Opinion
B319968
04-16-2024
THE PEOPLE, Plaintiff and Respondent, v. CHARMONE BARFIELD, Defendant and Appellant.
Andrea Keith, 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, Nicholas J. Webster and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA112225, Daniel J. Lowenthal, Judge.
Andrea Keith, 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, Nicholas J. Webster and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
WILEY, J.
Charmone Barfield argues his lawyer provided ineffective assistance of counsel by failing to urge the judge to sentence him to the low term under Penal Code section 1170, subdivision (b)(6)(A) as amended by Assembly Bill No. 124 (2021-2022 Reg. Sess.) (AB 124). Alternatively, he argues his case must be remanded to allow the judge to consider evidence of his mental illness in compliance with section 1170, subdivision (b)(6)(A). We affirm. Statutory citations are to the Penal Code.
I
A jury convicted Barfield of assault with a deadly weapon on two brothers Dien Dinh and Dap Dinh and of making a criminal threat to Dap Dinh and of personally using a knife in so doing. The three men, as well as the sister of the Dinh brothers, testified at trial. The case largely was a credibility contest.
Dien Dinh testified that he and his brothers own Eddy's Liquor store in Long Beach. Dien and Dap Dinh were working there with their sister Thom Tran on the evening of June 21, 2019. Dien Dinh was sweeping as Barfield came into the store and spoke briefly to Tran before leaving. Dien Dinh next saw Barfield walk "at a fast pace" toward a regular customer who had just pulled into the parking lot. The customer came into the store and complained Barfield had asked him for money. Dien Dinh told his sister to call 9-1-1 and went out to the parking lot. As usual, Dien Dinh wore a holstered gun on his hip and carried a large flashlight in his back pocket.
Dien Dinh approached Barfield and told him this was private property and he needed to leave or he would call the police. Barfield responded that he was an "Insane Crip," a local gang, and "fuck the police." The men exchanged heated words, including swearing, and then Barfield swung at Dien Dinh. Dinh leaned back and the punch just grazed his front tooth, chipping it. He lost his balance and grabbed out, catching his finger on a safety vest Barfield was wearing. The two men grappled. During the fight, Dinh heard Barfield say he would burn down the liquor store. Dinh heard his brother behind him yell, "He has a knife!" Dinh knocked Barfield's legs out from under him, and the two men fell to the ground, still grappling. Dinh untangled his finger from Barfield's vest and unholstered his gun. When he looked up, Barfield was across the street.
Dap Dinh testified he heard a commotion in the parking lot and saw his brother and Barfield arguing. He saw Barfield lift a knife from behind and begin to bring it down toward his brother. Dap Dinh grabbed a flashlight he saw on the ground. He used the flashlight to try to hit Barfield's hand holding the knife.
Barfield cut Dap Dinh's fingers and above his eyebrow. A third of Dinh's thumb was hanging off. Dinh estimated Barfield swung the knife at him about twenty times and told him he was going to kill him and burn the liquor store down before running off.
Tran testified that Barfield came in and asked to buy something but did not have enough money. He said he was going to go out and ask for more money, but she told him not to, pointing out the "no loitering" sign posted in the parking lot and saying she would call the police. After Barfield left, she heard fighting in the parking lot and called 9-1-1. The fight was at a distance so she could not see it clearly from where she was behind the cash register.
Barfield testified he went to Eddy's Liquor to get a cigar while his then-girlfriend Ebony Grant spoke to their friend across the street. Tran told him she could not give him a cigar on credit because her brothers were there. Dien Dinh asked Barfield, "what the fuck do you want in the store?" and told him to get out. Barfield told Tran he would leave so he did not cause problems for her and left the store. Barfield went to the house of a friend who lived nearby and borrowed a dollar. Shortly thereafter, another friend pulled into the parking lot of the liquor store. Barfield asked the friend to buy him a cigar and gave him the dollar. Barfield did not want to go back into the store because he had already had problems with Dien Dinh. The friend asked Dien Dinh why he was bothering Barfield. Dinh came out to the parking lot and said to Barfield, "Didn't I tell you to get the fuck away from here?" Barfield told him the friend was buying him the cigar. Dinh replied, "Nigger, get the fuck up out my property." Barfield laughed and told Dinh this was Barfield's neighborhood and that Dinh's store depended on minorities. Dinh then spit in Barfield's face and swung at him. The two began grappling. Dap Dinh joined the fight, hitting Barfield with a flashlight. A third, unknown person also joined the fray, using a knife. That person dropped the knife, and Barfield picked it up and began to use it to defend himself. When Barfield saw Dien Dinh begin to unholster his gun, Barfield fled. He and Grant, who was on the edge of the parking lot, went a few blocks away before stopping to rest on some steps.
Officer Gabriel Doby testified that he and another officer followed a blood trail from the parking lot a few blocks to where they found Barfield and Grant near the steps of some apartments. Police found a bloody vest, sweater, shoes, and knife nearby.
The jury saw a surveillance video from inside the market showing the fight.
After the jury convicted him, Barfield told the court he wanted to fire his attorney and represent himself. A public defender originally represented Barfield. He then briefly represented himself, then the same public defender represented him again, before the court appointed panel attorney Sonja Muir. Muir represented Barfield through pretrial, trial, and filed a sentencing brief on his behalf. After the court granted Barfield pro per status, he moved for a new trial, asking for, and receiving several continuances in connection with this motion. The court eventually denied the motion and moved to sentencing. Barfield then said he wanted a lawyer again. The court appointed public defender, Alan Nakasone. Nakasone told the court he would need at least 30 days to review Barfield's file given that the prison housed Barfield in the mental health section and he would want to get information about Barfield's mental health. The court set the sentencing hearing for three weeks.
The public defender declared a conflict, so at the sentencing hearing, the trial court reappointed Muir to represent Barfield over Barfield's strenuous and profanity-laden objections. The court continued the sentencing hearing a final time until a date Muir was available. Barfield waived his appearance at the sentencing hearing. Muir argued Barfield had not gone seeking a fight and had not been armed; instead, he had acted in selfdefense after Dien Dinh attacked him. This, she argued, should mitigate his sentence. The trial court imposed the middle term on the base count. The court imposed a total term of ten years and four months.
Barfield appealed.
Barfield makes two related arguments on appeal. First, he argues that he received ineffective assistance of counsel because Muir did not encourage the trial court to impose the low term under section 1170, subdivision (b)(6)(A), as amended by AB 124. Second, he argues even if he did not receive ineffective assistance of counsel, the record shows the judge did not consider his mental health issues and his case must be remanded to allow such consideration in compliance with that section. Neither argument has merit.
A
Barfield argues Muir provided ineffective assistance of counsel by not urging the judge to impose the low term under AB 124. This claim fails.
AB 124 amended section 1170, subdivision (b)(6)(A) to require courts, unless it would be contrary to the interests of justice, to impose the low term of a sentencing triad where any of a list of enumerated conditions "was a contributing factor in the commission of the offense." One such condition is that the person has "experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence." (§ 1170, subd. (b)(6)(A).)
To prevail on a claim for ineffective assistance of counsel, Barfield bears the burden of showing Muir's performance fell below an objective standard of reasonableness under prevailing professional norms. (People v. Bell (2019) 7 Cal.5th 70, 125 (Bell).) Until he establishes the contrary, we presume counsel's performance falls within the wide range of professional competence and can be explained as a matter of sound trial strategy. (Ibid.) Under the normal circumstance where the record provides no insight into why counsel took the challenged action or inaction, the claim will fail unless counsel was asked for an explanation and failed to provide one or there simply could be no satisfactory explanation. (Ibid.) Where a defendant succeeds in showing counsel's performance was deficient, he must also show those deficiencies resulted in prejudice to him. (Ibid.)
This case follows the most common pattern for ineffective assistance claims: the record does not reveal why counsel did not take the challenged action nor did anyone inquire of counsel. (People v. Woodruff (2018) 5 Cal.5th 697, 736 [record rarely sheds light on counsel's reasons for action or inaction].) Thus, the question becomes whether there can be a satisfactory explanation. (Bell, supra, 7 Cal.5th at p. 125.) In other words, can we imagine circumstances under which it would make strategic sense for Muir not to have argued to the judge he should sentence Barfield to the low term under section 1170, subdivision (b)(6)(A)? We can.
As People v. Banner recently emphasized, to take advantage of the sentencing mandate of section 1170, subdivision (b)(6)(A), two things must be true: 1) the defendant must meet one of the enumerated conditions, and 2) the condition must have been a contributing factor to the offense. (People v. Banner (2022) 77 Cal.App.5th 226, 241.) "To be clear, we do not hold mental illness alone qualifies for the lower term presumption." (Ibid.) Assuming Barfield suffers from a mental illness, the record contains no evidence that mental illness was a contributing factor to the offense. Barfield argued he was not guilty because he acted in self-defense. Neither he nor anyone else suggested any delusion or other manifestation of mental illness. It is not ineffective assistance of counsel to omit arguments for which there is no legal or factual basis. (People v. Scheer (1998) 68 Cal.App.4th 1009, 1024.)
Barfield argues the fact that the prison houses him in the mental health section and he was in a mental health hospital in the past establishes the relevance of section 1170, subdivision (b)(6)(A). As mentioned, the mere existence of mental health issues is not enough to bring section 1170, subdivision (b)(6)(A) into play.
Barfield also makes much of the comments of public defender Nakasone that "not to present any of [Barfield's mental health] records is absolute ineffective assistance of counsel" at the sentencing hearing. When he made the comment, Nakasone had only met Barfield once, read some of Barfield's pro se motions, spoken with the defense investigator, and read through the court file. He had not read the trial transcript or become familiar with the case or Barfield. While Nakasone certainly had cause for concern at being able to adequately represent Barfield at sentencing under those circumstances, Nakasone was in a different situation than Muir. As Barfield contends, he had made Muir aware of his mental health issues from the beginning. Muir interacted with and observed Barfield for years during her representation of him. She thus presumably had time to explore the prudence and feasibility of any strategy relying on arguments involving mental health.
Barfield has not met his burden of showing Muir's assistance was ineffective.
B
Barfield argues the court's imposition of the middle term without consideration of his mental health history "constituted uninformed discretion" requiring remand for compliance with section 1170, subdivision (b)(6)(A). As discussed above, the existence of a history of mental illness is not sufficient to invoke this section. Barfield has not shown its relevance to his case. We presume trial courts know and follow governing law and presume the court did so here. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1390.)
DISPOSITION
We affirm the judgment.
We concur: STRATTON, P. J., VIRAMONTES, J.