Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FMB008239, Rodney A. Cortez, Judge.
Stephen M. Lathrop, 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, and Steve Oetting and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
During an altercation between defendant Gregory Lamont McAfee, his girlfriend, and residents at an apartment building, defendant grabbed a handgun out of his trunk and shot into the apartment complex. When police arrived, they found drug paraphernalia, small amounts of drugs, and ammunition in his car. When he was taken to jail, defendant admitted that he had drugs hidden in his groin area. A search of the bag taken from his groin area revealed methamphetamine, cocaine, heroin, Ecstasy and marijuana.
Defendant was found guilty of possession of a firearm by a felon, possession of a controlled substance, and two counts of possession of a controlled substance for purposes of sale. Defendant now contends that the trial court erred by failing to grant his Marsden motion and then refusing to conduct a hearing when he later complained about his attorney.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
We find no prejudicial error and affirm the judgment. However, because the trial court imposed an unauthorized sentence (see part IV, post), we will reverse as to the sentence only and remand the matter for resentencing in accordance with our directions.
I PROCEDURAL BACKGROUND
Defendant was charged with possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) (count 1), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) (count 2), possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) (count 3), possession of heroin (Health & Saf. Code, § 11350, subd. (a)) (count 4), possession of methamphetamine for purposes of sale (Health & Saf. Code, § 11378) (count 5), and possession of cocaine for purposes of sale (Health & Saf. Code,§ 11351) (count 6).
A jury found defendant guilty of possession of a firearm by a felon, possession of heroin, and possession of methamphetamine and cocaine for sale. At a bifurcated court trial, defendant was found to have suffered two prior serious or violent felony convictions (Pen. Code, §§ 667, subds. (b) through (i), and 1170.12, subds. (a) through (d)), having served six prior prison terms (Pen. Code, § 667.5, subd. (b)), and had two prior possession of controlled substances for sale violations (Health & Saf. Code, § 11370.2, subd. (c)). The trial court sentenced defendant to 53 years to life in state prison as follows: two consecutive 25-years-to-life sentences (counts 1 and 6), plus a determinate term of 3 years for one of the prior drug offense enhancements. It sentenced defendant to concurrent 25-years-to-life sentences on counts 4 and 5. It imposed but stayed sentences on the remaining enhancement allegations.
II FACTUAL BACKGROUND
A. Prosecution
On April 30, 2006, about 3:00 p.m., San Bernardino County Sheriff’s Deputy Joshua Galbraith was dispatched to the El Paseo Apartment complex located in 29 Palms. When Deputy Galbraith arrived at the complex, 20 to 30 people were standing around the complex yelling and screaming that defendant had fired a gun and tried to kill them. The residents indicated that defendant had thrown the gun on top of the roof of the apartment complex. Deputy Galbraith retrieved the .38-caliber gun from its rooftop location. It was loaded with live .38-caliber ammunition.
Defendant was put in handcuffs and placed in the back of a patrol unit. One person told Deputy Galbraith that defendant had retrieved a gun from a car parked in front of the apartment and fired it. Defendant later identified the car as his.
Deputy Galbraith searched defendant’s car. In a small shaving bag, Deputy Galbraith found small baggies, loose pieces of methamphetamine, and a digital scale. Pay/owe sheets for recording drug transactions, another digital scale with what appeared like methamphetamine residue, and a .38-caliber round were also found in the trunk. A small amount of marijuana was found inside the car.
Keetsa Davis, defendant’s girlfriend at the time, stated that she and defendant had gotten into an argument that day by their friend’s apartment. While they were arguing, eight to 12 people in another apartment started making racial slurs and trying to escalate the fight. Davis told them to “shut the fuck up . . . .” Davis then went back to the apartment. Some of the people followed her; some of them started punching her. Three of them had baseball bats, which they used to destroy the apartment. They left when they heard gunshots. Davis did not see who fired the gun.
Several residents of the apartment complex testified that they observed the fight and then saw a man (they did not identify defendant) retrieve a gun from the trunk of a car and start waving it around. They then heard gunshots.
Defendant spoke with Deputy Galbraith after he was transported to the police station. He said that he and Davis had been in a fight. A large group of women were standing near them, yelling to defendant to “kick the white girl’s ass.” Some of the women started going after Davis; one of them had a baseball bat. The women left, but defendant went to his car, retrieved a gun, and shot off one round.
Deputy Galbraith advised defendant that he was going to be searched and that he should relinquish any drugs or weapons. Defendant told Deputy Galbraith that he had drugs secreted in his groin area. Defendant reached down into the front of his pants and pulled out the drugs, which were in a small black bag. Inside the bag, Deputy Galbraith found a large plastic bag containing methamphetamine and other small baggies contained heroin, cocaine, marijuana, and Ecstasy. The methamphetamine weighed 27.88 grams. The cocaine weighed 3.47 grams. The heroin weighed 0.09 grams. All were more than a useable quantity. Defendant had at least $2,500 on his person when he was arrested, some of which was wadded up in his pockets.
A urine sample was also taken from defendant because he appeared to be under the influence. His urine tested positive for methamphetamines and cocaine.
An expert testified that the amount of cocaine and methamphetamine and the other items possessed by defendant, such as the pay/owe sheets, digital scales, empty baggies, and large amounts of cash, were all indicative that defendant possessed the cocaine and methamphetamine for purposes of sale.
B. Defense
Defendant testified on his own behalf. Defendant claimed that Davis was being threatened by women from the apartment complex. As they went back in the apartment where they were staying, defendant was hit in the head. Someone who lived in the apartment had a gun in the kitchen. Defendant grabbed the gun and started yelling at everyone to get out of the apartment. When everyone left, defendant tucked the gun in his pants and ran to his car. The people who had been after him and Davis approached defendant. Defendant pulled out the gun and shot it into the air because he was afraid. He then threw the gun on the roof and ran back to the apartment.
Defendant admitted that he had two previous robbery convictions, two false imprisonment convictions, a vehicle theft conviction, a grand theft person conviction, and convictions for transporting drugs.
Deputy Galbraith was recalled and testified that defendant told him on that day that he got the gun from his trunk. Defendant retook the stand and testified he was promised he would not be charged since he turned the drugs found in his groin area over to Deputy Galbraith.
III DENIAL OF MARSDEN MOTION
Defendant contends that the trial court erred by denying his Marsden motion that was brought on the first day of trial, just prior to voir dire of the jurors. Defendant also claims that error was compounded by the fact that after the denial of his Marsden motion, and less than one hour later, the trial court did not conduct an additional Marsden hearing when he complained that counsel was not communicating with him regarding the trial.
A. Additional Factual Background
On August 22, 2007, just as the jurors were going to be brought in to start the case, defendant made a Marsden motion. Defendant wanted his current counsel, George Martin, to be relieved.
Defendant stated that Martin had been his counsel for eight months, and they had only met twice, once for 30 minutes when he was appointed and once for 45 minutes the day before jury selection. Defendant tried to give Martin witness lists, but Martin told him that there was no point in calling witnesses. Although defendant had asked Martin to do more investigation, Martin insisted all the investigation had been completed. Martin never explained anything to defendant. Martin had not given him the transcripts he had requested. Martin had not come to see defendant for 90 days and then suddenly came to visit him and tell him he was ready to go to trial. Defendant complained that Martin should have filed a Pitchess motion and that Martin had failed to subpoena Davis and had no defense to the case.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
Martin noted that defendant had been similarly unhappy with his previous counsel, John Burdick. Martin could not recall whether a Marsden motion had been made at that time, but “under the contract” it was decided that Martin would substitute in as counsel because defendant had expressed unhappiness with Burdick. Martin had reviewed all of the reports in the case. He felt that defendant’s witnesses all pertained to his defenses of necessity to possess the gun and chain of custody on the drugs, and he believed that evidence could be brought out through the prosecution witnesses. Martin felt a Pitchess motion would be frivolous.
Martin agreed he had met in jail with defendant on two occasions. However, he understood defendant’s position on the case and was fully prepared.
Defendant responded that Martin had not retrieved all of the police reports. He was concerned all of the evidence in his favor would not come out at trial. Martin felt all of the appropriate evidence would be brought out at trial during cross-examination.
The trial court concluded that Martin had made appropriate tactical decisions. Defendant would have the right to testify if he chose. The trial court concluded that no deterioration of the relationship had occurred and denied the motion.
Less than one hour later, defendant asked that he be removed from the courtroom prior to the jury entering the courtroom. Defendant advised the trial court that he was in a “bad situation.” He claimed that his trial counsel was refusing to do things and was not going to call witnesses. He was not being provided a defense to the charges. He also complained that he was not being shown the jury instructions; the trial court explained to him that the specific jury instructions would be discussed after the evidence was presented.
The trial court advised defendant that Martin was a good attorney and that he might make tactical decisions with which defendant might not necessarily agree. Defendant responded, “Your Honor, . . . it is not that we don’t see eye to eye. When I asked him a question, I don’t get a response. So my only alternative is to turn to the courts.” The trial court acknowledged that defendant might be frustrated but indicated that Martin was “well equipped to handle your defense and to present a case to the jurors.” When the trial court told defendant, “Don’t feel like he is just selling you and . . . throwing you under the bus. He wouldn’t do that,” defendant responded, “It is hard not to.” The trial court stated that it had 10 years of experience with Martin and that Martin would not “sell [him] out.” The trial court asked defendant if he had any further questions, to which defendant responded, “No.” Defendant assured the trial court that he would sit at counsel table and not cause any disruptions.
After a lunch break, the trial court again discussed with defendant his behavior in court and his relationship with Martin. It appears defendant had asked the bailiff to put him in handcuffs because he was frustrated and angry and thought he might harm Martin. The trial court again assured defendant that it had worked with Martin on previous cases and had found that he always worked in his client’s best interests. The trial court suggested that defendant write down any questions he had for Martin during the testimony so he could ask him at the best time. Defendant responded that he understood and assured the trial court that his handcuffs could be removed.
The trial court admonished defendant not to have any outbursts. If defendant felt he needed a break or was becoming angry, he should notify the bailiff, and they would take a recess. Defendant indicated that he had nothing further to tell the court.
On September 10, 2007, just prior to the trial on defendant’s prior convictions, defendant asked to renew his Marsden motion. Defendant refused to sit at counsel table and wanted to sit in the jury box. A hearing was conducted out of the prosecution’s presence. The Marsden motion was denied.
B. Standard of Review
A Marsden motion is a motion to discharge existing appointed counsel, based on ineffective assistance and to appoint new counsel. (Marsden, supra, 2 Cal.3d at p. 123.)
“‘When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].’” (People v. Fierro (1991) 1 Cal.4th 173, 204.) “The decision whether to grant a requested substitution is within the discretion of the trial court; appellate courts will not find an abuse of that discretion unless the failure to remove appointed counsel and appoint replacement counsel would ‘substantially impair’ the defendant's right to effective assistance of counsel. [Citation.]” (People v. Roldan (2005) 35 Cal.4th 646, 681, quoting People v. Smith (2003) 30 Cal.4th 581, 604.)
Defendant failed to show he was receiving ineffective representation or that he and Martin were engaged in irreconcilable conflict that would substantially impair his right to effective assistance of counsel. Defendant complained that he had only spoken with trial counsel twice in jail, but counsel assured the trial court that he was well aware of defendant’s position as to his defense. Further, defendant was concerned regarding the investigation of the case, but Martin assured the trial court he had completed the necessary investigation. In addition, defendant complained about the failure to bring a Pitchess motion, but counsel felt it was frivolous. Finally, defendant was concerned that Martin was not calling any witnesses on his behalf, but Martin assured him that such evidence could be introduced through cross-examination.
Clearly, defendant was not unhappy per se with Martin, but rather disagreed with his trial preparation. “‘When a defendant chooses to be represented by professional counsel, that counsel is “captain of the ship” and can make all but a few fundamental decisions for the defendant.’ [Citation.]” (People v. Welch (1999) 20 Cal.4th 701, 729.) “Indeed, a ‘defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense.’ [Citation.]” (People v. Cole (2004) 33 Cal.4th 1158, 1192.)
Here, nothing presented by defendant at the Marden hearing showed that he was receiving ineffective representation. Although Martin had only met defendant in the jail twice, it is unclear how many times they had spoken elsewhere. Further, Martin indicated that he was well aware of the defense that defendant wanted to present. Defendant failed to show that any so-called lack of communication resulted in ineffective representation. Defendant was not entitled to substitute counsel merely because he did not agree with Martin’s trial tactics. (People v. Cole, supra, 33 Cal.4th at p. 1192.)
We have reviewed the trial record, and Martin brought out the issues of chain of custody and necessity through cross-examination. Further, defendant testified on his own behalf, giving him every opportunity to set forth his defense.
Defendant also contends that the trial court erred by failing to conduct a second Marsden hearing when defendant asked to be removed from the courtroom. Defendant had asked to be removed from the courtroom only one hour after his Marsden motion had been denied. Defendant expressed the same concerns he previously had regarding counsel not presenting a defense or talking to him. Although defendant did not specifically ask that counsel be substituted, and the People argue that such failure to make a specific request waives the issue on appeal, it certainly could be implied from the previous hearing that defendant still wanted to substitute counsel.
However, the trial court had already conducted an extensive hearing, wherein defendant was allowed to express his concerns regarding his counsel. The trial court’s duty to inquire ended at the denial of the Marsden motion. It cannot honestly be contended that within one-half hour of the denial of the Marsden motion, defendant had a new conflict that would warrant a substitution of counsel. Although it is somewhat disconcerting that defendant had to be handcuffed because he expressed concern that he was going to harm counsel, it does not support that there was some new conflict between them. Moreover, although not conducted in a closed hearing, defendant was allowed to freely express his concerns regarding the conflict he had with counsel. We cannot say that the trial court abused its discretion in not holding an additional Marsden hearing when it had just completed a full hearing and no new conflict could conceivably have occurred in the short time between the full hearing and defendant’s request to be removed from the courtroom.
Defendant provided nothing that showed he was receiving inadequate representation by his current counsel; rather, he disagreed with counsel as to trial tactics. Defendant had already made two Marsden motions against two previous attorneys before being appointed Martin. It appears defendant would not have been happy with any attorney that was appointed to represent him. Based on the foregoing, we cannot say that the trial court abused its discretion by denying defendant’s request to substitute counsel.
IV STAYING, RATHER THAN STRIKING OR IMPOSING, PRIOR PRISON TERM AND PRIOR DRUG OFFENSE ENHANCEMENTS
Although not raised by either party, defendant has been sentenced to an unauthorized sentence.
The trial court found true as to all counts that defendant had served six prior prison terms pursuant to Penal Code section 667.5, subdivision (b). It also found true as to counts 5 and 6 that defendant had suffered two prior drug offenses within the meaning of Health and Safety Code section 11370.2, subdivision (c). However, it imposed and stayed all of the Penal Code section 667.5, subdivision (b) prior prison term enhancements. In addition, the trial court imposed one consecutive three-year sentence for the Health and Safety Code section 11370.2, subdivision (c) prior but imposed and stayed the sentence on the second enhancement.
A trial court must either impose or strike a prior prison term enhancement pursuant to Penal Code section 667.5, subdivision (b). (People v. Langston (2004) 33 Cal.4th 1237, 1241 [“the trial court may not stay the one-year enhancement, which is mandatory unless stricken”]; People v. Campbell (1999) 76 Cal.App.4th 305, 311 [“the court must either impose the prior prison enhancements or strike them”].) It must also strike or impose an enhancement under Health and Safety Code section 11370.2. (People v. McCray (2006) 144 Cal.App.4th 258, 267.) “The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal. [Citations.]” (People v. Bradley (1998) 64 Cal.App.4th 386, 391.)
The trial court must provide a rationale for using its discretion to strike a mandatory prior conviction enhancement. (People v. Jordan (2003) 108 Cal.App.4th 349, 368.) Here, the trial court denied defendant’s motion to strike one or both of the prior felony convictions found true pursuant to Penal Code sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d). It gave no indication that it intended to be lenient with defendant or impose a lesser sentence. It gave absolutely no reason for staying the subject enhancements. Based on the record, it is impossible to tell whether the trial court would have struck or imposed the enhancements had it been aware it could not stay the sentence on the enhancements.
We must reverse the unauthorized sentence and remand for resentencing. On remand, the trial court must either strike defendant’s prior prison term enhancements and second drug offense enhancement pursuant to Penal Code section 1385, with stated reasons for doing so, or impose the enhancements consecutively to the others and to the principal count as required by Penal Code section 667.5, subdivision (b) and Health and Safety Code section 11370.2, subdivision (c). We express no opinion on whether the trial court should, acting within its discretion, strike one or more of the prior conviction enhancements on resentencing.
After the tentative opinion was issued in this case, in which we raised sua sponte that the trial court had erred when it stayed, rather than imposing or striking, six of the Penal Code section 667.5, subdivision (b) priors and one of mandatory enhancements under Health and Safety Code section 11370.2, subdivision (c), defendant submitted additional authorities to be argued at oral argument. At oral argument, defendant contended that the sentencing error had been waived, as he had been sentenced to a legally authorized aggregate sentence. Relying on People v. Torres (2008) 163 Cal.App.4th 1420, 1428-1434 and People v. Mustafaa (1994) 163 Cal.App.4th 1305, 1310-1311, he asserted that, under principles of double jeopardy, upon remand he could not be sentenced to a greater sentence than that originally imposed. Based on People v. Serrato (1973) 9 Cal.3d 753, 763-764, it is clear that the failure to impose or strike the mandatory enhancements here constituted an unauthorized sentence and is subject to judicial correction whenever the error comes to the attention of a reviewing court. The usual double jeopardy protections that a more severe sentence cannot be imposed following a defendant’s successful appeal does not apply because the original sentence imposed was in excess of the court’s jurisdiction. We are bound by Serrato. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Further, we choose to remand for the limited purpose of having the trial court either impose or strike the enhancements, as remand for complete resentencing is not warranted in this case. (See People v. Calderon (1993) 20 Cal.App.4th 82, 88 [remand for complete resentencing after finding an error with respect to part of the sentence is not mandatory].)
V DISPOSITION
That portion of the judgment staying imposition of the punishment for the enhancements under Penal Code section 667.5, subdivision (b) and Health and Safety Code section 11370.2, subdivision (c) is reversed. The trial court is directed to hold a new sentencing hearing and either impose the enhancements or strike them in accordance with the dictates of Penal Code section 1385. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST Acting P.J., McKINSTER J.