Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 04CM7516. Peter M. Schultz, Judge.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, Acting P.J.
After a jury found Robert Mendez guilty of battery with infliction of serious bodily injury on a fellow inmate at the California Substance Abuse Treatment Facility in Corcoran, the court found five strike-prior allegations true, declined his request to strike four of them, and imposed a 25-to-life three strikes law sentence. On his first appeal, he argued (1) the court’s failure to hold a hearing on the grievance in his new trial motion about his trial attorney’s competence required reversal of the judgment and a remand for a Marsden hearing and (2) the court committed an abuse of discretion by not striking four of his five strike priors at sentencing. We reversed the judgment and remanded the matter with directions to the court to hold a Marsden hearing and, on that foundation, either to appoint new counsel on his new trial motion or to reinstate the judgment or to proceed otherwise as authorized by law. (People v. Mendez (Apr. 11, 2008, F052340) [nonpub. opn.].)
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
In deference to the common law doctrine of ripeness, we did not address the second issue on his first appeal but did invite the parties, if the issue were to ripen after remand, to incorporate by reference the briefing on file for later adjudication on appeal. (Alameda County Land Use Assn. v. City of Hayward (1995) 38 Cal.App.4th 1716, 1722; California Water & Telephone Co. v. County of Los Angeles (1967) 253 Cal.App.2d 16, 22; see People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 65, fn. 6; Cal. Rules of Court, rule 1.5(a).) The parties have done so.
On remand, the court held a Marsden hearing, denied relief, and reinstated the judgment. Now, on his second appeal, Mendez argues (1) the court erred by denying relief at his Marsden hearing and (2) the court committed an abuse of discretion by not striking four of his five strike priors at sentencing. We affirm the judgment.
FACTUAL BACKGROUND
On March 27, 2003, correctional sergeant Mathew Juarez let cellmates Mendez and Anthony Perez out of their cell to make phone calls and, minutes later, let inmate Reuben Herrera out of his cell to attend a Board of Prison Terms hearing. Mendez and Perez ran toward Herrera and, after Perez punched Herrera in the face, Herrera’s knees buckled. Juarez activated his alarm, gave all inmates orders to get down, and positioned himself to utilize force. Mendez and Perez both repeatedly punched Herrera in the face with closed fists. Juarez twice ordered Mendez and Perez to stop fighting. Neither one obeyed him.
Juarez fired a.40 millimeter “less lethal” projectile at Perez’s lower extremities. Mendez and Perez each took about 10 steps backward, lay down on their stomachs with their arms out, and made barking noises. Herrera slid down the wall, lay motionless on his back, and died. He suffered blunt force trauma behind the left ear causing a skull fracture and a brain injury and blunt force trauma to the left eye likewise causing a skull fracture and a brain injury. Each was capable of causing death. The more severe injury, the fracture behind the left ear, could have been caused by the projectile from Juarez’s weapon, but the less severe injury, the trauma to the left eye, could not. Additionally, he suffered multiple non-life-threatening head injuries consistent with infliction of multiple blows to the head.
PROCEDURAL BACKGROUND
On August 21, 2006, the district attorney filed an information charging Mendez with assault by a prisoner by means of force likely to produce great bodily injury and alleging personal infliction of great bodily injury (count 1; Pen. Code, §§ 4501, 12022.7, subd. (a)) and charging battery with infliction of serious bodily injury (count 2; § 243, subd. (d)). The information alleged five first degree burglary convictions as serious felony priors within the scope of the three strikes law. (§§ 459, subd. (a), 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 1192.7, subd. (c)(18).)
Later statutory references are to the Penal Code except where otherwise noted.
On October 5, 2006, a jury found Mendez guilty on count 2 but deadlocked on count 1. The court declared a mistrial on count 1. On the prosecutor’s motion, the court then dismissed count 1. In a bifurcated trial, the court found all five strike priors true. On February 26, 2007, the court denied his request to strike four of his five strike priors and imposed a 25-to-life three strikes law sentence. He appealed.
On remand on November 13, 2008, the court held a Marsden hearing, denied relief, and reinstated the judgment. Mendez again appealed.
In a footnote of his brief, the Attorney General requests that we take judicial notice of In re Mendez (F058454) in reference to the late filing of a notice of appeal by Mendez’s trial attorney. We deny his request. “To obtain judicial notice by a reviewing court under Evidence Code section 459, a party must serve and file a separate motion with a proposed order.” (Cal. Rules of Court, rule 8.252(a)(1), italics added; cf. Evid. Code, §§ 452, subd. (d), 459, subd. (a); Cal. Rules of Court, rule 8.366(a); see Patterson Flying Service v. California Dept. of Pesticide Regulation (2008) 161 Cal.App.4th 411, 419, fn. 2, citing Canal Ins. Co. v. Tackett (2004) 117 Cal.App.4th 239, 243.)
DISCUSSION
1. Marsden Hearing
Mendez argues that the court erred by denying relief at his Marsden hearing. The Attorney General argues the contrary.
On remand, the court held a Marsden hearing on October 3, 2008. The first issue, Mendez informed the court, was his trial attorney’s “inability to communicate with [him] throughout her representation.” He told her that Juarez’s testimony at his trial about how the prison was on “normal program with no restrictions” when he let Mendez and Perez out of their cell was a lie. He said that on the day before the incident the institution let “one Bulldog and one rival gang member” out of their cells in the building where he was housed “to see if the Bulldogs could get along with the rival gang members” but “an altercation occurred” as soon as the two gang members “got within reach of each other.” He said that he gave his trial attorney the names of the people involved but “she refused to investigate and to present it as evidence in [his] trial.”
“What’s the point of it?,” the court asked. “The point,” Mendez said, “is just basically to show why CDCR[] and Mr. Juarez lied and fabricated the reports as to what really happened.” The court inquired, “How is this a defense to you stabbing somebody?” He replied that he was supporting his claim that he “was denied adequate representation.” At the preliminary hearing, he added, Juarez testified Bulldogs and Southern Hispanics “could not” be in the same room together without killing each other or assaulting each other. “In order to prevent himself from getting in trouble,” he said, Juarez “lied about what happened” by saying “it was normal program.”
California Department of Corrections and Rehabilitation.
Mendez said Juarez took home “the expended round that ultimately killed Mr. Herrera,” hired a lawyer before giving his statement to the district attorney’s office, and brought back the expended round only when asked, with the excuse that “he didn’t want any inmate to try to fish it [out of] a cell,” but the problem with his testimony is that the scene had already been secured. Juarez took the expended round home to “continue to fabricate his report,” he said, to “suggest that Mr. Herrera’s head injuries were caused” by him and Perez.
Another “attempt by CDCR to lie” was an incident report stating that “two members of a disruptive group, Fresno Bulldogs, murdered Inmate Herrera, a Southern Hispanic, by bludgeoning him in the head with a sock-type weapon, two batteries in a sock,” but that was a “lie” that “creates another credibility issue,” Mendez informed the court. His “other issue” was that an inmate by the name of Hervey, who “stated that it was a one-on-one fight” between Herrera and Perez, was subpoenaed but never testified. A recording of Hervey’s phone call “clearly shows” that “the whole incident only took 11 seconds.” In that light, he argued, the prosecutor’s theory was “[p]hysically impossible” that he came down from the top tier where “these witnesses all testified that [he] was” and “beat this guy within 11 seconds.”
Asked by the court, “What other witnesses did you want called?,” he said two inmates by the name of Delgado and Lopez characterized the fight as “a one-on-one” in which he “was never involved.” Those three inmates, “if called” as witnesses, “would have confirmed” the testimony of a CDCR counselor by the name of Braxmeyer “that she never saw [him] hit or touch Mr. Herrera in any way.” He emphasized that “it’s not by coincidence that four people say the same thing, but yet not one of them [was] ever called on my behalf.” Investigators “tested for blood” and “bagged [his] hands to see if there was [sic] any marks,” he said, but “there was nothing, no physical evidence whatsoever.”
Mendez noted, too, that the pathologist’s report gave Herrera’s cause of death as possibly “feet punching” or “40 millimeter fire and a fist, or something of that sort,” but lacked “an opinion as to what exactly happened.” He referred to, and the court admitted, photographs showing that Herrera “was bleeding” when called “to come to the door and cuff up” and that “his handprints were sliding through all his blood” but “none of these were [sic] ever brought in.”
Granting the request of Mendez’s trial attorney, the court continued the Marsden hearing to October 30, 2008. Summarizing the evidence, his trial attorney noted Mendez and Perez were on the top tier, and Herrera and Hervey were on the bottom tier, of a two-tier housing unit. Two wounds, one from the projectile Juarez fired, the other from a blow to the head, were fatal. She made a “tactical decision” not to “get into the politics” of the Bulldogs and the Southerners who felt “a duty to attack each other” on sight since that was evidence of a motive for the beating but not of a defense to the crime.
The recording of Hervey’s phone call showed “the gunner did not intentionally let the defendants out of their cells. It was an oversight,” Mendez’s trial attorney said. “You could hear the gunner saying, ‘What are those guys doing out of their cell?’” At the end of the altercation were sounds of “Bulldogs barking.” The “gang connotations” of the evidence were “highly prejudicial,” she said.
Mendez’s trial attorney informed the court that she considered the recording of Hervey’s phone call irrelevant and chose not to call him as a witness because he “never wanted to watch,” intentionally turned his back once the fight started, and “didn’t see the whole thing.” She chose not to call Delgado as a witness since his statements – he was asleep during the fight, he saw Mendez and Herrera fighting, Mendez just watched Perez and Herrera fighting, and Bulldogs are required to attack Southerners – were inconsistent and not helpful to the defense. She likewise chose not to call Lopez as a witness since his statements – he saw only the end of the fight but needs glasses and can “barely see,” he was asleep until he heard a gunshot, he saw Mendez go downstairs to help out, and he saw Mendez and Perez “ganging on him” – were inconsistent and not helpful to the defense.
In rebuttal, Mendez disputed his trial attorney’s characterization of Bulldog politics. “Bulldog gang members are not required or forced to do anything,” he insisted. He reiterated the importance of the recording of Hervey’s phone call in establishing a timeline. He said Delgado claimed he was asleep only because an inmate “can’t really be talking to the cops” or he “can be in trouble.” He said Lopez never claimed he saw him hit Herrera despite the inconsistencies in his statements. He acknowledged letting “two rival gang members out at one time” was “clearly wrong.” He emphasized the lack of physical evidence connecting him to the beating. Despite the inconsistencies in their statements, Hervey, Delgado, Lopez, and Braxmeyer “all come to the same main point,” he said, that “they didn’t see me hit the individual.”
Additionally, Mendez complained that his trial attorney “didn’t look into” the “list of other witnesses” he gave her, one of whom was Herrera’s cellmate, an inmate by the name of Gonzales. In reply, she noted that she requested an interview from each inmate in the housing unit, that interviews are possible only with an inmate’s consent, and that the defense interviewed every inmate who consented. She characterized Gonzales as “a great prosecution witness” who “would have been devastating to the defense.” On the basis of her interviews of at least five other witnesses “brought here the day of trial,” she found each “detrimental” to the defense. The court continued the matter for research before ruling.
On November 13, 2008, the court made findings and ruled on Mendez’s Marsden motion. The court found there was “no apparent prejudice not impeaching Juarez as to whether it was a normal program or not. As to witnesses Hervey, Delgado, Lopez, and Gonzales, it appears that [his trial attorney] certainly had reasonable tactical reasons for not calling each of those witnesses.” The court found the claim of failure to investigate “clearly not true. Investigators were hired and interviews of witnesses done.” The court characterized the claim of failure to communicate “conclusionary,” found no “colorable claim of ineffective assistance of counsel” and no “valid motion for a new trial” on that ground, and denied relief.
A Marsden hearing is not a full-blown adversarial proceeding but instead is an informal hearing in which the court ascertains the nature of a defendant’s allegations of defects in counsel’s representation and decides whether the allegations have sufficient substance to warrant counsel’s replacement. (People v. Gutierrez (2009) 45 Cal.4th 789, 803.) Only 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” does the court have the duty to grant a Marsden motion. (People v. Smith (2003) 30 Cal.4th 581, 604.) Only if “the defendant has shown that a failure to replace counsel would substantially impair the defendant’s right to assistance of counsel” can the reviewing court find the abuse of discretion that is the sine qua non of relief on appeal. (Ibid.) Our review of the court’s careful inquiry at the hearing on Mendez’s Marsden motion satisfies us that the requisite showing of an abuse of discretion is lacking.
2. Strike Priors
Mendez argues that the court committed an abuse of discretion by not striking four of his five strike priors at sentencing. The Attorney General argues the contrary.
Before striking a strike prior, the court has the duty to consider, in light of the defendant’s new felony, strike priors, background, character, and prospects, if he or she is outside the spirit of the three strikes law, in whole or in part, so as to justify sentencing as if he or she had fewer strike priors or no strike priors at all. (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) On appellate review of a court’s decision not to strike a strike prior, the “deferential abuse of discretion standard” applies. (Id. at p. 371.) Two fundamental precepts govern appellate review. (Id. at p. 376.)
First, the party attacking the sentence has the burden to show clearly that the decision was irrational or arbitrary. (Carmony, supra, 33 Cal.4th at p. 376.) In the absence of that showing, the appellate court presumes the court below acted to achieve legitimate sentencing objectives and will not set aside its decision on appeal. (Id. at pp. 376-377.) Second, the appellate court has no right to substitute its judgment for that of the court below, so the judgment cannot be reversed merely because reasonable people might disagree. (Id. at p. 377.) Taken together, the two precepts establish that a court commits no abuse of discretion “unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Ibid.)
At sentencing, Mendez’s trial attorney asked the court to exercise its discretion and to strike four of his five strike priors pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Characterizing his criminal record as “serious” but not “lengthy,” she emphasized that all five of his strike priors were 10 years old and that he “actually went to prison on one.” Finding that he has “numerous” strike priors and that he “does appear to be a danger to the public,” the court denied relief. By the deferential abuse of discretion standard, the record persuades us that the court’s ruling was neither irrational nor arbitrary. (Carmony, supra, 33 Cal.4th at p. 377.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Poochigian, J., Detjen, J.