Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court No. SWF014372 of Riverside County. Eric G. Helgesen and Eugene L. Huseman. Judges.
Retired judge of the Tulare Municipal Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Retired judge of the Santa Barbara Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Anna M. Jauregui, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Stephanie H. Chow, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Gaut, J.
1. Introduction
Defendant appeals from judgments in two cases. One case (case No. 14372) involves his convictions by a jury for two drug-sales offenses. Another case (case No. 7153) involves a probation revocation. The court sentenced defendant to six years in prison on the drug-sales case and one year on the probation revocation. In his appeal of the first case, defendant raises issues about a Marsden hearing and the sentencing. In the second appeal, defendant challenges the three fines imposed by the court.
People v. Marsden (1970) 2 Cal.3d 118.
Both parties agree the abstract of judgment in case No. 14372 should be corrected to show defendant was convicted by a jury instead of entering a plea of guilty. They also agree the abstract of judgment in case No. 7153 should be corrected to show the one-year sentence was imposed concurrently with the six-year sentence in case No. 14372.
We order the two abstracts of judgment to be corrected. Otherwise, we affirm the judgment but remand for the trial court to exercise the discretion conferred by Welfare and Institutions Code section 3051 and to clarify the imposition of fines under Penal Code sections 1202.4, 1202.44, and 1202.45.
2. Factual and Procedural Background
In case No. 7153, defendant was charged by information with four drug- or vehicle-related offenses committed on March 10, 2004. (Health & Saf. Code, §§ 11550, subd. (b), 11379, subd. (a); Veh. Code §§ 14601.1, subd. (a), 23152, subd. (a).) A police officer had stopped defendant while he was driving a car under the influence of methamphetamine with a suspended license. He pleaded guilty to three counts and received probation for three years. His probation was eventually revoked.
In case No. 14372, defendant was charged by information with two drug-sales offenses committed on September 2, 2005. (Health & Saf. Code, §§ 11359, 11378.) During a police search of defendant’s residence pursuant to a warrant, defendant admitted he was selling methamphetamine and marijuana and the police found evidence of the same. The trial evidence fully supported defendant’s admissions but the details are not particularly pertinent to the issues on appeal. A jury convicted him.
Ultimately, the two cases were sentenced together.
3. Marsden Hearing
The Marsden hearing in case No. 14372 was conducted on three different days. On May 4, 2006, the afternoon of the first trial day, defendant asked the court to appoint new counsel. He complained that his lawyer, a deputy public defender, Richard Briones-Colman, had not spoken to him for two months and had not prepared adequately. Briones-Colman explained that he had not received the requested discovery from the district attorney, including DVD’s containing videotapes and photographs necessary to prepare a suppression motion, until an hour before the present hearing. Briones-Colman conceded he should have filed motions to compel discovery but he had been in trial on another case. He also still needed to obtain a copy of the defense investigation report. The court explained to defendant that a new attorney would be “starting off from scratch” and delay the trial again, possibly for months. Defendant protested that Briones-Colman was the fourth public defender to represent him and he had been waiting in jail for five months. He disputed that he was selling drugs or that he should be imprisoned. The court noted that Briones-Colman had received the prosecution’s discovery and was obtaining the defense investigation report. Furthermore, the court observed to defendant, “I haven’t heard you actually say that he is not able to represent you properly.” Defendant responded somewhat equivocally that he would rather have a “state-appointed attorney . . . who might actually want to fight in my defense.” At that point, Briones-Colman proposed a five-day continuance of the Marsden hearing to allow him to prepare and defendant agreed.
On May 9, the date of the continued Marsden hearing, defendant asked to consult with another defense attorney. The hearing was continued again until the following morning when the court asked defendant if he wanted to continue with the Marsden hearing. Defendant, having consulted with the other lawyer, said, “I talked to [the other attorney] and discussed my options and everything. I still feel that there’s a conflict of interest due to all the things that had happened, but it doesn’t seem like you’re going to grant me a state-appointed attorney.” The court announced, “I don’t find a conflict of interest.” Defendant disagreed, “Well, I believe there is. With the civil suit and everything else that will be happening, I believe there is a conflict. But I’ve done everything.” The court asked if defendant was willing to proceed and defendant agreed.
We review the trial court’s ruling denying a Marsden motion for abuse of discretion: “‘“‘[t]he trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].’ [Citations.]”’ (People v. Memro (1995) 11 Cal.4th 786, 857.) . . . Denial ‘is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would “substantially impair” the defendant’s right to assistance of counsel. [Citations.]’ (People v. Webster (1991) 54 Cal.3d 411, 435.)” (People v. Barnett (1998) 17 Cal.4th 1044, 1085.)
Defendant had ample opportunity to explain his reasons for seeking new counsel. He was dissatisfied with the lack of communication and preparation. But his complaints by themselves did not establish an irreconcilable conflict or the incompetence of the defense attorney. (People v. Cole (2004) 33 Cal.4th 1158, 1192-1193; People v. Hart (1999) 20 Cal.4th 546, 604; People v. Fierro (1991) 1 Cal.4th 173, 204-206; People v. Hines (1997) 15 Cal.4th 997, 1025-1026; People v. Leonard (2000) 78 Cal.App.4th 776, 787.) Nor was the court required repeatedly to review defendant’s continuing complaints about his attorney. (People v. Clark (1992) 3 Cal.4th 41, 104; People v. Vera (2004) 122 Cal.App.4th 970, 980.)
Furthermore, even if we were to decide the court erred in failing to conduct an adequate Marsden hearing, we would conclude the error was harmless. (People v. Leonard, supra, 78 Cal.App.4th at p. 787.) Defendant has not identified the affirmative defenses he might have raised if he had different legal counsel. His admissions to the arresting officers that he sold drugs to pay his bills undermined any credible assertion that he was only using, not selling, drugs. There is no showing that a successful suppression motion could or should have been filed. On this record, the trial court did not abuse its discretion by denying defendant’s Marsden motion.
4. Referral to California Rehabilitation Center
Defendant asked for and the probation report recommended that he be considered for a referral to California Rehabilitation Center (CRC). The court declined to make the referral because of his history: “I think at this point it’s not appropriate, in that he has had recent chances to take care of his problem and hasn’t dealt with that, where he’s even been through the Court system two times on drug-related charges and hasn’t availed himself of that.” Defendant explained he was ineligible previously because he had been driving on a suspended license. The court answered, “You could have gone to any program and got any help you needed. That’s my point.”
Defendant contends the trial court failed to consider the proper statutory factor of defendant’s “pattern of criminality” as used in Welfare and Institutions Code section 3051: “Upon conviction of a defendant for a felony, or following revocation of probation previously granted for a felony, and upon imposition of sentence, if it appears to the judge that the defendant may be addicted or by reason of repeated use of narcotics may be in imminent danger of becoming addicted to narcotics the judge shall suspend the execution of the sentence and order the district attorney to file a petition for commitment of the defendant to the Director of Corrections for confinement in the narcotic detention, treatment, and rehabilitation facility unless, in the opinion of the judge, the defendant’s record and probation report indicate such a pattern of criminality that he or she does not constitute a fit subject for commitment under this section.”
Again, the standard of review is abuse of discretion. (People v. Masters (2002) 96 Cal.App.4th 700, 703-704; People v. McGinnis (2001) 87 Cal.App.4th 592, 595, citing People v. Williams (1965) 235 Cal.App.2d 389.) “A trial court’s preliminary determination under [Welfare and Institutions Code] section 3051 of a defendant’s fitness for rehabilitative treatment necessarily involves an assessment, based upon the defendant’s record and probation report, whether the defendant’s main problem is drug abuse or a criminal orientation as reflected in a pattern of criminality. Because this is inherently a qualitative judgment on the available information, the statute invests the court with ‘a broad discretion which will not be disturbed on appeal in the absence of abuse.’” (People v. Cruz (1990) 217 Cal.App.3d 413, 421 (Cruz), quoting People v. Zapata (1963) 220 Cal.App.2d 903, 913.)
The court’s discretion under the statute is to be exercised to implement, not frustrate, the legislative policy which “‘favors inquiry into the addictive status of all criminal defendants whose record indicates the presence of an addiction problem.’” (People v. Navarro (1972) 7 Cal.3d 248, 262, citing People v. Ortiz (1964) 61 Cal.2d 249, 254-255; Pen. Code, § 3000.) “Where the trial court has erroneously refused to exercise the discretion conferred by [Penal Code] section 6451 [now § 3051] because of a misapprehension as to the defendant’s eligibility for the program, the case will be remanded to permit the exercise of such discretion. [Citations.]” (People v. Jolke (1966) 242 Cal.App.2d, 132, 143.)
Exercise of discretion under the statute involves two steps: “First, the court must determine ‘if it appears . . . that the defendant may be addicted or by reason of repeated use of narcotics may be in imminent danger of becoming addicted to narcotics . . . .’ Second, if the court makes the preliminary determination of addiction or imminent danger thereof, the court must either suspend execution of sentence and order initiation of CRC commitment proceedings or find the defendant unfit for such commitment.” (People v. Granado (1994) 22 Cal.App.4th 194, 200.) If the court chooses not to commit an eligible defendant to CRC, it must state on the record the primary factor that led it to make that decision. (Cal. Rules of Court, rule 4.406(b)(9).) However, excessive criminality is the only factor properly considered by a trial court in determining whether to institute commitment proceedings. (Pen. Code, § 3051; People v. McGinnis, supra, 87 Cal.App.4th at pp. 596-597; Cruz, supra, 217 Cal.App.3d at p. 420, citing People v. Madden (1979) 98 Cal.App.3d 249, 261-262 (Madden); see also Granado, supra, at p. 200.)
In evaluating whether a defendant’s criminality is excessive, the court may properly consider the defendant’s record, the probation report, prior performance on probation or parole, and the nature and circumstances of the current offense, including the quantity of drugs possessed or sold and the apparent extent of a defendant’s illegal enterprise. (Cruz, supra, 217 Cal.App.3d at p. 420.) Participation in drug trafficking not found to constitute excessive criminality may not form the sole basis for declining to refer a defendant for possible commitment to CRC. (Madden, supra, 98 Cal.App.3d at pp. 261-262.)
Here, it is evident the trial court believed defendant was addicted to narcotics. It is also evident the court felt defendant had unreasonably failed to seek help for his addiction. However, the record is unclear as to whether this delay was the primary reason for the court’s failure to refer him to CRC for evaluation because the court did not mention CRC and did not articulate a statement of reasons for refusing to make the referral. (Cal. Rules of Court, rule 4.406(b)(9).) Although it chided defendant for not seeking treatment, the court did not address the question of his pattern of criminality. Even if the court read and considered the probation officer’s report, it did not comment directly on the contents of that report. It did not discuss defendant’s prior offenses or his past performance on probation or parole; it did not discuss the nature and circumstances of his current offense except as it concerned the denial of probation; it did not mention the quantity of drugs he had for sale or otherwise comment on the extent of his illegal enterprise. In short, the court did not specify that it was refusing to refer defendant to CRC because his record demonstrated a pattern of criminality such that he was not a fit subject for referral under the statute. (Welf. & Inst. Code, § 3051.) The only reason the court gave was defendant’s failure to seek treatment previously, an invalid factor under Welfare and Institutions Code section 3051: “[T]he court may not refuse to commit a narcotics addict to the rehabilitation facility because of ‘lack of motivation.’” (People v. Leonard (1972) 25 Cal.App.3d 1131, 1136.)
In People v. Jeffery (2006) 142 Cal.App.4th 192 (Jeffery), the appellate court remanded the matter to permit the trial court to specifically state its reason for failing to refer the defendant to CRC as required by California Rules of Court, rule 4.406(b)(9). (Jeffery, supra, at pp. 196-197.) Since the trial court in our case failed to address CRC specifically, or to articulate its reasons for failing to refer appellant for evaluation, we cannot tell if it exercised its discretion under Welfare and Institutions Code section 3051 or the reasons for its decision if it did.
In Jeffery, the Attorney General apparently argued that remand would result in the same decision. (Jeffery, supra, 142 Cal.App.4th at p. 196.) The People here make a similar claim by suggesting the court impliedly found appellant did in fact demonstrate a pattern of criminality that would exclude him from CRC. The Jeffery court pointed out, however, that a statement of reasons for refusing CRC referral is required under California Rules of Court, rule 4.406(b)(9) in order to help the trial court test its thinking and to inform the parties and the public. (Jeffery, supra, at p. 196.) As in Jeffery, “Here there is evidence of excessive criminality. There is also evidence that the defendant is an addict who may profit by a [CRC] commitment.” (Id. at p. 197.) Whether appellant has demonstrated a pattern of criminality such that he is not a fit subject for CRC referral is a decision for the trial court: “It is likely that however the trial court rules, with a proper articulation of its decision, its ruling will be affirmed on appeal.” (Id. at p. 196.)
5. The Upper Term Sentence
The jury found defendant guilty of possession of methamphetamine for sale (Health & Saf. Code, § 11378) and possession of less than one ounce of marijuana. (Health & Saf. Code, § 11357, subd. (b).) In a bifurcated proceeding, the trial court found true the allegations that defendant had suffered two prior felony convictions in 1988 and 2004. (Health & Saf. Code, §§ 11370.2, subd. (c); 11378; 11379, subd. (a).) The court also found defendant had violated the terms of his probation in case No. 7153.
At sentencing, the court found defendant was on probation or parole when he committed the present crimes and his prior performance on parole was unsatisfactory. The court found that manner in which the present crimes were committed indicated planning and sophistication and that defendant induced others to participate in the crime or defendant occupied a position of leadership. Based on its findings, the court imposed the upper term of three years on the first count. On appeal, defendant contends his sentence violated the United States Supreme Court’s decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), notwithstanding People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825.
In Cunningham, the high court overruled, in part, the California Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), which had held, among other things, that the provisions of California’s determinate sentencing law (DSL) authorizing the trial court to find the facts permitting an upper term sentence did not violate a defendant’s right to a jury trial. (Cunningham, supra, 127 S.Ct. at p. 860.) The United States Supreme Court concluded that because our DSL “authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent.” (Id. at p. 871, fn. omitted.) The court held that the middle term in California’s DSL was the relevant statutory maximum for the purpose of applying Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). (Cunningham, supra, at p. 868.)
However, Cunningham reaffirmed the exception enunciated in Almendarez- Torres v. United States (1998) 523 U.S. 224 and affirmed in Apprendi: “[T]he Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.]” (Cunningham, supra, 127 S.Ct. at p. 860; see also Apprendi, supra, 530 U.S. at pp. 488, 490.) The court explained California’s DSL violates Appprendi’s bright-line rule: “Except for a prior conviction, ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ [Citation.]” (Cunningham, supra, at p. 868.)
Our Supreme Court decided Black II, supra, 41 Cal.4th 799, following the United States Supreme Court’s remand of Black I for reconsideration in light of Cunningham. In Black II, the court recognized that, under the DSL, the presence of a single aggravating factor renders the defendant eligible for an upper term sentence. (See Pen. Code, § 1170, subd. (b); Black II, supra, at p. 815, citing People v. Osband (1996) 13 Cal.4th 622, 728.) Accordingly, the court in Black II held that a trial court’s finding of a single circumstance in aggravation that independently satisfies the Sixth Amendment requirements of Apprendi and its progeny, culminating in Cunningham, is sufficient to uphold an aggravated sentence. (Black II, supra, at p. 812.) “[A]ny additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black II, supra, at p. 812.)
The court in Black II explained: “Cunningham requires us to recognize that aggravating circumstances serve two analytically distinct functions in California’s current determinate sentencing scheme. One function is to raise the maximum permissible sentence from the middle term to the upper term. The other function is to serve as a consideration in the trial court’s exercise of its discretion in selecting the appropriate term from among those authorized for the defendant’s offense. Although the DSL does not distinguish between these two functions, in light of Cunningham it is now clear that we must view the federal Constitution as treating them differently. Federal constitutional principles provide a criminal defendant the right to a jury trial and require the prosecution to prove its case beyond a reasonable doubt as to factual determinations (other than prior convictions) that serve the first function, but leave the trial court free to make factual determinations that serve the second function. It follows that imposition 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.” (Black II, supra, 41 Cal.4th at pp. 815-816, italics added.)
Here, the trial court’s determination that defendant’s criminal history supported an upper term sentence falls squarely within the recidivism exception to Apprendi-Blakely-Cunningham. Defendant was not entitled to have this issue presented to a jury or found true beyond a reasonable doubt. (Black II, supra, 41 Cal.4th at p. 818.)
6. Dual Use of Facts
Defendant contends the trial court improperly made a dual use of facts when it imposed both the upper term on count 1 and the prior conviction enhancement based on his 2004 conviction. (Pen. Code, § 1170, subd. (b); Cal. Rules of Court, rules 4.420(c) & (d), 4.425(b).)
The trial court imposed the upper term on count 1 based on defendant’s ongoing recidivism. The court imposed the enhancement based on defendant’s 2004 conviction. The upper term and the enhancement were based on separate findings. This was not a situation in which the “reliance by a sentencing court on a specific prior conviction to find a circumstance in aggravation, while also relying on the same prior conviction to impose a sentence enhancement, is improper dual use of facts.” (People v. Barker (1986) 182 Cal.App.3d 921, 940, citing People v. Hurley (1983) 144 Cal.App.3d 706, 709.) There was no improper dual use of facts.
7. Imposition of Fines in Case No. 7153
At the sentencing hearing, the court imposed a concurrent one-year sentence in the probation revocation case but did not orally impose any fines. Nevertheless, the minute order records an order to pay a $200 restitution fine pursuant to Penal Code section 1202.4, subdivision (b) and the “Probation Revocation Restitution Fine of $200.00, previously stayed, is imposed pursuant to [Penal Code] Section 1202.44.” The abstract of judgment reflects the former fine and a $200 suspended fine pursuant to Penal Code section 1202.45. Defendant challenges the imposition of any fines because they were not pronounced by the court: “The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment. [Citation.] . . . the clerk’s minutes must accurately reflect what occurred at the hearing.” (People v. Zackery (2007) 147 Cal.App.4th 380, 387-388.) Of the above items, none were pronounced orally by the trial court.
Furthermore, as described in defendant’s appellate reply brief, the record is even more confusing about what fines were being imposed. Although the court imposed a $200 fine under Penal Code section 1202.4, subdivision (b) when defendant was given probation on May 14, 2004, no other fine under Penal Code section 1202.44 was mentioned. Then it seems the initial $200 fine may have been suspended, making the fine imposed on July 21, 2006, a second fine pursuant to Penal Code section 1202.4, subdivision (b). Nor could the unpronounced fine under Penal Code section 1202.44 be justified because it was mandatory under the statute. (People v. Zackery, supra, 147 Cal.App.4th at pp. 388-389.) No mention at all was made of a fine pursuant to Penal Code section 1202.45.
Because the confusion and ambiguity in the record, we accept the People’s suggestion that the case be remanded to the trial court to clarify its intentions and state its reasons for waiving or not waiving the three kinds of fines. (People v. Zackery, supra, 147 Cal.App.4th at pp. 389, 394.)
8. Disposition
We affirm the judgment with directions. The matter is remanded to the trial court with instructions that it exercise the discretion conferred by Welfare and Institutions Code section 3051 regarding defendant’s referral to CRC and that it state on the record the reasons for its decision.
Additionally, we direct the trial court to correct the abstract of judgment in case No. 14372 to show defendant was convicted by a jury instead of entering a plea of guilty and to correct the minutes and abstract of judgment in case No. 7153 to show the one-year sentence was imposed concurrently with the sentence in case No. 14372.
Finally, the trial court is further directed to prepare amended minutes of the July 21, 2006, sentencing hearing to delete references to fines imposed under Penal Code sections 1202.4, 1202.44, and 1202.45. The case is remanded to the superior court for consideration of whether to impose restitution fines pursuant to Penal Code sections 1202.4, 1202.44, and 1202.45. Following such consideration, the superior court shall prepare an amended abstract of judgment, reflecting the views set forth in this opinion, and shall forward a certified copy of the same to the Department of Corrections and Rehabilitation.
We concur: McKinster, Acting P. J., Miller, J.