Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super. Ct. No. FNE004046. Joseph R. Brisco, Judge. Affirmed with directions.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant and appellant John Manuel Fragoso appeals following the revocation and termination of his probation. He seeks a remand for resentencing because he contends the trial court violated his constitutional right to be represented by counsel at his sentencing hearing. He also argues the trial court imposed an aggravated prison term based on improper factors. Because he believes the record shows the trial court was biased against him, defendant requests to be resentenced by a different judge under section 170.1, subdivision (c), of the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
Pursuant to a written plea agreement, defendant pled guilty on September 2, 2005, to attempted second degree commercial burglary (Pen. Code, §§ 664, 459) and was granted probation for a period of three years, subject to various terms and conditions. In part, the conditions of defendant’s probation required his participation in a drug court rehabilitation program, prohibited his use or possession of drugs, and compelled him to remain in California unless he had prior written permission from his probation officer.
After probation was granted, defendant appeared before the court on five separate occasions because he violated the terms and conditions of his probation. First, on September 7, 2005, shortly after probation was granted, defendant admitted violating his probation based on a positive drug test. Probation was reinstated on the same terms and conditions.
Second, on November 30, 2005, based on a positive drug test, the court found defendant violated his probation. His probation was continued, but he was ordered to spend 10 days in jail and report to the drug court clinic immediately upon his release.
Third, on December 7, 2005, the court found defendant violated his probation by failing to report to the drug court program after being released from jail, revoked his probation, returned him to jail, and set a hearing on the alleged probation violation for December 15, 2005. On December 15, 2005, defendant admitted the violation, and his probation was reinstated on the original terms and conditions.
Fourth, on April 13, 2007, a bench warrant was issued because defendant allegedly violated condition No. 3 of his probation by leaving California without prior permission from his probation officer. On April 16, 2007, defendant admitted the violation. Although probation was reinstated at this time, defendant was ordered to serve 180 days in jail. However, on August 15, 2007, the court ordered defendant “back into phase 1” of the drug court program “instead of serving the remainder of [his] jail sentence.”
Fifth, on September 8, 2008, defendant admitted a second violation of condition No. 3 of his probation by leaving California (i.e., gambling in Laughlin) without prior permission from his probation officer. As a result, defendant was remanded into custody and terminated from the drug court program. On September 23, 2008, the court terminated probation and sentenced defendant to the upper term of one year six months in state prison.
DISCUSSION
Right to Counsel at Sentencing
Defendant argues and the People concede that the trial court improperly removed the public defender as defendant’s attorney, and as a result, defendant was unrepresented by counsel at the time he was sentenced. Both parties request a remand for resentencing. We agree.
Both parties have represented no transcript is available for the hearing held September 8, 2008. The only available information for this hearing is in the court’s minutes. According to the minutes, defendant waived his right to a formal hearing, admitted a probation violation, and was terminated from the drug court program. The court referred the matter to the probation department for a presentence investigation report. In addition, the minutes state the court appointed a public defender to represent defendant. However, the minutes indicate that “later” on the same day, the court essentially reversed itself and relieved the public defender. The minutes state, “Court finds defendant is not indigent and does... not qualify for appointed counsel. Public Defender is relieved.... Defendant to retain own counsel.” A sentencing hearing was set for September 23, 2008.
In the presentence investigation report, the probation officer recommended supervised probation be continued for one year, with defendant spending 365 days in jail. At the sentencing hearing on September 23, 2008, defendant was present with the public defender. The court asked defendant whether he retained counsel, and he said, “No, I didn’t, Your Honor. I can’t afford one. I received and read the probation report and... the Court willing, that would be fine with me. If the Court is not willing, I think I need to retain legal assistance, and I’d like to have a public defender.” The court responded, “I told you, you’re not eligible for a public defender. You own a home. Your wife has her own business. You are not indigent.” When the public defender attempted to speak, the court said, “[P]lease have a seat. You do not represent this gentleman.” The public defender responded, “I have been asked to represent him.” The court told the public defender, “I’m going to hold you in contempt of court if you continue to argue with me. Sit down.”
“A criminal defendant has a constitutional right to counsel at all critical stages of a criminal prosecution, including sentencing.” (People v. Doolin (2009) 45 Cal.4th 390, 453.) “If a defendant cannot afford to hire an attorney, one must be appointed for the defendant.” (People v. Smith (1993) 6 Cal.4th 684, 690.) In Mempa v. Rhay (1967) 389 U.S. 128, 134-137, the United States Supreme Court indicated that a reversal and remand is the appropriate remedy when a defendant is deprived of his constitutional right to counsel at the time of sentencing. (But see United States v. Crawford (8th Cir. 2007) 487 F.3d 1101, 1103 [concluding harmless error analysis is appropriate when there is no effective waiver of the right to counsel at sentencing but the trial court lacks authority to impose a more lenient sentence than the defendant received and there is “nothing any attorney could have done to achieve a more favorable result”].)
Once a trial court has formally appointed an attorney to represent the defendant, the court cannot later remove the attorney on the grounds of financial ineligibility without the defendant’s consent. (Roswall v. Municipal Court (1979) 89 Cal.App.3d 467, 475.) “At that point the court’s sole remedy for enforcing a financially able defendant’s burden of paying the cost of counsel [would] be a hearing into the matter at the conclusion of the criminal proceedings, as provided for in Penal Code section 987.8.” (Ibid.)
The court’s minutes for September 8, 2008, clearly state, “Count appoints Public Defender.” In other words, there was a formal appointment of the public defender at the outset of the hearing on the alleged probation violation. The court’s minutes indicate that later the same day, the court removed the public defender on grounds of financial ineligibility. However, because there was a formal appointment, the court lacked authority to remove appointed counsel on the grounds of financial ineligibility prior to sentencing. If the court had reason to believe defendant was not financially eligible to be represented by the public defender, its remedy was to set the matter for a hearing on this issue after defendant was sentenced. Although appointed counsel was present at the sentencing hearing and was willing to represent defendant, the court precluded him from doing so because of its prior order relieving him as defendant’s attorney. This violated defendant’s constitutional right to counsel at sentencing. We therefore agree with the parties that a remand for resentencing is appropriate.
Citing rule 4.435(b)(1) of the California Rules of Court, defendant also argues the trial court relied on improper factors in imposing the upper term. Because we are remanding the matter for resentencing, it is unnecessary for us to address this argument. Instead, defendant can raise this argument in the trial court at the time of resentencing.
Judicial Bias
Citing Code of Civil Procedure section 170.1, subdivision (c), defendant requests to have any further proceedings heard by a different judge. He believes the record shows a reasonable person would doubt the court’s ability to be impartial because the judge displayed feelings of animosity toward defendant and the public defender who was appointed to represent him.
Code of Civil Procedure section 170.1, subdivision (c), states as follows: “At the request of a party or on its own motion an appellate court shall consider whether in the interests of justice it should direct that further proceedings be heard before a trial judge other than the judge whose judgment or order was reviewed by the appellate court.”
“With respect to sentencing error in particular, ‘the statutory power of appellate courts to disqualify sentencing judges should be used sparingly and only where the interests of justice require it.’ [Citation.]” (Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1256.) “The interests of justice require it, for example, where a reasonable person might doubt whether the trial judge was impartial [citation], or where the court’s rulings suggest the ‘whimsical disregard’ of a statutory scheme.” (Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 303.) For example, the defendant in People v. Enriquez (2008) 160 Cal.App.4th 230, was placed on probation under Proposition 36, which generally gives substance abuse probationers several chances before a court can terminate probation and impose a prison sentence. During a hearing to revoke defendant’s probation, the judge made a number of derogatory remarks on the record, which displayed an “unabashed animosity toward Proposition 36, and particularly toward those defendants... who are unable to complete Proposition 36 probation without a violation.” (People v. Enriquez, at p. 244.) The appellate court therefore concluded the judge’s comments on the record gave “rise to a reasonable doubt about whether he [could] be impartial in this case.” (Ibid.) As a result, it ordered the case remanded to be heard before a different judge. (Id. at pp. 244-245.) Erroneous rulings, without more, are not enough to justify the removal of a trial judge from further proceedings in a case. (Blakemore v. Superior Court (2005) 129 Cal.App.4th 36, 59-60.)
In our view, the court did not display a level of bias or animosity toward defendant which would cause us to doubt its ability to be impartial at the time of resentencing. Rather, the record simply reflects an erroneous procedural ruling and possibly a bit of frustration because defendant was before the court for the fifth time on a violation of his probation. Under these circumstances, the interests of justice do not require this case to be heard by a different judge on remand.
DISPOSITION
The case is remanded for the limited purpose of resentencing defendant in a manner consistent with this opinion. The judgment is affirmed in all other respects.
We concur: HOLLENHORST, J., MILLER, J.