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People v. Bolden

California Court of Appeals, Second District, Fifth Division
Sep 30, 2008
No. B200419 (Cal. Ct. App. Sep. 30, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. CHARLES BOLDEN, Defendant and Appellant. B200419 California Court of Appeal, Second District, Fifth Division September 30, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BA316191.

Rand S. Rubin, Judge. Remanded in part; modified in part; affirmed in part.

Victoria H. Stafford, 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, Senior Assistant Attorney General, Scott A. Taryle and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.

ARMSTRONG, J.

Appellant Charles Bolden was convicted, following a jury trial, of one count of transporting, selling, etc. a controlling substance in violation of Health and Safety Code section 11352, subdivision (a) and one count of possession of a controlled substance in violation of Health and Safety Code section 11350, subdivision (a). The trial court found true the allegation that appellant had suffered a prior serious or violent felony conviction within the meaning of Penal Code sections 667, subdivisions (b) through (i) and 1170.12 (the "Three Strikes" law). The court sentenced appellant to a total term of four years in state prison.

All further statutory references are to the Penal Code unless otherwise specified.

Appellant appeals from the judgment of conviction, contending that the trial court erred in denying his request for a Marsden hearing and in instructing the jury with CALCRIM No. 220 concerning reasonable doubt. Respondent contends that a surcharge pursuant to section 1465.7 and a state construction penalty pursuant to Government Code section 70372, subdivision (a) must be imposed on the Health and Safety Code section 11372.5 laboratory fee already imposed by the trial court in this matter. Appellant argues that the "$120 penalty assessment" in the abstract of judgment does not reflect the court's oral imposition of sentence.

People v. Marsden (1970) 2 Cal.3d 118.

We agree that the trial court erred in denying appellant's request for a Marsden hearing, and remand this matter for further Marsden proceedings, as set forth in more detail in our disposition. We also agree with respondent that a surcharge and penalty must be imposed on the laboratory fee. We further agree that the $120 penalty assessment in the minute order and abstract of judgment must be adjusted. Further details are contained in our disposition. We affirm the judgment of conviction in all other respects.

Facts

On January 25, 2007, police officers in the skid row area of downtown Los Angeles saw a man in an orange shirt converse briefly with appellant and hand him some money. Appellant gave the money to co-defendant Jermaine Chaney. Chaney put the money in his pocket and handed appellant what appeared to be a rock of cocaine. Appellant gave the item to the man in the orange shirt.

The officers were using binoculars.

Police approached the men. The man in the orange shirt dropped a cocaine rock weighing about .07 grams. Appellant threw away an item which was later determined to be .03 grams of rock cocaine. Chaney had .55 grams of rock cocaine on his person and $98 in cash.

At trial, Los Angles Police Officer Dale Ziesmer opined that appellant possessed the .03 grams of cocaine rock for sale. Ziesmer believed that appellant and Chaney were working together to sell the cocaine.

Discussion

1. Marsden motion

Appellant contends that the trial court erred in denying his request for a Marsden hearing, and that the error requires reversal of the judgment. We agree that the trial court erred, but find that the appropriate remedy is a conditional remand.

"'"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."' [Citation.]" (People v. Roldan (2005) 35 Cal.4th 646, 681.)

"A criminal defendant is entitled to raise his or her dissatisfaction with counsel at any point in the trial when it becomes clear that the defendant's right to effective legal representation has been compromised by a deteriorating attorney-client relationship." (People v. Roldan, supra, 35 Cal.4th at p. 681.) It is error for a court to deny a Marsden motion solely on the basis of untimeliness. (Ibid.)

Here, on May 4, 2007, during voir dire, appellant asked for a "Morrissey" hearing. His counsel clarified that appellant was requesting a Marsden hearing. The following exchange then took place:

"[Court]: We started jury selection. Doesn't it seem a little late to ask for a new attorney?

"[Appellant]: I don't know, your Honor. My attorney said she'll keep telling me to take three years when I'm not even guilty of nothing.

"[Court]: Let me explain something without going into a whole hearing because I don't really think it's all that timely." (Emphasis added.)

The court then told appellant that his attorney had an obligation to convey offers to him and that if appellant was convicted he would face seven or eight years in prison. The court then said: "Anyway, I don't think it's timely after we started jury selection to have the Marsden hearing, so based on timeliness, your request for a Marsden hearing is denied. [¶] Anything else?" (Emphasis added.)

The trial court twice stated that it was not giving appellant a hearing and was denying the hearing request for untimeliness. This was error.

We cannot agree with respondent that the trial court's question of "Anything else?" was an offer to appellant to state other grounds for his dissatisfaction with counsel. The trial court had just told appellant that he could not have a hearing on this subject. Further, the inquiry does not appear to have been directed to appellant or his counsel. It was Ms. Fair, counsel for appellant's co-defendant Jermaine Chaney, who replied to the court's question: "Nothing further, your Honor." The court then stated: "Tell Ms. Fair what you want. I know, you want a program. You just want a program." The transcript shows that "counsel and client conferred sotto voce." Ms. Fair then said: "Okay. We're ready to proceed."

We do not believe that the reference to Ms. Fair is a clerical error, since her client had inquired about a drug treatment program earlier that day. Appellant had not.

Since appellant was not able to state the grounds for his request for new counsel, there is no way for this Court to determine if the error was prejudicial. Appellant may have had details to add about the effect of counsel's focus on the plea agreement on her trial preparations. He may have had other additional grounds for his dissatisfaction with counsel. Accordingly, we remand this matter to the trial court to hold a Marsden hearing. (See People v. Olivencia (1998) 204 Cal.App.3d 1391, 1400.)

2. CALCRIM No. 220

Appellant contends that CALCRIM No. 220 is constitutionally defective because it required the jury to "compare" the evidence "received" at trial. He contends that this language told the jury that appellant had to prove his innocence by introducing evidence at trial, and that a lack of evidence could not provide reasonable doubt. We do not agree.

CALCRIM No. 220 provides in pertinent part: "The fact that a criminal charge has been filed against a defendant is not evidence that the charge is true. You must not be biased against a defendant just because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime beyond a reasonable doubt. Whenever I tell you the People must prove anything, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves a defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty. [¶] You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom. 'Evidence' is the sworn testimony of witnesses, and the exhibits admitted into evidence." (Italics added.) Appellant bases his claim on the italicized language.

Appellant acknowledges that his contention has been rejected by our colleagues in Division Two of this District Court of Appeal and in the Third, Fourth, and Fifth District Courts of Appeal. (People v. Campos (2007) 156 Cal.App.4th 1228, 1238 [2d Dist.]; People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268-1269 [3d Dist.]; People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093 [5th Dist.]; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1508-1510 [4th Dist.].) He contends that these cases are wrongly decided. We see no error in these rulings.

In order to prevail on a claim that jury instructions are misleading, a defendant must show a reasonable likelihood that the jury misunderstood the instructions as a whole. (People v. Smithey (1999) 20 Cal.4th 936, 963.) We see no reasonable likelihood that the jury understood the instruction to mean that appellant had to introduce evidence to create a reasonable doubt.

CALCRIM No. 220 tells the jury that "[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty." We agree with the Court's conclusion in Flores that "[t]he only reasonable understanding of this language is that a lack of evidence could lead to reasonable doubt." (People v. Flores, supra, 154 Cal.App.4th at p. 1093.) Further, the jury in this case was instructed pursuant to CALCRIM No. 335 that a defendant has a constitutional right not to testify and "may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt." There was no basis for the jury to believe that appellant's lack of affirmative evidence negated the possibility of reasonable doubt.

3. Fines and fees

In August 2007, this Court requested that the parties brief the effect of People v. Chavez (2007) 149 Cal.App.4th 1340 on the fines imposed in this case. Chavez considers the effects of section 1465.7 and Government Code section 70372 on fines imposed in criminal cases. On August 15, 2007, the California Supreme Court granted review in Chavez, S153920. On October 5, 2007, the Governor approved Senate Bill No. 425 which was enacted to clarify that the state construction penalty is not to be imposed on restitution fines. Section 22 of that bill states that it was enacted in part to "construe and clarify the meaning and effect of existing law and to reject the interpretation given to the law in People v. Chavez (2007) 150 Cal.App.4th 1288."

The Court dismissed review and remanded the case to this Court on October 24, 2007.

Respondent contends that Government Code 70372, as amended by Senate Bill 425, requires that a $15 state court construction penalty be added to the $50 Health and Safety Code section 11372.5, subdivision (a) laboratory fine and that a $10 surcharge on the laboratory fine should be imposed pursuant to section 1467.5. We agree. (People v. McCoy (2007) 156 Cal.App.4th 1246, 1254, 1257.)

Appellant contends that the trial court erred in imposing "a $20 specimen and sample fee." We agree. When a defendant is sentenced to state prison, such a fee may be imposed pursuant to section 295, subdivision (j) if the court imposes costs pursuant to section 1203.1m. The court did not impose such costs. Thus, the specimen and sample fee is not authorized.

The trial court ordered appellant to provide specimens and samples pursuant to sections 296 and 296.1, then ordered him to pay "a $20 specimen and sample fee."

Appellant also contends that the amount of penalty assessments shown in the minute order for the sentencing hearing and the abstract of judgment do not reflect the court's oral pronouncement of sentence and so must be corrected. We agree.

The trial court imposed a $500 restitution fund fine, a $50 laboratory fee, a $20 court security fine, the above-mentioned $20 specimen and sample fee, and a $500 parole revocation fee that was stayed.

The minute order shows the correct restitution fine, parole revocation fee, and court security fee. The minute order then refers to lab analysis fee of $50 "plus an additional $120.00 penalty assessment for a total of $170.00." The abstract of judgment repeats this language in item 11. No such additional penalty was assessed. We agree with appellant that a penalty assessment of $50 pursuant to section 1464, subdivision (a), should have been added to the laboratory fee, as well as a penalty assessment of $35 pursuant to Government Code section 76000, subdivision (a). Further, as we discuss, supra, another $25 should be added onto the laboratory fee. This gives a penalty total of $110.

Disposition

We remand this matter for further Marsden proceedings. The trial court is directed to order a new trial if it determines that good cause for appointment of new counsel had been shown, or to reinstate the verdict if it finds that good cause had not been established.

If the judgment is reinstated, the "$20 specimen and sample fee" orally imposed by the trial court is ordered stricken. The reference to an "additional $120.00 penalty assessment" in the minute order for June 11, 2007 and the abstract of judgment is ordered stricken. A Government Code section 70372 state court construction penalty of $15 is ordered added to the Health and Safety laboratory fee and a $10 surcharge pursuant to section 1467.5 is also ordered added to that laboratory fee. A penalty assessment of $50 pursuant to section 1464, subdivision (a), is also ordered added to the laboratory fee, as well as a penalty assessment of $35 pursuant to Government Code section 76000, subdivision (a). This makes a total of $110 in penalties and surcharges added to the laboratory fee. The clerk of the superior court is then instructed to prepare an amended abstract of judgment reflecting these corrections and additions and to deliver a copy to the Department of Corrections and Rehabilitation.

The judgment of conviction is affirmed in all other respects.

We concur:

TURNER, P. J., MOSK, J.


Summaries of

People v. Bolden

California Court of Appeals, Second District, Fifth Division
Sep 30, 2008
No. B200419 (Cal. Ct. App. Sep. 30, 2008)
Case details for

People v. Bolden

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CHARLES BOLDEN, Defendant and…

Court:California Court of Appeals, Second District, Fifth Division

Date published: Sep 30, 2008

Citations

No. B200419 (Cal. Ct. App. Sep. 30, 2008)