[t]he party resisting disqualification bears the burden of establishing the facts making disqualification inappropriate....” (Rhaburn, supra, 140 Cal.App.4th at p. 1573.) Here, unlike in Rhaburn, there was no resistance to the disqualification.
Defendant asserts, without citation to authority, that the court had an obligation to determine whether defense trial counsel was retained or appointed because “appointing [him] after [defendant] had fired him as retained counsel [if he was retained] would have been a clear abuse of discretion.” Not only is there no authority for this argument, but the trial court noted that it was “reappointing” defense trial counsel when it assigned him to represent defendant in this matter, thus implying that the latter had been appointed to represent defendant at trial. As already noted, the records for the trial support this, as they indicate that defense trial counsel was a Conflict Defense Lawyer, and was not privately retained.
The fact that defendant twice requested, early on in these proceedings, to be represented by the Public Defender’s Office did nothing to show that his relationship with defense trial counsel was so broken down that new counsel should be appointed. As defendant here correctly concedes, he did not have the right to appointment of counsel of his own choosing. (United States v. Gonzales-Lopez (2006) 548 U.S. 140, 151.) While defendant stated certain grievances with defense trial counsel, and suggested that he might want to represent himself, this was done outside the presence of the latter and despite the trial court’s invitation to address both matters at the next appearance when defense trial counsel would be present, defendant did not do so. In fact, at that appearance, which was his resentencing, he addressed the court at great length about a number of topics and still said nothing about defense trial counsel.
“The [trial] court’s duty to conduct the [Marsden] inquiry arises ‘only when the defendant asserts directly or by implication that his counsel’s performance has been so inadequate as to deny him his constitutional right to effective counsel.’ [Citation.]” (People v. Lara (2001) 86 Cal.App.4th 139, 151.) What defendant alleged about defense trial counsel the day he was absent from court was not tantamount to an implication that the latter’s performance had been so inadequate as to deny defendant his constitutional right to effective assistance of counsel. For the most part, defendant appeared frustrated that this seemingly simple procedure was taking so long. However, as the trial court correctly pointed out, defendant had no place else to go but back to prison, so there was no reason to complain about the delay. Defendant’s other complaints about defense trial counsel were nonspecific, and thus, without further elucidation (which he did not provide) neither indicate a break-down in the attorney-client relationship nor that the latter was defective in his performance. In fact, defense trial counsel had not yet been called upon to do the one thing that remained for him to do, i.e., to argue that the sentence for defendant’s conviction of dissuasion of a witness should be imposed concurrently with his sentence for inflicting corporal injury on his cohabitant. This, defense trial counsel ably, albeit, unsuccessfully, did thereafter, at the resentencing.
2. Consecutive Term under section 1170.15
That section provides in pertinent part, “Notwithstanding subdivision (a) of Section 1170.1, which provides for the imposition of a subordinate term for a consecutive offense of one-third of the middle term of imprisonment, if a person is convicted of a felony, and of an additional felony that is a violation of Section 136.1... and that was committed against the victim of... the first felony..., the subordinate term for each consecutive offense... shall consist of the full middle term of imprisonment for the felony for which a consecutive term of imprisonment is imposed....”
When the trial court originally sentenced defendant, it imposed the midterm of three years for his corporal injury conviction, doubled for the strike. Although it did not expressly so state, it is obvious that the trial court considered this the principal term and defendant concedes as much. In our opinion in that case, we affirmed this sentence, reversing only the sentences for defendant’s conviction of making criminal threats, which we ordered had to be stayed pursuant to section 654, and the sentence for his conviction of dissuading a witness, for which we ordered resentencing, so the trial court could determine whether to run the term for it concurrent or consecutive to the term imposed for inflicting corporal injury. Upon resentencing, the court below imposed the midterm for the dissuasion conviction, doubled due to the strike, and elected to run it consecutive to the term for the corporal injury conviction. Under the terms of section 1170.15, because the dissuasion conviction involved the same victim as the infliction of corporal injury conviction, a full sentence was imposed when the trial court elected to run it consecutively.
Defendant here points out that section 1170.1 provides that the principal term is to be the greatest term of imprisonment imposed by the sentencing court and that both inflicting corporal injury and dissuasion of a witness have the same range of punishment, i.e., two, three and four years. Defendant continues, “In cases where multiple crimes have the same ‘greatest term of imprisonment,’ the fact that one single crime cannot be identified unambiguously as the principal crime does not present the court with arbitrary sentencing choices.” However, defendant asserts that an arbitrary sentencing choice was presented here because if the trial court chose to make dissuasion the principal offense, and chose to run the term for the corporal injury conviction consecutive to it, it could have imposed only one-third of the midterm, or one year (of course, in this case, doubled for the strike) for a total of eight years. However, the trial court chose the corporal injury conviction as the principal, imposing a doubled midterm of six years for it, and the court on resentencing chose to run the term for the dissuasion conviction consecutive to it, and under the terms of section 1170.15, it was, therefore, required to imposed a full consecutive term of three years, doubled for the strike, for a total of 12 years.
Defendant cites no authority holding nor does his argument persuade us that the sentencing court’s ability to choose one conviction over the other as a principal offense with the result being a difference in the total sentence of four years violates due process or equal protection. The manipulation of sentencing choices to punish a defendant either more harshly or more leniently because the facts pertaining to the case justify it is an everyday occurrence. Section 1170.15 was enacted to “punish more severely convicted felons who engage in witness or victim intimidation.” (Sen. Com. on Judiciary, com. on Assem. Bill No. 2689 (1981-1982 Reg. Sess.), p. 2) Unless the particular case and/or defendant before the sentencing court presents reasons to impose a more lenient sentence, the court would rely on section 1170.15’s alternate sentencing scheme to impose the greater punishment. It, therefore, could not be said that a defendant treated with leniency is similarly situated to a defendant sentenced under section 1170.15 for purposes of equal protection analysis. In terms of due process, we disagree with defendant that section 1170.15 is ambiguous. It could not be clearer in its provision for a full term for dissuasion of a witness if the sentencing court decides to impose a consecutive term for that offense.
The stated purpose of the provision is to “provide that if a person was convicted of two or more felonies and one involved intimidation... of a... victim of the other felony, the subordinate term would be 100% of the prescribed middle term of imprisonment.... (Sen. Com. on Judiciary, com. on Assem. Bill No. 2698 (1981-1982 Reg. Sess.), p. 2.)
Disposition
The judgment is affirmed.
We concur: HOLLENHORST J., MILLER J.
Also, without citation to authority, defendant asserts that the trial court should have, on its own motion, conducted a Marsden (People v. Marsden (1970) 2 Cal.3d. 118) hearing as soon as it was informed that defendant had retained a private attorney to represent him at sentencing, whether defense trial counsel was retained or appointed. This is patently absurd.