Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF013195, Judith C. Clark and Rodney L. Walker, Judges. Affirmed in part and reversed in part with directions.
Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant Michael Jermaine Bailey.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant Tony Armond Simms.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Rhonda Cartwright-Ladendorf and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
A jury found defendant Michael Jermaine Bailey guilty of two counts of robbery (Pen. Code, § 211) during which he personally used a firearm (§§ 12022.53, subd. (b), 1192.7, subd. (c)(8)). As a result, he was sentenced to a total term of 21 years in state prison. His sole contention on appeal is that he received ineffective assistance of counsel. We reject this contention and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
Defendant Tony Armond Simms pleaded guilty to two counts of robbery (§ 211) and admitted that in both counts a principal was armed with a handgun (§ 12022, subd. (a)(1)). He also admitted that he had suffered one prior serious felony conviction (§ 667, subd. (a)) and three prior strike convictions (§ § 667, subds. (c)-(e)(2)(A), 1170.12, subd. (c)(2)(A)). After the trial court denied Simms’s motion to dismiss his prior strike convictions, he was sentenced to a total term of 27 years to life. He subsequently appealed, and this court remanded the matter for resentencing, as the record was clear that the trial court had misunderstood its sentencing discretion. (Simms I.) On remand, Simms was resentenced to an indeterminate term of 32 years to life.
The procedural background in Simms’s case is taken from his prior appeal in case No. E043488 (People v. Simms (April 1, 2008, E043488 [nonpub. opn.] (Simms I)).
In this appeal, Simms contends (1) the trial court abused its discretion in refusing to reconsider his motion to dismiss his prior strikes when it indicated it still misunderstood the scope of its discretion; (2) the trial court abused its discretion and denied him his right to effective assistance of counsel when it denied his appointed counsel’s motion for a continuance; and (3) the trial court erred when it imposed a consecutive one-year term for firearm enhancement attached to count 2. We agree with the parties that Simms’s matter should be remanded for resentencing. We also agree with the parties that the court erred when it imposed a consecutive one-year term for the firearm enhancement attached to count 2, as that count was imposed concurrently.
I
FACTUAL BACKGROUND
On August 15, 2005, Helen Estrada and Kristi Knight were working at the California Coast Credit Union in Temecula when around 1:00 p.m. cohort Delbert Smith came into the bank wearing a suit and a white baseball cap. Smith rushed toward the tellers and jumped over the counter, holding a gun and yelling, “Hit the floor. Get on the floor.” Estrada and Knight complied.
Smith is not a party to this appeal.
Estrada observed Bailey wearing a black cap, standing at the counter in front of Knight. He was holding a gun and telling Knight to get up. When she stood up, Bailey demanded money. Knight gave him all the money in her drawer, including the bait money. The money was placed into a black bag. Bailey then demanded money from Estrada. She complied, giving him all the money in her drawer, including the bait money. Bailey and Smith then fled the bank.
Riverside County Sheriff’s Deputy Bryan DeLoss, who was advised that a robbery had just occurred at the bank and predicting the robbers’ escape route, waited for the robbers on Highway 79 near Pechanga Parkway. Shortly thereafter, he observed an older-model black Chevrolet Suburban coming from the direction of the bank. The driver of the vehicle made eye contact with Deputy DeLoss. When the deputy began following the vehicle, two men sat up in the back seat. Based upon these facts, as well as the fact that the vehicle’s license plate was obscured, Deputy DeLoss activated his emergency lights. The vehicle increased its speed and did not pull over for another mile and a half.
When the vehicle pulled over, Smith jumped out of the passenger’s side and fled with a black handbag. Deputy DeLoss stayed with the vehicle and proceeded to take the other two suspects into custody. It was later determined that Simms was the driver of the getaway vehicle and Bailey was the nonfleeing passenger.
Smith was taken into custody by Deputy Nilo Jose. When arrested, Smith had a black bag containing over $5,400, including the bait money. He also had the keys to a Honda parked near the bank. A records check revealed that the license plate on the Honda belonged to another vehicle. A search of the vehicle revealed one white baseball cap and one black baseball cap inside the passenger compartment. In the trunk, police found two white shirts (one missing several buttons), a pair of sunglasses, a pair of latex gloves, the bottom half of a pair of pantyhose with the legs torn out, a pair of jeans, and a black leather case containing a black blazer and blue pattern tie. The vehicle’s license plate and several loose buttons were also found in the vehicle. Later testing revealed the presence of Bailey’s DNA on both the black hat and on one of the white dress shirts.
Two handguns were later recovered from a gopher hole located 30 to 40 yards away from where Simms and Bailey were taken into custody.
Later on the same day, Knight was taken to the location where Simms and Bailey had been apprehended for a field show-up. She was unable to make a positive identification. Estrada, however, recognized Bailey as the man in the black cap and cohort Smith as the man in the white cap from a newspaper photograph of the three suspects.
A video surveillance tape of the bank robbery was also played for the jury.
II
DISCUSSION
A. Bailey’s Appeal
Bailey contends his posttrial counsel was ineffective in representing him on his motion for a new trial. Specifically, he claims counsel should have obtained a trial transcript and a declaration from his trial counsel to support the motion.
The relevant procedural background is as follows: After the jury rendered its verdict, Bailey sent a handwritten note to the trial court, essentially claiming his trial counsel was ineffective for failing to investigate his claim that the still image of the bank’s surveillance video had been altered, the DNA evidence had been planted, and the witness identification was unreliable. In response to the letter, the trial court relieved trial counsel and appointed Sam Vanderbrug for the purpose of filing a new trial motion. Attorney Vanderbrug thereafter reviewed defendant’s claims and subsequently filed a motion for new trial. Following a hearing, the new trial motion was denied.
A defendant is entitled to effective assistance of counsel under both the federal and state Constitutions. (In re Cordero (1988) 46 Cal.3d 161, 180.) In order to demonstrate ineffective assistance of counsel, a defendant must show that counsel’s performance was inadequate when measured against the standard of “‘a reasonably competent attorney,’” and that counsel’s performance “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Strickland v. Washington (1984) 466 U.S. 668, 686-687 [104 S.Ct. 2052, 80 L.Ed.2d 674].) In other words, to prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel’s performance fell below a standard of reasonable competence, and that there is a reasonable probability the result would have been more favorable to the defense in the absence of counsel’s deficient performance. (Id. at p. 687; see also People v. Dennis (1998) 17 Cal.4th 468, 540-541.)
“In determining whether counsel’s performance was deficient, a court must in general exercise deferential scrutiny” and “view and assess the reasonableness of counsel’s acts or omissions... under the circumstances as they stood at the time....” (People v. Ledesma (1987) 43 Cal.3d 171, 216.) “Although deference is not abdication [citation], courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight.” (People v. Scott (1997) 15 Cal.4th 1188, 1212.) To establish prejudice, the defendant must show “a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” (People v. Staten (2000) 24 Cal.4th 434, 451.)
Where the record sheds no light on why counsel acted or failed to act in a manner challenged, a claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. (People v. Lopez (2008) 42 Cal.4th 960, 966; see also People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
In this case, defendant essentially contends that his posttrial counsel, Attorney Vanderbrug, was ineffective for failing to adequately research defendant’s claims that his trial counsel was ineffective in support of his new trial motion. Specifically, he asserts that Attorney Vanderbrug was ineffective in failing to “obtain a reporter’s transcript” to review trial counsel’s performance, failing to obtain a declaration of trial counsel as to her performance during trial, or failing to call trial counsel to testify in support of his new trial motion.
On the record before us, we must reject Bailey’s ineffective assistance of counsel claims. First, the record does not affirmatively disclose why substitute counsel failed to obtain a reporter’s transcript of the trial or a declaration from trial counsel. Second, we cannot eliminate the probability substitute counsel had valid tactical reasons for not obtaining the asserted items in support of his new trial motion. A trial court’s concern about delay is a wholly legitimate basis to deny a request for a transcript and for new counsel to fully investigate a new trial motion. (See, e.g., People v. Bizieff (1991) 226 Cal.App.3d 1689, 1704; People v. Cornwell (2005) 37 Cal.4th 50, 101, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
In any event, even if we were to agree that posttrial counsel was ineffective in failing to request a reporter’s transcript or obtain a declaration from trial counsel to support his new trial motion, defendant cannot show he was prejudiced by counsel’s actions. Defendant cannot show that by presenting these items to the trial court, the court would have granted his new trial motion, as it is clear that Bailey’s motion for new trial lacked merit. (See People v. Braxton (2004) 34 Cal.4th 798, 818.) Nor would it have established any prejudice resulting from trial counsel’s decision not to investigate the contentions defendant claimed as there was overwhelming evidence of Bailey’s guilt. Bailey was arrested in the company of his codefendants, one of whom had money from the bank in his possession. Additionally, the court had apprised the jury that both of the two men Bailey was arrested with had pled guilty to the robbery. Hence, even had substitute counsel obtained a transcript and/or declaration, the trial court would have undoubtedly denied the motion for new trial. Accordingly, Bailey cannot show that he was prejudiced by substitute counsel’s performance.
B. Simms’s Appeal
1. Motion to strike priors on remand and motion for continuance
Simms contends the trial court abused its discretion by refusing to reconsider his motion to strike his prior strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) on remand as directed by this court. The People apparently concede the error.
A thorough review of the record leads us to conclude that Simms appears to be correct. On remand, the trial court clearly stated several times that it was not going to reconsider the Romero motion. Specifically, following several continuances in an attempt to find counsel for Simms and after new counsel had been appointed for Simms, on August 29, 2008, the court stated, “Resentencing, of course, confers upon me complete jurisdiction to give the same sentence when they remand for resentencing on the belief there is restriction on what I can do, but the Romero motion has been denied. [¶] Therefore, it would be inappropriate to revisit the merits of the Romero motion. There are some sentencing options open.... [T]here is a range of sentencing available to us, but the merits of the Romero motion I don’t think are appropriate to be considered. [¶] We can talk about the sentencing options available to the Court without an attempt to revisit the Romero motion, which I will not do.”
Later, the court asserted, “The only way to get to [the possibility of sentencing Simms to a determinate sentence] is the issue of the Court’s denial of the Romero motion itself has to be appealed and a favorable outcome as far as the Simms is concerned with respect to that appeal which could send it back and say reconsider the Romero motion, which did not happen. [¶] The clarification that the Appellate Court seeks here is my own statement and understanding on the record that I do and did have the ability to stay or strike priors, and they, apparently, thought that I did not understand that, and, as I said before, I am not happy with some of the language I use there either, and I fully understand how they may have come to that conclusion.”
The court further stated, “[B]ut unless the Court’s denial of the Romero motion itself has been litigated, and the District Court of Appeal returned it to me to reconsider the Romero motion, which I don’t think they did[, t]hen there is no way to argue here for a determinate sentence. I believe that is the correct interpretation of the D.C.A.’s directive in the remand. [¶]... [¶]... My ruling on the Romero motion was not upset on appeal.”
The trial court then stated that it was simply imposing the same 27-year-to-life term, but adding the five-year enhancement that was improperly stayed, for a total sentence of 32 years to life.
It appears that the trial court misunderstood our prior opinion in Simms I when we ordered the trial court to reconsider its sentencing discretion under Romero on remand. We explained, “Our Supreme Court in [People v.] Garcia [(1999)] 20 Cal.4th 490 explained that a trial court is free to consider its discretion to dismiss strikes on a count-by-count basis. (Id. at pp. 503-504.) This ambit clearly includes a trial court’s discretion to strike one or more prior strikes to achieve the correct sentencing outcome. The trial court here incorrectly believed that it did not have the authority to reach a determinate sentence without striking all of the strikes. The record indicates that the court misunderstood the impact of striking two of defendant’s three prior strikes. The court also erroneously believed that it was required to strike all or none of the strikes, rather than one or two.
“On this record, we cannot find the court knowingly exercised its discretion as directed by the decisions in [People v.] Williams [(1998) 17 Cal.4th 148], Garcia, and Romero. By misunderstanding and failing to properly exercise the scope of its discretion to dismiss strikes, the court prejudicially abused its discretion. We therefore remand the matter for resentencing.” (Simms I, at p. 7.)
We found that the trial court had misunderstood the discretion it had when considering the Romero motion, and remanded the matter, ordering the trial court “to vacate the sentence and reconsider it in accordance with this opinion.” (Simms I, at p. 6.)
In People v. Rodriguez (1998) 17 Cal.4th 253, our Supreme Court explained that when a case is remanded because a trial court misunderstood the discretion afforded it by Romero and its progeny, “the superior court should conduct a hearing in the presence of defendant, his counsel, and the People to determine whether to dismiss one or more prior felony conviction findings pursuant to section 1385.” (Rodriguez, at p. 260.) The court specifically rejected the argument that the defendant’s original Romero motion was sufficient to place its position before the court. (Rodriguez, at p. 258.) The court explained, “The evidence and arguments that might be presented on remand cannot justly be considered ‘superfluous,’ because defendant and his counsel have never enjoyed a full and fair opportunity to marshal and present the case supporting a favorable exercise of discretion. As [the] defendant reasonably observes, ‘[i]t would have been a waste of the court’s time for [the defendant] to have attempted to present evidence which might convince the court to strike a ‘strike’ at a time when the court believed that it had no discretion to do so.’” (Ibid.)
Subsequently, in People v. Buckhalter (2001) 26 Cal.4th 20, relying on its decision in Rodriguez, the California Supreme Court stated, “Under section1260itself, we concluded, it was ‘just under the circumstances’ to require the defendant’s presence with counsel on remand, even if the trial court ultimately decided against alteration of its earlier Three Strikes sentence, in order to allow the defendnat to advance any arguments for the favorable exercise of the court’s discretion.” (Buckhalter, at p. 35.).
Moreover, as the People correctly point out, the matter must also be remanded so the trial court may provide substituted counsel with time to prepare for sentencing. The record shows that substituted counsel for Simms appeared for the first time at the August 29, 2008, sentencing hearing, and requested a continuance to review the case file and prepare for the resentencing. Counsel stated, “I would like to make a record for [defendant] Simms. I understand the Court insisted that we be prepared to proceed today. I do believe, however, that it would be ineffective assistance of counsel if I were to proceed today on behalf of [defendant] Simms. [¶] My impression was not that we were here with the possibility of arguing the determinate versus indeterminate sentence. I thought it was a mere correction, that would be, as Mr. Vanderbrug put it, a pro forma appearance. I do not believe that is actually what is happening today.”
Rodriguez held that the defendant and his counsel must be given the opportunity to address the Romero issue on remand. (People v. Rodriguez, supra, 17 Cal.4th at p. 260.) Because it appears defense counsel should have been given the opportunity to prepare for sentencing after the remand, we agree with the parties that the court erred in denying counsel’s request for a continuance.
Based on the foregoing, the matter must again be remanded for the trial court to reconsider Simms’s Romero motion. (People v. Rodriguez, supra, 17 Cal.4th at pp. 258-260.)
2. Firearm enhancement attached to count 2
Simms next contends, and the People correctly concede, that the firearm enhancement attached to count 2 should not have been imposed consecutively to count 1 when count 2 itself was imposed concurrently. We also agree.
“The procedure for sentencing a person convicted of two or more felonies does not contemplate imposing an enhancement separately from the underlying crime.” (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1310 [enhancement to a count ordered to run concurrent must also run concurrent].)
Accordingly, on remand the trial court should reconsider imposition of the firearm enhancement attached to count 2. In other words, if the court should order count 2 to be concurrent with count 1, then the one-year firearm enhancement attached to count 2 should also be imposed concurrently.
III
DISPOSITION
As to Bailey, the judgment is affirmed.
As to Simms, the trial court is ordered to vacate the sentence and reconsider Simms’s Romero motion and the firearm enhancement attached to count 2. In all other respects, the judgment is affirmed.
We concur: McKINSTER, Acting P.J., KING, J.