Opinion
B294011
02-26-2020
THE PEOPLE, Plaintiff and Respondent, v. EDUARDO S. BARBOZA, Defendant and Appellant.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. VA139372 APPEAL from a judgment of the Superior Court of Los Angeles County, Debra Cole-Hall, Judge. Affirmed in part, sentence vacated, and remanded with directions. Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Eduardo S. Barboza was convicted of a variety of domestic-violence-related crimes against Claudia M., his ex-girlfriend and the mother of his son. He argues several of those counts must be reversed because his attorney conceded guilt without his permission in violation of the Sixth Amendment. We conclude there is no evidence defendant disagreed with his attorney's trial strategy, and affirm. Defendant also asks us to vacate his sentence and remand for the court to exercise its new discretion under Senate Bill No. 1393 to strike his serious-felony prior. We agree that defendant is entitled to the benefit of this change in the law. As such, we vacate his sentence and remand for further proceedings.
We therefore do not address defendant's argument that we should remand for a hearing on his ability to pay various fines and fees. Upon resentencing, the court may consider the full range of options available to it at that time, including defendant's ability to pay fines and court fees under People v. Dueñas (2019) 30 Cal.App.5th 1157.
PROCEDURAL BACKGROUND
By amended information dated June 6, 2018, defendant was charged with criminal threats (Pen. Code, § 422, subd. (a); count 1); injuring his child's parent (§ 273.5, subd. (a); count 2); possession of a firearm by a felon (§ 29800, subd. (a)(1); count 3); disobeying a domestic violence restraining order, a misdemeanor (§ 273.6, subd. (a); counts 4, 6-10); dissuading a witness (§ 136.1, subd. (b)(2); count 5); and assault with a firearm (§ 245, subd. (a)(2); count 11). As to counts 1 and 2, the information alleged that defendant personally used a handgun in the commission of the offense. (§ 12022.5, subd. (a).) The information also alleged that defendant had been convicted of robbery in 1999, and that the conviction constituted both a strike prior (§ 667, subd. (d); § 1170.12, subd. (b)) and a serious-felony prior (§ 667, subd. (a)(1)). Defendant pled not guilty and denied the allegations.
All undesignated statutory references are to the Penal Code.
Defendant was charged with counts 1-4 by information dated October 5, 2015. On February 23, 2017, he was charged with counts 5-10 in case No. VA140223. On June 5, 2018, the court granted the prosecution's motion to consolidate case No. VA140223 into this case. The following day, the prosecution filed an amended information containing all the joined counts and adding count 11.
After a bifurcated jury trial at which he did not testify, the jury found defendant guilty of counts 1 and 3-11, and found their related allegations true. The jury found defendant not guilty of count 2, but guilty of the lesser-included offense of simple battery on his child's parent (§ 243, subd. (e)(1)), a misdemeanor. Defendant waived jury trial on the prior conviction and admitted it.
The court denied defendant's motion to set aside his prior strike, denied his motion to strike the firearm enhancement, granted his motion to set aside the verdict in count 11, and sentenced him to an aggregate term of 12 years in state prison. The court selected count 1 (§ 422, subd. (a)) as the base term, and sentenced defendant to 12 years—the mid-term of two years, doubled for the strike prior (§ 667, subds. (b)-(i); § 1170.12), plus the low term of three years for the personal-use enhancement (§ 12022.5, subd. (a)) and five years for the serious-felony prior (§ 667, subd. (a)(1)), to run consecutively. The court stayed the remaining counts under section 654. Finally, the court imposed one $30 conviction assessment (Gov. Code, § 70373), one $40 operations assessment (§ 1465.8), and a $300 restitution fine (§ 1202.4, subd. (b)), and imposed and stayed a $300 parole revocation restitution fine (§ 1202.45).
Defendant filed a timely notice of appeal.
FACTUAL BACKGROUND
Claudia is defendant's ex-girlfriend and the mother of his son. Their relationship began in 2009. Though they separated in 2012, they maintained an "on and off relationship.
On June 11, 2015, defendant showed up at Claudia's apartment unannounced. He seemed to be under the influence of drugs. Claudia and defendant argued throughout the afternoon and evening. Defendant spent the night, and they continued to argue until and throughout the next day.
Around 10:00 p.m. on June 12, 2015, Claudia sent a text message to a friend. The message read: "Girl please help me Eddie is here please call the cops. Imma leave my door unlocked because he is monitoring me. He has a gun, please hurry. Don't text back." Claudia's friend called the police right away.
Los Angeles County Sheriff's Deputy Lauren Britt responded to the call at about 10:15 p.m. When Britt touched the apartment door, it swung open, and Claudia sprinted away from the bedroom holding her son. She ran past Britt and away from the apartment. Claudia looked frantic—upset and teary.
Claudia told Britt that defendant had beaten her with his forearm and elbow. They had gone for a drive together, and he hit the left side of her face with his right fist. When they returned home, defendant retrieved a gun from a black bag in the trunk of Claudia's car. He showed it to her and said he wanted to put a bullet in her head. Then, defendant pulled back the slide, pointed the gun at Claudia's head, and pulled the trigger. The gun made a clicking sound, but it did not fire. Defendant removed the empty magazine and threw the gun at Claudia; it landed on the bed. Afraid for her safety and the safety of her children, Claudia went to the bathroom and sent a text message to her friend. Claudia's left side hurt, and she had a scratch on her lip, but she refused medical treatment.
At trial, Claudia recanted most of her statements about the violence, the gun, and her injuries but acknowledged telling police that she saw defendant remove a magazine from the gun and toss the gun on the bed.
Britt also testified that Claudia said defendant "had beaten her up worse in the past," a statement Claudia later denied making. She acknowledged the prior abuse at trial, however, and recordings of phone calls made from county jail contained numerous references to prior domestic violence.
Meanwhile, deputies had arrested defendant and recovered a handgun from the apartment bedroom. When they searched him, deputies discovered a knife in his waistband, the magazine in his left pocket, and Claudia's car keys in his right pocket.
On June 16, 2015, the court issued a protective order. The order prohibited defendant from having any personal, electronic, telephonic, or written communication with Claudia. Nevertheless, defendant called Claudia from jail at least six times that summer. During the calls, defendant asked Claudia to post his bail. He also asked her to testify that she had exaggerated her story or overreacted when she spoke to police.
DISCUSSION
Defendant contends concessions by defense counsel during opening statement and closing argument violated his rights under the Sixth Amendment and compel reversal of counts 3-4 and 6-10. He also argues we should vacate his sentence and remand for the court to exercise its new sentencing discretion under Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1013, §§ 1-2); we must reverse the fine and fees imposed at sentencing because he lacks the ability to pay them; and, in response to our request for supplemental briefing, contends he is entitled to an additional day of pretrial conduct credit. 1. Counsel's concessions were not tantamount to a guilty plea under McCoy v. Louisiana.
Defendant argues that counsel's concession, without his express consent, that he possessed a firearm and violated a restraining order, violated his constitutional rights to the effective assistance of counsel, jury trial, confrontation, and silence. Citing McCoy v. Louisiana (2018) 584 U.S. ___ (McCoy), he maintains this error compels reversal of the conceded counts because it was tantamount to a guilty plea to which he never agreed. We disagree.
1.1. Proceedings Below
During opening statement and closing argument, defense counsel conceded that defendant unlawfully possessed a firearm (§ 29800, subd. (a)(1); count 3) and repeatedly violated a domestic violence restraining order by calling Claudia from jail (§ 273.6, subd. (a); counts 4, 6-10).
In opening statement, counsel acknowledged defendant had a gun in his possession, but argued he hadn't used it to threaten Claudia:
Another thing that [Claudia] sees [is] a gun in that black bag ... [Defendant] knows that she doesn't like any of that stuff ... .
Now she's really upset about the gun. He says, 'Look. It's not even—it's not even loaded. It's empty. Doesn't even work.' And that's what happens.
And, counsel conceded, defendant contacted Claudia notwithstanding the protective order:
And yes. There was a protective order. Yes. There was a requirement that [defendant] have no contact with [Claudia], as is the case in cases like this. And yes, he did have contact with her. But he never told [Claudia] anything that would resemble any sort of threat in terms of— It's not even going to be clear as to what exactly was said.
In closing argument, counsel again conceded defendant's guilt of counts 3-4 and 6-10. As to count 3, counsel explained:
Gun prohibited person. The defendant possessed a gun with knowledge of the possession. Previously convicted of a felony. We're not fighting about that, okay? There was some issue about, oh, he denied having it. He denied having the gun and then ... in the recordings he admitted to having it.
[¶] ... [¶]
Maybe it wasn't his gun, but he still had it, right? Maybe he was holding it for his friend. Maybe he borrowed it to bring it. Who knows?
Turning to counts 4 and 6-10, counsel offered: "The next one. Violating a protective order. We're not fighting about that either. I listed it here just to let you guys know that I know that it's here, but we're not fighting about that." Finally, at the end of his argument, counsel asked the jury to acquit defendant only of the remaining counts.
The record is silent as to whether defendant agreed with counsel's concessions. Certainly, he was neither advised of, nor expressly waived, his constitutional trial rights for the conceded counts.
1.2. Legal Principles
" 'Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial.' (Boykin v. Alabama (1969) 395 U.S. 238, 243 (Boykin).) 'These include the privilege against self-incrimination, the right to trial by jury, and the right to confrontation.' [Citation.] For a plea to be constitutionally valid, the record must demonstrate a defendant's knowing and voluntary waiver of these three constitutional trial rights, now known as a 'Boykin-Tahl waiver'; waiver cannot be presumed from a silent record. (Boykin, at p. 243; In re Tahl (1969) 1 Cal.3d 122, 132 (Tahl).)
"Because a guilty plea constitutes a criminal conviction, it 'is not simply a strategic choice.' (Florida v. Nixon (2004) 543 U.S. 175, 187 (Nixon).) Counsel lacks authority to consent to a guilty plea on a client's behalf, and a client's tacit acquiescence in the decision does not suffice. (Id. at pp. 187-188.) It follows that 'in the event of a guilty plea or other conduct tantamount to a plea, "the record must demonstrate that the defendant voluntarily and intelligently waived his constitutional trial rights." ' [Citation.] Thus, the threshold question is whether defense counsel's concessions during his opening and closing statements at trial were tantamount to a guilty plea. [Citation.]
"On this threshold question, California law has long been settled: '[T]rial counsel's decision not to contest, and even expressly to concede, guilt on one or more charges ... is not tantamount to a guilty plea requiring a Boykin-Tahl waiver.' ([People v.] Cain [(1995)] 10 Cal.4th [1,] 30 [(Cain)]; accord, People v. Lucas (1995) 12 Cal.4th 415, 446.) The trial court has no duty to inquire whether the defendant agrees with his attorney's concession strategy, at least where there is no explicit indication he disagrees with the approach. (Cain, at p. 30.)" (People v. Burns (2019) 38 Cal.App.5th 776, 782, fn. omitted (Burns), review granted on other grounds Oct. 30, 2019, S257738.)
"Thus in Cain, the California Supreme Court concluded that defense counsel's concession of his client's guilt as to murder and burglary charges during closing arguments was not equivalent to a guilty plea and did not necessitate a Boykin-Tahl waiver. [Citation.] A decade later, the United States Supreme Court reached a similar conclusion: An attorney's concession of guilt, to which the defendant neither expressly consented nor objected, was not tantamount to a guilty plea because the defendant 'retained the rights accorded a defendant in a criminal trial.' (Nixon, supra, 543 U.S. at pp. 188-189.)" (Burns, supra, 38 Cal.App.5th at pp. 782-783.)
Defendant argues the United States Supreme Court abrogated this rule in McCoy, a case "in which defense counsel conceded his client's guilt on murder charges during opening and closing statements against his client's repeated objections. [Citation.]" (Burns, supra, 38 Cal.App.5th at p. 783.) The Court "concluded that this concession was structural error, violating the defendant's Sixth Amendment right to the effective assistance of counsel. [Citation.] As McCoy explained, choice of the defense objective is a client's prerogative; he may opt to steadfastly assert innocence, notwithstanding his attorney's view that conceding guilt would be a better strategy. [Citations.]" (Ibid.) Here, defendant contends his counsel's concession is similar to the one in McCoy, and, notwithstanding his failure to object, urges us to reverse.
Yet McCoy did not abrogate Nixon or Cain. Instead, it decided the issue those cases had left unresolved: May defense counsel, as a strategic matter, concede a defendant's guilt over the defendant's explicit objection? (See Cain, supra, 10 Cal.4th at p. 30 ["It is not the trial court's duty to inquire whether the defendant agrees with his counsel's decision to make a concession, at least where, as here, there is no explicit indication the defendant disagrees with his attorney's tactical approach to presenting the defense. [Citations.]"].) McCoy held he could not.
In so doing, however, McCoy did not disapprove the earlier rule. "As McCoy explained, when a defendant declines to participate in his defense, his counsel may pursue a strategy believed to be in his best interest. [Citation.] But where a client makes 'express statements' indicating his will to maintain innocence, 'counsel may not steer the ship the other way.' [Citation.] McCoy is thus predicated on a client's express objection to defense counsel's concession strategy. Writing for the majority, Justice Ginsberg distinguished her earlier opinion in Nixon on this very basis: 'in contrast to Nixon, the defendant vociferously insisted that he did not engage in the charged acts and adamantly objected to any admission of guilt.' [Citation.]" (Burns, supra, 38 Cal.App.5th at p. 784.) In short, the fundamental difference between Cain and McCoy is the McCoy defendant's clear objection—the situation the Cain court explicitly declined to address. (Cain, supra, 10 Cal.4th at p. 30.)
Here, as in Cain, there is nothing in the record to suggest defendant disagreed with his attorney's trial strategy. And, unless and until the Supreme Court of California or the Supreme Court of the United States opts to revisit it, Cain is binding on this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.)
2. Defendant is entitled to an extra day of custody credit.
Under section 2933.1, a defendant convicted of a violent felony shall receive no more than 15 percent pretrial conduct credit. (§ 2933.1, subd. (c).) In this case, the court awarded defendant 1195 days of actual credit. Fifteen percent of 1195 is 179.25. Thus, defendant was entitled to 179 days of pretrial conduct credit. (People v. Ramos (1996) 50 Cal.App.4th 810, 816-817 [15 percent limited to largest whole number; no credit for partial days].) However, defendant was awarded only 178 days of local conduct credit.
Defendant contends he is entitled to one extra day of pretrial conduct credit. We agree. Therefore, the court is directed to award defendant an additional day of credit upon resentencing.
3. Resentencing is required.
When defendant was sentenced in this case, the court had no discretion " 'to strike any prior conviction of a serious felony for purposes of enhancement [of a sentence] under Section 667.' " (§ 1385, subd. (b); People v. Jones (1993) 12 Cal.App.4th 1106, 1116-1117.)
While this appeal was pending, however, the California Legislature passed, and the Governor signed, Senate Bill No. 1393, which went into effect on January 1, 2019. (Sen. Bill No. 1393 (2017-2018 Reg. Sess.); People v. Camba (1996) 50 Cal.App.4th 857, 865 [effective date of non-urgency legislation].) The bill amended section 667, subdivision (a), and section 1385, subdivision (b), to allow a court to exercise its discretion to strike or dismiss a serious-felony prior for sentencing purposes—discretion they formerly lacked. (Stats. 2018, ch. 1013, §§ 1-2; People v. Garcia (2018) 28 Cal.App.5th 961, 972.) Because Senate Bill No. 1393 is ameliorative legislation, it applies retroactively to all cases, such as this one, that were not final when it took effect. (Garcia, at pp. 972-973.)
Therefore, defendant's sentence must be vacated and the matter remanded to afford the court an opportunity to exercise its new discretion under the amended statutes "unless the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so." (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110.) Here, although the court denied the motion to strike defendant's prior strike under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and denied his motion to strike the firearm enhancement, it imposed the midterm, rather than the high term, for count 1, and imposed the low term for the firearm enhancement. (See People v. Billingsley (2018) 22 Cal.App.5th 1076, 1081-1082 [suggestion by court that it would not strike an enhancement if it had discretion to do so is not dispositive if it expressed no intent to impose the maximum possible sentence].) Thus, we cannot say definitively that the court would not exercise its discretion to strike the serious-felony prior if given the opportunity to do so. (See People v. McDaniels (2018) 22 Cal.App.5th 420, 427 [given the "high stakes" involved, "a reviewing court has all the more reason to allow the trial court to decide in the first instance whether these enhancements should be stricken, even when the reviewing court considers it reasonably probable that the sentence will not be modified on remand"].)
On remand, "the trial court 'should conduct a hearing in the presence of defendant, his counsel, and the People to determine whether to" strike the five-year enhancement. (People v. Buckhalter (2001) 26 Cal.4th 20, 35; Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1255 [at remand hearing, defendant has the right to the assistance of counsel and the right to be present].) If it decides to strike the enhancement, " 'the court should proceed to resentence defendant. If the court decides not to [strike the enhancement], the court should remand defendant to the custody of the Department of Corrections to serve the remainder of his term.' " (Buckhalter, at p. 35, italics omitted.) We express no opinion as to how the court should exercise its discretion.
At the resentencing hearing, the defendant may also assert his inability to pay fines and fees. --------
DISPOSITION
Defendant's sentence is vacated and the matter is remanded for resentencing consistent with the views expressed in this opinion. Upon resentencing, the court is directed to amend the sentencing minute order and the abstract of judgment to correct the error identified in Section 2 of the Discussion and to send a certified copy of the amended/corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, we affirm.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J. WE CONCUR:
EDMON, P. J.
DHANIDINA, J.