Opinion
A168749 A168578
09-13-2024
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY DAVON CHARLES FRAZIER, Defendant and Appellant.
NOT TO BE PUBLISHED
Napa County Super. Ct. No. 19CR003600.
STEWART, P.J.
This is the second appeal in this case. In the first appeal, the courtaffirmed defendant Anthony Davon Charles Frazier's six felony convictions related to domestic violence. (See People v. Frazier (Mar. 30, 2023, A162658) (Frazier I) [nonpub. opn.].) The matter was remanded to the trial court for resentencing in light of a legislative amendment to Penal Code section 654.Frazier now appeals from the resentencing, arguing he received ineffective assistance of counsel at his resentencing hearing. We conclude Frazier has not met his burden of establishing ineffective assistance of counsel on direct appeal. Thus, we affirm.
The first appeal was before our colleagues in Division One of this judicial district. The case was later transferred to this division. On our own motion, we take judicial notice of the opinion, briefs, and record filed in Frazier I, supra, A162658.
All further statutory references are to the Penal Code.
On Frazier's motion, we consolidated the appeals in case Nos. A168578 and A168749. This appeal relates only to the order appealed in case No. A168578. Case No. A168749 pertains to the trial court's denial of Frazier's motion for relief pursuant to the California Racial Justice Act of 2020 (Pen. Code, § 745); Frazier does not challenge the latter ruling in his briefs in this consolidated appeal.
Because this is an appeal from resentencing, a detailed factual background is unnecessary. The full factual background can be found in the court's prior nonpublished opinion, Frazier I, supra, A162658.
I.
Prior Appeal
Frazier and Jane Doe married in December 2017. Soon after being married, Frazier began assaulting Doe. Over the next year, Doe was physically and emotionally abused by Frazier. The physical abuse included strangulation to the point of unconsciousness. In various incidents, Frazier strangled Doe with a scarf she was wearing and dragged her into the car by it, punched her in the face, head, and stomach, attacked her in a vehicle and in her bed, grabbed her by the throat and lifted her off the ground, and placed her in a chokehold. During one of the assaults, Doe was pregnant and partially miscarried. (Frazier I, supra, A162658.)
A jury convicted Frazier of kidnapping (count 1), making a criminal threat (count 2), and four counts of corporal injury to a spouse (counts 3, 5, 7, and 8). Frazier admitted a prior serious felony conviction of forcible rape and admitted that prior conviction was alleged as a prior strike. (Frazier I, supra, A162658).
The court sentenced Frazier to 22 years, 4 months in prison. This included the midterm of five years for the principal term (count 1; kidnapping) doubled for the prior serious felony conviction. The court selected the midterm based on the facts of the case and Frazier's prior performance on parole, which included three parole violations. Additionally, the court noted" 'this offense and the prior offense both involve significant acts of violence against women.'" (Frazier I, supra, A162658.) The court imposed the midterm of two years for count 2, doubled to four years, to run concurrent to the other counts. The court imposed consecutive two-year terms for counts 5, 7 and 8 (one-third the midterm, doubled because of the strike), because those counts involved" 'separate acts of violence on separate occasions.'" (Frazier I, supra, A162658.) The court imposed, but stayed pursuant to section 654, the midterm of three years on count 3. Finally, as to count 7, the court imposed a 16-month consecutive term for the great bodily injury allegation. (Frazier I, supra, A162658.) The court also imposed five years for the enhancement under section 667, subdivision (a) for having previously been convicted of a serious felony.
After sentencing, "the Governor signed into law [Assembly Bill No.] 518 [(2021-2022 Reg. Sess.)], effective January 1, 2022 [(Assembly Bill 518)]. [Assembly Bill 518] amended Penal Code section 654, subdivision (a) to provide, in pertinent part: 'An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.' (Italics added.) Previously, where . . . section 654 applied, the sentencing court was required to impose the sentence that 'provides for the longest potential term of imprisonment' and stay execution of the other term. (Pen. Code, § 654, former subd. (a).) As amended by [Assembly Bill 518], . . . section 654 now provides the trial court with discretion to impose and execute the sentence of either term, which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence." (People v. Mani (2022) 74 Cal.App.5th 343, 379.)
Both parties agreed Assembly Bill 518 applied retroactively, and therefore, the court had discretion to stay count 1 instead of count 3. (People v. Mani, supra, 74 Cal.App.5th at pp. 379-380.) However, the parties disagreed on whether remand was necessary. (Frazier I, supra, A162658.)
The People argued remand was not appropriate" 'because the trial court would not have exercised its discretion to stay appellant's sentence on any other counts.'" (Frazier I, supra, A162658.) According to the People, both the trial court's comments and its refusal to exercise" 'its sentencing discretion indicate[d] that in the event of a remand, it would not exercise its discretion to stay any count other than count 3.'" (Ibid.) Respondent noted defense counsel asked the court to impose the"' "lowest sentence the Court is willing to do," '" but the court" 'instead chose to impose the middle term on every count.'" (Ibid.) Further, the court categorized Frazier's" 'attacks on . . . Doe'" as"' "frankly vicious and gratuitous," '" denied Frazier's Romero motion, and declined to exercise its discretion to strike the five-year enhancement under section 1385. (Frazier I, supra, A162658.)
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The court in Frazier I was not persuaded that remand would be futile. Although the trial court declined to exercise its discretion to strike Frazier's prior strike offense or to strike the five-year enhancement and described Frazier's conduct as" 'frankly vicious and gratuitous,'" the court did not impose the upper term on any count. (Frazier I, supra, A162658.) Thus, the Frazier I court concluded the record did not clearly indicate remand would be futile. (Cf. People v. Flores (2020) 9 Cal.5th 371, 431-432 [record clearly indicated remand to strike a firearm enhancement would be futile given trial court "explicitly said it thought it 'just[]' for defendant to receive a death sentence-the most severe sentence available under California law"].) (Frazier I, supra, A162658.)
II.
Resentencing
On remand, Frazier was represented by a different attorney. At the hearing, defense counsel noted Frazier, since being at the state prison, had been diagnosed with bipolar disorder. Counsel explained he had not had an opportunity to subpoena Frazier's medical records. Counsel, who appeared over Zoom, was "breaking up a little bit," added "[i]f the Court is inclined to consider that, but to see that, then I would ask for-the Court's indicating that putting the matter over-" The court replied, "I think really the return from the Court of Appeal is for a fairly limited purpose, which has to do with the amendment of Penal Code section 654 and the fact that the Court has currently greater discretion in terms of selecting the term." Following an off-the-record discussion, the court asked counsel how much time he needed to brief and/or argue the section 654 issue. Counsel indicated he was prepared to argue the issue that day.
Defense counsel argued that between count 1 and count 3, which occurred on the same day, the assault charged in count 3 was "more egregious" than the kidnapping charged in count 1. Counsel asserted "now that the Court has discretion, I think it should exercise and impose Count Three instead of [Count One]." In response, the People argued the kidnapping was the more egregious of the two charges and was "an integral part of the assault" charged in count 3. Further, the People pointed out the trial court had originally imposed the middle term on count 1, and "that is indicative of what the Court may have been thinking as far as what the punishment should be in this case."
The trial court ruled, "with regard to the remittitur issue with regard to Penal Code section 654, that the Court declines to modify its sentencing decision, notwithstanding the change in the law. Even though the change had existed at the time of the sentencing in this case, the Court would impose the sentencing on the kidnapping charge as opposed to the Count Three, which was the domestic violence charge, which was related to that particular day." The court further maintained that "in balancing all the factors," "it seemed that the midterm on Count One was appropriate. But in any event, given the defendant's background, the particular facts of this case, which were indeed quite serious, the Court elects to impose the sentence on the charge in Count One."
Given that the changes in section 654 took effect after the initial sentencing, it is likely the court meant to say, "Even had the change existed at the time of the sentencing in this case ...."
DISCUSSION
Frazier argues the case should be remanded for resentencing because defense counsel provided ineffective assistance by failing to obtain medical records pertaining to his recent bipolar disorder diagnosis before proceeding with the resentencing. According to Frazier, there is no conceivable tactical reason for failing to obtain the records before proceeding with resentencing in light of the likelihood those records would have provided a factor in mitigation pursuant to California Rules of Court, rule 4.423(b)(2).
California Rules of Court, rule 4.423 (b)(2) relates to whether "[t]he defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime ...."
The standard for determining ineffective assistance of counsel is well established. A defendant must demonstrate that (1) the attorney's performance fell below an objective standard of reasonableness based on prevailing professional norms, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694 (Strickland).) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Id. at p. 694.) The burden of proving a claim of ineffective assistance of counsel, including the burden of proving prejudice, is "squarely upon the defendant." (People v. McCoy (2013) 215 Cal.App.4th 1510, 1527; see People v. Montoya (2007) 149 Cal.App.4th 1139, 1146-1147.)
We must presume that trial counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions. (People v. Holt (1997) 15 Cal.4th 619, 703.) "On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
"The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." (Strickland, supra, 466 U.S. at p. 688.) "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" (Id. at p. 689.) "Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile." (People v. Price (1991) 1 Cal.4th 324, 387.)
Frazier contends there can be no satisfactory explanation for counsel's failure to request a continuance of the resentencing hearing to obtain his medical records. The record, however, fails to negate the possibility that counsel made a strategic decision not to do so. The court's comments suggested it did not believe the issue was within the purposes for which the court had remanded the case and that it was not inclined to continue the resentencing hearing to address a newly raised issue.
In any event, even assuming for the sake of argument that defense counsel's failure to request a continuance fell below prevailing norms, on the record before us we cannot conclude Frazier was prejudiced by the decision to proceed with resentencing. The resentencing judge presided over the initial sentencing and was well acquainted with Frazier's criminal history and the serious nature of the current charges. The record reflects there were numerous factors in aggravation (Cal. Rules of Court, rule 4.421 (a)(1), (a)(3), (a)(11), (b)(1)-(5)) at the time of the original sentencing, while no mitigating factors were indicated. The court carefully considered these factors at the time of the original sentencing when it imposed the mid-term on all counts and again when it revisited the sentence on remand. On this record, we cannot conclude there is a reasonable probability Frazier would have obtained a more favorable sentence had counsel presented evidence of his recent bipolar diagnosis at the time of resentencing. (See Strickland, supra, 466 U.S. at p. 694.)
Accordingly, we conclude Frazier has not met his burden on appeal of establishing he received prejudicial ineffective assistance of counsel at the time of resentencing. (See People v. McCoy, supra, 215 Cal.App.4th at p. 1527.)
DISPOSITION
The judgment is affirmed.
We concur. RICHMAN, J., MILLER, J.