Opinion
H042977 H043545
05-22-2018
THE PEOPLE, Plaintiff and Respondent, v. JOHNELL LEE CARTER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. Nos. C1478588 & C1505628)
In case No. H042977, defendant Johnell Lee Carter appeals from a judgment of conviction in Santa Clara County Superior Court case No. C1478588 (C1478588). In case No. H043545, defendant appeals from a judgment of conviction in Santa Clara County Superior Court case No. C1505628 (C1505628). On its own motion, this court ordered the two appeals to be considered together for purposes of briefing, oral argument, and disposition.
On our own motion, in each case, we take judicial notice of the record on appeal in the other case. (Evid. Code, §§ 452, subd. (d), 459.)
In case No. H042977, defendant was convicted by jury of five counts of oral copulation in violation of Penal Code section 288.7, subdivision (b), as charged. The victim of those offenses was defendant's stepdaughter. In a bifurcated trial, the court found an allegation of a prior violent or serious felony conviction within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12) and an allegation of a prior serious felony conviction (§ 667, subd. (a)) to be true. On October 30, 2015, the trial court sentenced defendant to five consecutive terms of 30 years to life (see §§ 288.7, subd. (b), 667, subds. (c)(6), (e)(1), 1170.12, subds. (a)(6), (c)(1); Cal. Rules of Court, rule 4.425, subd. (a)(3)) to be served consecutively to a 25-year term (§ 667, subd. (a)).
All further statutory references are to the Penal Code section unless otherwise specified. Under section 288.7, subdivision (b), a person who is 18 years of age or older and who engages in oral copulation with a child who is 10 years of age or younger must be punished by imprisonment in the state prison for a term of 15 years to life.
Counts 1 through 4 were alleged to have occurred "[o]n or about and between August 1, 2012 and February 15, 2014" when the victim was nine or 10 years old. Count 5 was alleged to have occurred "[o]n or about and between February 16, 2014 and February 17, 2014" when the victim was 10 years old. The evidence of those offenses presented at trial is irrelevant to the specific contentions raised on appeal.
On appeal in case No. H042977, defendant contends that the trial court violated his constitutional rights by denying his numerous Marsden motions (see People v. Marsden (1970) 2 Cal.3d 118 (Marsden)) and his Faretta motion (see Faretta v. California (1975) 422 U.S. 806 (Faretta)). He also asserts that the prosecution should have charged him with one count of violating section 288.5 instead of five counts of violating section 288.7, subdivision (b). Lastly, he argues that his sentence constituted cruel and unusual punishment in violation of the United States and California Constitutions.
In case No. H043545, defendant pleaded no contest to a violation of section 4532, subdivision (b)(1), (escape) pursuant to a negotiated plea agreement, and he admitted an allegation that he had a prior violent or serious felony conviction within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12). The trial court sentenced defendant to a 16-month term to be served consecutive to the sentence imposed in case No. C1478588 (case No. H042977). On appeal in case No. H043545, defendant contends that he is entitled to have custody and conduct credits applied against his sentence for escape as requested in the trial court.
We reject defendant's claims of error in case No. H042977 and affirm the judgment. We conclude, however, that defendant is entitled to custody and conduct credit. Accordingly, in case No. H043545, we reverse the judgment and remand.
I
Case No. H042977
A. Marsden Motions
1. Governing Law
A criminal defendant has the right to the assistance of counsel under the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution. Under Marsden, "[w]hen a defendant seeks to obtain a new court-appointed counsel on the basis of inadequate representation, the court must permit him . . . to explain the basis of [his] contention and to relate specific instances of inadequate performance." (People v. Rodriguez (2014) 58 Cal.4th 587, 623 (Rodriguez).) "The court must appoint a new attorney if the record clearly shows the current attorney is not providing adequate representation or that the defendant and counsel have such an irreconcilable conflict that ineffective representation is likely to result. [Citations.]" (Ibid.) "Once a defendant is afforded an opportunity to state his or her reasons for seeking to discharge an appointed attorney, the decision whether or not to grant a motion for substitution of counsel lies within the discretion of the trial judge." (People v. Clark (2011) 52 Cal.4th 856, 912.) "If the court holds an adequate [Marsden] hearing, its ruling is reviewed for abuse of discretion. (People v. Panah (2005) 35 Cal.4th 395, 431.)" (Rodriguez, supra, at p. 623; see People v. Jones (2003) 29 Cal.4th 1229, 1245.)
2. Procedural History
A felony complaint was filed against defendant in March 2014.
On September 23, 2014, the trial court held a closed Marsden hearing to consider defendant's reasons for wishing to discharge Deputy Public Defender (DPD) Erma Gallardo, who was then representing him. Defendant stated, "I felt it was wrong for the attorney to approach the D.A. on the simple fact that I'm not guilty." He indicated that Gallardo's action "tarnished [his] image" and implied that there was "some kind of guilt inside of this case." The court explained that it was his counsel's job to talk to the district attorney about his case and that it could not remove his counsel for that reason. Defendant offered other examples of his dissatisfaction. In response, Gallardo explained her actions in each instance.
At the end of the September 23, 2014 hearing, the court concluded that Gallardo had provided defendant with all the information that he had requested, and it reiterated that it was defense counsel's job to discuss the case with the district attorney and to inform defendant of what she had learned. The court denied the Marsden motion.
The minutes for November 24, 2014, the date set for the preliminary hearing, reflect that Gallardo was still the attorney of record and "D. Dawson" appeared on behalf of defendant. A Marsden hearing was set for December 2, 2014.
The December 2, 2014 minutes reflect that that Gallardo was still the attorney of record but that Dennis Dawson appeared on behalf of defendant. The Marsden motion was heard and submitted.
In a handwritten letter to Judge Brown, dated December 2, 2014, defendant indicated that at his first meeting with "Mr. D. Dawson," Dawson "maliciously accosted" him and "threatened and insulted" him. Defendant explained that "[t]his occurred" after Dawson introduced himself, indicated that he knew the seriousness of the case and asked defendant what he wanted to do. Defendant reportedly told Dawson that he expected to have spoken to him before court. Dawson reportedly told defendant to speak with a counselor if he needed therapy and said "other insulting and unprofessional things." Defendant declared that "[a]ny trust or confidence in counsel was instantly nullified" and that counsel did "not have [his] best interests as a priority."
On December 19, 2014, the court heard defendant's Marsden motion against Dawson. The minutes for that date show that the "Public Defender" was representing defendant, and Dawson was appearing on defendant's behalf. Defendant complained that Dawson was not familiar with his case file and that Dawson was unaware of the police report showing that his case originated in a city other than San Jose. He also wanted Dawson to investigate a San Jose police officer and to get some information as to "the changing of the ownership of [defendant's] vehicle." Dawson indicated that he had written down everything that defendant had told him during their meeting and that he was going to look into each item if relevant to the case. Dawson indicated that defendant was a difficult client in that he argued instead of answering questions.
At the end of the hearing on December 19, 2014, the trial court concluded that Dawson was providing effective assistance of counsel and that the attorney-client relationship had not broken down to the extent that defendant and Dawson were unable to communicate. The court denied the motion.
The minutes for February 20, 2015, the date then set for the preliminary examination, reflected that Dawson was the attorney of record. Dawson represented defendant at the February 20, 2015 preliminary hearing. After the preliminary hearing, with only defendant and his counsel present, defendant complained that he had previously requested a Marsden hearing. The court asked whether defendant would like to proceed with a Marsden hearing. Defendant indicated he was not prepared to proceed at that time. A Marsden hearing was set for March 18, 2015 in accordance with defendant's wishes.
The information was filed on February 28, 2015.
The minutes for March 2, 2015, indicate that DPD Diederichs appeared for Dawson on behalf of defendant and that defendant waived arraignment and entered a plea of not guilty. On March 18, 2015, the Marsden hearing was ordered off calendar because defendant had escaped from custody.
On May 28, 2015, after defendant's return to custody, the trial court held a closed Marsden hearing to consider defendant's reasons for wishing to discharge Dawson as his appointed counsel. Defendant told the court that Dawson had "personally insulted" him and "taunted [him] disrespectfully." He complained that Dawson and he had discussed his case one time and that Dawson had not provided him with requested information about his case.
Defendant was also unhappy that Dawson had not subpoenaed two witnesses for the preliminary hearing because defendant had prepared "a list of questions to ask the victim and a witness" and asked Dawson to subpoena them. Dawson had said, "[L]et's wait and see if they show up to court." Defendant also complained that although Dawson had asked one of his proposed questions at the preliminary hearing, Dawson's follow-up question "elicit[ed] a secondary answer" that "sabotage[d] [defendant's] question altogether." Defendant stated that Dawson had not helped him, was being disrespectful and was offending him on "a personal level," and did not have his best interest in mind.
Dawson told the court that since he had taken over the defense assignment from Gallardo, "the only new information" was "what happened at the preliminary hearing" at which "[t]he complaining witness testified." Dawson reported that he had "seen [defendant] many times in jail." The court concluded that defendant and Dawson were not agreeing on trial tactics, which was not a ground for obtaining a different court-appointed attorney. It denied the Marsden motion.
On July 13, 2015, Dawson filed defense motions in limine.
On that same date, the court held a closed Marsden hearing, and defendant asked the court to discharge or replace Dawson as his attorney. Defendant disclosed that at their first meeting Dawson "personally insulted" him by calling him "a kid." Defendant claimed that Dawson had insulted him more than once and reported that Dawson had called him "a jerk."
According to defendant, Dawson had failed to pursue certain missing evidence and Dawson had not told defendant "anything about [his] case or the evidence." Defendant complained that crucial witnesses, two marriage counselors, were not on the witness list and Dawson had not discussed any defense with him. Defendant said that Dawson and he were not communicating at all. Defendant repeated his complaint that Dawson failed to subpoena witnesses to the preliminary hearing that "could have provided exculpatory information," that Dawson had asked only one out of "over 27 questions" that defendant had given him, and that Dawson had "nullified that one question by offering up an alternative answer for the witness." In defendant's opinion, Dawson's preliminary hearing conduct suggested that Dawson was colluding with the District Attorney.
Defendant said that he had seen Dawson at the preliminary hearing in February 2015 and then at the Marsden hearing in May 2015. Defendant acknowledged that since returning to custody, he had received three or four letters from Dawson in which Dawson had asked defendant to contact him. Defendant said that he had responded to counsel's letters by sending requests for Dawson to visit him in person and that he was being held in a "special high level custody" that disallowed normal privileges. Defendant also indicated that he wanted the jail to return the work that he had previously done in his case, impliedly before his escape.
At the July 13, 2015 hearing, Dawson explained that witnesses were not subpoenaed at the preliminary hearing because he did not want to tip off the prosecutor about the defense. Dawson indicated that defendant and he had had multiple conversations between December 2014 and February 2015 and then defendant escaped from custody. But Dawson acknowledged that their discussions about defendant's defense had not been "fruitful" because defendant was accusing him of not understanding the case. Defendant had not agreed to Dawson's request that he submit to a psychological evaluation. Dawson told the court that regardless of defendant's custody status, defendant had access to a phone and could call him and that he had received no letters from defendant. Dawson told the court that he had started providing case updates by letter, which he thought might be more productive because their conversations "devolved into" personal attacks by defendant and accusations that Dawson did not know anything about the case.
Dawson believed that he could vigorously defend defendant and continue to work hard on the case. He already had nine witnesses to testify on defendant's behalf. Dawson explained that he had not called defendant a jerk, but rather had advised defendant to testify at trial and cautioned that defendant could not "come off like a jerk" to the jury. Defendant had responded by accusing Dawson of calling him a jerk and walking out of their meeting. Dawson indicated that defendant could be more helpful in his own defense. Dawson still thought defendant should testify, and Dawson wanted to "practice certain things" with defendant but defendant had not allowed that to happen so far. Dawson told the court that he had explained to defendant that defendant's evidentiary concerns would be addressed at trial, but defendant did not accept his explanation. Dawson had prepared motions in limine to address some of defendant's concerns.
At the end of the hearing, the trial court explained that defendant's distrust of and lack of confidence in Dawson were not dispositive. The court indicated that counsel's diligence was pertinent, and the court had seen the motions in limine. The court denied the Marsden motion.
Defendant filed a written Marsden motion on July 14, 2015. In a form declaration, defendant claimed that counsel "failed and/or refused" to confer with him concerning preparation of the defense, to communicate with him, to subpoena favorable witnesses, to perform critical investigation, to present or prepare an affirmative defense at the preliminary hearing, to secure and present expert witnesses critical to the defense, to prepare and file critical motions, to impeach prosecution witnesses, to present critical evidence, and "to declare prejudice and/or conflict" against him, and that counsel and he had "become embroiled in irreconcilable conflict."
At the closed Marsden hearing held on July 14, 2015, defendant reiterated some of his grievances with Dawson, he asserted that Dawson and he had "become embroiled in [an] irreconcilable conflict," and he asked the court to reconsider its previous Marsden ruling. He also complained that Dawson had not considered filing a change of venue motion. Defendant told the court that he was ignorant of the law and there was "no possible way [he] could represent [himself]."
The trial court then explained that attorneys generally make the strategic and tactical decisions in a case and that issue was whether defendant's attorney could render effective assistance of counsel given their relationship. It appeared to the court that Dawson was providing effective assistance, such as by filing motions in limine and subpoenaing witnesses for trial. The court did not change its previous ruling. When the court seemingly began to explore the possibility of defendant representing himself, defendant expressed the need for the assistance of an attorney. When asked, defendant indicated that it would take him "maybe two or three weeks" to be ready for trial and that he knew nothing about the evidence, the witnesses, any motions, or anything else in his case.
On July 20, 2015, defendant asked the court to postpone further jury selection until after July 21, 2015 because he wanted to file another Marsden motion. The court treated the request as a Marden motion and held a hearing. The court denied the Marsden motion, stating that it understood that there was frustration on both sides and that it was up to defense counsel to decide whether the makeup of the jury was satisfactory.
On July 21, 2015, defendant filed another written Marsden motion. In his form declaration, defendant claimed that counsel "failed and/or refused" to confer with him concerning preparation of the defense, to communicate with him, to subpoena favorable witnesses, to perform critical investigation, to present or prepare an affirmative defense at the preliminary hearing, to prepare and file critical motions, to present critical evidence, and "to declare prejudice and/or conflict" against him, and that appointed counsel had "elected to apply a defense, with knowledge of all the evidence submitted at this motion hearing," which was "forcing" defendant "to commit perjury" if "he elect[ed] to testify on his own behalf."
On that same date, the trial court held a closed Marsden hearing. There was evidence that the previous day, Dawson had said something to the effect that defendant was "full of shit." Dawson explained that his statement was in response to defendant's accusations that he had lied "about trying to visit [defendant] on Friday" and that he had doctored the transcript of the alleged victim's statement to a detective and a transcript of a defense interview. Dawson said that he had told defendant, without raising his voice, "[I]f you're accusing me of fabricating evidence and lying about coming to the jail, you're full of shit." Dawson indicated that he was still willing to work with defendant and that he was ready to provide him with a vigorous defense. Dawson also described his attempts to see defendant in the jail the previous Friday morning and afternoon.
Defendant reiterated that Dawson had insulted him numerous times, including calling him "a jerk" and "a kid." Defendant also took issue with Dawson's defense theory, which was that the alleged victim was lying to get defendant out of her home because defendant physically disciplined her. Defendant asserted that he was not an "over[ly] disciplinary-type person," that the alleged victim was never scared of him, and that such defense would put him in the position of having to commit perjury. Dawson described the defense theory and made plain that he never suggested that defendant perjure himself.
Defendant also complained that Dawson had failed to put his two marriage counselors on the defense witness list. Dawson indicated that he was thinking that the male counselor could provide helpful testimony, but that the female counselor had not been interviewed so the helpfulness of her testimony was speculative.
Defendant said that he had tried to bring it to Dawson's attention that his theft conviction was over 10 years old. Dawson indicated that defendant was confusing prison priors and strike convictions with criminal convictions that the prosecution could use to impeach defendant.
Defendant complained that he did not have a transcript of the preliminary hearing. Dawson said that defendant had escaped after the preliminary hearing, that he did not know that defendant did not have the transcript, and that he would provide a copy to defendant that day.
Defendant indicated that he wanted a motion for change of venue to be brought. The court told defendant that such motion would be futile and frivilous because the jury had been selected and none of them knew about the charges or his escape.
Defendant claimed that Dawson had "failed to investigate potentially exculpatory evidence that [could] be used to impeach key prosecution witnesses." When asked for details, defendant again referred to his marriage counselors. With respect to the female counselor, the court told defendant that "it would be foolish to put somebody on the witness stand" if the person "won't even talk to you" and had not been interviewed.
At the end of the Marsden hearing on July 21, 2015, the trial court denied the motion. Later the same day, counsel made their opening statements in the case.
On July 22, 2015, defendant made another Marsden motion and the court held a closed hearing. Defendant complained that Dawson refused to assert Evidence Code section 352 against the admission of "every piece" of adverse evidence and that such objections should have been raised in a motion in limine. The court explained the application of that code section. The court also explained that it was up to defense counsel, who was in charge of the case, to decide whether to object to evidence. Without providing any further specific examples, defendant claimed that his relationship with Dawson was "eroded long before . . . trial" and that Dawson was "biased against" him. The trial court denied the motion.
Later, on July 22, 2015, defendant made another Marsden motion, and the court held a closed hearing. Defendant complained about Dawson's response to his question over the break. Defendant had asked Dawson whether he had the time to discuss a few things or whether he was "going to run off." Defendant recalled Dawson responding, "Yes, Mr. Carter. I'm going to take off," not "play on the swings." A deputy who had overheard the exchange thought defendant's tone had been sarcastic. Dawson recalled defendant asking whether Dawson had time to speak with him or was Dawson "fitting to run out of here." Dawson replied that he was not going to recess or to "swing on the swings" and that he had to go work on cross-examination. The court denied the motion.
Also on July 22, 2015, Dawson filed a written declaration to support a challenge for cause to the judge pursuant to Code of Civil Procedure section 170.1. It stated that defendant felt that the "court's failure to grant his Marsden motions after repeated efforts demonstrate[d] [the] court's clear bias against him."
On July 27, 2015, after the prosecutor had rested its case in chief and the court and counsel had discussed jury instructions, defendant began complaining about his counsel. The court held a closed Marsden hearing. In a written motion filed on that date, defendant claimed that counsel "failed and/or refused" to confer with him concerning preparation of the defense, to communicate with him, to subpoena favorable witnesses, to perform critical investigation, to present or prepare an affirmative defense at the preliminary hearing, to secure and present expert witnesses critical to the defense, to prepare and file critical motions, to impeach prosecution witnesses, to present critical evidence, and "to declare prejudice and/or conflict" against him, and that inside the courtroom on July 14, 2015, counsel had "verbally acossted [sic] Defendant" and "fail[ed] to maintain inviolate [his] confidence," which defendant asserted was proof of a conflict of interest. Defendant read his supporting declaration into the record of the Marsden hearing.
Defendant described a variety of complaints concerning Dawson's representation of him and Dawson's preparation for and conduct of the trial, including Dawson's failure to use preemptory challenges, his failure to object to the impaneling of the jury that lacked African-Americans, his failure to properly prepare a motion in limine and a Code of Civil Procedure section 170.1 motion, and his failure to object to the evidence and to impeach the mother of the alleged victim with recorded statements that the mother had made to a police officer. Defendant also complained about Dawson's lack of knowledge about the case, his failure to properly communicate with him, and Dawson's remark that defendant was "full of shit."
In response, Dawson indicated that he had spent four hours with defendant talking about the case the previous Friday, that he had lined up certain witnesses, whom he named, and that he was continuing to prepare the case. The trial court concluded that defendant essentially disagreed with some of defense counsel's strategy and tactics. The court denied the Marsden motion.
By written order filed on July 30, 2015, the trial court struck the statement of disqualification filed against the judge because on its face, the statement disclosed no legal grounds for disqualification. (See Code Civ. Proc., §§ 170.1, 170.3, 170.4, subd. (b)). The order stated that defendant's claim of judicial bias was "based solely upon the court's denial of defendant's Marsden motions."
On August 3, 2015, the jury returned its guilty verdicts.
On August 5, 2015, Dawson filed a Romero motion (see People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)) on behalf of defendant.
On August 28, 2015, the court heard another Marsden motion. The hearing was continued to August 31, 2015.
On August 31, 2015, defendant indicated that he was upset for several reasons, including that Dawson had previously indicated to the court that he would not be filing a Romero motion, that Dawson had instructed the probation department not to interview him for its sentencing report, and that Dawson had failed to challenge the trial court's order striking the motion to disqualify the judge.
In response, Dawson explained that he had decided, after consulting a research attorney in the Public Defender's Office, that a writ challenging the order striking the statement of disqualification would have been meritless and frivolous. Dawson acknowledged that he had directed the probation officer not to speak with defendant because it was his experience that a defendant's denial of responsibility in a sexual offense case is later used against the defendant in a parole hearing. He explained that the downside of making such statement was "huge" while the upside was "possibly imaginary" given the mandatory sentencing in the case. After the court indicated that defendant had a right to be heard at sentencing, Dawson agreed that defendant should have the opportunity to speak to probation if he wished, but Dawson made it clear that defendant would be doing so against his advice. The court denied defendant's Marsden motion.
The trial court subsequently, in a closed hearing, further explained to defendant that Dawson had filed a Romero motion as requested by defendant and that Dawson's decision not to file a writ petition challenging the order striking the statement of disqualification was not based on Dawson's animus toward defendant but rather was based on Dawson's "considered legal judgment."
On October 30, 2015, prior to sentencing, defendant asserted that defense counsel had acted deficiently and attacked the fairness of the trial. The court found that all of defendant's complaints with respect to Dawson and the public defender's office had been addressed in prior Marsden motions. It denied the Marsden motion.
3. Analysis
Defendant argues, without any citation to the record, that he presented "abundant evidence of the breakdown of his relationship with his attorney." Defendant maintains that the denials of his Marsden motion "forced [him] to be represented throughout his trial by an attorney [in] whom he had lost complete confidence and [with whom he] had an irreconcilable conflict."
The Sixth Amendment does not guarantee a " 'meaningful relationship' " between a defendant and appointed counsel. (Morris v. Slappy (1983) 461 U.S. 1, 14.) Rapport between attorney and client is not a Sixth Amendment right. (Id. at p. 13.) Despite defendant's assertion to the contrary, the trial court correctly told defendant at the Marsden hearing on July 14, 2015 that his lack of trust and confidence in his appointed counsel and his counsel's likability were not "determinative" or "dispositive" factors in deciding a Marsden motion.
"[I]f a defendant's claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law." (People v. Crandell (1988) 46 Cal.3d 833, 860 (Crandell), abrogated on another ground by People v. Crayton (2002) 28 Cal.4th 346, 364-365.) "A ' " 'lack of trust in, or inability to get along with, an appointed attorney' " ' is an inadequate basis on which to substitute counsel. [Citations.]" (People v. Clark (2011) 52 Cal.4th 856, 918 (Clark).)
A defendant "cannot simply refuse to cooperate with his appointed attorney and thereby compel the court to remove that attorney." (People v. Michaels (2002) 28 Cal.4th 486, 523.) In other words, "a defendant may not force the substitution of counsel by his own conduct that manufactures a conflict. (People v. Hardy (1992) 2 Cal.4th 86, 138.)" (People v. Smith (1993) 6 Cal.4th 684, 696-697 (Smith).) The mere exchange of "heated words" between an attorney and his client do not "require a substitution of counsel absent an irreconcilable conflict. (People v. Fierro (1991) 1 Cal.4th 173, 205-206.)" (Id. at p. 696 [counsel used "foul language" after defendant made accusations against him].)
"[T]he number of times one sees his attorney, and the way in which one relates with his attorney," is not enough to establish the attorney's incompetence. (People v. Silva (1988) 45 Cal.3d 604, 622.) A defendant's mere complaint that counsel rarely visited him does not justify substitution of counsel. (See People v. Myles (2012) 53 Cal.4th 1181, 1208.)
"A defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense. (See People v. Hamilton (1989) 48 Cal.3d 1142, 1162.) Tactical disagreements between the defendant and his attorney do not by themselves constitute an 'irreconcilable conflict.' 'When a defendant chooses to be represented by professional counsel, that counsel is "captain of the ship" and can make all but a few fundamental decisions for the defendant.' [Citation.]" (People v. Welch (1999) 20 Cal.4th 701, 728-729.) "[T]actical disagreements between a defendant and his attorney or a defendant's frustration with counsel are not sufficient cause for substitution of counsel. [Citations.]" (People v. Streeter (2012) 54 Cal.4th 205, 231.)
"A trial court is not required to conclude that an irreconcilable conflict exists if the defendant has not made a sustained good faith effort to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness." (Crandell, supra, 46 Cal.3d at p. 860.) Finally, if there is "a credibility question between [a] defendant and [his] counsel at the [Marsden] hearing, the court [is] 'entitled to accept counsel's explanation.' (People v. Webster [(1991)] 54 Cal.3d [411,] 436.)" (Smith, supra, 6 Cal.4th at p. 697.)
Defendant rejected the assistance of both deputy public defenders assigned to represent him at very early stages and frequently and repeatedly brought Marsden motions. The court could reasonably conclude that defendant failed to demonstrate that he had made a sustained, good-faith effort to work out any disagreements with counsel and had given counsel a fair opportunity to demonstrate trustworthiness, as he was required to do. (See Crandell, supra, 46 Cal.3d at p. 860; cf. Clark, supra, 52 Cal.4th at p. 913 ["Given [defendant Clark's] frequent repetitive attempts to replace [his female appointed counsel], the court reasonably could find he had made insufficient efforts to resolve his disagreements with her"].) It could also reasonably conclude that defendant had failed to show that counsel and he had "become embroiled in such an irreconcilable conflict that ineffective representation [was] likely to result [citations]." (Crandell, supra, at p. 854; see Clark, supra, at pp. 913-914; People v. Abilez (2007) 41 Cal.4th 472, 489.)
Defendant has not established that the trial court abused its discretion in denying any of his many Marsden motions. B. Faretta Motion
The trial court denied defendant's request to represent himself as untimely. On appeal, defendant argues that the court erroneously deprived him of his federal and state constitutional rights of self-representation.
1. Background
At the end of a Marsden hearing on May 28, 2015, the court clerk indicated that the matter was scheduled to be put on the "M.T.C." (Master Trial Calendar) on June 29, 2015, which remained as set.
The defense's motions in limine were filed on July 13, 2015. The People's witness list and motions in limine were also filed on July 13, 2015. On that date, the court and counsel met informally in chambers to discuss the motions in limine.
Later that same day, the trial court stated on the record that the matter had been sent to its department for trial, that counsel for the parties had indicated they were ready for trial, and that both sides had provided the court with their written in limine motions. The court heard and denied another Marsden motion. Defendant then indicated that he wanted to bring a Faretta motion. The court warned that "Faretta motions that are made sort of on the eve of trial are generally not well received by the court." It explained that "at this stage, it's important for the administration of justice to continue in a timely manner, especially when you have a [section] 1048 demand on an alleged child victim." The court provided defendant with a Faretta form and told defendant that his request would be heard the next day.
A criminal action involving an alleged minor victim must be given precedence over all other criminal actions in the order of trial. (§ 1048, subd. (b).)
On July 14, 2015, defendant filed a "Petition to Proceed in Propria Persona." At the hearing on July 14, 2015, the trial court stated on the record that defendant had previously acknowledged that his custodial status was "very restricted," that he had not looked at the discovery since before his escape, and that he could not represent himself. The court observed that defendant was not prepared to try the case on his own at that time. It further observed that defendant's request to represent himself had been made at the very end of the previous day, after the court and counsel had already discussed the motions in limine and jury panels had been ordered for the following morning and the afternoon. When the court asked defendant why he did not file a Faretta motion when he was returned to custody, defendant indicated that he was ignorant of the law. The court denied defendant's request to represent himself because it was untimely and there was a trial preference under section 1048.
On July 15, 2015, defense counsel indicated that defendant wished to renew his Faretta request. The court indicated that they had already gone through two jury panels and that another jury panel was coming for jury selection that afternoon. The court indicated that defendant's request to represent himself was "even less timely" than when originally made two days earlier.
2. Analysis
"The Sixth and Fourteenth Amendments of [the United States] Constitution guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment. In Faretta v. California, 422 U.S. 806 (1975), [the United States Supreme Court] decided that the defendant . . . 'has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so.' Id., at 807." (Martinez v. Court of Appeal of Cal. Fourth Appellate Dist. (2000) 528 U.S. 152, 154, fn. omitted.) In Faretta, the defendant's request to represent himself had been made "weeks before trial." (Faretta, supra, at p. 835.)
The California Supreme Court has stated that "[a] trial court must grant a defendant's request for self-representation if the defendant knowingly and intelligently makes an unequivocal and timely request after having been apprised of its dangers. [Citations.]" (People v. Valdez (2004) 32 Cal.4th 73, 97-98, italics added.) An erroneous denial of a Faretta request is reversible per se. (Id. at p. 98; see McKaskle v. Wiggins (1984) 465 U.S. 168, 177, fn. 8 ["Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to 'harmless error' analysis"].)
"[I]n order to invoke the constitutionally mandated unconditional right of self-representation a defendant in a criminal trial should make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial." (People v. Windham (1977) 19 Cal.3d 121, 127-128, fn. omitted (Windham).) But "once a defendant has chosen to proceed to trial represented by counsel, demands by such defendant that he be permitted to discharge his attorney and assume the defense himself shall be addressed to the sound discretion of the court." (Id. at p. 128.)
"[A] defendant should not be permitted to wait until the day preceding trial before he moves to represent himself and requests a continuance in order to prepare for trial without some showing of reasonable cause for the lateness of the request. In such a case the motion for self-representation is addressed to the sound discretion of the trial court which should consider relevant factors such as whether or not defense counsel has himself indicated that he is not ready for trial and needs further time for preparation." (Windham, supra, 19 Cal.3d at p. 128, fn. 5.) Some of the factors to be considered in assessing a Faretta request made after commencement of the trial include "the quality of counsel's representation of the defendant, the defendant's prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion." (Id. at p. 128.)
"[T]he timeliness of one's assertion of Faretta rights is critical." (People v. Halvorsen (2007) 42 Cal.4th 379, 433, fn. omitted.) The timeliness requirement "serves to prevent a defendant from misusing the motion to delay unjustifiably the trial or to obstruct the orderly administration of justice. [Citation.]" (People v. Horton (1995) 11 Cal.4th 1068, 1110.) "[T]imeliness for purposes of Faretta is based not on a fixed and arbitrary point in time, but upon consideration of the totality of the circumstances that exist in the case at the time the self-representation motion is made." (People v. Lynch (2010) 50 Cal.4th 693, 724 (Lynch), abrogated on another ground by People v. McKinnon (2011) 52 Cal.4th 610, 637-643; see Marshall v. Taylor (9th Cir. 2005) 395 F.3d 1058, 1061 ["Faretta clearly established some timing element, but we still do not know the precise contours of that element"].)
"[The California Supreme Court has] held on numerous occasions that Faretta motions made on the eve of trial are untimely. For example, in [People v.] Frierson [(1991)] 53 Cal.3d [730,] 742, [the court] held that a self-representation motion made on September 29, 1986, when trial was scheduled for October 1, 1986, was made on 'the eve of trial' and was untimely. (See People v. Valdez (2004) 32 Cal.4th 73, 102 [Faretta motion made 'moments before jury selection was set to begin' deemed untimely]; People v. Horton (1995) 11 Cal.4th 1068, 1110 [self-representation motion made on the date scheduled for trial untimely]; People v. Clark (1992) 3 Cal.4th 41, 99-100 (Clark) [case had been continued day to day after August 10 'in the expectation that the motions would be concluded and jury selection set to begin at any time,' and hence the defendant's August 13 motion was 'in effect the eve of trial' and untimely].)" (Lynch, supra, 50 Cal.4th at pp. 722-723.)
"To establish an abuse of discretion, defendants must demonstrate that the trial court's decision was so erroneous that it 'falls outside the bounds of reason.' [Citations.] A merely debatable ruling cannot be deemed an abuse of discretion. [Citations.] An abuse of discretion will be 'established by "a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." ' [Citation.]" (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.)
In this case, the case had been sent out for trial, the parties' counsel were ready for trial, motions in limine had been filed by counsel and discussed with the court, and jury selection was set to begin when defendant first moved to represent himself. Although defendant had been steadily complaining about his appointed counsel throughout the proceedings, he continued to ask for substitution of appointed counsel. Defendant did not seek to represent himself until the eve of trial. Defendant has not established that the trial court abused its discretion in denying his request to represent himself or that he was deprived of his constitutional right of self-representation. C. Prosecution under Section 288 .7 Rather than Section 288 .5
Pointing to evidence that he had his stepdaughter orally copulate him more than 10 times, but fewer than 20 times, over a period of more than two years, defendant argues that he should have been charged with one count of continuous child abuse under section 288.5 instead of being charged with multiple counts of violating section 288.7, subdivision (b), since section 288.5 is the specific statute applicable to a perpetrator residing in the victim's home.
Section 288.5, subdivision (a), provides: "Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense . . . or three or more acts of lewd or lascivious conduct . . . with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years." "Substantial sexual conduct" includes oral copulation. (§ 1203.066, subd. (b).)
Defendant recognizes that in People v. Wilkerson (1992) 6 Cal.App.4th 1571 (Wilkerson), an appellate court concluded that section 288.5 was not intended to be "a limit on prosecutorial discretion in determining how a particular defendant is to be charged." (Wilkerson, supra, at p. 1581.) Wilkerson concluded that section 288.5 did not "supplant all of the requirements of the general criminal statutes governing sexual molestation of children[] [citations]" and that "the general child molestation statutes remain viable charging options for prosecutors . . . ." (Wilkerson, supra, at p. 1581.) Defendant argues that Wilkerson, which predated People v. Murphy (2011) 52 Cal.4th 81 (Murphy), does not govern because it did not consider the Williamson rule (In re Williamson (1954) 43 Cal.2d 651, 654).
In Murphy, the Supreme Court explained the Williamson rule: "[I]f a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute. In effect, the special statute is interpreted as creating an exception to the general statute for conduct that otherwise could be prosecuted under either statute. [Citation.] 'The rule is not one of constitutional or statutory mandate, but serves as an aid to judicial interpretation when two statutes conflict.' [Citation.] 'The doctrine that a specific statute precludes any prosecution under a general statute is a rule designed to ascertain and carry out legislative intent. The fact that the Legislature has enacted a specific statute covering much the same ground as a more general law is a powerful indication that the Legislature intended the specific provision alone to apply. . . . [Citation.]' [Citation.]" (Murphy, supra, 52 Cal.4th at p. 86.) Murphy further stated: "Absent some indication of legislative intent to the contrary, the Williamson rule applies when (1) 'each element of the general statute corresponds to an element on the face of the special statute' or (2) when 'it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute.' [Citation.]" (Ibid., italics added.)
The Williamson rule was established long before Murphy. In People v. Hord (1993) 15 Cal.App.4th 711, an appellate court concluded that "sections 288.5 and 288 are not subject to the Williamson rule." (Id. at p. 720) The court explained: " 'The doctrine that a specific statute precludes any prosecution under a general statute is a rule designed to ascertain and carry out legislative intent.' (People v. Jenkins (1980) 28 Cal.3d 494, 505.) The Legislature's intent in passing section 288.5 was not to enact a specific statute to apply in lieu of a general statute. The intent was to enact a statute for an area which the Legislature believed was not covered by any other law. That this statute's necessity was nullified by the Jones decision [(People v. Jones (1990) 51 Cal.3d 294 (Jones))] does not transform this statute into a specific statute under the Williamson rule since this was clearly not the Legislature's intent at the time of the enactment." (Ibid., fn. omitted.) Jones held that "generic testimony" may constitute substantial evidence of sexual offenses (id. at pp. 313-316) and that such "generic testimony [does not] deprive[] the defendant of a due process right to defend against the charges against him." (Id. at pp. 320-321.)
In People v. Johnson (2002) 28 Cal.4th 240 (Johnson), the California Supreme Court was fully aware of the Williamson rule. (Id. at p. 246.) It held that "the alternative pleading requirement of section 288.5, subdivision (c) is a specific statute as against section 954's general authorization for pleading multiple offenses." (Id. at p. 246, fn. 5.) It explained that "[i]n explicitly requiring that continuous sexual abuse and specific sexual offenses be charged in the alternative, section 288.5 essentially carves out an exception to section 954's general rule permitting joinder of related charges." (Id. at p. 246.) The Supreme Court stated that its conclusion was not "inconsistent with People v. Hord (1993) 15 Cal.App.4th 711, 720, where the Court of Appeal concluded that the Legislature's purpose in passing section 288.5 was not to enact a specific statute in order to preclude prosecution for other generally applicable sexual offenses." (Ibid., fn. 5.)
In addition, in Johnson, the Supreme Court provided the following guidance: "Prosecutors in sexual abuse cases possess a variety of means to seek convictions and severe punishments in cases involving sexual offenses against vulnerable young victims. They may, for example, plead and prove discrete sexual offenses and seek consecutive sentencing when permitted; they may bring a charge of continuous sexual abuse, with its relatively severe range of punishments (§ 288.5, subd. (a)); they may charge continuous sexual abuse and discrete sexual offenses outside the period of the alleged continuous abuse [citation]; in appropriate circumstances, they may plead and prove the allegations required by section 667.61, the 'One Strike' law; or they may charge discrete sexual offenses and continuous sexual abuse in the alternative." (Johnson, supra, 28 Cal.4th at p. 248, italics added.) In this case, the prosecutor chose to charge defendant with only discrete sexual offenses.
After Johnson, in People v. Rodriguez (2002) 28 Cal.4th 543 (Rodriguez), the California Supreme Court stated that "[t]he express legislative purpose in enacting section 288.5 was to provide 'additional protection' for victims of child molestation by assuring that 'resident' child molesters and others who repeatedly abuse a child over a prolonged period of time would not escape prosecution because of difficulties in pleading and proving with sufficient precision the dates, times, and particular nature of each molestation. [Citations.]" (Id. at p. 549.) The court specifically stated that "as made clear by the legislative declarations accompanying it, section 288.5 was enacted to broaden, not narrow, the reach of this state's child molestation laws." (Id. at pp. 549-550.)
The prosecutor was not required to prosecute defendant for continuous sexual abuse of a child under section 288.5 rather than prosecuting him for discrete oral copulation offenses under section 288.7. D. Cruel and/or Unusual Punishment
Defendant was born in January 1972 and was 43 years old when he was sentenced in October 2015. He argues that his sentence of 150 years to life consecutive to a 25-year term is the equivalent of life imprisonment without the possibility of parole and constitutes cruel and/or unusual punishment in violation of the Eighth Amendment to the United States Constitution and article I, section 17, of the California Constitution. Defendant asserts that "[o]bviously he will not be eligible for parole in his lifetime" and that his sentence "far exceeds his life expectancy." Defendant cites Justice Mosk's concurring opinion in People v. Deloza (1998) 18 Cal.4th 585 (Deloza) as supporting authority for his argument.
The Eighth Amendment to the United States Constitution prohibits the infliction of "cruel and unusual punishments." The Eighth Amendment's cruel and unusual punishments clause is applicable to the States through the Fourteenth Amendment's due process clause. (Graham v. Florida (2010) 560 U.S. 48, 53 (Graham).) California Constitution, article I, section 17, prohibits the infliction of "[c]ruel or unusual punishment." (Italics added.)
Defendant is not specifically arguing that his punishment was grossly disproportionate to his crimes or to his individual culpability, either as to any particular crime or in toto. (See e.g. Ewing v. California (2003) 538 U.S. 11, 23 (Ewing) [The Eighth Amendment forbids an extreme sentence that is "grossly disproportionate" to the crime]; People v. Dillon (1983) 34 Cal.3d 441, 450 [Under California's constitutional prohibition against cruel or unusual punishment, "a punishment is impermissible if it is grossly disproportionate to the offense as defined or as committed, and/or to the individual culpability of the offender."], 478-480, abrogated on another ground in People v. Chun (2009) 45 Cal.4th. 1172, 1185-1186) Neither is defendant claiming that he was treated more harshly than other criminals who committed more serious crimes (see Solem v. Helm (1983) 463 U.S. 277, 292, 303; In re Lynch (1972) 8 Cal.3d 410, 426) or that his punishment "shocks the conscience and offends fundamental notions of human dignity." (In re Lynch, at p. 424; see People v. Cole (2004) 33 Cal.4th 1158, 1235.) He focuses on the fact that the total sentence effectively renders him ineligible for parole within his natural lifetime.
Justice Mosk stated in his concurrence in Deloza that "[a] sentence of 111 years in prison is impossible for a human being to serve, and therefore violates both the cruel and unusual punishments clause of the Eighth Amendment to the United States Constitution and the cruel or unusual punishment clause of article I, section 17 of the California Constitution." (Deloza, supra, 18 Cal.4th. at pp. 600-601.) Justice Mosk further stated: "A grossly excessive sentence can serve no rational legislative purpose, under either a retributive or a utilitarian theory of punishment. It is gratuitously extreme and demeans the government inflicting it as well as the individual on whom it is inflicted. Such a sentence makes no measurable contribution to acceptable goals of punishment." (Id. at pp. 601-602.) Justice Mosk suggested that "[t]he maximum sentence that should be imposed is one a defendant is able to serve: life imprisonment" (id. at p. 602) and that "[i]n a particularly egregious case involving exceptionally numerous victims, the maximum could conceivably be life imprisonment without possibility of parole." (Ibid.)
In Deloza, the majority opinion reversed the judgment of the Court of Appeal on another ground. (Deloza, supra, 18 Cal.4th at pp. 588, 600.)
Defendant has not shown that Justice Mosk's concurring opinion represents applicable constitutional law. It is not binding precedent. (See People v. Byrd (2001) 89 Cal.App.4th 1373, 1383 (Byrd); Del Mar Water, etc. Co. v. Eshleman (1914) 167 Cal. 666, 682 ["any proposition or principle stated in an opinion is not to be taken as the opinion of the court, unless it is agreed to by at least four of the justices"]; cf. Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ["Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction"].)
A number of federal and state cases have indicated that the mere fact that a sentence of imprisonment exceeds a defendant's life expectancy does not render the punishment cruel and unusual. (See e.g. State v. Hairston (Ohio 2008) 888 N.E.2d 1073, 1074, 1076, 1078-1079 [an aggregate prison term of 134 years, which resulted from the consecutive imposition of individual sentences on multiple convictions, was not cruel and unusual punishment where individual sentences were not grossly disproportionate to their respective offenses]; State v. Berger (Ariz. 2006) 134 P.3d 378, 379 [20 consecutive 10-year terms for possession of child pornography], 384 [Eighth Amendment is not violated merely because "a defendant faces a total sentence exceeding a normal life expectancy as a result of consecutive sentences"]; Byrd, supra, 89 Cal.App.4th at pp. 1382-1383 [fact that the defendant could not serve his sentence during his lifetime was immaterial because it was in effect a sentence of life without the possibility of parole (LWOP), which may be imposed in appropriate cases]; United States v. Mathison (8th Cir. 1998) 157 F.3d 541, 545, [defendant, who was found "guilty of conspiracy, mail fraud, and money laundering," was sentenced to a "lengthy" prison term], 551 [court rejected claim that the sentence constituted cruel and unusual punishment because it required the defendant to be in prison beyond his life expectancy]; United States v. O'Driscoll (10th Cir. 1985) 761 F.2d 589, 593 [a 300-year prison sentence, with a minimum 99-year term before parole eligibility], 599 ["A sentence of imprisonment for a very long term of years, the effect of which is to deny a prisoner eligibility for parole until a time beyond his life expectancy, does not violate the Eighth Amendment prohibition of imposition of cruel and unusual punishment. [Citation.]"]; see also People v. Haller (2009) 174 Cal.App.4th 1080, 1089-1090 [rejecting Justice Mosk's concurrence in DeLoza]; People v. Retanan (2007) 154 Cal.App.4th 1219, 1231 [same].) Defendant has not pointed to any authority suggesting that the Eighth Amendment dictates that an adult, noncapital offender have the possibility of parole during his natural life. (Cf. Graham v. Florida (2010) 560 U.S. 48, 75 ["The Eighth Amendment prohibits a State from imposing a life without parole sentence on a juvenile nonhomicide offender," but "it does not require the State to release that offender during his natural life."]; cf. also Miller v. Alabama (2012) 567 U.S. 460, 479 ["[T]he Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders"].)
In Lockyer v. Andrade (2003) 538 U.S. 63, a California prisoner argued that "two consecutive terms of 25 years to life [imposed under the Three Strikes law] for stealing approximately $150 in videotapes [was] grossly disproportionate in violation of the Eighth Amendment." (Id. at p. 70.) Apparently, the prisoner was "37 years old when sentenced." (Id. at p. 79 (dis. opn. of Souter, J.).) The dissenting justices agreed that the total sentence of 50 years to life amounted to a life sentence without parole. (Ibid.) The dissenting opinion remarked that "an 87-year-old man released after 50 years behind bars will have no real life left, if he survives to be released at all." (Ibid.) But, in a split decision, the Supreme Court concluded that no federal habeas relief was available because "it was not an unreasonable application of [its] clearly established law for the California Court of Appeal to affirm Andrade's sentence of two consecutive terms of 25 years to life in prison." (Id. at p. 77.)
"[A] sentence which is not otherwise cruel and unusual" does not "become[] so simply because it is 'mandatory.' [Citation.]" (Harmelin v. Michigan (1991) 501 U.S. 957, 995 (Harmelin).) "Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation's history." (Id. at pp. 994-995; id. at p. 1001 (Kennedy, J., concurring in part and concurring in judgment) ["The Eighth Amendment does not require strict proportionality between crime and sentence"].) Mandatory punishment of 15 years to life pursuant to section 288.7, subdivision (b), has been found to not be cruel or unusual under California's constitution. (People v. Baker (2018) 20 Cal.App.5th 711 [oral copulation of the defendant's six-year-old niece].)
One of the reasons that defendant's sentence is so lengthy is that he is committed multiple violations of section 288.7, subdivision (b), and was sentenced as a recidivist under the Three Strikes law, which resulted in a sentence that included five consecutive 30 years to life terms. "[T]he point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction." (Rummel v. Estelle (1980) 445 U.S. 263, 285 [upholding mandatory life sentence on felon for obtaining $120.75 by false pretenses]; cf. Ewing, supra, 538 U.S. at pp. 30-31 [upholding a Three Strikes sentence of 25 years to life in prison for felony grand theft])
Even assuming defendant's sentence was the functional equivalent of an LWOP sentence, "the second most severe [punishment] known to the law" (Harmelin, supra, 501 U.S. at p. 996), defendant has not demonstrated that his sentence constituted a cruel and/or unusual sentence under either the federal or state constitutions. (Cf. id. at pp. 994-996 [upholding mandatory LWOP sentence for first-time adult offender convicted of possessing 672 grams of cocaine against claim that it was " 'cruel and unusual' to impose a mandatory sentence of such severity" without considering mitigating factors]; Byrd, supra, 89 Cal.App.4th at pp. 1382-1383 [determinate term of 115 years, plus an indeterminate term of 444 years to life, imposed on Third Strike offender for multiple offenses did not inflict cruel and/or unusual punishment]; People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 528-532 [sentence of 129 years for committing multiple sex offenses against stepdaughter did not constitute cruel and/or unusual punishment].) Defendant has cited no binding authority establishing that the Eighth Amendment or California's Constitution categorically bars the imposition of a de facto LWOP sentence on an adult recidivist who is convicted of multiple felonies.
We are not persuaded by defendant's arguments that his sentence was cruel and/or unusual in the constitutional sense.
II
Case No. H043545
Defendant asserts that in case No. C1505628, he is entitled to presentence custody and conduct credits for the period from May 15, 2015 (the date of re-arrest following his escape) to October 30, 2015 (the date that he was sentenced in case No. C1478588). The People agree with defendant because presentence credit was withheld without prejudice in case No. 1478588.
At the time of sentencing in case No. C1478588, the court indicated that defendant was entitled to credit of 531 actual days and 79 days conduct credit under section 2933.1. For some undisclosed reason, and over defense counsel's objection, defendant asked to waive those credits. He then told the court, "I would like my custody credits to remain with me and not be applied to this case . . . ." The court initially responded, "All right. At least for right now that will be the order." The court subsequently indicated that it would not award any credits at that time pursuant to defendant's request, but it told defendant that the award of no credits was "without prejudice" and he could have the credits applied in that case if he "decide[d], after considering things, that [he] want[ed] to change [his] mind."
Under section 2933.1, "a person who spends time in presentence (including pretrial) confinement and is eventually convicted of a violent offense may earn, as a credit against his prison sentence, no more than 15 percent of the actual time he spent in presentence confinement, regardless of the offenses for which he was charged." (In re Reeves (2005) 35 Cal.4th 765, 774.) "[B]y its terms, section 2933.1 applies to the offender not to the offense and so limits a violent felon's conduct credits irrespective of whether or not all his or her offenses come within section 667.5." (People v. Ramos (1996) 50 Cal.App.4th 810, 817; see People v. Aguirre (1997) 56 Cal.App.4th 1135, 1141.) In other words, "the 15 percent limit applies to each offense of a defendant's entire prison term if any of the offenses for which he is sent to prison is violent." (People v. Nunez (2008) 167 Cal.App.4th 761, 765; see People v. McNamee (2002) 96 Cal.App.4th 66, 73.)
On January 19, 2016, defendant pleaded no contest to felony escape in exchange for a concurrent 32-month sentence (§ 4532, subd. (b)(1)) in case No. C1505628. He also admitted the Three Strikes allegation.
If a prison sentence is imposed under section 4532, subdivision (b)(1), it must be "served consecutive to any other sentence in effect." (§ 4532, subd. (d)(5).)
A probation officer's memorandum, dated March 11, 2016, prepared for sentencing in case No. C1505628 reflected that defendant had been arrested on May 15, 2015 and was "presently in custody." But it indicated that defendant had zero actual days of custody and was not entitled to any conduct credit under section 4019.
At the sentencing hearing on March 11, 2016, defense counsel requested that defendant's days in custody be credited against his sentence in case No. C1505628, referencing his waiver of credit in case No. C1478588. The court responded that defendant was not entitled to those credits. The court indicated that its disposition would be a consecutive 16-month term (one-third of the doubled mid-term of two years) due to a "strike" and that defendant could either withdraw his plea or be sentenced. (See §§ 4532, subd. (b)(1), (d)(5), 667, subds. (c)(8), (e)(1), 1170.12, subd. (c)(1).) As defendant wished to be sentenced, the court ordered him to serve a 16-month term for escape consecutive to the sentence imposed in case No. 1478588. It stated that "[t]he credits are zero due to the consecutive sentencing."
The abstract of judgment in case No. C1505628 stated the aggregate determinate term and the total sentence imposed in the current case and the prior case (case No. C1478588). It reflected zero credits. Since no credit was awarded in case No. C1478588 and it appears defendant was in presentence custody from the date of his original arrest in the oral copulation case until his escape and from the date of re-arrest until the date of sentencing in case No. C1478588, we will remand the matter to allow the trial court to determine the presentence custody and conduct credit to which defendant is entitled and correct the abstract of judgment. (See §§ 4019, 2900.5, subds. (a), (b), (d); 2933.1; see also § 1170.1, subd. (a); Cal. Rules of Court, rule 4.452; Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2017) § 14:3, pp. 14-5, 14-6.)
DISPOSITION
In case No H042977, the judgment is affirmed.
In case No. H043545, the judgment is reversed for the limited purpose of determining any presentence custody and conduct credit to which defendant is entitled. Upon remand, the trial court shall determine such credit and correct the abstract of judgment.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.