Opinion
C078281
03-05-2018
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY SCOTT CLYDE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 62125535)
A jury convicted defendant Timothy Scott Clyde of assault by means of force likely to produce great bodily injury, causing injury to an elder adult with force likely to cause great bodily injury, and attempting to dissuade a witness. The trial court sentenced him to 13 years in prison.
Defendant now contends (1) he was denied due process and the right to counsel of his choosing when the trial court said defendant's newly retained counsel would have to comply with the existing trial schedule; (2) he received ineffective assistance of counsel because his attorneys did not request a continuance; (3) the trial court should have stayed his four-year sentence for attempting to dissuade a witness; and (4) the trial court erred by imposing an enhancement pursuant to Penal Code section 1170.15 rather than section 1170.1. In addition, the Attorney General claims (5) the trial court imposed an unauthorized sentence by staying rather than striking one of the prior prison term enhancements.
Undesignated statutory references are to the Penal Code. --------
We will modify the judgment to strike the one-year enhancement for the 2010 prior prison term, affirm the judgment as modified, and direct the trial court to correct a clerical error in the amended abstract of judgment.
BACKGROUND
At the time of trial, defendant was 44 and his father was 72. A year earlier, in September 2013, defendant's brother and sister lived in separate houses on their father's 22-acre parcel of land in Placer County and the father, who lived elsewhere, had been supporting defendant and allowing him to stay on the property in a motor home while defendant waited for social security benefits.
On the afternoon of September 15, 2013, defendant's father and his friend were sitting outdoors on lawn chairs drinking beer when defendant approached them and got into a rapidly-escalating dispute with his father. Defendant repeatedly asked his father if he was going to call the sheriff and, when there was no response, defendant choked his father and threatened to kill him. The father's drinking companion pulled defendant away from the fight and the father got into his truck to leave the property, but defendant gave chase, choking his father again through an open window as the truck slowly moved forward. The father's friend again pried defendant away and the father drove off the property.
When the father subsequently returned to the property, defendant's sister noticed he had been "roughed up" by defendant and called the sheriff. Several years earlier, she said, defendant had seriously injured her and had threatened to kill her. She said defendant was predictably violent when he drank more than one or two beers. A county sheriff's deputy testified that he had been called to the same property numerous times and that the father had reported for years about his fear of defendant.
Defendant admitted drinking 14 beers that day. But he denied choking or threatening his father. He said his father was an abusive alcoholic who often started fights and then called the cops to have defendant arrested.
The jury acquitted defendant of attempted murder, and the trial court declared a mistrial on counts charging defendant with attempted voluntary manslaughter and criminal threats. But the jury found defendant guilty of the following crimes: assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)), causing injury to an elder adult with force likely to cause great bodily injury (§ 368, subd. (b)), and attempting to dissuade a witness (§ 136.1, subd. (b)(1)).
The trial court sentenced defendant to 13 years in prison as follows: two years for each of the three convictions, doubled based on defendant's criminal record, with the four-year sentence for elder abuse stayed, and an additional five years for a prior serious felony conviction (§ 667, subd. (a)). In addition, because defendant admitted serving two prior prison terms (§ 667.5, subd. (b)), the trial court first said it would strike one and impose one, but corrected itself and imposed but stayed both prior prison term enhancements.
Additional facts are included in our discussion.
DISCUSSION
I
Defendant contends he was denied due process and the right to counsel of his choosing when the trial court said defendant's newly retained counsel would have to comply with the existing trial schedule.
A
A week before trial was scheduled to commence, defendant began speaking to the trial court, and the following discussion occurred:
"THE DEFENDANT: Good morning, Judge.
"THE COURT: Hello.
"THE DEFENDANT: Hi.
"THE COURT: Hold on.
"THE DEFENDANT: Your honor, I
"THE COURT: Hold on.
"THE DEFENDANT: I just want to
"THE COURT: Stop. Stop. Okay? When you start talking on the record, it's not in your best interest when you have a lawyer to speak for you.
"THE DEFENDANT: I know. That's what I am addressing. I will be retaining my own private attorney. [The public defender] is totally ineffective.
"THE COURT: Hold on. You can just tell me what your request is. Your request is what?
"THE DEFENDANT: That's all. I just want a separate trial next week. I have been briefed and I am prepared to take the case. I have a private attorney in mind, so that's all I want to say.
"THE COURT: Okay. You want to set the matters for trial, right?
"THE DEFENDANT: Yes."
The public defender confirmed there was no time waiver in the case and he was fully prepared to proceed to trial.
On the eve of trial, defendant's newly retained defense lawyer appeared with defendant in court and informed the trial court that she would assume representation of defendant. The public defender was also present. The trial court explained to defendant and his retained counsel that the People had a right to a timely trial and the People were unwilling to waive time; the trial court had not received a request for a continuance; and thus, trial would commence. The trial court asked if defendant wanted to bring in retained counsel under those circumstances, and defendant and his retained counsel both said yes. Accordingly, the trial court relieved the public defender and permitted defendant's retained counsel to substitute in and handle the case.
B
The right to effective assistance of counsel includes a right to retain counsel of one's own choosing. (People v. Courts (1985) 37 Cal.3d 784, 789.) A trial court generally should accommodate requests for a continuance to retain counsel of a defendant's choice if it can do so " 'consistent with effective judicial administration.' " (Id. at p. 791.) At the same time, trials must be heard and determined at the "earliest possible time" and continuances may be granted only for good cause because they "cause substantial hardship to victims and other witnesses." (§ 1050, subd. (a).) A court's broad discretion to assess cause for delay must be exercised in a way that allows a defendant to prepare a response to charges, but it abuses its discretion and impairs the constitutional right to counsel only if the court insists on an expeditious trial in the face of a justifiable request for delay. (People v. Alexander (2010) 49 Cal.4th 846, 934-935, citing Morris v. Slappy (1983) 461 U.S. 1, 11-12 [75 L.Ed.2d 610, 620].)
Here, the trial court did not impose unfair or improper conditions on defendant. In a criminal case, both defendant and the prosecution are guaranteed rights to a speedy trial. (Cal. Const., art. I, §§ 15, 29.) As the trial court explained, the People were unwilling to waive time. In addition, the trial court expressly noted that defendant did not move for a continuance. Such a motion would have given the trial court the opportunity to evaluate whether good cause existed to continue the trial notwithstanding the People's unwillingness to waive time, but no such motion was made. The record is clear that defendant and his retained counsel understood the choice they were making and chose to make it. Defendant was not deprived of due process or his choice of counsel.
II
Defendant next contends he received ineffective assistance of counsel because his attorneys failed to request a continuance.
The Sixth Amendment guarantees the right to effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 686 [80 L.Ed.2d 674, 692-693].) "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial court cannot be relied on as having produced a just result." (Ibid.) Calling this standard a " 'high bar,' " the United States Supreme Court observed that it must be applied with "scrupulous care" and must focus on "whether an attorney's representation amounted to incompetence under 'prevailing professional norms,' not whether it deviated from best practices or most common custom." (Harrington v. Richter (2011) 562 U.S. 86, 105 [178 L.Ed.2d 624, 642-643].) When the record contains no explanation for counsel's challenged course of conduct, an appellate court will reject a claim of ineffective assistance " ' "unless counsel was asked for an explanation and failed to provide one or there simply could be no satisfactory explanation." ' " (People v. Earp (1999) 20 Cal.4th 826, 871.) The burden of proof is on the defendant. (Id. at p. 875.)
Defendant argues both his appointed counsel and his retained counsel should have asked for a continuance. He cites People v. Courts, supra, 37 Cal.3d 784, which held that a defendant without a lawyer should be allowed time to find one. (Id. at pp. 788, 796.) But in this case defendant was not without a lawyer; his appointed counsel was ready for trial, and his retained attorney expressed an understanding of the circumstances and a willingness to proceed.
The record does not clearly explain why the attorneys did not move for a continuance, but it suggests they sought to comply with defendant's wishes. We cannot say that prevailing professional standards required more, because it has not been established that retained counsel's trial preparation and trial performance were deficient.
In any event, defendant has not established prejudice. He took the witness stand and admitted a significant history of violence, corroborated by the testimony of his sister and a sheriff's deputy who recounted an earlier fight that hospitalized his sister and included death threats if his victim reported to the authorities. He also admitted pushing his father, telling him to back up, and grabbing his shirt. Defendant's ineffective assistance claim lacks merit.
III
Defendant further argues the trial court should have stayed his four-year sentence for attempting to dissuade a witness.
Section 654 provides in part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) The purpose of the statute is to prevent multiple punishments for a single act even though that act violates more than one statute; but a defendant may be punished separately for offenses that share common conduct if the defendant entertained multiple or simultaneous criminal objectives. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) Whether a course of criminal conduct had one objective or more than one is a question of fact. (Ibid.) Trial courts have broad latitude to determine whether a defendant harbored one or more objectives and we uphold their findings on appeal if there is any substantial evidence in the record to support them. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) On review, we presume the existence of every fact the trial court could reasonably deduce from the evidence and we look at its determination in a light most favorable to the prosecution. (Id. at pp. 1312-1313.) When the record reasonably justifies the sentence, reversal is not warranted merely because the facts could have been reconciled differently. (People v. Holly (1976) 62 Cal.App.3d 797, 804.)
Defendant's father testified there were two separate choking episodes: the first while father and son were outside the truck and the second while the father was driving and the son reached in through the vehicle's window. Defendant argues his threats and his choking were all incident to the sole objective of preventing his father from calling the police, and the jury's verdict proves his only motive had to be dissuasion. But a trial court determining whether to impose or stay a sentence may rely on any facts in evidence at trial and is not bound by a verdict that does not explicitly foreclose the possibility of multiple intents. (People v. McCoy (2012) 208 Cal.App.4th 1333, 1340.) Here, the evidence supports a trial court finding that the first choking incident was motivated by rage and retaliation, and the second by an intent to dissuade the father from reporting the first choking incident to law enforcement. The facts construed in support of the trial court's judgment support the sentence and are not inconsistent with the jury's verdict.
IV
In addition, defendant claims the trial court erred by imposing an enhancement pursuant to section 1170.15 rather than section 1170.1.
Section 1170.15 is an alternative sentencing scheme. (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1834.) It need not be specifically pleaded and proven. (Id. at p. 1835.) Although defendant did not object in the trial court, this challenge is not subject to forfeiture. (See People v. Crooks (1997) 55 Cal.App.4th 797, 811.) Nevertheless, defendant's argument lacks merit. Section 1170.15 provides that notwithstanding section 1170.1, if a person is convicted of a felony (in this case the assault) and is also convicted of an additional felony violation of section 136.1 (attempting to dissuade a witness), the subordinate term for each consecutive felony offense described in the statute shall consist of the full middle term and shall include the full term for specified enhancements. (§ 1170.15.)
Defendant contends the evidence does not support a conclusion that he assaulted his father and then attempted to dissuade him from reporting the assault, but we have already rejected that argument in Part III. He also suggests the jury did not find beyond a reasonable doubt that the assault came first. But the jury determined that defendant assaulted his father, committed elder abuse against his father, and attempted to dissuade his father from reporting the crimes. That was sufficient to bring defendant within the alternative sentencing scheme of section 1170.15.
V
We also address the Attorney General's contention that the trial court imposed an unauthorized sentence by staying rather than striking one of the prior prison term enhancements. Defendant agrees the enhancement should be stricken, and so do we.
Defendant admitted two prior prison terms, one in 2005 and another in 2010. The 2005 prison term was for a criminal threats conviction, a serious felony under sections 1170.12 and 667. The 2010 prison term was for a conviction that was not defined as a serious felony. In this case, the trial court imposed but stayed two one-year sentence enhancements for the prior prison terms under section 667.5, subdivision (b). The trial court also imposed a five-year enhancement for the 2005 prior serious felony conviction pursuant to section 667, subdivision (a).
The one-year enhancement for the 2005 prior prison term was properly stayed. (People v. Walker (2006) 139 Cal.App.4th 782, 794, fn. 9 [applying Cal. Rules of Court, rule 4.447].) But the one-year enhancement for the 2010 prior prison term should have been stricken, not stayed. (People v. Langston (2004) 33 Cal.4th 1237, 1241 [one-year enhancement mandatory unless stricken].)
The Attorney General urges a remand to the trial court to determine whether to strike the one-year enhancement on the 2010 prior prison term. But we can address the trial court's unauthorized sentence on appeal because it represents a pure question of law that is independent of factual issues. (People v. Smith (2001) 24 Cal.4th 849, 852.) As defendant points out, the trial court expressed its belief that the 13-year aggregate term was the proper value for the case. Accordingly, we will modify the judgment to strike the one-year enhancement for the 2010 prior prison term.
VI
In our review of the record we have identified a clerical error in the amended abstract of judgment reflecting defendant's conviction on count 2 as violating section 245, subdivision (a)(1), rather than section 245, subdivision (a)(4). We will direct the trial court to correct this clerical error.
DISPOSITION
The judgment is modified to strike the one-year enhancement for the 2010 prior prison term. The judgment is affirmed as modified. The trial court is directed to prepare a corrected and amended abstract of judgment reflecting the judgment as modified and reflecting that defendant was convicted on count 2 of violating section 245, subdivision (a)(4). The trial court shall forward a certified copy of the corrected and amended abstract of judgment to the Department of Corrections and Rehabilitation.
/S/_________
MAURO, J. We concur: /S/_________
RAYE, P. J. /S/_________
HOCH, J.