Opinion
A150584
12-14-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVID LEE ANDERSON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 172220)
Defendant David Lee Anderson was found guilty by a jury of (1) mayhem, (2) assault with a firearm, (3) second degree robbery, and (4) assault by means likely to produce great bodily injury. The jury also found certain enhancements, including firearm enhancements, to be true. On appeal, he asserts the trial court erred in denying his motion to discharge his retained attorney after trial had commenced. He further contends the court erred in imposing a full consecutive term rather than a subordinate term for his robbery conviction. In supplementary briefings, he also asserts his case must be remanded so the trial court may exercise its discretion under recently enacted statutory amendments to strike the firearm enhancements and to dismiss a prior serious felony conviction enhancement. We agree that the sentence on the robbery conviction must be modified. We also concur that the matter must be remanded for the court to exercise its discretion to dismiss the relevant enhancements. In all other respects, we affirm the judgment.
PROCEDURAL HISTORY
On August 14, 2013, an information was filed charging Anderson with mayhem (Pen. Code, § 203; count one), assault with a firearm (§ 245, subd. (a)(2); count two), second degree robbery (§ 211; count three), and assault by means likely to produce great bodily injury (§ 245, subd. (a)(4); count four). With regard to count one, the information alleged he personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (d)), personally discharged a firearm (§ 12022.53, subd. (c)), personally inflicted great bodily injury (§ 12022.7, subd. (a)), and personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)). With regard to count two, the information alleged he personally used a firearm (§ 12022.5, subd. (a)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)). With regard to count three, the information alleged he personally inflicted great bodily injury (§ 12022.7, subd. (a)). The information also alleged that he had a prior strike conviction (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), three prison priors (§ 667.5, subd. (b)), and one prior serious felony conviction (§ 667, subd. (a)(1)).
All further statutory references are to the Penal Code except as otherwise indicated.
FACTUAL BACKGROUND
Because Anderson does not claim the jury's verdict lacks substantial evidence to support it, we summarize the most pertinent portions of the record supporting the verdict. 1. Anderson's Attack on S.D. and I.B. (November 9 , 2012 Robbery and Assault)
On November 9, 2012 at 1:20 p.m., 17-year-old S.D. and her 14-year-old cousin I.B. were walking to a store located at 19th Avenue and East 21st Street in Oakland. Anderson, who was known to S.D. as "Spider," pulled up beside them in a black BMW. S.D. could hear him talking on the speaker phone to his girlfriend, Nakia Lewis, who was S.D.'s neighbor. He then said to the girls, "I'm tired of you faggot ass bitches." S.D. told I.B. to ignore him and keep on walking. Anderson said he was going to get out of the car and slap S.D..
As Anderson exited his car, S.D. told him she would call "somebody," meaning her brother. Anderson said, "I'll take your phone, you'll call nobody." He walked up to her quickly as she held her phone behind her back. He then started hitting her with his closed fist while trying to take her phone. He hit her in the head about three or four times, causing her head to strike a concrete wall. She also impacted the wall when he slammed his body into hers. She experienced dizziness as a result.
S.D.'s phone dropped out of her hand and I.B. tried to pick it up. Anderson pushed I.B. and she stumbled. He then kicked I.B. in her face. He hit S.D. one more time, picked up her phone, and ran back to his car. At trial, S.D. testified that she had no idea why Anderson attacked her that day. She went to the doctor the following week for headaches she was experiencing as a result of the attack. I.B. also experienced bad headaches for about three days after the incident, but did not seek medical attention. On cross-examination, S.D. stated that she did not have any feelings about Anderson prior to the attack, but admitted both she and her mother despised Nakia. 2. Anderson's Attack on Shelton (November 14 , 2012 Mayhem and Assault with a Firearm)
Because Nakia and her brother Stephon share the same surname, we will refer to them by their first names for the sake of clarity. No disrespect is intended.
Latisha Shelton, also known as "T," and Nakia were close friends. On November 14, 2012, Shelton was giving Nakia's cousin Shema a ride to a party on Pearmain Street in Oakland. When they arrived, Shelton pulled into the driveway and Shema exited the car. Nakia was also there attending the same party. As Nakia took something from the trunk of a nearby car, Shelton spoke to her but Nakia did not respond. When Shelton asked her why she did not answer, Nakia said that she felt like fighting. Nakia's tone was really aggressive, which surprised Shelton.
Nakia said, "[D]on't act like you don't know my house got ran into." When Shelton replied that she did not know, Nakia said, "[Y]es you do, you fuck with them bitches." Shelton knew that Nakia was having conflicts with a neighbor named S.W., who had been a family friend in the past, but Shelton had not spoken to S.W. in years. Nakia then approached Shelton's car. Their conversation escalated and Nakia punched her in her face. Shelton grabbed Nakia's collar and pulled her face towards the window. Shelton made a fist with her right hand and reached back, intending to hit Nakia. Defendant Anderson got into the passenger seat of Shelton's car. Nakia started screaming, "No, baby, no." The person Nakia was calling "baby" was Anderson. Shelton then heard a gun fire and realized she had been shot, though, at first, she did not know where. The shot came from inside the front passenger section of her car.
S.W. is S.D.'s mother.
Shelton left her car to get help. As she exited, she looked over her shoulder and saw that the passenger door was open and Anderson was inside the car reaching over to take her keys from the ignition. After he withdrew from the car, she heard another "pop" that sounded like it was coming from outside the passenger side. She heard Nakia's brother, Stephon, say, "Hey, that nigga shot T and his self. I told him he wouldn't need no gun." Shelton saw Stephon picking Anderson off of the ground. Shelton then realized that she had been shot in her right hand because her pinky finger was "hanging." Cradling her injured hand, she got out of the car and ran. She saw Stephon put Anderson in his (Anderson's) BMW, which sped off with Nakia driving. Eventually, Shelton's pinky had to be amputated. She has lost 75 percent of her strength in her right hand.
Shelton identified Anderson as the shooter. At the scene, the police recovered a cartridge on the ground near Shelton's car and observed blood stains in and on her car. Subsequent gunshot residue testing revealed a particle of residue on Anderson's right hand, though the test results were deemed inconclusive. A police inspector testified that a bullet later removed from Anderson's knee was consistent with having come from the casing seized at the crime scene.
Verdict and Sentencing
On September 8, 2014, the jury found Anderson guilty as charged, except that it found not true the allegation that he had personally discharged a firearm causing great bodily injury upon Shelton.
The section 12022.7, subdivision (a) allegation was dismissed and not presented to the jury.
On July 16, 2015, Anderson filed a motion for new trial. The motion was denied.
In a bifurcated proceeding held on August 21, 2015, the trial court found that Anderson had a prior strike conviction (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), a prior serious felony conviction (§ 667, subd. (a)(1)), and two prison priors (§ 667.5, subd. (b)).
On August 19, 2016, the trial court sentenced Anderson to an aggregate term of 46 years in state prison.
On April 14, 2017, this court directed the trial court to file Anderson's late notice of appeal and process it as though it had been filed timely. On April 17, 2017, the notice of appeal was filed.
DISCUSSION
I. Motion to Discharge Retained Counsel
Anderson contends the trial court erred by denying his request to discharge his retained attorney, thereby depriving him of the right to be represented by an attorney of his choice. We disagree.
A. Background
The matter was set for jury trial for July 28, 2014. In a letter dated June 2, 2014, Anderson wrote to the trial court judge presiding over his case at that time (Judge Paul Delucchi), expressing concerns about his privately retained attorney, Robert D. Byers. Anderson complained about Byers's lack of communication, and his withholding of Anderson's "discovery package" and other material evidence, stating, "It appears to me that the only top priority to Mr. Byers is him requesting more money from me." Anderson stated he was "very seriously considering requesting a M.A.R.S. motion" if Byers's representation did not improve.
On July 24, 2014, Byers filed a request for a continuance, stating in his affidavit that "[t]he outstanding evidentiary issues may involve significant expense, an expense that my client was unwilling to underwrite or authorize me to go forward with as his trial counsel. Mr. Anderson spoke with other attorneys for the past few weeks, and it was not until, Sunday, July 20th, 2014, that [he] told me that he wished to continue with me as trial counsel." The motion to continue was denied; however, the matter was continued to August 11, 2014 for motions in limine.
On August 11, 2014, the trial court judge assigned to hear the case (Judge Thomas Reardon) began hearing motions in limine.
On August 12, 2014, jury selection commenced for trial. Anderson's counsel agreed to excuse his client's presence for that day's jury voir dire.
In a letter dated August 12, 2014, attorney Curtis L. Briggs wrote to Judge Reardon, indicating his belief that Anderson was "not prepared to move forward with trial with his current attorney, Robert Byers." Briggs stated that during a visit with Anderson in jail, Anderson complained that Byers had not investigated the case, had not reviewed police reports, and was unprepared to move forward with trial. On August 11, 2014, after two weeks of contact with Briggs's office, Anderson's family reportedly executed a fee agreement and paid Briggs a retainer. Briggs asked the court to give Anderson more time to obtain alternative counsel, stating: "I am deeply concerned about Mr. Anderson's right to a fair trial in this matter." He also opined that "[g]iven the facts of this case, [forcing Anderson to go to trial] is reversible error."
On August 18, 2014, Anderson asked to speak to Judge Reardon, who stated, "I've told him that I don't talk directly with any defendants who are represented by counsel. I've given him a chance to talk with Mr. Byers." Byers indicated Anderson was "upset about something." Anderson told the court that he wanted to submit a Marsden motion. The judge explained that a Marsden motion was not available due to counsel having been privately retained. The judge told him he could hire another lawyer. Anderson said he had "been trying to," and that he had previously submitted a letter to the court. The judge responded, "[T]his case has been set for trial for months. You've been in my court for three weeks. I still don't see another lawyer." The judge continued, "You were sent here by Judge Delucchi for trial on July 28th. That's what I know. That's three weeks ago today. And now after I've done pretrial motions, read all these questionnaires, have 100 people standing in my hallway you're telling me you're not ready, he's not ready, and you want a new lawyer. Just doesn't work that way. If you don't like what he was doing, you hired him. It's America, hire somebody else. [¶] If the court appoints the lawyer to you, somebody you didn't go out and hire, then maybe you would have a right to a Marsden motion. But not when [you] hire them. You made that choice who to hire. You hired a very good lawyer. I don't know what your problem is, but that's not my problem." Anderson's motion was denied.
See People v. Marsden (1970) 2 Cal.3d 118.
B. Applicable Principles of Law
A trial court has "wide latitude in balancing the right to counsel of choice against the needs of fairness" and the demands of its calendar. (United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 152.) We review a court's denial of a motion to discharge retained counsel for abuse of discretion. (People v. Lara (2001) 86 Cal.App.4th 139, 151 (Lara).)
A criminal defendant's Sixth Amendment right to effective assistance of counsel includes the right to retain counsel of his or her choice, and concomitantly to discharge counsel with or without cause at virtually any time. (People v. Ortiz (1990) 51 Cal.3d 975, 983.) But the right is not absolute. The trial court may in its discretion deny a motion to discharge counsel if it will result in " 'significant prejudice' " to the defendant, for example by forcing him or her to trial without adequate representation, or if it is untimely and will result in an unreasonable " 'disruption of the orderly processes of justice.' " (Ibid.; see People v. Lucev (1986) 188 Cal.App.3d 551, 556 ["due process, as it relates to the right of counsel, does not require that a defendant be allowed under all circumstances to be represented by a particular attorney"].)
Anderson concedes that his oral motion to discharge Byers "may arguably have been 'untimely,' given that it was made on the second day of trial, after selection of the jury had commenced." However, he claims the motion was not unreasonable under the circumstances.
In evaluating the disruption an untimely request to replace counsel will cause, a trial court must consider the practical difficulties of assembling witnesses, lawyers and jurors at the same time and place, and balance the disruption, if any, stemming from the substitution of counsel against the defendant's interest in new counsel. (People v. Keshishian (2008) 162 Cal.App.4th 425, 428 (Keshishian)). Courts have found no unreasonable disruption where the defendant moves to discharge counsel at the first hearing following arraignment, or two weeks before trial, or where nothing points to the defendant's desire to delay trial or suggests a continuance would prevent the appearance of witnesses. (Lara, supra, 86 Cal.App.4th at pp. 159-160; People v. Stevens (1984) 156 Cal.App.3d 1119, 1129.) On the other hand, when a defendant waits until the first day of trial to request new counsel and circumstances suggest the true motivation is to delay the trial, the disruption necessitated by substituting counsel may be unreasonable. (Lara, at pp. 160-161; see, e.g., Keshishian, at p. 429 [no error in denying attempt to discharge counsel on the day of trial when the case had been pending for over two years, new counsel had neither been identified nor retained, and scheduled witnesses would have been further inconvenienced.
Under the circumstances of this case, the trial court properly found Anderson unjustifiably delayed his request to substitute retained counsel until the second day of trial, after both parties repeatedly had answered ready, witnesses had been subpoenaed, a trial court had been assigned (thereby rendering that court unavailable for other ready trials), and jury selection had begun. (See People v. Blake (1980) 105 Cal.App.3d 619, 623-624 ["[A] defendant who desires to retain his own counsel is required to act with diligence and may not demand a continuance if he is unjustifiably dilatory or if he arbitrarily desires to substitute counsel at the time of the trial."].) The trial court here was properly concerned about the untimeliness of Anderson's request and the obvious inability of new counsel—who had not even appeared in the courtroom—to step in without delaying the trial. Continuing Anderson's trial under the circumstances would have adversely affected the orderly administration of justice. (See People v. Johnson (1970) 5 Cal.App.3d 851, 859; cf. Keshishian, supra, 162 Cal.App.4th at pp. 428-429.)
It appears Anderson had concerns about Byers before the case was assigned to Judge Reardon's court, yet he did not take any steps to discharge his attorney until after the trial had commenced.
While Anderson complains that he was "never accorded the opportunity to explain why he was dissatisfied with Byers," Anderson apparently knew that Judge Reardon would have seen the June 2, 2014 letter sent to Judge Delucchi as well as the August 12, 2014 letter from Briggs. Anderson also admits that "newly retained counsel should have been present in court" at the time he sought to change attorneys, though he faults counsel for his absence rather than accepting responsibility for his failure to substitute new counsel in a timely manner. Under the circumstances here, the trial court could reasonably conclude Anderson had no legitimate concerns about his attorney, but sought only to disrupt the proceedings and delay the trial.
We also note that while Anderson claimed Byers was "not prepared" for trial, we have read the entire trial transcript and do not see anything to support that assertion. Nor does Anderson raise any specific issue concerning any deficits in Byers's performance. There was no violation of Anderson's constitutional rights to counsel of his choice or to due process. II. Anderson Must Be Resentenced On Count Three
Anderson contends that the trial court erred by imposing a full aggravated consecutive term on his robbery conviction (count three) and the accompanying enhancement. The People concede this error and ask that this court modify Anderson's sentence.
In a presentencing letter to the trial court, the prosecutor recommended that the court impose a 36-year prison term, which included a one-third of the middle term (doubled) of three years for the robbery and accompanying enhancement, consecutive to a 26-year term to be imposed on count one.
On August 21, 2015, the trial court held a hearing on the motion for new trial and briefly discussed Anderson's sentence. The court questioned whether the one-third-the-middle-term limitation applied to count three, "where the event occurs on a different occasion and does not arise from the same set of operative facts." The prosecutor stated, "I do agree with that, Your Honor, yes." The court subsequently postponed Anderson's sentencing hearing.
On August 19, 2016, following several procedural delays, the trial court held Anderson's sentencing hearing. The court sentenced Anderson to 46 years in state prison, which included a full, aggravated, consecutive term of 10 years on the robbery conviction, plus three years for the great bodily injury enhancement.
After imposing a 26-year prison term on count one (mayhem), and a stayed 21-year prison term on count two (assault with firearm), the trial court stated:
"Turning to count 3 [robbery], considering the factors in 4.425 of [the] Rules of Court as to whether the Court should impose consecutive sentences or not, I do find that this was a prior—excuse me, a separate act of violence. It involved a separate victim, occurred on a different day, this being the violation of 211 of the Penal Code, robbery. And therefore, the Court would be justified in imposing a consecutive sentence.
"In addition to that, in light of 667(c)(6) of the Penal Code and the fact that this incident did not occur on the same occasion and did not arise from the same set of operative facts, the Court must impose a consecutive sentence. Therefore, the Court again selects the aggravating term or aggravated term, in light of the aggravating factors outweighing and mitigating, that would be five years. That's doubled in light of the prior serious felony conviction to ten. And there was a great bodily injury finding here as well under 12022.7. So that's a total of 13 years."
The trial court also imposed a total of seven years for prior conviction and prison term enhancements.
Generally, section 1170.1 governs the calculation of the determinate sentence that a trial court imposes when a defendant has multiple felony convictions. (People v. Williams (2004) 34 Cal.4th 397, 402.) Section 1170.1, subdivision (a) states, in relevant part: "Except as otherwise provided by law, and subject to Section 654, when any person is convicted of two or more felonies . . . and a consecutive term of imprisonment is imposed under [s]ections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and [s]ection 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses." (Italics added.)
During sentencing, the trial court referred to a two-strike sentencing situation which requires fully consecutive sentences where the event occurs on a different occasion and does not arise from the same set of operative facts. The court referenced section 667, subdivision (c)(6) (part of the Three Strikes law), which provides as follows for any defendant who has a prior strike: "If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to subdivision (e)." Under section 667, subdivision (e)(1), "the determinate term . . . shall be twice the term otherwise provided as punishment for the current felony conviction."
Where, as here, a defendant is convicted of a serious felony and has a prior conviction for a strike and the trial court imposes consecutive prison terms, the determinate terms are calculated pursuant to section 1170.1. (People v. Nguyen (1999) 21 Cal.4th 197, 203-204, 207.) As the California Supreme Court explained, under section 1170.1 the trial court "must designate principal and subordinate terms . . . , calculating the subordinate terms as one-third of the middle term (except when full-term consecutive sentences are otherwise permitted or required), and then double each of the resulting terms." (Nguyen, at pp. 203-204, see id. at p. 207.) As we are remanding this matter to allow the trial court to exercise its discretion as to the enhancement issues discussed below, we elect not to correct Anderson's sentence ourselves and remand for modification and calculation pursuant to section 1170.1. III. Remand Is Required for the Trial Court to Exercise Its Discretion to Strike the Firearm Enhancements
On October 11, 2017, the Governor signed Senate Bill No. 620, effective January 1, 2018. (Stats. 2017, ch. 682, §§ 1, 2.) As relevant to this case, Senate Bill No. 620 amended sections 12022.5 and 12022.53, to give discretion to the trial court to strike a firearm enhancement in the interest of justice. Both sections now state: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.5, subd. (c); § 12022.53, subd. (h).) The parties agree that the case should be remanded to the trial court so that it may exercise its discretion to strike the firearm enhancements. Accordingly, we will remand this sentencing issue to the trial court. IV. Remand Is Required for the Trial Court to Consider Whether to Strike the Prior Serious Felony Enhancement
Under the current versions of sections 667, subdivision (a) and 1385, subdivision (b), the trial court is required to impose a five-year consecutive term for "any person convicted of a serious felony who previously has been convicted of a serious felony" (§ 667, subd. (a)); the court has no discretion "to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667" (§ 1385, subd. (b)).
On September 30, 2018, the Governor signed Senate Bill No. 1393 which, effective January 1, 2019, amends the above statutes to allow a trial court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1, 2.) Because Anderson's judgment will not be final by the effective date of the amendments, he will be entitled to the benefit of the new law. (In re Estrada (1965) 63 Cal.2d 740, 744-745.) Therefore, we agree with Anderson that the matter should be remanded so the trial court may exercise its discretion to determine whether to dismiss or strike the enhancement.
DISPOSITION
The judgment is vacated with respect to the sentence imposed on the robbery count (count three), and the matter is remanded to the trial court for resentencing on that count in accordance with the views expressed in this opinion. The court is also directed to exercise its discretion as to whether to strike the firearm enhancements and the enhancement imposed under section 667, subdivision (a), and to resentence Anderson accordingly. In all other respects, the judgment is affirmed.
/s/_________
Kelly, J. We concur: /s/_________
Humes, P. J. /s/_________
Banke, J.
Judge of the Superior Court, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------