Opinion
NOT TO BE PUBLISHED
Super. Ct. No. PA050395-01 Los Angeles County, Robert J. Schuit, Judge
Sylvia Whatley Beckham, 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, Victoria B. Wilson, Supervising Deputy Attorney General, Noah P. Hill, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Appellant Christopher Ivan Dunlap was convicted by jury of possession of cocaine base for sale (Count 1; Health & Saf. Code, § 11351.5) and transportation of cocaine. (Count 2; Health & Saf. Code, § 11352, subd. (a).) He admitted the allegations that he had suffered two prior convictions within the meaning of the Three Strikes law (Pen. Code §§ 667, subds. (b)-(i); 1170 subds. (a)-(d)) and served seven prior prison terms. (§ 667.5, subd. (b).)
All further statutory references are to the Penal Code.
The trial court imposed a sentence of 12 years in state prison, consisting of the upper term of 5 years on count 1, doubled pursuant to the Three Strikes law, plus two consecutive one-year prior prison term enhancements. The trial court dismissed the remaining strike allegation, and stayed imposition of punishment in count 2 pursuant to section 654.
The trial court granted the People's motion to strike one of the two strike allegations.
Appellant, represented by the public defender, waived his right to a preliminary hearing. He became dissatisfied with his counsel and pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), made a motion, which the court denied. Appellant next moved to withdraw his waiver, which the court also denied. He subsequently retained private counsel who represented him at trial.
Following the trial, appellant filed a motion for a new trial based on the ineffective assistance of counsel. At the hearing on the motion, appellant requested the court to discharge his retained counsel, but his request was denied. We conditionally reverse and remand to allow appellant an opportunity to obtain new counsel for the purpose of arguing his new trial motion.
FACTS
Los Angeles City Police Officers Brad Kolfschoten and Wilcer Godoy were on patrol in a marked police car. At approximately 1:45 a.m., they were near Van Nuys Boulevard and Herrick Street in Los Angeles County, an area known for narcotic sales and gang activity.
It was raining and the officers noticed a Volkswagen Cabriolet several car-lengths ahead, traveling about 50 mph in a 35 mph zone. It had no rear license plate. The car made a sharp right turn and pulled into a gas station. The officers activated the lights and the siren and pulled in behind it. Appellant stepped out of the car. Officer Godoy asked why he had no rear license plate, and appellant said the car belonged to his girlfriend, who was in the process of getting it registered. The officers ran the vehicle identification number and found that the owner's name matched the name appellant had given to them.
Officer Godoy asked if he could search appellant who responded, "Go ahead officer. I don't have anything." Godoy recovered a glass crack pipe from appellant's left front jacket pocket. In his inner right jacket pocket Godoy found three loose pieces of rock cocaine totaling approximately 6.74 gross grams. An expert later testified that this was the equivalent of about 67 doses. Godoy handcuffed appellant and Officer Kolfschoten asked if he could search the car. Appellant gave his consent. Kolfschoten found a digital scale inside a small handbag in the front passenger seat. The officers asked appellant what he would like done with the car and he asked that it be legally parked on the street.
Appellant was transported to the police station. Officer Godoy read appellant his Miranda rights and he indicated he understood them. Godoy asked if he would like to talk about what happened and appellant responded that he purchased the cocaine for $140 and could "double up" the rocks and make money off them. He told Godoy they were good quality and explained that "double up" means to "cut [up] and resell for more quantity."
Trial Testimony
Officers Kolfschoten and Godoy testified at trial that the term "double up" could mean the act of doubling the quantity or doubling the price of the narcotics. Los Angeles Police Detective John Ray was assigned to the Narcotics Enforcement Detail. It was Detective Ray's opinion that a person who uses rock cocaine might also sell it in order to support his habit. In response to a hypothetical, the detective indicated that a person possessing 6.74 gross grams of cocaine did not possess it solely for personal use.
Waiver of Preliminary Hearing
On February 22, 2005, appellant appeared at the preliminary hearing with the public defender, Peter E. Oliverez. The court advised him that he had the right to a preliminary hearing, and in order to hold him to answer, the prosecutor must prove that the alleged offenses had occurred and appellant was criminally responsible. The court informed him that he would be permitted to confront his accusers, present a defense and subpoena witnesses. Appellant indicated that he wished to waive his right to the preliminary hearing, and the court accepted his waiver.
On March 8, 2005, appellant was arraigned and entered a plea of not guilty. He requested that another attorney be appointed, and the court held a Marsden hearing. Appellant indicated he was dissatisfied with appointed counsel because he had advised him to waive his right to a preliminary hearing. Appellant stated that counsel told him that it would simply be a Proposition 115 hearing in which a police officer would read the contents of the police report and appellant would then be bound over for trial.
The adoption of Proposition 115 amended the Penal Code to create a limited form of preliminary hearing. (People v. Herrera (2006) 136 Cal.App.4th 1191, 1203.) It now serves merely to determine whether probable cause exists to believe that the defendant has committed a felony and should be held for trial. (Correa v. Superior Court (2002) 27 Cal.4th 444, 452.) A finding of probable cause may be based on sworn testimony of law enforcement officers relating hearsay statements, if the testifying officer has the requisite experience and training specified in the statute. (See Pen. Code, § 872, subd. (b).)
Appellant told the trial court that he waived his right to the preliminary hearing because he believed he would not have an opportunity to cross-examine witnesses. After waiving the hearing, the public defender advised appellant that, had there been a preliminary hearing, he would have cross-examined the testifying officer. Appellant argued that he should have been allowed to cross-examine the officer to show that the police had lied about something that occurred at the police station.
The trial court told appellant that defense counsel would not have had an opportunity to cross-examine all the officers in the case, only the testifying officer. The court concluded that, although appellant and defense counsel had disagreed, there was not a breakdown entitling appellant to a new lawyer. The Marsden motion was denied.
DISCUSSION
Motion to Withdraw Waiver of Preliminary Hearing
On April 21, 2005 appellant appeared with private retained counsel, Paul Beckstein. The court permitted the substitution of counsel and continued the matter so that Beckstein could seek withdrawal of appellant's waiver of his right to the preliminary hearing.
Appellant filed an application to withdraw his waiver, which the court denied, noting that it did not include any supporting declarations. The court indicated that appellant's waiver had been knowing and voluntary and concluded that there was no valid ground upon which to grant the application. Appellant filed a motion for reconsideration, this time including his declaration. The application was again denied.
Appellant contends the trial court abused its discretion when it denied his Marsden motion for substitution of appointed counsel. He contends that, although appointed counsel made a tactical decision in waiving the preliminary hearing, his decision was based on the "faulty understanding" that there would be no opportunity to cross-examine the officers who were "directly involved" in the search and seizure of cocaine from appellant's person.
We review the trial court's ruling on a Marsden motion for an abuse of discretion and will not reverse it "unless the failure to remove appointed counsel and appoint replacement counsel would 'substantially impair' the defendant's right to effective assistance of counsel." (People v. Roldan (2005) 35 Cal.4th 646, 681; People v. Smith (2003) 30 Cal.4th 581, 604.) A defendant claiming ineffective assistance of counsel must establish that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms and that there is a reasonable probability that the outcome would have been different absent counsel's ineffective representation. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Quinn (2001) 86 Cal.App.4th 1290, 1295.)
A defendant is entitled to substitution of appointed counsel "upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. [Citations.]" (People v. Jones (2003) 29 Cal.4th 1229, 1244-1245.) Disagreements about tactical matters do not amount to inadequate representation, nor do they constitute an irreconcilable conflict. (People v. Dickey (2005) 35 Cal.4th 884, 922; People v. Welch (1999) 20 Cal.4th 701, 728-729.)
The public defender's advice that appellant waive his right to the preliminary hearing was a tactical decision, in light of the overwhelming evidence of appellant's guilt. Appellant was found in possession of loose rocks of cocaine and a glass pipe. A digital scale was recovered from the car he was driving. He waived his Miranda rights and admitted that he purchased the cocaine for $140, it was high quality and he intended to resell it. The public defender's advice regarding waiver was reasonable. The court did not abuse its discretion in denying appellant's Marsden motion.
New Trial Motion Claiming Ineffective Assistance of Counsel
The only issue at trial was whether appellant possessed the cocaine for possession or for purposes of sale. After the jury rendered its verdict, appellant filed a motion for a new trial based on the ineffective assistance of counsel.
In his new trial motion, Beckstein argued that the prosecution raised a "new theory" when Detective Ray testified that the amount of the cocaine possessed by appellant, standing alone, was sufficient to indicate possession for sale. Appellant claimed that Beckstein's representation was ineffective because he "made no objection or attempt[ed] to stop this new theory." Appellant attached the declaration of Steven Strong, a former police officer, who would have offered his opinion that possession of 6.5 grams of rock cocaine is not inconsistent with personal use. At the hearing on the new trial motion, Beckstein asked to be permitted to argue grounds for a new trial that were outside his written motion and indicated that appellant wanted a new attorney.
The court stated that it would conduct a Marsden hearing and asked appellant whether he believed Beckstein could effectively argue the new trial motion. Appellant answered, "No." After further inquiry, the court concluded that it did not appear that appellant and Beckstein had irreconcilable differences. It ruled that Beckstein could continue to represent appellant and indicated that it would allow Beckstein to amend the new trial motion.
The trial court erred in denying appellant's request to discharge Beckstein. A defendant may discharge retained counsel without showing an impairment of his right to counsel. (People v. Ortiz (1990) 51 Cal.3d 975, 987.) The erroneous denial of a motion to discharge retained counsel is reversible per se: "The right to counsel of choice is one of the constitutional rights basic to a fair trial. Accordingly, it is clear that a criminal defendant need not demonstrate prejudice resulting from a violation of that right in order to have his conviction reversed." (Id. at p. 988.) However, a court has discretion to deny a motion to discharge private retained counsel "if it is not timely." (Id. at p. 983.)
Here, appellant requested the court to discharge Beckstein at the outset of the hearing on the new trial motion. His request was timely and concerned Beckstein's ability to prepare and argue the motion. Appellant is entitled to the opportunity to retain new counsel or request the court to appoint counsel for the purpose of arguing a new trial motion.
Imposition of Upper Term
Appellant argues that the trial court erred by imposing the upper term. At the sentencing hearing, the prosecutor argued that the high base term was appropriate because the aggravating circumstances were that appellant had been to prison for at least six different commitments; he was on parole at the time of his offense and there were no circumstances in mitigation.
The trial court agreed with the prosecution's position, indicating that it "mirrored the probation officer's analysis as well, and that is that [appellant's] prior convictions are numerous. [Appellant] was also on parole at the time of the commission of the crime, and I think the court is justified in sentencing [appellant] to the high term as opposed to the mid term."
The Supreme Court has recently held that, when a trial court exercises discretion to select the upper term sentence based on facts found by the court, the defendant's right to a jury trial is not violated. (People v. Black (2007) 41 Cal.4th 799, 816.) "[I]mposition of the upper term does not infringe upon the defendant's constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions." (Ibid.)
Here, the trial court cited as a circumstance in aggravation that appellant's "prior convictions are numerous." Because at least one aggravating circumstance relied upon by the trial court was justified based upon appellant's record of prior convictions, the imposition of the upper term did not infringe upon appellant's constitutional right to jury trial. (People v. Black, supra, 41 Cal.4th at p. 816.)
DISPOSITION
We conditionally reverse the judgment and remand the matter with the following directions: (1) the trial court shall hold a hearing to allow appellant the opportunity to request a reasonable continuance to retain private counsel or apply for the appointment of counsel upon an adequate showing of indigence; (2) if newly retained or appointed counsel determines there is a basis for a new trial motion, the court shall consider and decide that motion; (3) if counsel does not move for a new trial, or such a motion is denied, the court shall reinstate the original judgment and sentence which shall stand affirmed.
We concur: GILBERT, P.J., YEGAN, J.