Opinion
H043303
05-11-2018
THE PEOPLE, Plaintiff and Respondent, v. KENNETH MARK DOOLITTLE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. F17146)
Defendant Kenneth Mark Doolittle was convicted of 20 criminal offenses against multiple victims in connection with an investment scheme. In a previous appeal, we reversed the judgment and remanded with directions to dismiss two counts on limitations grounds and to recalculate the aggregate sum taken from victims, as found for purposes of a sentence enhancement. On remand the trial court again ruled that the aggregate takings met the statutory threshold for the enhancement. In this second appeal, defendant contends that (1) the proceedings on the enhancement violated his statutory speedy trial rights; (2) the trial court violated his Sixth Amendment right to counsel by unduly limiting the scope of appointed counsel's representation; (3) the court erred by denying a motion to reconsider a restitution order made while the prior appeal was pending; (4) the trial judge exhibited actual bias against defendant; and (5) the court erred by failing to include in its amended abstract of judgment all the days defendant had spent in custody up to that time. We have concluded that the first four claims of error all fail on the merits, were forfeited in the trial court, or both. Respondent concedes that the abstract of judgment must be corrected as prayed. We will modify the judgment and affirm.
I. Background
As described in People v. Doolittle (Oct. 21, 2014, H037391 [nonpub. opn.] (Doolittle I), defendant was charged with a number of offenses arising from the sale of investments in mobile homes. The court, sitting without a jury, found him guilty on three counts of theft by false pretenses (Pen. Code, § 532, subd. (a)), six counts of theft from an elder or dependent adult (§ 368, subd. (d)), nine counts of false statements or omissions in the sale of securities (Corp. Code, §§ 25401, 25540, subd. (b)), one count of selling unregistered securities (Corp. Code, §§ 25110, 25540, subd. (a)), and one count of sale of a security by willful and fraudulent use of a device, scheme, or artifice to defraud (Corp. Code, § 25541). The court imposed a two-year enhancement based on a finding that the aggregate losses to defendants' victims exceeded $500,000. (§ 186.11, subd. (a)(2).) It sentenced defendant to 13 years in prison. Defendant appealed on September 22, 2011.
Further statutory references are to the Penal Code unless otherwise specified.
While that appeal was pending, the trial court conducted further proceedings to determine the amount of victim restitution to be ordered. (See Gov. Code, § 13950 et seq.; §§ 1202.4, subd. (f), 1202.46.) For part of this time defendant was represented by attorney Arthur Dudley. However, defendant became dissatisfied with Mr. Dudley's efforts and sought the appointment of substitute counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). He withdrew that motion when the court permitted him to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta).
Defendant was thus representing himself when the court conducted a restitution hearing on November 14, 2013. Defendant, who was in prison, did not appear. Nor, apparently, had he filed any written response or objection to the manner in which the hearing was conducted. The court found that he had waived his appearance in that he had been "given information on how to appear by Court Call," and "had not appeared at either of the last two court dates." The court issued restitution orders in favor of four victims. Defendant later claimed he had received no notice of the hearing or of the resulting orders.
Almost a year later, on October 21, 2014, this court issued its opinion in Doolittle I. Two of defendant's convictions were reversed on the ground that, with respect to them, the record contained insufficient evidence to establish delayed accrual of the statute of limitations. (Doolittle I, supra, H037391.) The opinion also addressed defendant's argument that the evidence before the trial court was insufficient to establish aggregate takings exceeding $500,000 for purposes of the enhancement under section 186.11, subdivision (a)(2). While the court did not sustain the challenge to the sufficiency of the evidence, it concluded that "defendant's challenge to the enhancement present[ed] too many uncertainties for appellate resolution." (Doolittle I, supra, H037391.) Chief among these was the extent to which multiple payments by a single victim should or must be viewed as distinct offenses rather than a single continuous offense. (Doolittle I, supra, H037391.) The court explained its own reluctance to perform the calculation as follows: "The Supreme Court's latest pronouncement on the subject seems to strongly favor a conclusion that these multiple payments constitute a single offense. (People v. Whitmer [(2014)] 59 Cal.4th 733, 742 [(Whitmer)].) However, because defendant has not had an opportunity to address the question, and because the matter must be remanded in any event, it will be open to defendant on remand to argue that each payment constituted a separate offense." The trial court would have to "determine whether, in the case of . . . victims who made more than one investment, each investment constitutes a separate crime, and—if so—which crime underlies the conviction, and the amount of loss associated with it." (Doolittle I, supra, H037391.)
On January 20, 2015, the superior court filed the remittitur in Doolittle I. Defendant did not appear in court until April 9, 2015, 79 days later. The court reappointed Mr. Dudley's firm to represent defendant, and Nikki Whitehead of that firm undertook to do so. After conferring with defendant, however, she reported that defendant was voicing complaints about Dudley's prior representation, which presented "a continuing issue in regards to motions that Mr. Doolittle wants to bring in his case and the way he wants to pursue the case." She requested that the court "maybe schedule a Marsden motion for next week." The court instead elected to entertain the Marsden motion immediately, despite Dudley's absence, noting that "[t]here may not even be a prima facie matter." After hearing from defendant out of the prosecutor's presence, the court found none of his complaints sufficient to justify relieving Mr. Dudley's firm, and denied the Marsden motion.
The matter was on calendar three times before defendant appeared. The minute order for each of those hearings includes the recital, "Defendant is remanded to the custody of the Sheriff until next appearance." This of course implies that he was present. However, each also contains the more direct statement that "[d]efendant is not present." Respondent does not dispute the premise that defendant was not brought to court during the 60 days after filing of the remittitur.
Back in open court, the court discussed with counsel how to proceed on the enhancement. Recognizing that Ms. Whitehead would have to review the trial transcript, the court directed counsel to return in five days to "see if we can set a date for the . . . 186.11 issue." On that date the court set a tentative briefing schedule and a hearing date of July 7, 2015.
Some three weeks before the July date, another attorney from Mr. Dudley's firm appeared and informed the court that based upon "information subsequent to the sentencing of Mr. Doolittle that was received in our office in a confidential lawyer/client area," the firm now "ha[d] a conflict." The court said it had been "afraid that this might happen based on some of the issues that Mr. Doolittle has raised since the matter was remanded . . . . This has to do with a potential motion for reconsideration that he may be seeking regarding the Court's orders on restitution." The court relieved Dudley's firm and appointed the "alternate firm," Wallraff and Associates. The July 7 date was vacated and a date of July 2, 2015, was set "for setting of further proceedings."
There followed a number of continuances, at least some for the purpose—as stated in minute orders—of permitting counsel to prepare for the hearing and to meet and confer. As described in greater detail below, the court conducted several hearings at which defendant sought to raise a large number of issues extraneous to the matters contemplated by our remittitur, in addition to filing a number of motions and ancillary matters, including a civil action against the receiver appointed by the court to manage certain assets. Ultimately defendant made a motion to replace the Wallraff firm, which the court denied on December 29, 2015. Defendant then relinquished his right to appointed counsel and exercised his right to represent himself pursuant to Faretta with respect to further proceedings on the enhancement.
Defendant was thus representing himself on January 8, 2016, when the court addressed the merits of the issues raised by our remittitur. The court calculated the aggregated damages by first subtracting, from the total previously found, $275,000 invested by persons as to whom there was no longer an outstanding conviction. This left $663,091 taken from persons as to whom defendant remained convicted. The court correctly recognized that, under our directions, the chief issue presented was whether "a series of payments by a given investor constituted a single continuous offense" so that the entire sum could be "include[ed] . . . in the aggregate losses for purposes of the enhancement." The court answered this question in the affirmative, stating, "I do believe, based on the evidence that was presented and the entirety of the testimony and how it all flowed together, that the series of payments by these given investors constituted a single continuous offense . . . ." Asked to comment on this point, defendant read from a section of counsel's memorandum of points and authorities asserting that aggregating sums while imposing consecutive sentences amounted to double punishment for the same conduct. Defendant also argued that the underlying sums as originally found by the court had rested on "incomplete and unauthenticated evidence" from a particular witness, a point which had not been "part of the appeal" but was "discovered afterwards." Neither of these arguments has been pursued on appeal.
The trial court reinstated the enhancement and filed a new abstract of judgment reflecting an aggregate sentence of 12 years. The abstract credited defendant with 223 days local conduct credit (see §§ 4019; 2033.1). Defendant filed a timely notice of appeal.
II. Discussion
A. Scope of Counsel's Appointment
1. Introduction
Defendant contends that the trial court deprived him of his Sixth Amendment right to counsel by "limiting defense counsel's appointment to the single issue of whether the aggregate loss supported [the] . . . enhancement." (Boldface omitted.) He objects that the court prevented counsel from acting on defendant's behalf with respect to a posited motion to dismiss on speedy trial grounds and a motion to reconsider the restitution order. He contends that both of these matters constituted "critical stage[s] of the proceeding" as to which he was entitled to appointed counsel under United States v. Cronic (1984) 466 U.S. 648, 659, fn. 25, and Strickland v. Washington (1984) 466 U.S. 668, 686. In addition to constituting a claim of error in its own right, this contention forms a necessary premise in several of defendant's other arguments, such as the claimed violation of his speedy trial rights. (See Section II(B), post.) We reject the contention.
2. Speedy Trial Issue
The record fails to bear out defendant's construction of the trial court's statements and actions respecting counsel's authority as it might affect presentation of a speedy trial objection. As defendant acknowledges, the court placed no restrictions on the scope of the appointment of defendant's first post-remand attorney, Ms. Whitehead. However, she was forced to withdraw when defendant's complaints about another attorney in her firm placed her in a conflicted position. The court then appointed the Wallraff firm. At a hearing three weeks later, Mr. Wallraff said, "Just to make the record complete, I met with counsel and the Court last week. The Court confirmed at that meeting that it had been the Court's intention to appoint counsel to represent Mr. Doolittle on the remand and with the singular issue of determining whether or not the charges were appropriately aggravated [sic] to reach the threshold for an enhancement under 186.11 -- [¶] THE COURT: Yes. [¶] -- and that I was not appointed to represent Mr. Doolittle on the myriad other issues he feels are involved." Defendant interprets these remarks to mean that the court had told Mr. Wallraff his appointment was limited to the numerical amounts at issue in the enhancement, and that he was not authorized to pursue or present any procedural objection to the court's hearing that issue. In fact, as stated by Mr. Wallraff, his brief embraced a determination "whether or not the charges were appropriately aggr[eg]ated . . . ." At no time did the court suggest that this did not extend to procedural objections, such as a speedy trial claim, that might obviate reinstatement of the enhancement.
It is true that after the above comments, defendant was permitted to place on the record a lengthy recital of objections, grievances, and hoped-for further motions in which he sought the assistance of appointed counsel. The first of these was, indeed, a speedy trial issue. But defendant never pointedly asked the court to authorize counsel to present that issue, and the record as a whole does not support defendant's supposition that such a request would have been refused.
The scope of Mr. Wallraff's appointment was a principal topic at the hearing on defendant's subsequent Marsden motion, in which he sought to relieve Mr. Wallraff as counsel. Defendant introduced the subject by stating, "In late September Mr. Wallraff informed me that Your Honor had privately instructed him to not assist me with any other matters other than the Section 186 .11 motion and that he would not assist me to obtain my legal files from Avenal Prison." (Italics added.) Shortly thereafter the court accurately noted that defendant had been "asking Mr. Wallraff to go far beyond the scope of what has been ordered by the Appellate Court." Defendant disagreed, insisting, "Those things are vital to be able to draft a motion, especially when there are other arguments, all of which relate to the [enhancement]." Shortly thereafter the court said, "Mr. Wallraff was not hired to file a habeas corpus petition. Mr. Wallraff was not hired to file motions regarding the California Department of Corrections and Rehabilitation . . . . [H]is job is simply to deal with the 186.11 . . . ." (Italics added.)
The court then solicited remarks from Mr. Wallraff, who likewise expressed an understanding that the limitations on his appointment concerned matters unrelated to the enhancement: Defendant "expected something quite different than my interpretation of my role in this case. He has throughout my representation of him been insistent that the Court of Appeal ruling reopened the entire case. That was not my interpretation. . . . I convinced myself that I should at least consider some of his arguments that could tangentially be applied to the 186.11, and my brief included more of those than perhaps I would have had had I been doing this strictly on my own. [¶] We are in disagreement about other aspects of his case that he believes are reopened and that he believes should be litigated at this point." (Italics added.)
Mr. Wallraff subsequently commented further on this subject, beginning with one "suggestion or . . . correction" to defendant's account: "I did not say that the Court has refused to allow me to litigate these. I have said that the Court has indicated I was appointed in a narrow area. [¶] THE COURT: Uh-huh. [¶] MR. WALLRAFF: I told him that any licensed attorney could appear and litigate any of these issues. I choose not to pro bono do those things. I did say that the Court has indicated to me -- and it wasn't in an ex-parte proceeding, it was with Deputy D.A. Allen -- to ask what exactly was the nature of my brief for him. Was I to reopen everything and file a habeas or was it simply to address the Court of Appeal decision? And I indicated the Court indicated -- which you did in open court the next time we appeared—the Court indicated the limitations and the scope of the appointment." (Italics added.)
These remarks confirm that the court's "limitations" on "the scope of the appointment" were intended to prevent counsel from assisting defendant, at public expense, in defendant's efforts to "reopen" the "entire case." The court cannot be reasonably understood to have limited counsel's authority to present any and all issues logically related to the adjudication of the enhancement as directed in Doolittle I. Those issues would naturally include objections going to the timeliness of the hearing on that subject.
If counsel thought a motion to dismiss on speedy trial grounds was warranted, he was more than entitled to bring it; and if he doubted whether his appointment extended that far—so as to ensure compensation for his efforts—he was welcome to raise that specific issue with the court. Indeed defendant himself had ample opportunity to raise the issue but, as previously noted, buried it in what counsel correctly described as a "myriad" of "other issues [defendant] feels are involved." Accordingly we cannot accept the factual premise of defendant's argument. So far as this record shows, Mr. Wallraff was not barred from raising a speedy trial objection, and defendant was not unrepresented—prior to his invocation of Faretta—with respect to that issue.
3. Restitution Issue
In contrast to the speedy trial issue, the court did clearly exclude from counsel's appointment defendant's proposed attack on the restitution order of November 14, 2013. However, the court did not thereby err.
First it does not appear that the court had jurisdiction to entertain the proposed motion. Certainly it did not acquire such jurisdiction by virtue of our remittitur. Upon issuance of a reviewing court's remittitur, "the trial court's jurisdiction with regard to the 'remitted action' is limited solely to the making of orders necessary to carry the judgment into effect." (People v. Ainsworth (1990) 217 Cal.App.3d 247, 251-252.) " 'After the remittitur "the appellate court has no further jurisdiction of the appeal or of the proceedings thereon, and all orders necessary to carry the judgment into effect shall be made by the court to which the certificate is remitted." [Citation.] Thus, the trial court is revested with jurisdiction of the case, but only to carry out the judgment as ordered by the appellate court.' [Citation.] '[T]he terms of the remittitur define the trial court's jurisdiction to act.' [Citation.]" (People v. Martinez (2017) 10 Cal.App.5th 686, 718-719, italics omitted; see Ayyad v. Sprint Spectrum, L.P. (2012) 210 Cal.App.4th 851, 863, fn. omitted ["The lower court has jurisdiction to consider only those issues specified in our disposition. . . . The case law is clear . . . that the trial court's jurisdiction on remand extends only to those issues on which the reviewing court permits further proceedings. . . . The trial court may not expand the issues on remand to encompass matters outside the scope of the remittitur merely because the reviewing court has not expressly forbidden the trial court from doing so."].)
Here our remittitur did not authorize or contemplate any proceedings affecting restitution, or the appointment of counsel for that purpose. Accordingly, defendant's proposed motion to reconsider the restitution order was outside the scope of proceedings the trial court was authorized to conduct.
Further, the victim restitution order appears to have been immune to the kind of direct attack defendant apparently contemplated. As an order after judgment, the restitution order was separately appealable when made. (See People v. Ford (2015) 61 Cal.4th 282, 286, citing §§ 1202.4, subd. (f), 1237, subd. (b).) It was not reviewable in the then-pending appeal from the judgment of conviction; instead, appellate review would have required a separate notice of appeal. (See People v. Denham (2014) 222 Cal.App.4th 1210, 1213-1214.) Thus, the time to directly attack that order by appeal expired 60 days after the order was rendered. (Cal. Rules of Court, rule 8.308(a).) At that point the order became final, and thus immune from direct attack. (See People v. Stanworth (1974) 11 Cal.3d 588, 594-595, fn. 5 [trial court had "no authority" to entertain motion to set aside guilty plea on remand for resentencing], abrogated on another point in People v. Martinez (1999) 20 Cal.4th 225, 237; People v. Senior (1995) 33 Cal.App.4th 531, 535 ["California law prohibits a direct attack upon a conviction in a second appeal after a limited remand for resentencing or other posttrial procedures"].) Defendant's claim that he received no notice of the order, if believed, might justify collateral relief, as by writ of habeas corpus or coram nobis. (See People v. Stanworth, at pp. 594-595, fn. 5.) But it did not confer jurisdiction on the trial court to set aside its own, long-final order on a mere motion in proceedings occasioned only by our limited remand.
Defendant addresses this issue obliquely by asserting that the trial court "retained jurisdiction over restitution" pursuant to section 1202.46, which confers jurisdiction over a defendant "for purposes of imposing or modifying restitution until such time as the losses may be determined." (§ 1202.46.) On its face this language falls well short of vesting open-ended jurisdiction in the trial court to reconsider a restitution award at any time, on any ground. Indeed such an interpretation is impliedly precluded by the following sentence, which expressly affirms the trial court's power to "correct[]" a sentence "at any time" if "the sentence is invalid due to the omission of a restitution order or fine . . . ." (§ 1202.46.) Had the Legislature meant to grant trial courts plenary power to reconsider, modify, or annul previous restitution orders, there would have been no occasion to specifically acknowledge jurisdiction to correct a specific type of defect.
Defendant cites People v. Bufford (2007) 146 Cal.App.4th 966, 970-972, which held that jurisdiction to modify a restitution award persisted even after a defendant had completed probation. Two other cases have held that section 1202.46 does not empower a trial court to order victim restitution for the first time after probation has ended. (Hilton v. Superior Court (2014) 239 Cal.App.4th 766, 780; People v. Waters (2015) 241 Cal.App.4th 822, 831.) We need not attempt to determine whether these decisions can be harmonized, because their holdings have no bearing on any issue before us. None of them supports the notion that a trial court may entertain a defendant's direct attack on a restitution order, on procedural grounds, long after the order became final.
Another decision, not cited by defendant, interprets section 1202.42 to "confer[] continuing jurisdiction" on trial courts "with respect to victim restitution." (People v. Turrin (2009) 176 Cal.App.4th 1200, 1207-1208 (Turrin).) The cited statute, however, addresses modification not of a restitution order as such, but of an order to withhold a defendant's income in order to pay restitution. Under the statute, such an order remains "effective so long as the order for restitution upon which it is based is effective or until further order of the court." (§ 1202.42, subd. (d).) The apparent effect and intent of this language is to vest the court with power to modify or suspend a withholding order. It says nothing about the court's power to modify—let alone reconsider—the underlying restitution order. Indeed Turrin itself did not involve a victim restitution order. The defendant there apparently sought to modify his restitution fine after his commitment to state prison. The court held that the statute did not apply to restitution fines. Insofar as the court attributed certain effects to the statute in connection with victim restitution orders, its discussion was dictum.
Defendant notes that in its restitution orders for the several victims, the trial court expressly reserved the power to modify the amounts allowed if specified conditions were met, including "if defendant can produce credible and believable evidence that a lesser amount of restitution is owed." This reservation is consistent with section 1202.4, subdivision (f)(1), which states that after a court has ordered victim restitution, it "may modify the amount, on its own motion or on the motion of the district attorney, the victim or victims, or the defendant." This provision manifestly contemplates the modification of restitution orders on factual grounds such as changed circumstances. (See, e.g., People v. Jennings (2005) 128 Cal.App.4th 42 [defendant sought reduction to reflect payments by his insurer in settlement of civil action].) Here defendant challenged the order in its entirety, primarily on the ground that it was procedurally defective in that, he claimed, he had not received adequate notice or opportunity to be heard. We do not believe the court had jurisdiction to entertain such an attack in the proceedings from which this appeal is taken. This makes it unnecessary to consider whether defendant would have been entitled to appointed counsel had such an attack been proper.
Defendant quotes a judicial observation that on remand after an appellate reversal of a conviction or enhancement, counsel is " 'a necessity, not a "luxury." [Citation.]' " (People v. Rouse (2016) 245 Cal.App.4th 292, 297, quoting Hall v. Moore (11th Cir. 2001) 253 F.3d 624, 627-628.) But that case was concerned with proceedings to resentence the defendant after the original sentence had been set at large by an appellate reversal. No one questions that defendant was entitled to counsel in connection with his resentencing. The question is whether he was entitled to the assistance of counsel in presenting a motion to reconsider—in essence to vacate—a restitution award made some 13 months before our remittitur was filed. Nothing in Rouse suggests an affirmative answer.
Defendant quotes judicial language generally disapproving the imposition of undue limitations on the ordinary prerogatives of counsel. The quoted cases were concerned with the effect of appointing an attorney to assist a self-represented defendant. (See People v. Mattson (1959) 51 Cal.2d 777, 793; People v. Terry (1964) 61 Cal.2d 137, 153, fn. 10, overruled on another ground in People v. Laino (2004) 32 Cal.4th 878, 893.) They do not suggest that an attorney appointed to represent a defendant in proceedings to carry out an appellate court's instructions on remand must also be authorized to represent the defendant, at public expense, with respect to additional matters the defendant would like to place before the trial court.
In sum, defendant's Sixth Amendment right to counsel was not infringed by the court's refusal to expand the scope of counsel's appointment.
B. Speedy Trial
1. Introduction
Defendant contends that the enhancement must be stricken because the hearing on remand was not conducted within the time prescribed by section 1382, subdivision (a)(2), which requires the trial court to dismiss a felony prosecution where "the cause is to be tried again following . . . an appeal from the superior court," and "the defendant is not brought to trial within 60 days . . . after the filing of the remittitur in the trial court . . . ." Here it is undisputed that nothing resembling a trial took place within the 60 days after the filing of the remittitur. The hearing on the enhancement took place nearly a year later. Defendant asserts that this required dismissal of the enhancement under the statute.
2. Forfeiture of Objection
Respondent contends that defendant forfeited his speedy trial objection by failing to explicitly assert it in the trial court by moving to dismiss before the matter was heard on the merits. The basic rule is that "a violation of section 1382 may not be raised for the first time either on appeal or in a posttrial petition for writ of habeas corpus if the defendant, who was represented by counsel, failed to object to the trial date and make a timely motion to dismiss after the applicable period expired." (People v. Williams (1999) 77 Cal.App.4th 436, 460.) Further, the statute itself declares that dismissal is not warranted if the defendant "requests or consents to the setting of a trial date beyond the 60-day period." (§ 1382, subd. (a)(2)(B).)
These rules serve an important function. A proceeding exceeding the statutory time limits need not be dismissed if "good cause to the contrary is shown." (§ 1382, subd. (a).) In the absence of an objection and motion to dismiss, there is no occasion for the prosecution to attempt to demonstrate, or the trial court to rule on, the existence of good cause for delay. Here the record is entirely silent as to the reason for defendant's not being brought into court within 60 days of the remittitur. It strongly suggests, however, that most if not all of the delays after his original appearance were not only consented to by counsel, but were occasioned either by defendant himself or by his counsel. A proper objection and motion to dismiss would have produced a record that either established, or failed to establish, good cause. The absence of such a record is directly attributable to the absence of a pointed objection raising the issue.
Defendant contends that he cannot be charged with failing to object below because he was in effect unrepresented by counsel with respect to the speedy trial issue. He cites section 1382, subdivision (c), which states that a self-represented defendant "shall not be deemed . . . to have consented to the date for the defendant's trial unless the court has explained to the defendant his or her rights under this section and the effect of his or her consent." While acknowledging that counsel had been appointed to represent him for most of the period between our remittitur and the hearing on the merits of the issues on remand, defendant contends that he was effectively unrepresented because (1) no attorney was appointed to represent him until after the statutory time had expired; (2) his first appointed counsel was burdened by a conflict of interest, on the basis of which she was ultimately relieved as counsel; (3) the court limited the scope of his second attorney's appointment such that counsel was not authorized to challenge the timeliness of the proceedings; and (4) by the time of the hearing, defendant was again unrepresented. From this he concludes that there was no time at which counsel could have, but failed to, move to dismiss. We reject this contention.
a. Time of Appointment
Defendant's reference to the time of his first attorney's appointment seems to rest on the supposition that once the time to bring him to trial had passed, counsel was under no burden to raise a speedy trial objection. This supposition is groundless. The forfeiture rule is justified partly on the ground that a speedy trial is not "a favored right such as the right 'to appear and defend, in person and with counsel,' " but is instead "a privilege personal to the defendant which will be deemed to be waived if not asserted by him in timely fashion." (People v. Wilson (1963) 60 Cal.2d 139, 148.) The burden rests squarely on the defense "to object when . . . trial is set for a date beyond the statutory period and then move to dismiss . . . , or merely move to dismiss if the statutory period expires without a trial date being set." (Sykes v. Superior Court (1973) 9 Cal.3d 83, 94, italics added.) Here this placed a burden on counsel, whenever appointed, to bring the objection to the court's attention.
b. Conflicted Counsel
Defendant contends that he was effectively unrepresented by counsel throughout the tenure of his first appointed attorney because counsel's firm was burdened with a conflict of interest. Defendant does not explain how the asserted conflict, which arose from defendant's complaints about the performance of another member of the firm in earlier phases of the case, could interfere with counsel's interposition of a motion to dismiss on speedy trial grounds. Defendant's argument simply assumes that being represented by conflicted counsel is equivalent to being entirely without counsel. Defendant fails to substantiate this premise with argument or authority. " ' "[I]t is the appellant's responsibility to affirmatively demonstrate error . . . by citation to the record and any supporting authority." ' " (Bains v. Moores (2009) 172 Cal.App.4th 445, 455, see Morgan v. Imperial Irrigation Dist. (2014) 223 Cal.App.4th 892, 913 ["the appellant must frame the issues for us, show us where the superior court erred, and provide us with the proper citations to the record and case law"].) In the absence of authority or persuasive argument, we cannot conclude that a conflict of the kind asserted below was equivalent to being unrepresented by counsel with respect to a speedy trial objection.
c. Scope of Substitute Counsel's Appointment
Defendant seeks to discount his representation by his second attorney, Mr. Wallraff, on the ground that the court so limited the scope of counsel's appointment that it relieved counsel of any obligation to raise a speedy trial objection. We have already concluded that this premise is not borne out by the record. (See Section II(B)(2), ante.) The record shows that Mr. Wallraff possessed full authority to raise a speedy trial objection if he believed it had merit.
Counsel's failure to raise the speedy trial issue was not necessarily, or even probably, inadvertent. "Defense counsel . . . ordinarily has authority to waive the statutory speedy trial rights of his or her client, even over the client's objection, as long as counsel is acting competently in the client's best interest. [Citations.] This is because statutory speedy trial rights are not among those rights that are considered so fundamental that they are 'beyond counsel's primary control.' " (Barsamyan v. Appellate Division of Superior Court (2008) 44 Cal.4th 960, 969.) Here the record provides every reason to believe that if defendant had forcefully urged the speedy trial objection instead of burying it in a mountain of irrelevancies, his respective attorneys would have overruled it on the ground that they needed additional time to prepare, due in significant part to defendant's own attempts to enlarge the issues far beyond anything contemplated by our remittitur.
d. Final Period of Self-Representation
Nor were defendant's speedy trial rights resurrected by the grant of his request to resume a self-represented status. The statutory language on which he relies limits the effect of a self-represented defendant's consent to a trial date beyond the statutory period. (§ 1382, subd. (a)(2)(B).) Defendant was represented by counsel when January 8, 2016, was set as the hearing date for the issues on remand. When the court proposed that date, Mr. Wallraff replied, "I'll make it work." When the court later announced the date as set, counsel said, "Okay." The fact that defendant subsequently resumed a self-represented status had no bearing on the question whether the speedy trial objection was forfeited. We conclude that it was.
3. Prejudice
Even if defendant's speedy trial rights were violated, and even if the objection were properly before us, we would still be unable to reverse without a showing that the violation was prejudicial to defendant. "Upon appellate review following conviction, . . . a defendant who seeks to predicate reversal of a conviction upon denial of his right to speedy trial must show that the delay caused prejudice . . . ." (People v. Johnson (1980) 26 Cal.3d 557, 574, citing People v. Wilson, supra, 60 Cal.2d at p. 151.) Defendant contends that he should be excused from this rule because of "the trial court's refusal to appoint counsel to litigate this issue . . . ." (Capitalization & boldface omitted.) As we have already concluded, however, the trial court did not "refus[e]" to make such an appointment. (See Section II(A), ante.) No specific request was ever made that it do so. Instead, defendant alluded to the issue of timeliness as a small and inconspicuous part of a blanket request to appoint counsel to relitigate a whole host of issues, many having no detectable relation to the issues to be determined under our remittitur. The court's only response to those requests was to state that it was not ruling on them but had "simply allowed [defendant] to make [his] record . . . ." If defendant wished to ensure that the court address his speedy trial concerns, he could have done so by making a distinct and isolated request that the court confirm counsel's authority, under his appointment, to pursue that issue on defendant's behalf. The record shows that counsel understood that he in fact possessed such authority, and he carried out his resulting duty by evaluating the speedy trial claim and finding it meritless. In any event we see no sound basis to hold defendant exempt from the necessity of showing prejudice.
Defendant contends that he was in fact prejudiced because the violation of his speedy trial rights, if seasonably asserted through counsel, would have resulted in dismissal of the enhancement, shortening his sentence by two years. This argument assumes that the prosecution would have been unable to demonstrate good cause for any delay. As we have already noted, the absence of an objection left the record insufficient to sustain that premise.
Defendant also contends that an assertion of his speedy trial rights would have placed him in a position to "negotiate a plea bargain." He relies not on anything in this record, but on the abstract generalization that "[p]lea bargains are the default outcome of our criminal justice system. Respondent points to no factors that would exempt this case from that default." Such an argument does not carry an appellant's burden to establish that a posited error was prejudicial. (See Paterno v. State of California (1999) 74 Cal.App.4th 68, 107 [appellant "must articulate prejudice specific to the particular case"]; id. at p. 108 [rejecting abstract argument as "no substitute for a prejudice analysis"].) To find a posited error prejudicial, the court must conclude that the defendant would probably have obtained a more favorable outcome in the absence of the error. (Id. at p. 105 [appellant must show not only error but "resulting prejudice, and the probability of a more favorable outcome"].) If the mere possibility of a more favorable result by plea bargain were a sufficient showing of prejudice, many errors would become, as a practical matter, reversible per se. This record suggests nothing more than the theoretical possibility of a plea bargain. That is not enough to establish the requisite prejudice.
C. Actual Bias
Defendant asserts that the trial judge exhibited actual bias against him by his "refusal to appoint counsel for all purposes and preemptive denial of a motion for reconsideration of the restitution order based merely on appellant's request for counsel to bring such a motion."
Again the point appears not to have been preserved for appeal. "Failure to raise the issue of judicial conduct at trial waives claims of statutory or constitutional error." (People v. Samuels (2005) 36 Cal.4th 96, 114.) Defendant implicitly concedes this to be the rule, but contends that it does not apply here because (1) an objection in the trial court would have been futile; (2) the claimed bias deprived him of " 'fundamental, constitutional rights' " (quoting People v. Vera (1997) 15 Cal.4th 269, 276-277, and citing Arizona v. Fulminante (1991) 499 U.S. 279, 310); and (3) the denial of counsel "beyond a single limited issue" prevented defendant from "following the procedures for preserving issues on appeal."
We have already largely disposed of the third point. (See Section II(A), ante.) The trial court's limitations on counsel's appointment cannot be reasonably understood to have prevented counsel from raising any issue going to the court's adjudication of the issues embraced by our remittitur. The fact that counsel did not challenge the judge for bias is readily attributed to counsel's failure to perceive any basis on which such a challenge should have been mounted.
The claim of futility cannot be sustained because the record affords no basis to suppose that a sound claim of judicial bias, if made, would have been rejected. The record is deficient in this regard because defendant made no effort to invoke the statutory procedure for presenting such a challenge—a procedure under which, unless the challenged judge accepts the challenge, the matter must be referred to another judge for determination. (Code Civ. Proc., § 170.3, subd. (c)(5).) Since the question was never asked, Judge Marigonda had no opportunity to accept or reject the challenge. Assuming he would have rejected it, plaintiff's argument erroneously vests Judge Marigonda with the last word on the subject. In fact, had the proper procedure been invoked, the question would have devolved to another judge. (Code Civ. Proc., § 170.3, subd. (c)(5).)
Nor has defendant established that the claim he now makes involves deprivation of such a fundamental right that no predicate objection is required to preserve it for appeal. As the California Supreme Court has noted, the mere appearance of bias does not implicate due process: "Where only the appearance of bias is at issue, a litigant's recourse is to seek disqualification under state disqualification statutes: 'Because the codes of judicial conduct provide more protection than due process requires, most disputes over disqualification will be resolved without resort to the Constitution.' [Citation.] . . . . [O]nly the most 'extreme facts' would justify judicial disqualification based on the due process clause. [Citation.]" (People v. Freeman (2010) 47 Cal.4th 993, 996.) Nothing in this case approaches "the most 'extreme facts'. . . ." Accordingly, defendant's "fundamental rights" are not implicated in such a way as to excuse him from complying with the prescribed procedures for presenting a claim of judicial bias in the trial court.
D. Sentence Credits
Defendant's final contention is that the trial court erred in amending the abstract of judgment to include only the 223 actual days in custody recorded in the original abstract filed in October 2011. He cites the rule that upon modifying a sentence after the defendant has commenced serving prison time, "the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody." (People v. Buckhalter (2001) 26 Cal.4th 20, 29.) Respondent concedes that this is the rule and that the abstract should be corrected to include "all the actual days the defendant spent in any type of custody, jail or prison, up to the time of the resentencing." Defendant asserts that the correct number is 1,794 days, but by our calculation it is 1,793 days: 223 days up to and including September 21, 2011, as recorded in the original abstract of judgment, plus 1,570 days accrued from September 22, 2011, through January 8, 2016, inclusive of both of those dates. We will therefore modify the judgment and direct the trial court to correct the abstract accordingly.
III. Disposition
The January 8, 2016 judgment is modified to reflect that as of that date, defendant had accrued 1,793 days of actual custody credit. The superior court clerk is directed to prepare an amended abstract of judgment reflecting this amount of credit and to forward a certified copy of the amended abstract to the California Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Premo, Acting P. J. /s/_________
Elia, J.