Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County. Super. Ct. Nos. 1100282, 1081756, & 1101620 Marie Sovey Silveira, Judge.
John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Harris, J., and Dawson, J.
On September 23, 2004, at approximately 1:51 p.m. appellant, Twanyo Mjumbuto Farmer, was driving a car traveling west on Hatch Road in Ceres at a speed of 60 to 70 miles per hour. A car driven by Stephanie Nilsson was traveling south out of a parking lot and attempted to make an unsafe turn eastbound onto Hatch Road. The vehicles collided, killing Nilsson and injuring her two daughters who were passengers in her car. Farmer had a .03 percent blood alcohol content when he was tested sometime after the accident (case No. 1081756).
On September 27, 2004, the district attorney filed a complaint charging Farmer with two counts of driving with a blood alcohol count of .08 or greater causing injury (counts III & V/Veh. Code, § 23153, subd. (b)), driving under the influence of alcohol causing injury (counts II & IV/Veh. Code, § 23153, subd. (a)), and one count each of vehicular manslaughter (count I/Pen. Code, § 191.5), driving while addicted to drugs (count VI/Veh. Code, § 23152, subd. (c)), and driving with a suspended license (count VII/Veh. Code, § 14601.1, subd. (a)). Count I also included a multiple victim enhancement (Veh. Code, § 23558).
Unless otherwise indicated, all further statutory references are to the Penal Code.
On October 19, 2004, the prosecutor amended count I to manslaughter with simple negligence (§ 192, subd. (c)(3)). Farmer pled no contest to the amended manslaughter charge and admitted the multiple victim enhancement attached to that count in exchange for a promise of no initial state prison time and up to one year in county jail. After Farmer entered his plea, the prosecutor dismissed counts II through V and count VII pursuant to the plea agreement and dismissed count VI for insufficient evidence. The court also released Farmer from custody with a Cruz waiver pending Farmer’s sentencing hearing.
People v. Cruz (1988) 44 Cal.3d 1247.
On November 22, 2004, the court sentenced Farmer to an aggregate term of two years four months, the mitigated term of 16 months on Farmer’s manslaughter conviction and a one-year multiple victim enhancement. It then suspended execution of sentence and placed Farmer on probation for five years on condition he serve 365 days in local custody.
On June 19, 2005, Farmer was released from custody.
On November 4, 2005, the Stanislaus County Auto Theft Task Force left a “bait” car equipped with a video camera parked and running in a convenience store parking lot in Ceres. At approximately 10:42 p.m. Farmer got in the car and drove off. He was stopped and arrested later that night in Modesto (case No. 1100282).
On November 12, 2005, Farmer was released from custody.
On November 18, 2005, someone took Moses Castellano’s Mitsubishi Lancer from where it was parked outside his house.
On November 30, 2005, a highway patrol officer arrested Farmer and a woman after finding them sleeping in Castellano’s Lancer at a rest stop in Turlock (case No. 1101620).
On January 25, 2006, in case No. 1100282 the district attorney filed an information charging Farmer with vehicle theft and alleging he had a prior conviction within the meaning of the three strikes law (§ 667, subds. (b)-(i)). In case No. 1101620 the district attorney filed an information charging Farmer with vehicle theft, receiving a stolen vehicle (§ 496, subd. (d)), and an on-bail enhancement. The information also alleged that Farmer had a prior conviction within the meaning of the three strikes law.
On March 21, 2006, in case No. 1100282 Farmer pled no contest to vehicle theft. In case No. 1101620 Farmer pled no contest to vehicle theft and receiving a stolen vehicle and admitted an on-bail enhancement (§ 12022.1). In both cases Farmer admitted allegations that he had a prior conviction within the meaning of the three strikes law (§ 667, subds. (b)-(i)). In case No. 1081756 the court found Farmer violated his probation by committing new offenses. Farmer was guaranteed a lid of six years on all three cases.
At a hearing on June 1, 2006, the following colloquy occurred:
“MR ORENSTIEN [DEFENSE COUNSEL]: Judge, Mr. Farmer requests appointment of counsel to attempt to withdraw his formerly entered plea.
“THE COURT: Is that your request, Mr. Farmer?
“DEFENDANT FARMER: Yes, ma’am.
“THE COURT: I’ll appoint Conflict [Counsel] Two to advise you about that I will -- I don’t have Mr. Perry here now so we’ll have to get the information to him. I’ll put it over for a week.”
On August 4, 2006, substitute counsel filed a motion to withdraw plea. In a supporting declaration, Farmer alleged that he entered a plea in case Nos. 1100282 and 1101620 because he felt defense counsel was not ready for trial.
On August 23, 2006, the court denied the motion, relieved substitute counsel, and reappointed Attorney Orenstein to represent Farmer during sentencing. It then sentenced Farmer to an aggregate term of six years: the mitigated term of 16 months on his auto theft conviction in case No. 1100282, doubled to 32 months because of Farmer’s strike conviction, a consecutive term of eight months for his vehicle theft conviction in case No. 1101620, doubled to 16 months because of Farmer’s strike conviction, a stayed term on his possession of stolen property conviction in that case and a two-year on-bail enhancement. The court also terminated Farmer’s probation in case No. 1081756. However, it did not impose sentence in that case. In case No. 1100282 the court awarded Farmer 399 presentence credits consisting of 267 days’ actual custody credit and 132 days of conduct credit. It did not award Farmer any presentence credit in case No. 1101620.
Following a review of the record in this matter, on November 19, 2007, this court sent a letter to the parties directing them to brief several issues that are discussed below.
The Trial Court Erred by its Failure to Impose Sentence in Case No. 1081756
The failure to pronounce sentence on all counts and enhancements results in an unauthorized sentence. (People v. Price (1986) 184 Cal.App.3d 1405, 1411, fn. 6.) Thus, the court imposed an unauthorized sentence on August 23, 2006, when it failed to impose sentence on Farmer’s voluntary manslaughter conviction and multiple victim enhancement in case No. 1081756.
Further, California Rules of Court, rule 4.435(b), in pertinent part, provides:
“On revocation and termination of probation under section 1203.2, when the sentencing judge determines that the defendant will be committed to prison: …
(2) If the execution of sentence was previously suspended, the judge must order that the judgment previously pronounced be in full force and effect and that the defendant be committed to the custody of the Secretary of the Department of Corrections and Rehabilitation for the term prescribed in that judgment.” (Accord, People v. Howard (1997) 16 Cal.4th 1081, 1088.)
Since the court suspended execution of sentence when it initially sentenced Farmer in case No. 1081756, it was required to lift the stay and impose that sentence when it revoked Farmer’s probation in that case. Moreover, since Farmer’s plea bargain provided for a lid of six years and he was sentenced to an aggregate six-year term in the two other cases, the suspended sentence in case No. 1081756 should have been imposed concurrent to the sentence he received in the two other cases in order to comply with the terms of Farmer’s plea bargain.
The Trial Court Erred in its Award of Presentence Custody Credit in Case No. 1081756
“[W]here an accused person is held in custody on a number of charges and upon conviction he is ordered to serve concurrent sentences, the time to be credited pursuant to section 2900.5 must be credited to each of them. [Citation.]” (People v. Schuler (1977) 76 Cal.App.3d 324, 330, fn. omitted.)
Farmer was in custody in case No. 1081756 for 27 days from September 24, 2004, through October 19, 2004, and 210 days from November 22, 2004, through June 19, 2005. He was also in custody in this case and on one or more of the other cases 276 days (9 days from November 4, 2005, through November 12, 2005, and 267 days from November 30, 2005, through August 23, 2006). If the court had imposed the aggregate two-year four-month sentence in case No. 1081756 concurrent to the aggregate term it imposed in the other two cases, Schuler would have required the court to award Farmer an additional 276 days of actual custody credit in that case. Thus, in case No. 1081756 the court should have awarded Farmer a total of 513 days of actual custody days (267 days + 9 days + 210 days + 27 days = 513 days) and 256 days of conduct credit (513 days/4 = 128.25 days; 128 days x 2 = 256 days) for a total of 769 days of presentence custody credit (513 days + 256 days = 769 days).
Respondent contends that in case No. 1081756 Farmer should not get credit for November 30, 2005, the date of Farmer’s arrest in case No. 1101620, through December 8, 2005, because according to the probation report he was not booked in case No. 1081756 until December 9, 2005. We disagree.
Farmer’s plea to the vehicle theft offense for which he was arrested on November 30, 2005, also constituted a violation of the probation granted in the earlier case and was relied on as a reason for revoking that probation. Accordingly, we conclude that Farmer was entitled to credit in case No. 1081756 for his days in custody between November 30, 2005, through December 8, 2005, because his arrest and conviction in case No. 1101620 had some connection to both cases. (Cf. People v. Galloway (1980) 107 Cal.App.3d 709, 712.)
Farmer’s Request for Appointment of Substitute Counsel to File a Motion to Withdraw Plea Did Not Trigger the Court’s Duty to Conduct a Marsden Hearing
Respondent contends defense counsel’s statement to the court that Farmer wanted to move to withdraw his plea did not trigger the court’s duty to conduct a Marsden hearing. We agree.
People v. Marsden (1970) 2 Cal.3d 118
“[A] trial court’s duty to permit a defendant to state his reasons for dissatisfaction with his attorney arises when the defendant in some manner moves to discharge his current counsel.” (People v. Lucky (1988) 45 Cal.3d 259, 281.) Since Farmer did not request that his attorney be relieved, or otherwise inform the court of his dissatisfaction with his attorney, the court did not err by its failure to conduct a Marsden hearing. Farmer asked for “appointment of counsel to attempt to withdraw his formerly entered plea,” and that is what he was given.
In People v. Smith (1993) 6 Cal.4th 684, however, the court held that “substitute counsel should be appointed when, and only when, necessary under the Marsden standard, that is whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation].” (Id. at p. 696, italics added.) Thus, we conclude the court erred when it appointed substitute counsel to represent Farmer in a motion to withdraw plea because Farmer did not show or even allege at that time that his counsel was providing ineffective representation. (Cf. People v. Eastman (2007) 146 Cal.App.4th 688, 695-698 [where defendant did allege incompetence of counsel as basis of motion to withdraw plea, trial court erred in appointing substitute counsel rather that conducting Marsden motion].)
The court may also have erred when it reappointed Attorney Orenstein after denying Farmer’s motion to withdraw his plea. In People v. Smith, supra, 6 Cal.4th 684, the court disapproved of a procedure whereby “a series of attorneys [is] appointed at public expense” in order to accuse their predecessors of incompetence. (Id. at p. 695.) The court criticized “the appointment of simultaneous and independent, but potentially rival, attorneys to represent [a] defendant.” (Ibid.) In Eastman, this court agreed. (People v. Eastman, supra, 146 Cal.App.4th at p. 698.)
Because appointment of substitute counsel here resulted in Farmer receiving a second attorney who did assist him in filing a motion to withdraw his plea and thus made a record of his complaints, however, we conclude that the court’s error in appointing second counsel did not prejudice Farmer. (See People v. Eastman, supra, 146 Cal.App.4th at p. 696 [reversal required where no record made of defendant’s complaints about attorney or of basis for desire to withdraw plea]; cf. People v. Dickey (2005) 35 Cal.4th 884, 920-921 [court stated with respect to defendant for whom substitute counsel was erroneously appointed, “[a]s his expressed wishes were honored, he has no grounds for complaint”].) Further, it appears that any error in reappointing Attorney Orenstein to represent Farmer for sentencing was harmless beyond a reasonable doubt since Farmer was sentenced to a six-year term in accord with his negotiated plea.
DISPOSITION
The judgment is modified to lift the stay of execution imposed on the aggregate sentence of two years four months imposed in case No. 1081756 and that term is to run concurrent to the aggregate term of six years imposed in the two other cases. The judgment in case No. 1081756 is also modified to award Farmer 769 days of presentence custody credit as calculated above. The trial court is directed to issue an amended abstract of judgment that incorporates these changes and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgments in all three cases are affirmed.