Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA052288, John Vernon Meigs, Judge.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Catherine Okawa Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Jemal Suyin Reese appeals following revocation of probation previously granted upon his plea of no contest to possessing a controlled substance (Health & Saf. Code, § 11350, subd. (a)) with an admission he suffered a prior felony conviction (Pen. Code, § 667, subd. (d)) and two prior felony convictions for which he served separate prison terms (Pen. Code, § 667.5, subd. (b)). The court sentenced him to prison for eight years. Appellant claims the trial court committed sentencing errors. We affirm the judgment.
FACTUAL SUMMARY
The record reflects that on June 28, 2002, appellant possessed cocaine in Los Angeles County.
CONTENTIONS
Appellant presents related claims that (1) his sentence must be reduced to five years in prison because the trial court at sentencing on June 5, 2006, abused its sentencing discretion under, and violated, a plea bargain, thereby violating his rights to due process, and (2) this Court must disregard the testimony of appellant’s former counsel presented at the sentencing hearing.
DISCUSSION
Appellant’s Related Claims that This Court Must Disregard the Testimony of His Former Counsel, and the Trial Court Erred When Sentencing Appellant, Lack Merit.
1. Pertinent Facts.
a. Appellant’s 2002 Plea, and October 25, 2005 Sentencing Agreement.
In 2002, appellant entered the above mentioned plea and the court ordered him placed on “informal D.A. probation.” On October 25, 2005, appellant and counsel for the parties were present and the court called the case for a probation violation hearing. The prosecutor indicated appellant was going to admit he did not “comport with the spirit of the D.A. probation” and the prosecutor indicated a disposition had been reached. Appellant’s counsel indicated she was forgoing a probation violation hearing because appellant’s mother, Dannie Reese (Dannie), and a drug program representative already had spoken to the prosecutor and provided the facts which, in the judgment of appellant’s counsel, constituted the probation violation.
The court continued the case for sentencing to January 18, 2006, with the parties’ understanding that if appellant appeared on that date and had not been arrested for a new offense, the court would sentence appellant to prison for five years (striking the strike), but if he failed to appear or was arrested for a new offense, the court would sentence appellant to prison for eight years. The court indicated appellant would serve half the five-year prison sentence but 80 percent of the eight-year prison sentence.
Appellant’s counsel commented that appellant “has every intention of being here on January 18th.” The court asked appellant if he waived his right to sentencing on October 25, 2005, and agreed the case could be continued to January 18, 2006, for sentencing. Appellant replied yes, his counsel joined, the court ordered the continuance, and the court told appellant, “We’ll see you on that day, sir.” The probation report reflects appellant was born in 1970.
b. The January 18, 2006 Sentencing Hearing.
On January 18, 2006, the court called the case for sentencing and appellant’s counsel advised the court as follows. Counsel had spoken to Dannie a few minutes earlier. Dannie had indicated that on December 21, 2005, appellant had been in a very serious accident in which he was a pedestrian and a car hit him. He was taken to a hospital and spent several weeks there. He had several broken bones and had a cardiovascular problem.
Appellant’s counsel also advised the court as follows. Dannie faxed to counsel on January 17, 2006, a document which the prosecutor and court possessed and which indicated appellant had psychological issues. Counsel was not sure whether the issues were a result of the accident. However, Dannie indicated appellant was severely injured, physically and mentally, and wanted counsel to ask the court to continue the case so all of the doctors could “speak to [appellant’s] incapacity at that time.” Counsel indicated it was her understanding that appellant was not then in a hospital but was under the care of several doctors. Appellant’s counsel, Shawn Chapman-Holley, also indicated that Dannie had faxed to Chapman-Holley’s office another document from a doctor, but Chapman-Holley had not seen it. The court issued a bench warrant for appellant’s arrest for failing to appear.
c. The June 5, 2006 Sentencing Hearing.
On June 5, 2006, the court called the case for sentencing and appellant was represented by new counsel, Pierpont Laidley. Laidley conceded appellant was arrested on January 23, 2006, based on the warrant. The following testimony was presented.
(1) Dannie’s Testimony.
Dannie testified for the defense that on or before December 21, 2005, Dannie visited appellant in the hospital and appellant was badly hurt. He later saw two doctors.
During cross-examination, Dannie testified as follows. Appellant was released from the hospital probably within 24 or 48 hours. Between the date of appellant’s release and January 18, 2006, appellant stayed at Dannie’s house.
According to Dannie, on January 18, 2006, appellant could not walk without help, he was not normal, and he was incoherent. Dannie knew appellant had a court date on January 18, 2006. However, Dannie did not bring appellant to court. Appellant was in Dannie’s house during court hours on January 18, 2006. Appellant was not in Dannie’s house when he was arrested. The prosecutor asked how appellant left Dannie’s house if he was incoherent. Dannie replied that she thought that probably some friends came and got him.
During redirect examination, Dannie indicated she had called Chapman-Holley, but Chapman-Holley never returned Dannie’s call to tell Dannie that the court said it would issue a bench warrant for appellant. Dannie faxed various documents to Chapman-Holley. One, from Dannie, indicated appellant had suffered several broken bones as a result of the accident.
(2) Appellant’s Testimony.
Appellant testified as follows. In “December,” a car ran over appellant, injuring his head, legs, and side. The prosecutor asked appellant how long he had been in the hospital. Appellant replied he guessed he had been there a day and a half, and at one point said he did not know.
About January 17, 2006, appellant had a conversation with Dannie regarding notifying Chapman-Holley and the court that he was in no condition to come to court the next day. He did not come to court on January 18, 2006, because he believed his mother already had consulted with Chapman-Holley and determined that the court date would be continued. On January 18, 2006, appellant did not receive any communication from Chapman-Holley. Appellant knew he had to return to court eventually and believed Chapman-Holley would tell him when he had to return. When police came to him and asked who he was, he freely and voluntary gave them his identification. Appellant did not know that the court had issued a bench warrant for his arrest. If appellant had learned on any day from January 18, 2006, through January 23, 2006, inclusive, that he had better come to court, he would have come even though he would not have been in condition to do so. Appellant did not intend to violate the court’s order.
During cross-examination, appellant testified that prior to his arrest, he saw the doctor and psychiatrist twice each. From the time appellant was released from the hospital to the time he was arrested, he had only left the house on the day he was with friends. Appellant was also gone two days. Appellant was with friends when arrested.
Appellant did not contact Chapman-Holley and did not have her phone number. Either Dannie’s mother would call Chapman-Holley, Dannie would call her and put appellant on the phone, or something similar would occur. The prosecutor asked if appellant could have asked Dannie for Chapman-Holley’s phone number. Appellant replied that many times when he awoke, Dannie was not home. By the time Dannie came home, Chapman-Holley’s office was closed. The prosecutor asked if appellant ever thought about asking for Chapman-Holley’s number so he could call her the next day. Appellant testified he had asked Dannie numerous times about what was going on, whether Chapman-Holley had called, or whether “we” had talked to Chapman-Holley.
During redirect examination, appellant testified that Dannie’s communications with Chapman-Holley on appellant’s behalf about his condition were the same as if appellant was communicating with Chapman-Holley. No one had told him that a warrant had issued for his arrest. On January 18, 2006, and the subsequent days, appellant believed Chapman-Holley had notified the court of appellant’s condition.
(3) Chapman-Holley’s Testimony.
The prosecutor called Chapman-Holley as a witness. The court indicated appellant had not waived his attorney/client privilege, so Chapman-Holley could not testify to anything that would violate it.
Chapman-Holley indicated as follows. Chapman-Holley had intended to assert the privilege even though she understood the prosecutor was going to ask Chapman-Holley only about conversations she had had with Dannie. Chapman-Holley had never spoken to appellant. Chapman-Holley had never separately represented Dannie.
Chapman-Holley also indicated the following. Dannie paid Chapman-Holley a partial retainer to represent appellant, but Dannie never paid the balance and the court ultimately appointed Chapman-Holley to represent appellant. Chapman-Holley did not remember Dannie retaining Chapman-Holley on any other matter. Chapman-Holley needed clarification from the court concerning what she could divulge concerning her communications with Dannie.
Laidley indicated that Dannie had retained Chapman-Holley on a real estate matter before Dannie retained her for appellant. Laidley commented that Chapman-Holley had raised an issue about fees, and this possibly tainted her objectivity.
The court indicated as follows. It had not been established that Chapman-Holley had an attorney-client privilege with Dannie “but certainly [Dannie] ha[d] opened it up” by testifying concerning communications between Dannie and Chapman-Holley. The People could question Chapman-Holley, and appellant could object.
Chapman-Holley testified that she represented appellant on January 18, 2006. She did not communicate with appellant that day, but did communicate with Dannie. Laidley objected, in part on the ground that Chapman-Holley had a continuing duty to a client, and if Chapman-Holley testified inaccurately, it would injure “this client.” The court overruled the objection.
Chapman-Holley then testified that on January 18, 2006, Chapman-Holley spoke with Dannie as Chapman-Holley was en route to court. The prosecutor asked what Dannie told Chapman-Holley. Chapman-Holley then sought assurance from the trial court that she could answer the prosecutor’s questions. The court told the prosecutor to continue questioning Chapman-Holley.
Chapman-Holley then testified as follows. Chapman-Holley had been out of town and had returned the night of January 17, 2006. On the morning of January 18, 2006, Chapman-Holley’s secretary gave Chapman-Holley a faxed document which addressed issues pertaining to appellant. En route to court, Chapman-Holley talked with Dannie, and Dannie said there had been an accident and appellant would not be appearing.
Chapman-Holley asked Dannie if the accident would prevent appellant from appearing in court. It did not appear from Chapman-Holley’s conversation with Dannie that appellant was at home. The document Chapman-Holley had seen was a letter signed by one of the doctors. She did not know if certain defense documents had been faxed to her office. Chapman-Holley never called appellant or Dannie to say that a warrant had been issued as a result of appellant’s failure to appear. En route to court, Chapman-Holley told Dannie that a warrant would issue for appellant’s arrest if he failed to appear.
(4) The Parties’ Argument and the Court’s Ruling.
After the presentation of testimony, Laidley argued as follows. Laidley thought the court’s order requiring appellant to appear in court on January 18, 2006, was unequivocal, but the issue was whether appellant reasonably believed there had been an extension. Appellant technically violated the court’s ruling, but there was no evidence he had intended to disrespect the court.
Laidley also argued the following. Chapman-Holley never personally told appellant that a warrant had issued and he better come to court. Chapman-Holley said she expected a warrant to issue but communicated that expectation to Dannie, not appellant. Appellant was not physically and mentally able to appear and, in that circumstance, his failure to appear was excused because no one told him to appear.
The court indicated as follows. Appellant frequently had failed to appear in the past, and the court had issued numerous bench warrants for his arrest. There apparently had been communication problems throughout the course of Chapman-Holley’s representation of appellant. On October 25, 2005, appellant was in court, he was sober, and he indicated he understood what was occurring. According to appellant’s testimony, when police arrested him he was not sick in bed but was with friends on Century Boulevard. Dannie lived in View Park. One of the reasons for the negotiated disposition was that appellant had indicated he had to physically take care of Dannie, but appellant testified that Dannie worked.
The court concluded appellant was told what would happen if he did not appear in court on January 18, 2006, he was able to appear in court on that date, he chose not to appear, and he did not comply with the agreement of October 25, 2005. The court indicated it would sentence him to prison for eight years pursuant to that agreement. The court denied appellant’s motion to withdraw his plea. The court sentenced appellant to prison for eight years, consisting of the three-year upper term for the present offense, doubled pursuant to the “Three Strikes” law, plus two years for the two Penal Code section 667.5, subdivision (b) enhancements.
2. Analysis.
There is no dispute that on October 25, 2005, appellant impliedly admitted a probation violation with the understanding that the matter would be continued for sentencing to January 18, 2006, and the court would either sentence him to five years in prison if he appeared in court on the latter date and had not been arrested for a new offense, or would sentence him to prison for eight years if those conditions were not met. Moreover, there is no dispute appellant failed to appear on January 18, 2006. Finally, it is undisputed that on June 5, 2006, the trial court properly sentenced appellant to prison for eight years pursuant to appellant’s October 25, 2005 sentencing agreement, except to the extent appellant claims he had a valid excuse for his failure to appear on January 18, 2006, and Chapman-Holley should not have testified at the June 5, 2006 sentencing hearing.
a. Appellant Failed to Appear Without Valid Excuse.
Appellant claims that he had a valid excuse for failing to appear on January 18, 2006; therefore, the trial court abused its discretion, violated his October 25, 2005 sentencing agreement, and violated his rights to due process by sentencing him to prison for eight years. We disagree.
Appellant entered his no contest plea to the present offense in 2002. However, on October 25, 2005, he impliedly admitted a probation violation and he entered into a sentencing agreement which was essentially analogous to plea agreements that a defendant will receive a reduced or harsher sentence at a future sentencing hearing, depending upon whether the defendant appears, or fails to appear without valid excuse, at sentencing. (See People v. Masloski (2001) 25 Cal.4th 1212, 1223-1224; People v. Vargas (1990) 223 Cal.App.3d 1107, 1111-1113.) We employ an abuse of discretion standard to review any nonconstitutional error by the trial court in its determination as to whether appellant had a valid excuse for failing to appear on January 18, 2006. (See People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 906-907.)
We have reviewed the record and recited the facts. Suffice it to say there was ample evidence from appellant’s conduct, from the time he was allegedly released from the hospital to the time he was arrested, that he was mobile, able to meet with friends, and able to come to court on January 18, 2006. According to Chapman-Holley, it did not appear from her conversation with Dannie that appellant was home on January 18, 2006.
Moreover, there were multiple inconsistencies in the frequently vague defense presentation of evidence, including inconsistencies concerning the severity of appellant’s alleged injuries and the length of his alleged hospital stay. The trial court reasonably could have rejected appellant’s self-serving claim that he thought he had received an extension of the court date. The trial court also reasonably could have concluded that Chapman-Holley zealously represented appellant, did nothing wrong, and was not responsible for appellant’s failure to appear. Further, the trial court reasonably could have concluded that much of the defense evidence of appellant’s claims that he was unable to appear in court due to the alleged accident were fabricated.
The trial court did not abuse its discretion by concluding that appellant failed to appear in court without a valid excuse on January 18, 2006. Accordingly, on June 6, 2006, the trial court properly sentenced appellant to prison for eight years, fully honoring the reasonable expectation of the parties to appellant’s October 25, 2005 sentencing agreement, and no violation of appellant’s rights to due process occurred.
b. Chapman-Holley’s Testimony Was Admissible.
Appellant also claims that Chapman-Holley’s testimony violated appellant’s state law attorney-client privilege, duty to preserve a client’s confidences, and duty to maintain undivided loyalty to a client, and created an actual conflict of interest for Chapman-Holley, all constituting ineffective assistance of counsel with the result that this Court may not consider her testimony. Appellant’s claim is really in the nature of an admissibility claim. We reject it.
There is no dispute that, at the time Dannie communicated to Chapman-Holley about appellant’s criminal case, Dannie was acting as appellant’s agent and the communications were confidential and subject to the attorney-client privilege arising from the relationship between Chapman-Holley and appellant, her client. However, Dannie was a defense witness at the June 5, 2006 sentencing hearing. She testified, with appellant’s consent, and certainly without objection from him, as to a significant part of the content of those communications. Similarly, appellant disclosed a significant part of communications between appellant and Chapman-Holley when he testified as to the contents of communications which he intended to convey to her through Dannie, his agent (and which she did convey).
Although the trial court initially indicated appellant had not waived his attorney/client privilege, Chapman-Holley subsequently raised the issue of the application of the privilege to communications between her and Dannie. Later, the court indicated it had not been established that Chapman-Holley had an attorney-client privilege with Dannie “but certainly [Dannie] ha[d] opened it up” by testifying concerning communications between Dannie and Chapman-Holley, the People could question Chapman-Holley, and appellant could object. Still later, when Chapman-Holley sought assurance that the record reflected she had no attorney-client relationship with Dannie, and Chapman-Holley could answer the prosecutor’s questions, the court told the prosecutor to continue questioning Chapman-Holley.
Fairly read, the trial court’s comments reflect it concluded that appellant waived his attorney-client privilege as to Dannie’s communications with Chapman-Holley. As a consequence, that privilege did not bar Chapman-Holley from later testifying as to her communications with Dannie. (Cf. People v. Barnett (1998) 17 Cal.4th 1044, 1122-1124.) If appellant testified and called Dannie to testify, it was fair to permit Chapman-Holley to rebut. No violation of the attorney-client privilege held by appellant, or the related state law duties imposed on counsel, occurred. Nor did appellant receive ineffective assistance of counsel. (People v. Barnett, supra, 17 Cal.4th at pp. 1124-1125.) Appellant’s claims are without merit.
To the extent appellant claims Chapman-Holley violated her duty under Business and Professions Code section 6068, subdivision (e), to maintain the confidence, and preserve the secrets, of appellant, we reject the claim because the trial court correctly ruled that there was no violation of the evidentiary rule of the attorney-client privilege. (Cf. People v. Dang (2001) 93 Cal.App.4th 1293, 1298-1299.) Moreover, section 6068, is not an evidentiary rule but a rule of conduct for attorneys (People v. Dang, supra, 93 Cal.App.4th at p. 1298), and Chapman-Holley did not violate section 6068. Further, Chapman-Holley violated no ethical duties in this matter. Finally, to the extent appellant claims Chapman-Holley’s testimony violated the attorney work-product doctrine, he waived the issue by raising it in his reply brief for the first time, and perfunctorily (cf. People v. Gionis (1995) 9 Cal.4th 1196, 1214, fn. 11; People v. Thomas (1995) 38 Cal.App.4th 1331, 1334), and, in any event, Chapman-Holley did not violate the work-product doctrine.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., ALDRICH, J.