Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1078543. Nancy Ashley, Judge.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Wiseman, J., and Dawson, J.
OPINION
Appellant Steven Louis Richards stands convicted of multiple felonies, for which he was sentenced initially to 95 years to life in prison. He appealed, in case No. F049341; on appeal, this court reversed the judgment and remanded for further proceedings; and on remand, the trial court reinstated the judgment and imposed a sentence of 85 years to life. The instant appeal followed.
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant, in response to this court’s invitation to submit supplemental briefing, has himself submitted a brief in which he argues, as best we can determine, that he was denied his constitutional right to the effective assistance of counsel.
We will modify the judgment to correct an error in the award of presentence credits, and affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
Procedural Background
In July 2005, an information was filed charging appellant with first degree burglary (Pen. Code, §§ 459, 460, subd. (a); count 1), attempted first degree burglary (§§ 459, 460, subd. (a), 664; count 2), second degree burglary (§§ 459, 460, subd. (b); count 3), passing an altered or forged check (§ 470, subd. (d); count 4) and misdemeanor resisting arrest (§ 148; count 5). It was also alleged in the information that appellant had suffered eight “strikes” and that, in connection with each of counts 1 and 2, he was subject to two prior serious felony enhancements (§ 667, subd. (a)).
Except as otherwise indicated, all statutory references are to the Penal Code.
We use the term “strike” as a synonym for “prior felony conviction” within the meaning of the “three strikes” law (§§ 667, subds. (b)-(i), 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
In October 2005, a jury convicted appellant of the charged offenses and the court, in a separate proceeding, found the enhancement and strike allegations true. In November 2005, the court imposed a prison term of 95 years to life consisting of consecutive terms of 25 years to life on each of counts 1, 2 and 3, and five years on each of the two prior serious felony enhancements charged in connection with counts 1 and 2 respectively. On count 4, the court imposed, and stayed pursuant to section 654, a term of 25 years to life, and on count 5 the court imposed a concurrent one-year term in county jail. The court awarded appellant 745 days of presentence credits, consisting of 497 days of actual time credits and 248 days of conduct credits.
Our source for the court’s presentence credits award is the reporter’s transcript of appellant’s sentencing hearing on November 30, 2005, of which we take judicial notice. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
In December 2005, appellant filed a timely notice of appeal.
In December 2006, on appeal, this court held the trial court erred in (1) failing to conduct a hearing on appellant’s request that his counsel, Michael Scheid, be relieved and new counsel be appointed for the purpose of filing a motion for new trial based on ineffective assistance of counsel, and (2) imposing, in connection with each of counts 1 and 2, a prior serious felony conviction enhancement based on a prior juvenile adjudication. We reversed the judgment and remanded the matter for the court to conduct a hearing on appellant’s motion for substitute counsel (Marsden motion). We further directed the trial court, as follows: “If the court grants the Marsden motion, a new trial motion is filed, and the new trial motion is granted, appellant shall receive a new trial. If the court denies the Marsden motion, or a new trial motion is not filed, or a new trial motion is filed and denied, the court shall reinstate the judgment of conviction and resentence appellant, dismissing the [the two five-year section 667, subdivision (a) enhancements based on appellant’s prior juvenile adjudication], so that appellant’s aggregate sentence is 85 years to life.”
See People v. Marsden (1970) 2 Cal.3d 118.
On remand, on May 2, 2007, the court conducted a Marsden hearing and thereafter relieved Attorney Scheid as appellant’s counsel and appointed Attorney William Miller to represent appellant and determine whether to file a motion for a new trial.
On May 9, 2007, the court conducted a second Marsden hearing, after which it relieved Mr. Miller and appointed Attorney Lewis Wentz to represent appellant.
On January 18, 2008, Mr. Wentz appeared in court with appellant, and informed the court he had researched the question of whether there was any basis for a motion for a new trial; he had reached a conclusion and communicated that conclusion to appellant; and appellant wished to move for the appointment of substitute counsel.
Immediately thereafter, the court conducted a hearing on appellant’s Marsden motion. The court denied the motion and then reopened the courtroom, at which time Mr. Wentz stated he did not believe a “valid” basis for a motion for a new trial existed, gave his basis for that conclusion and stated he would not present a motion for a new trial.
Moments later, the court reinstated the judgment of conviction, struck the two prior serious felony enhancements that were based on appellant’s prior juvenile adjudication and imposed a sentence of 85 years to life. The court awarded appellant no further presentence credits. The instant appeal followed.
Thereafter, appellant, by ex parte motion in the trial court, sought an order awarding him 1,360 days of presentence credit. On August 1, 2008, the trial court, by minute order, awarded appellant 1,663 days of presentence credit “As of Jan. 18, 2008,” but also indicated that its “calc. of credits” as of August 1, 2008, was 1,846 days of presentence credits.
The reporter’s transcript of appellant’s trial has not been made part of the record on appeal. Our summary of the facts of the instant offenses is taken from the factual statement in our opinion in appellant’s previous appeal.
At approximately 9:00 a.m. on July 10, 2004, Diane Castillo saw a man carrying a partially filled black garbage bag leaving the backyard of the home of her next-door neighbors, Robert and Anna Williams. The Williamses were not home and Castillo did not recognize the man, so she called the police.
Except as otherwise indicated, further references to dates of events are to dates in 2004.
Modesto Police Officer Curtis Musto responded and spoke to Castillo, who stated she was approximately 80 feet away from the man she had seen in her neighbors’ yard, and described the man as a Hispanic, in his 20’s, approximately five feet seven inches tall, weighing 190 pounds, and wearing baggy jeans, a Pendleton shirt and a baseball cap. Officer Musto went to the Williams’ house and found that the back door had been kicked in. He walked through the house and determined nothing had been disturbed.
At appellant’s Marsden hearing on January 18, 2008, appellant’s counsel described appellant, without contradiction, as “at the time [of the instant offenses] 38 and a white male, stocky build.”
Sometime between 1:00 p.m. and 2:00 p.m., appellant walked into the Money Mart check-cashing office in Modesto, and presented to the clerk, Mri Hernandez, for cashing, a check drawn on the account of Robert S. Williams and Anna Williams and purportedly made payable to appellant and signed by Mr. Williams. Appellant also presented a photo ID, which bore his signature. Hernandez made a copy of the check and appellant’s photo ID. The signature on the ID appeared to be similar to the writing on the check, and Hernandez was unable to reach Mr. or Mrs. Williams by telephone, so Hernandez refused to cash the check. Appellant “stormed” out of the office.
On July 11, Mrs. Williams returned home, and Castillo told her someone had been in her house. Thereafter, Mr. and Mrs. Williams discovered their checkbook was missing.
At trial, Castillo identified appellant as the man she had seen in the Williams’ yard. She further testified to the following. She was approximately 25 to 30 feet away from appellant, she had a clear view of him and she got a good look at him. Approximately one week after the incident a police officer showed her a photographic lineup, and she identified appellant’s picture.
The Williamses obtained from Money Mart copies of the check and appellant’s photo ID. Mrs. Williams showed the photo ID to Castillo. Castillo testified she could not remember if this occurred before or after she looked at the photographic lineup. Mr. Williams testified that he showed the photo ID to Castillo when he and his wife returned from Money Mart, and that Castillo “said that that was definitely him.” Castillo also testified to the following. She “didn’t really concentrate on [the ID] ….” The picture on the photo ID “didn’t look anything like the picture [she] had picked out [in the lineup].” Her identification at trial was based on her observations of appellant in the Williams’ yard, and not on the copy of appellant’s photo ID.
Facts - Counts 2, 5
At approximately 11:00 p.m. on July 22, Mr. and Mrs. Clarendon Hetrick were home in bed when they heard someone knock at their front door, open the unlocked screen door and try to open the front door latch. Mrs. Hetrick went to the door, looked out the window and saw a man walk away from the door, pushing a bicycle. She then went back to bed.
Approximately four or five minutes later, the Hetricks heard someone try to open the front door handle. Shortly thereafter, they heard someone trying to open the back door handle, followed by a squeaking noise as if someone was trying to open a screen. Next, they heard someone repeatedly bang on their metal back door, as if trying to kick it down. At that point, Mrs. Hetrick called the police.
Officers Rigo Dealba and Matthew Spurlock arrived at the Hetricks’ house within minutes of Mrs. Hetrick’s call, and as they approached the house they could hear loud banging coming from the backyard. The officers approached the yard, looked over the fence and saw appellant standing by the back door.
Officer Dealba pulled his service revolver, opened the gate, entered the backyard and ordered appellant to get on the ground. Appellant, who had a rock in his hand, raised his arm as if to throw the rock. Officer Dealba ordered appellant to drop the rock and get on the ground. Appellant lowered his arm but held on to the rock. Shortly thereafter, the officers tried to take appellant into custody, but appellant “started to tussel” and his arms were “going in a punching manner, just resisting altogether.” After a struggle, the officers were able to force appellant to the ground and handcuff him.
The officers asked the Hetricks to view appellant, and Mrs. Hetrick identified him as the man she had seen at the front door. The officers then placed appellant in the patrol car.
Officer Spurlock noticed a man on a bicycle, across the street from the Hetricks’ house. The man, later identified as either Robert or Michael Wren, rode up to another patrol car and looked inside. Officer Spurlock asked Wren what he wanted. Wren responded that he saw the police cars and just wanted to investigate. Officer Spurlock asked if he could conduct a pat-down search for weapons, Wren agreed and the officer found a revolver in Wren’s pocket. The officers did not discover any information to connect appellant and Wren.
DISCUSSION
Appellant first argues that because of various deficiencies in Attorney Schied’s performance before and during the trial, he (appellant) was denied his constitutional right to the effective assistance of counsel. For two reasons this claim is not cognizable in the instant appeal. First, appellant did not raise this claim in his prior appeal and provides no explanation for failing to do so. (People v. Senior (1995) 33 Cal.App.4th 531, 538 [“where a criminal defendant could have raised an issue in a prior appeal, the appellate court need not entertain the issue in a subsequent appeal absent a showing of justification for the delay”].) Moreover, our remand in the previous appeal was for a limited purpose, and “[i]n an appeal following a limited remand, the scope of the issues before the court is determined by the remand order.” (People v. Murphy (2001) 88 Cal.App.4th 392, 396-397.) Because the issues presented by our order reversing the judgment and remanding the matter to the trial court related only to postconviction matters, appellant cannot now be permitted to attack his convictions. (Cf. ibid.)
Appellant also suggests that Attorney Wentz was constitutionally ineffective in failing to present a motion for new trial based on the claim that Attorney Scheid’s performance was constitutionally deficient. There is no merit to this claim.
Although not enumerated as one of the statutory grounds for new trial in section 1181, a trial court may grant a motion for a new trial on the ground of ineffective assistance of counsel. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583.) To prevail on a claim of constitutionally ineffective assistance, a criminal defendant must establish both deficient performance, i.e., “‘that counsel’s representation fell below an objective standard of reasonableness,’” and prejudice, i.e., “‘that there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted.’” (People v. Holt (1997) 15 Cal.4th 619, 703.) “‘If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails. Moreover, “‘a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.’ [Citation.].”’” (Ibid.)
As indicated above, the major premise of appellant’s argument that Wentz was ineffective in failing to bring a new trial motion is the claim that Scheid provided constitutionally deficient representation. Appellant’s attack on Scheid’s performance rests on his claims that Scheid failed to (1) subpoena Wren; (2) present the testimony of a handwriting expert to establish that appellant did not forge the check he presented for cashing; (3) present the testimony of an expert on eyewitness identification to challenge Castillo’s identification of appellant; and (4) move to exclude Castillo’s in-court identification on the ground that it was preceded and tainted by Castillo’s viewing of appellant’s photo ID.
Attorney Wentz told the court at the January 18, 2008, proceeding that appellant stated “that Mr. Winn [sic] had chased him with the gun, and that’s why [appellant] was at the [Hetricks’] house banging on the door, although [appellant] did not tell the police that on the night in question.”
We first address the claimed instances of deficient performance numbered (1), (2) and (3) above. In these instances appellant faults Scheid for not presenting the testimony of certain witnesses.
A claim that counsel should have called additional witnesses at trial “‘must be supported by declarations or other proffered testimony establishing both the substance of the omitted evidence and its likelihood for exonerating the accused. [Citations.] We cannot evaluate alleged deficiencies in counsel’s representation solely on defendant’s unsubstantiated speculation.’ [Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 334.)
Accordingly, “[o]n direct appeal, a claim of ineffective counsel cannot be established by mere speculation regarding the ‘likely’ testimony of potentially available witnesses. [Citation.] We cannot assume from a silent record that particular witnesses were ready, willing and able to give mitigating testimony, nor can we speculate concerning the probable content or substance of such testimony.” (People v. Medina (1995) 11 Cal.4th 694, 773.) Therefore, where a witness whom the defendant contends should have been called did not testify, and the record contains no reference to any evidence that he or she might have presented, the appellate court cannot, without engaging in speculation, “‘infer anything about its existence, availability, or probative force, or the probable consequences of its use at trial.’ [Citation.]” (People v. Wash (1993) 6 Cal.4th 215, 269.)
Here, appellant’s suggestion that the witnesses in question would have presented exculpatory evidence is nothing more than speculation. Accordingly, there is nothing in the record to support appellant’s claim of ineffective assistance in this regard.
The record also does not support the claim that Scheid was ineffective in failing to move to exclude Castillo’s in-court identification. As best we can determine, appellant premises this argument on the claim that Mrs. Williams’s act of showing Castillo appellant’s photo ID was impermissibly suggestive of the idea that appellant was the person Castillo saw in her neighbors’ yard, thereby rendering Castillo’s in-court identification of appellant unreliable and depriving appellant of a fair trial.
As indicated above, the record of appellant’s trial has not been made part of the record in the instant appeal. We assume without deciding the factual premise of appellant’s argument, i.e., that Scheid failed to move to exclude Castillo’s identification testimony.
In People v. Boothe (1977) 65 Cal.App.3d 685, 691, the court noted it was not aware of any authority that challenges to pretrial photo lineups could be predicated upon conduct by private citizens. (See also People v. Boyd (1990) 222 Cal.App.3d 541, 574 [“California courts have indicated in dicta that it must be police conduct which causes the procedure to be suggestive”]) Our independent research has uncovered no case where conduct by private parties was found to be a ground to exclude identification testimony. As there is no clear authority for the proposition that conduct by private citizens can be the basis for a motion to exclude identification testimony, Scheid could not be considered ineffective for not making such a motion. We note further that even when conducted by police, “A single person photographic showup is not inherently unfair. [Citation.] Showing the witnesses a single photo of the defendant is no more impermissibly suggestive than an in-court identification with the defendant personally sitting at the defense counsel table in the courtroom.” (People v. Yonko (1987) 196 Cal.App.3d 1005, 1008-1009.) The record does not support the claim that Scheid was ineffective in failing to move to exclude Castillo’s identification testimony.
As indicated above, by its minute order of August 1, 2008, the trial court indicated appellant was entitled to presentence credits of 1,663 days as of January 18, 2008, and 1,846 days as of August 1, 2008. Neither figure reflects the correct number of presentence credits to which appellant is entitled. In addition to the credits awarded at appellant’s initial sentencing, appellant is entitled to presentence credits for the period from the date of this court’s decision reversing the judgment, December 14, 2006, to the date of resentencing, January 18, 2008. (See In re Martinez (2003) 30 Cal.4th 29, 32.) That period consists of 401 days. And as indicated above, appellant was previously awarded 497 days of actual time credits for a previous period. Thus, appellant is entitled to a total of 898 days of actual time credits. In addition, based on that figure, he is entitled to 448 days of conduct credits. (§ 4019; People v. King (1992) 3 Cal.App.4th 882, 884-885.) Therefore, appellant is entitled to 1,346 days of presentence credits, consisting of 898 days of actual time credits and 448 days of conduct credits. We will modify the judgment accordingly.
Pursuant to Government Code section 68081 we advised the parties that if we were to otherwise affirm the judgment, we intended to modify the judgment to reflect the correct presentence credits, and we invited supplemental briefing on the issue. The People did not respond to this invitation. Appellant responded, pointing out an arithmetic error in this court’s proposed credits recalculation, but otherwise not contesting the basis for our recalculation. The calculation set forth above reflects our correction of that error.
Following independent review of the record, we have concluded that no other reasonably arguable legal or factual issues exist.
DISPOSITION
The judgment is modified to provide that appellant is awarded 1,346 days of presentence credits, consisting of 898 days of actual time credits and 448 days of conduct credits. As modified, the judgment is affirmed.