Opinion
F070997
03-22-2017
THE PEOPLE, Plaintiff and Respondent, v. ALFREDRICK VELVIN LOVE, Defendant and Appellant.
Linda J. Zachritz, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen Herndon and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SC072158A)
OPINION
THE COURT APPEAL from an order of the Superior Court of Kern County. Michael G. Bush, Judge. Linda J. Zachritz, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen Herndon and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Franson, J. and Smith, J.
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Appellant Alfredrick Velvin Love appeals from the denial of his petition for recall of sentence pursuant to Penal Code section 1170.126. Appellant contends the court made several errors when considering and ruling on appellant's petition and a related request to change counsel. For the reasons set forth below, we affirm.
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant is currently serving a life sentence under California's three strike law for an attempted second degree burglary, which occurred in 1997. (§§ 460, subd. (b), 664.) Appellant's conviction also included a true finding on ten allegations of prior prison terms under section 667, subdivision (e), and two prior strikes under section 667.5, subdivision (b). Appellant's criminal history included prior convictions for robbery in 1973 and 1987, unlawful possession of a controlled substance in 1979, burglary in 1980, and vehicle theft in 1984 and 1987. Approximately three months prior to the current charges, appellant had been paroled from a 17-year, second strike sentence for robbery and car theft.
In December 2013, following passage of Proposition 36, appellant, through counsel, filed a petition for resentencing pursuant to section 1170.126. A subsequent short report from probation recommended that appellant be resentenced to a fixed term of five years, resulting in his release. The People opposed the request and recommendation. Citing to appellant's criminal history, including multiple rules violations and extensive restrictions while incarcerated, the People argued appellant would pose an unreasonable risk of danger to public safety if resentenced. Following the People's opposition, appellant sought and received permission to represent himself in the proceedings. Appellant then filed a second petition for resentencing.
On July 17, 2014, the trial court held a hearing on appellant's petitions. The court informed appellant that it was considering both filed petitions and the People's opposition. It then provided a tentative ruling on appellant's petition, stating, "My tentative is to ... deny it .... It looks like you had -- you have had some issues in custody. There is a number of -- well, it's all in the opposition filed by Ms. [Alexandria] Sawoya. It's all in there. And the priors, they were both 211's, they are both robberies. It's been a span of time, quite honestly, since you have been -- you started as a juvenile, and it's been right up until the time you were sentenced 25 to life, which, according to the records, was right after you had gotten, I think it was, 17 to life. It just seems one incident after another. [¶] I have a very definite concern."
The trial court then set a formal hearing, where appellant could present further evidence in support of the petition. At the same time, appellant indicated he could not effectively conduct legal research while incarcerated at his current location and requested appointment of counsel. In doing so, appellant expressed a concern about conflicts with appointing the public defender because appellant had filed a civil action against them. Recognizing this concern, and appellant's need for counsel, the trial court appointed the public defender but set a hearing on whether to replace counsel.
At the July 22, 2014 hearing on replacing the public defender, the court gave appellant an opportunity to explain why he felt his public defender, Amanda Moceri, should be replaced. Appellant alleged Moceri had lied to him about how cases were handled, claiming he was told they were handled chronologically but later learning of several newer cases, including his brother's, that proceeded before his. Appellant further alleged he complained about Moceri's handling of his case until, receiving no response, he wrote to the State Bar, which allegedly removed Moceri from appellant's case. Appellant also stated he was able to see Moceri's conduct at various hearings and felt she did not provide adequate representation to other petitioners and was improperly sharing information with the prosecutor. Finally, appellant claimed that, despite being removed from his case, Moceri continued to sign documents on his behalf while another public defender was representing him.
Moceri responded to these contentions at the court's request. With respect to her handling of cases, Moceri explained she tried to handle things in chronological order, but could not always do so. Appellant's brother's case was an exception to this practice, as both men were serving long sentences and Moceri felt the brother's case would be easy and would result in appellant's mother having at least one son released from prison quickly. On specific complaints about her representation in other cases, Moceri pointed out that she won one of the cases appellant referenced and that her contact with the prosecutor in another related to potentially damaging information in a late-received rap sheet for a witness that she ultimately chose not to call. With respect to the State Bar concerns, Moceri explained she received a letter from the State Bar, triggered by appellant's complaints, because she had not yet returned paperwork he had sent her. Moceri admitted to having lost the original request to copy and return the paperwork, but did so immediately upon receiving the letter. The State Bar took no formal or informal action on this point, aside from the letter. Finally, with regard to her representation of appellant, Moceri explained she had learned of appellant's complaints and assertions that she was a liar. Moceri was uncertain whether she could represent him, recognized appellant "doesn't trust me" and did not feel comfortable, and wondered to colleagues whether a Marsden hearing would be needed. Moceri's supervisor offered to take over the management of appellant's case at that time.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
The trial court followed up on appellant's allegations of mistrust, asking Moceri, "You indicated a few minutes ago at one point you thought you couldn't [represent appellant]. What's changed?" Moceri explained, "I felt it wasn't that I couldn't. I said, 'This case needs to have a Marsden. This client doesn't trust me. He is entitled to a Marsden. He needs a Marsden.' And Pete[r Kang] said, 'Let's just switch attorneys' because Mr. Love had just been asking for a different attorney. So we put Mr. Kang on the case because it wasn't the client had a problem with the Public Defender's Office, the client had a problem with me personally." (Italics added.) After this explanation, when asked directly, Moceri responded that she could absolutely handle appellant's case. The trial court then concluded there was no basis to take Moceri off the case and denied appellant's motion.
On December 4, 2014, the trial court held a hearing on appellant's petition. Appellant was the sole witness to testify. He provided extensive information about his background, family life, and criminal history, including discussing his various prior crimes and his prison rules violations. Following argument from counsel on appellant's suitability for resentencing, the court took the matter under submission. At that time, the court informed appellant he had "a right to hear me say the ruling" and asked if appellant wished to waive that right. Before appellant could provide his position, the People noted they would not "waive their right to be present at the ruling either." The court accepted this position and stated "one day you'll be told you're going to court."
On February 4, 2014, the trial court issued a ruling on the matter by minute order. The order noted the proceedings that had occurred before providing "MOTION OF PETITIONER FOR RECALLING SENTENCE PURSUANT TO PC SECTION 1170.126 IS DENIED." No other analysis was provided.
This appeal timely followed.
DISCUSSION
Appellant raises four allegations of error on the part of the trial court. First, appellant claims the trial court failed to grant his request for different counsel despite statements in the record demonstrating a complete breakdown in trust between appellant and the deputy public defender representing him. Second, appellant claims the trial court failed to make an adequate record for review on appeal by not providing a complete oral or written statement of its decision to deny appellant's petition for resentencing. Third, appellant claims the trial court erred by transferring him back to prison before rendering its decision in this case, preventing appellant from being present at the pronouncement. Fourth, appellant claims he received ineffective assistance of counsel at various times while his petition was pending, resulting in the three errors alleged above. Standards of Review
"We review the denial of a Marsden motion for abuse of discretion. [Citation.] Denial is not an abuse of discretion 'unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel.' " (People v. Taylor (2010) 48 Cal.4th 574, 599 (Taylor).) Due process claims raise issues of law, which are reviewed de novo. (In re H.K. (2013) 217 Cal.App.4th 1422, 1433.) "A claim of ineffective assistance of counsel presents a mixed question of fact and law, which is generally subject to de novo review, especially where constitutional rights are implicated." (In re Alcox (2006) 137 Cal.App.4th 657, 664-665.) Appellant's Allegations of Error Are Unfounded
As an initial matter, it is important to note that appellant has not raised a direct challenge to the conclusion reached by the trial court that appellant presented an unreasonable risk of danger if resentenced. Rather, appellant has alleged four generally procedural errors that he claims require reconsidering the decision. Upon review, appellant's four allegations of error are unfounded.
First, appellant claims the trial court erred by failing to replace his trial counsel at a Marsden hearing held on July 22, 2014. "When a defendant seeks substitution of appointed counsel pursuant to People v. Marsden, supra, 2 Cal.3d 118, 'the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.' " (Taylor, supra, 48 Cal.4th at p. 599.)
In this case, the trial court provided appellant with an opportunity to air his grievances regarding Moceri's representation. With respect to each complaint raised, Moceri provided an explanation that indicated her representation was adequate and there was no irreconcilable conflict. "[T]he trial court was entitled to credit counsel's explanations and to conclude that defendant's complaints were unfounded." (Taylor, supra, 48 Cal.4th at p. 600.)
Considering the allegation Moceri inadequately handled several cases, Moceri's responses showed she had obtained favorable relief for her client in one example and shielded a witness from potentially damaging cross-examination, potentially helping her client, in another. Moreover, despite appellant's claims Moceri was sanctioned by the State Bar for improper conduct in his case, Moceri's response showed she had simply misplaced a request for copies and had complied when notified, resulting in no punishment or action from the State Bar.
Appellant further argues we must consider the transition of attorneys from Moceri to Kang, and the circumstances leading to and surrounding that transition, as exemplary of a complete breakdown of the attorney-client relationship in this case. We do not agree. Appellant explained that he considered Moceri a liar due to statements made to him about the order in which she handled cases. In response, Moceri explained she did in fact try to handle cases in that manner, but it was not always possible. This conflict, resulting in a misunderstanding between the two, is not so fundamental a breakdown that it suggests ineffective assistance of counsel will follow. This remains true even in light of the actions that followed, where appellant made further allegations of improper conduct against Moceri, resulting in an internal decision at the public defender's office to have another attorney assist on the case. Moceri explained to the court that the conflict would not keep her from representing appellant if reappointed, and appellant's concerns about Moceri's ability to represent him did not demonstrate past ineffective assistance or a reasonable prospect of future ineffective assistance of counsel due to the nature of their relationship. "The mere ' "lack of trust in, or inability to get along with," ' counsel is not sufficient grounds for substitution." (Taylor, supra, 48 Cal.4th at p. 600.) Here, the record shows a lack of trust, but no further indications of an irreconcilable conflict or a risk of receiving ineffective assistance of counsel.
Second, appellant contends his due process rights were violated because the trial court did not provide a full written statement of its decision. Appellant argues an explication of the court's reasoning is required by the Fourteenth Amendment in the context of determinations an inmate would present an unreasonable risk to public safety. We disagree. "Generally, the reason a trial court gives for its ruling is irrelevant on appeal because 'we review the trial court's actual ruling, not its reasons,' and '[a] judgment or order correct in theory will be affirmed, even where the trial court's given reasoning is erroneous.' " (Kennedy v. Superior Court (2006) 145 Cal.App.4th 359, 368.) While a complete statement of the trial court's reasoning is beneficial to this court on appeal and should be considered a best practice, unlike with other statutes and situations (see, e.g. People v. Lock (1981) 30 Cal.3d 454, 459), there is no obligation to provide such a statement in response to a petition for resentencing under Proposition 36. Factually, too, appellant's argument lacks merit. While the final order issued by the trial court was without substantial substance, the court issued a tentative order, explaining its belief that appellant was not eligible, before scheduling a hearing to take evidence on the issue and ultimately denying appellant's petition. Even though no specific statement of reasons is required, the court's tentative ruling gives a reasonable roadmap for understanding why, after taking further evidence, the trial court denied appellant's petition.
Third, appellant claims a violation of his due process rights occurred because he was not present in court when the trial court issued its ruling. Under federal and state principles, appellant is entitled to be present during many of the proceedings related to charges brought against him. " 'Due process guarantees the right to be present at any "stage that is critical to [the] outcome" and where the defendant's "presence would contribute to the fairness of the procedure." ' " (People v. Blacksher (2011) 52 Cal.4th 769, 799 (Blacksher).) This right to be present extends to proceedings to determine whether appellant poses an unreasonable risk of danger upon resentencing under Proposition 36. (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1299-1300.) However, this right is not absolute, as neither " 'the state nor the federal Constitution, nor the statutory requirements of sections 977 and 1043, require the defendant's personal appearance at proceedings where his presence bears no reasonable, substantial relation to his opportunity to defend the charges against him.' " (Blacksher, supra, 52 Cal.4th at p. 799.) Where an allegation is made that the right to be present has been violated, appellant "has the burden of demonstrating that his absence prejudiced his case or denied him a fair trial." (People v. Bradford (1997) 15 Cal.4th 1229, 1357.)
In this case, it is not clear that appellant had a right to be present for the pronouncement of the court's ruling specifically, as opposed to the hearing related to that determination, at which appellant was present. The court, as we conclude above, had no obligation to provide a written or oral explication of its decision and, thus, there is little real argument that appellant's presence would contribute to the fairness of the procedure. However, even if appellant's presence was required, we see no prejudice demonstrated in this record. Appellant was present at all of the major events preceding the trial court's final determination and was presented with a tentative ruling from the trial court, outlining concerns appellant was provided an opportunity to resolve. With the evidence submitted and the matter under submission, there is no prejudice to appellant's case reflected in this record due to the issuance of a written order denying his petition made outside his presence. Indeed, written orders are common mechanisms for resolving legal disputes. Given appellant's presence through the proceedings, the trial court's discussion of its tentative ruling in his presence, the fact no formal explication of the decision was required, and the lack of a formal challenge to the trial court's ultimate exercise of its discretion in this appeal, there is no indication appellant's presence could have assisted in any further proceedings.
Fourth, appellant alleges he received ineffective assistance of counsel, relying on the three issues above to support his claim. To establish ineffective assistance of counsel, appellant must show that counsel's performance "fell below an objective standard of reasonableness," and that "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.) Our review of the three alleged errors identified by appellant showed either no error or no prejudice arising from counsel's conduct. More holistically, too, appellant cannot show prejudice. There is no formal challenge to the court's decision that appellant would present an unreasonable risk of danger if resentenced. Moreover, appellant's allegations of error do not relate to the filing of the petition or the evidence introduced in support of it but, rather, to procedural matters generally ancillary to those proceedings. In light of our conclusions and the nature of the alleged errors, it is not reasonably probable that the result of the proceedings would have been different.
DISPOSITION
The order is affirmed.