Opinion
F076544
06-05-2020
THE PEOPLE, Plaintiff and Respondent, v. DEVENAE DAMAREA PRICE, Defendant and Appellant.
Jeffrey S. Kross, under appointment by the Court of Appeal, Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri, Eric L. Christoffersen, and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT]
THE COURT:
It is hereby ordered that the opinion filed herein on June 5, 2020, be modified as follows:
1. On page 6, the second sentence under the heading A Remand for Resentencing Is Proper, should be deleted and replaced with the following:
First, he believes the court should remand this matter pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.) to allow the trial court to consider whether to exercise its newly granted discretion to dismiss or strike the firearm allegation under section 12022.53.
Except for the modification set forth above, the opinion previously filed remains unchanged.
This modification does not effect a change in the judgment.
SMITH, J. WE CONCUR: LEVY, Acting P.J. SNAUFFER, J. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 2063280)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Marie Sovey Silveira, Judge. Jeffrey S. Kross, under appointment by the Court of Appeal, Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri, Eric L. Christoffersen, and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant Devenae Damarea Price appeals from his conviction on one count of second degree murder (Pen. Code, § 187, subd. (a) ), with the additional fact that he personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)), and one count of being a felon in possession of a firearm (§ 29800, subd. (a)(1)). Appellant contends the trial court wrongly denied his multiple Marsden motions to replace his trial counsel. In addition, appellant raises several issues with his sentence, all of which are conceded by the People. For the reasons set forth below, we affirm the trial court's decisions on the Marsden motions and remand for resentencing based on the People's concessions.
All statutory references are to the Penal Code, unless otherwise noted.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
FACTUAL AND PROCEDURAL BACKGROUND
The facts of the underlying crime are not substantively disputed and, as the issues in this case are procedural, are generally recounted for context. On April 23, 2016, Falane J. was shot and killed outside of an apartment in Turlock where members of his extended family resided. The shooting was witnessed by his uncle, A.W. A.W. testified that Falane had driven him to the apartment. As A.W. walked away from Falane's vehicle, a black vehicle pulled up and Kevin Jerome Barnes, Jr., a co-defendant in this case, exited the vehicle. A.W. knew Falane from previous encounters and greeted him.
Shortly thereafter, A.W. heard several gunshots and ducked for cover. He heard Barnes say to the driver of the vehicle, "Why did you shoot Uncle Junior," a name used for A.W. The vehicle then drove away, leaving Barnes behind. Barnes went to the apartment where A.W.'s family resided, as he knew someone there. When he entered, he was confronted by members of Falane's family and asked why Falane was killed. Barnes responded that he did not kill Falane, his "partna Nate, Nae did."
Two days later, on April 25, 2016, officers in Alameda County attempted to stop a black Lexus. The driver of the Lexus fled and abandoned the vehicle. A search of the car and nearby area located a purse with identification for Deandranae Campbell, a magazine for a Glock firearm, registration papers showing the vehicle was owned by N.K., and two spent shell casings between the hood and the windshield. Nearby they found a .40-caliber Glock 27 handgun and another magazine. Also discovered were Kelley Trezvant, Campbell, and appellant, who was found with a leg injury. Trezvant's purse held another Glock magazine. When all three were arrested, Trezvant and Campbell made statements that "[t]hey were going to connect this shit back to Modesto and Turlock."
N.K. testified she purchased the car for appellant and that he drove off in it after the purchase. --------
The spent shells collected from the vehicle were traced to the same gun as the one used to kill Falane, although the gun found near the car was not the murder weapon. Cell phone records showed phones associated with Barnes and appellant were communicating the night of the shooting and that these phones were pinging a tower in the area of the shooting around the time it occurred. Both phones were also present in the area where the Lexus was abandoned two days later.
In his defense, appellant presented an argument that the shooting was conducted by someone in a white PT Cruiser. In addition, Barnes testified that he was driven to the apartment complex by a drug dealer named Nate from Stockton. The People, however, called the driver of the white PT Cruiser who testified he had witnessed the shooting and fled that night and presented evidence that the police had been unable to identify any person named Nate communicating with Barnes.
Relevant to this case, prior to and during trial, appellant made several requests to have his trial counsel replaced that resulted in Marsden hearings. The first two, made in June and October 2016, ultimately resulted in the replacement of his initial counsel. After that point, additional requests were heard on December 8, 2016; January 19, 2017; June 19, 2017; July 20, 2017; July 26, 2017; August 2 and 3, 2017; August 10, 2017; August 15 and 16, 2017; and October 31, 2017.
A review of these many hearings shows that appellant was regularly and frequently complaining that he did not like the strategy decisions his counsel was making. Although not exclusive, appellant's most frequent complaint was his belief that the police and witnesses were fabricating evidence and that his counsel was not asking the questions he should or engaging in the followup necessary to uncover those lies. Relatedly, he complained counsel was ruining his case by not asking proper questions, not calling witnesses, and not challenging hearsay statements. As appellant admitted in one of the many hearings, his concerns have "been the same thing repeatedly." In the August 10, 2017 hearing, he raised concerns that evidence he had seen had not been produced, that his counsel had not been receptive to seeking it out, and that in their exchange his counsel asked him if he was on drugs.
At these various hearings, appellant's trial counsel was repeatedly asked to, and repeatedly did provide, explanations for his trial tactics and responses to appellant's complaints. He regularly admitted to reviewing appellant's requests that he ask certain questions and deciding whether or not to ask the questions and how to best frame the questions if asked. He described investigatory findings he made that caused him not to want to ask certain questions, for fear of harming appellant's case. And he confirmed that he was doing his best to present the best case he could for appellant and that he was attempting to follow appellant's requests as best he could.
For its part, the trial court heard all of appellant's complaints and counsel's responses and generally probed the relationship between the two. The court noted stress in the relationship, explaining "[i]t seems like you have rough spots and you can communicate sometimes" but that each time the court heard from appellant and counsel "I hear more strain." However, at the conclusion of each hearing the court denied the Marsden request, generally concluding that counsel was making reasonable tactical decisions and noting that there were opportunities for counsel to address appellant's tactical concerns in future proceedings.
Appellant was ultimately convicted of second degree murder and possession of a firearm by a felon, along with an allegation he personally and intentionally used a firearm that caused death or great bodily injury. In separate proceedings, appellant was found to have a prior conviction for a serious felony. Appellant received a total term of 60 years to life that included an indeterminate 30-year term for the second degree murder charge, a consecutive 25 years to life term for the gun enhancement, and a consecutive five-year term for the prior felony conviction. This appeal timely followed.
DISCUSSION
The primary disputed issue on appeal is whether the trial court correctly denied appellant's multiple Marsden motions.
Standard of Review and Applicable Law
"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).)
"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.) "[T]actical disagreements between a defendant and his attorney or a defendant's frustration with counsel are not sufficient cause for substitution of counsel." (People v. Streeter (2012) 54 Cal.4th 205, 231.)
The Trial Court Properly Denied Appellant's Motions
Appellant argues "the sheer number of ... motions brought by appellant in a relentlessly ongoing attempt to extricate himself from an attorney-client relationship so obviously fraught with antipathy and friction clearly supports a finding that the court's failure to discharge [trial counsel] substantially impaired appellant's constitutional right to assistance of counsel." We do not agree.
While numerous Marsden motions were made by appellant, the sheer number does not demonstrate appellant was receiving or was likely to receive ineffective representation. To the contrary, in our review of the issues raised and counsel's explanations of his tactics, it is readily apparent that the core disagreements between counsel and appellant were tactical and legal decisions appellant did not like but that counsel could more than capably defend given the nature of the case. None of the errors alleged by appellant demonstrated, or even hinted, that trial counsel was representing appellant incompetently. Rather, the extensive discussions on the record show that counsel was cognizant of appellant's desired defense and was attempting to follow appellant's desires as well as could be done given the state of the law, the facts that were actually adduced at trial, and the potential risk for additional inculpatory evidence to arise through inartful questioning of the witnesses. Given the record before us, we cannot conclude the trial court abused its discretion by denying appellant's repeated Marsden motions. None individually, nor all together, demonstrate such an irreconcilable conflict that ineffective representation is likely to result.
A Remand for Resentencing Is Proper
Aside from the Marsden issue, appellant raises several arguments concerning the appropriateness of his sentencing. First, he believes the court should remand this matter pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.) to allow the trial court to consider whether to exercise its newly granted discretion to dismiss or strike the firearm allegation under section 12022.5. The People agree remand is necessary for this reason. Remand is also consistent with several prior published opinions, and prior decisions of this court. (See People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091.)
Second, appellant contends remand is appropriate because the trial court incorrectly stayed a one year sentencing enhancement imposed under section 667.5, subdivision (b), rather than striking that enhancement. Again, the People agree, noting that because the trial court chose not to impose the enhancement it was required to strike it, not stay it. (See People v. Garcia (2008) 167 Cal.App.4th 1550, 1561.) The People do note, however, that the various changes to the overall sentence that are now permitted should result in the trial court having authority to impose the section 667.5 enhancement if it chooses to strike the section 667 enhancement discussed below.
Third, in a first supplemental brief, appellant argues remand is also appropriate pursuant to Senate Bill No. 1393 to allow the trial court to consider whether to exercise its newly granted discretion to strike the five year enhancement added to his sentence under section 667, subdivision (a)(1). Applying the same logic as utilized with respect to Senate Bill No. 620 (2017-2018 Reg. Sess.), the People agree remand is appropriate here, as well. The concession is consistent with this court's prior rulings that Senate Bill No. 1393 is retroactive and that remand is appropriate where it applies. (See People v. Ellis (2019) 43 Cal.App.5th 925, 941, review granted Feb. 26, 2020, S260261 .)
Finally, in a second supplemental brief, appellant identifies another basis to remand, arguing the trial court unlawfully imposed a $10,000 restitution fine, an $80 security fee, and a $60 criminal conviction assessment without finding appellant had the ability to pay those fines. The People note that appellant did not raise this objection at the time of sentencing, but state that because this matter is being remanded for resentencing anyway, it is best to have appellant raise his inability to pay the fines at his resentencing.
We have independently reviewed the arguments and concessions and agree they are appropriate. We therefore remand the matter to the trial court for resentencing, at which time it may choose whether or not to exercise its newly granted discretion to strike certain enhancements and determine whether it should again impose the fines and fees challenged.
DISPOSITION
The matter is remanded for resentencing consistent with this opinion. The judgment is otherwise affirmed.
SMITH, J. WE CONCUR: LEVY, Acting P.J. SNAUFFER, J.