Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, Nos. 1116408, 1145761, 1209381, Frank Ochoa, Judge
Lisa M. J. Spillman, 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, Steven D. Matthews, Supervising Deputy Attorney General, Herbert S. Tetef, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
In June 2004, Michael Robert Burns was charged by complaint with evading an officer with willful disregard (count 1, Veh. Code, § 2800.2, subd. (a)); assault with a deadly weapon (count 2, Pen. Code, § 245, subd. (a)(1)); three misdemeanors: resisting a police officer (count 3, § 148, subd. (a)(1)); giving false information to a police officer (count 4, § 148.9, subd. (a)); and driving with a suspended license (count 5, Veh. Code, § 14601.1, subd. (a)). It was also alleged that he had served a prior prison term. (§ 667.5, subd. (b).) Appellant entered a no contest plea to count 1. Two weeks later, he filed a motion to withdraw his no contest plea, which was granted.
All further statutory references are to the Penal Code unless otherwise stated.
In December 2004, appellant was charged with the same crimes as were alleged in the June complaint, with the exception that assault with a deadly weapon (count 2) was changed to assault on a peace officer. (§ 245, subd. (c).) In July, appellant pleaded no contest to count 1 and entered no contest pleas to charges in two other pending cases. In October 2005, the parties stipulated to the withdrawal of appellant's no contest pleas.
There was a five-year delay in the proceedings. In April 2008, an amended information was filed, charging appellant with the same crimes as alleged in the December 2004 information, with the addition of two counts of failure to appear while on bail (counts 6 & 7, § 1320.5) and two allegations that appellant was released on bail at the time he committed the offense (§ 12022.1, subd. (b)).)
In May 2008, appellant entered no contest pleas to the misdemeanor offenses of resisting a police officer, giving false information to a police officer, driving with a suspended license and two counts of failure to appear while on bail. (§ 1320.5.) He admitted the section 12022.1, subdivision (b) allegations. Appellant was tried and convicted by jury on the charges of evading an officer with willful disregard (count 1) and assault on a peace officer (count 2). The trial court found true the prior prison term allegations.
The court sentenced appellant to 13 years and 8 months in state prison. It selected the five-year sentence from Orange County as the principal term. The court imposed eight months in count 1, sixteen months in count 2, eight months in count 6 and eight months in count 7. It also imposed two years each for the two section 12022.1, subdivision (b) allegations and a one-year prior prison term enhancement. (§ 667.5, subd. (b).) The sentences in counts 3-5 were ordered to run concurrently.
In March 2006, appellant was arrested in Orange County for assault with a deadly weapon. He was convicted of two counts of assault with a deadly weapon and sentenced to five years in state prison. (Case No. 06HF0521.) At the time of trial in the present matter appellant had 10 months remaining on the Orange County sentence. The trial court (in Santa Barbara) proceeded under section 669, which provides that a sentencing judge, in a second proceeding, shall determine whether the terms of the second sentence will run consecutively or concurrently to the first sentence.
Appellant asserts that the matter must be reversed because he did not personally withdraw his guilty plea at the 2005 plea hearing, as required by section 1018. He claims the trial court erred in denying his Marsden motion and motion for substitution of counsel. Appellant further contends that the trial court erred by imposing two out-on-bail enhancements (§ 12022.1, subd. (b)), and that section 654 bars the imposition of separate sentences on counts 1 and 2. We modify the judgment to strike one of the bail enhancements, but otherwise affirm.
People v. Marsden (1970) 2 Cal.3d 118.
FACTS
On July 10, 2003, appellant lead California Highway Patrol officers on a high speed chase through two counties, which lasted about 90 minutes and covered a distance of 138 miles. It began on U.S. Highway 101 at approximately 1:15 a.m. when officers saw a Mercedes Benz traveling southbound at about 90 miles per hour. They gave chase, and the Mercedes turned off its lights and accelerated. The officers turned on their overhead lights and siren and broadcast that they were in pursuit. The Mercedes got off the highway, then back onto the highway northbound. Its speed increased to 100 miles per hour, and three highway patrol cars were now in pursuit. One officer saw a small plastic bag come out of the passenger side of the Mercedes, but was unable to recover it.
The Mercedes reached 130 miles per hour, traveling through dense fog. It slowed and turned on its lights. When the fog dissipated, the Mercedes turned off its lights and accelerated. It drove past Caltrans workers without decreasing its speed. The workers had been warned of the pursuit and climbed onto top of their equipment as the cars passed them. The Mercedes twice left the highway and returned, first traveling southbound and then northbound. The officers set up a spike strip on the highway, which flattened three of the car's tires. It continued traveling at 55-60 miles per hour, crossed the center median and began driving northbound in the southbound lanes. Cars and trucks swerved to avoid a collision.
Officer Koenig was traveling southbound towards the pursuit and saw the Mercedes traveling towards him in his lane. Koenig directed his spotlight at the oncoming car, which continued to drive directly towards him at 60-70 miles per hour. When the Mercedes was a few feet away, Koenig swerved to avoid a collision. One minute later the Mercedes crashed into an embankment. Appellant got out of his car and fled, but was apprehended.
After his arrest, appellant gave a false name to the officers. He told them that he ran from the car because he was not thinking. He said the pursuit was fun, and was like driving on a track in Las Vegas. He did it because he grew up "in the sixties." Appellant was transported to the emergency room, but did not require treatment. He was uninjured, alert and oriented, and did not appear to be under the influence of drugs or alcohol.
DISCUSSION
Withdrawal of 2005 No Contest Plea
In 2004, appellant had three cases pending in Santa Barbara superior court. He entered into a plea bargain, then successfully moved to withdraw his plea in those three matters. In July 2005, he entered a no contest plea to evading an officer with willful disregard. (Count 1, Veh. Code, § 2800.2, subd. (a).) He then moved to withdraw his plea.
The hearing on the motion was held in October 2005. Appellant was present and represented by Robert Sanger, who informed the court that "[appellant's] wish is to accept the People's offer to stipulate to set aside the pleas in his cases. I communicated that to the Court because that is my client's wish. He wishes to set the matter for trial and he wishes to also hire new counsel." A discussion was held off the record, after which defense counsel stated, "Your honor, we discussed possible ways of resolving this matter in chambers, and I've discussed all of that with my client, and he would still, nevertheless, like to withdraw his plea and accept the District Attorney's stipulation to do so in all cases, so that is my request." The court accepted the stipulation to the withdrawal of appellant's no contest plea in appellant's presence and without objection from him. Appellant now contends that his conviction should be reversed because he did not personally withdraw his plea at the October 2005 hearing, nor did he expressly authorize his attorney's statement.
After the withdrawal of appellant's plea, the matter proceeded to trial and appellant was convicted and ultimately sentenced to eight years four months in state prison, plus five years for the Orange County sentence, for a total aggregate term of thirteen years four months. He argues that, under the terms of the plea agreement, he would have instead received a suspended five-year, four month sentence with three years of probation and one year in county jail (in addition to the five-year Orange County sentence). Appellant contends that he was therefore prejudiced by the "improperly withdrawn" guilty plea.
While section 1018 provides in part that "every plea shall be entered or withdrawn by the defendant himself in open court," appellant was present at the hearing when the stipulation withdrawing his plea was put on the record and he did not object. Vacating the stipulation was not a miscarriage of justice, thus there is no basis for reversal.
Marsden Motion and Substitution of Counsel
Appellant argues that the trial court violated his Sixth Amendment right to counsel by denying his denying his Marsden motion and his motion to substitute retained counsel. He claims this constitutes structural error, requiring reversal.
On May 20, 2008, the matter was called for trial. Public Defender Rachel Solomon represented appellant. She indicated that he wished to bring a Marsden motion or to represent himself. Appellant stated that he wished to substitute retained counsel, Mr. Landheer, who was not present in court and could not begin trial that day. The court responded, "Unless there's a private attorney out there who could start this trial today, I'm not going to consider that request, [appellant]. This is the day set for trial. This matter has been ongoing many, many times over the last few months. This case is from 2003. It's almost five years old. You're going to trial."
Appellant indicated that he had a problem with Ms. Solomon and the court held a Marsden hearing. Appellant told the court that she would not listen to him, and when he told her that he was uncomfortable with something, she would respond that "it's her way or the highway...." When asked for specific examples, appellant stated that he wanted to delay trial until June 2 for health reasons, but Ms. Solomon insisted on going to trial on May 19. Appellant added that, at his request, she had spoken to an attorney in Los Angeles who might have been interested in taking over the case, but that conversation had not gone well. She also spoke to an appellate attorney on appellant's behalf, who needed a transcript of the October 2005 hearing for the withdrawal of plea. Appellant asked Ms. Solomon to obtain the transcript for him, but she refused.
The court noted that appellant had twice entered pleas and twice withdrawn them. It asked why appellant believed the transcript of his plea withdrawal would be pertinent to the case. He answered, "Because I believe [the] plea was withdrawn with confusion on my part, and I don't believe that when the stipulation was entered that I understood what was happening." The court denied the motion. It noted that, although Ms. Solomon contacted other attorneys on appellant's behalf, she was not required to address matters in appellant's pending case in Orange County, or to obtain a transcript for him. Her job was to represent appellant in the present proceedings.
We review the trial court's ruling for an abuse of discretion. (People v. Abilez (2007) 41 Cal.4th 472, 488.) "'"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."'" (Id. at pp. 487-488.) Substitution is required if the record clearly shows that defense counsel is not providing adequate representation or that there is such a conflict between the defendant and counsel that ineffective assistance of counsel is likely to result. (Id. at p. 488.) Tactical disagreements do not, by themselves, constitute irreconcilable conflict. (People v. Alfaro (2007) 41 Cal.4th 1277, 1320.)
Here, the trial court conducted a Marsden hearing and determined that appellant received competent representation. There was no breakdown in the attorney-client relationship requiring the appointment of new counsel. Appellant's complaints were based on disagreements concerning litigation strategy. Counsel was not required to expend time to obtain a transcript that would not have had any use at trial.
Following the Marsden hearing, appellant asked to proceed in pro. per., but stated that he would need a continuance to prepare for trial. The court denied his request and indicated that appellant had been in court repeatedly, and had vacillated over his legal representation and how he would plead. The court stated, "I think you've received extraordinary representation in this matter from both Mr. Sanger and Ms. Solomon. It's clear to me that you're seeking to delay, obfuscate the proceeding, and I simply can't allow that, so, Ms. Solomon, you'll be proceeding as trial counsel." To the extent that appellant argues he was denied his right to self-representation, we conclude his request was properly denied as untimely. (Faretta v. California (1975) 422 U.S. 806; People v. Burton (1989) 48 Cal.3d 843, 852-853.)
On appeal, appellant makes two additional arguments to support his contention that the court erred in denying his request for new counsel: (1) a new attorney might have moved to vacate the previous withdrawal of his no contest plea; and (2) he made his motion on May 20, 2008, and the parties had agreed that his trial would begin on or before June 10, thus the court could have given him until June 2 to retain private counsel.
We reject these arguments. Speculation as to what strategy a different attorney might have pursued has no bearing on what actually occurred. Appellant did not make this argument before the trial court, and may not raise it here. As to the second contention, the court's denial of appellant's request for a continuance was a proper exercise of its discretion.
Section 12022.1, Subdivision (b) Enhancements
Appellant was convicted of two counts of failure to appear (counts 6 & 7, § 1320.5), and the trial court imposed 2 two-year bail enhancements. (§ 12022.1, subd. (b).) Appellant contends the trial court erred in imposing two enhancements, because one was based on a matter that was subsequently dismissed.
Section 12022.1 applies when a defendant commits a felony while released on bail. Commission of the felony is known as a "primary offense." (Id., subd. (a).) A "secondary offense" is a felony committed while a person has been released from custody on a primary offense. (Id., subd. (a)(2).) Any person arrested for committing a secondary offense is subject to a consecutive two-year enhancement. (Id., subd. (b).)
Count 6 of the information alleged a failure to appear on February 5, 2004, in the instant pursuit case. Count 7 alleged a failure to appear on January 27, 2006, in both the instant pursuit case and an elder fraud case (case No. 1136589). Appellant pleaded no contest to counts 6 and 7 and admitted both section 12022.1, subdivision (b) enhancement allegations. We granted appellant's request for judicial notice of a minute order reflecting that the elder fraud case was dismissed on October 27, 2008. Appellant argues that we must therefore strike one of the section 12022.1 enhancements.
It is established that a single primary offense will not support two section 12022.1 enhancements. (People v. Mackabee (1989) 214 Cal.App.3d 1250, 1262; People v. Nguyen (1988) 204 Cal.App.3d 181, 195-196.) For an enhancement to apply, the defendant must have been convicted of the primary offense. Conviction of the primary offense is an "essential prerequisite" to imposition of a section 12022.1 enhancement. (People v. Walker (2002) 29 Cal.4th 577, 586; In re Jovan B. (1993) 6 Cal.4th 801, 809; People v. McClanahan (1992) 3 Cal.4th 860, 869.)
Appellant was not convicted of the elder fraud case, thus, there is no basis to impose a section 12022.1, subdivision (b) enhancement. With the dismissal of that action, only the instant pursuit case remains as a primary offense. We conclude the trial court erred in imposing two bail enhancements.
Section 654Appellant claims the trial court erred by imposing separate punishments for evading an officer with willful disregard (count 1) and assault on a peace officer (count 2). He argues that section 654 bars separate punishment because the offenses occurred during a continuous course of conduct and his only intent was to evade the officers. Appellant requests that we stay his eight month sentence on count 1.
At sentencing, the prosecutor argued that the offenses merited separate punishments. The trial court ruled that section 654 did not bar separate punishment because counts 1 and 2 were independent offenses with different elements and different victims. It concluded that consecutive sentencing was appropriate, considering all the circumstances.
Section 654, subdivision (a) provides that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." The statute thus prohibits punishment for two crimes arising from a single, indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) Whether a course of conduct constitutes a single act within the meaning of section 654 depends upon the "intent and objective" of the actor. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) Whether the defendant harbored more than one objective is a factual determination, which will not be reversed unless unsupported by the evidence presented at trial. (People v. Hairston (2009) 174 Cal.App.4th 231, 240.)
The elements of evading an officer with willful disregard are that the defendant willfully fled or tried to elude the officer while driving a vehicle with willful and wanton disregard for the safety of persons or property. (Veh. Code, § 2800.2, subd. (a).) Assault on a peace officer requires that the defendant willfully committed an act with a deadly weapon upon the person of a peace officer. (§ 245 subd. (c).) Appellant's intent and objective in the former offense was to evade officers. His intent in the latter offense was to apply force upon the patrol car driving in his direction.
Appellant argues that his primary objective for both offenses was to evade the officers. We disagree. A collision with an officer's car would more likely have resulted in his being apprehended than have aided his escape. If appellant's objective had been to evade the officers, he would have attempted to avoid the oncoming patrol car. Appellant's objective was to cause injury to Koenig by colliding with him. The evading offense involved all the officers in pursuit, while the assault involved only Koenig. Moreover, the evading offense was completed prior to the assault.
Substantial evidence supports the trial court's determination that appellant had separate objectives for counts 1 and 2. The trial court properly imposed separate punishments for evading an officer with willful disregard and assault on a peace officer.
DISPOSITION
One of the two section 12022.1, subdivision (b) enhancements is stricken. The trial court shall prepare an amended abstract of judgment and forward a copy to the Department of Corrections. In all other respects the judgment is affirmed.
We concur: YEGAN, Acting P.J., PERREN, J.