Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. 30142, Ronald W. Hansen, Judge.
Carl M. Faller, 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, Lloyd G. Carter and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J., and Gomes, J.
PROCEEDINGS
Appellant, Frank Earl Roehrenbaeck, was charged in an information filed July 12, 2006, with obtaining money by false pretenses (Pen. Code, § 532, count one), forgery (§ 470, count two), possession of a firearm by a felon (§ 12021, subd. (a)(1), count three), and possession of ammunition by a prohibited person (§ 12316, subd. (b)(1), count four). The information alleged one prior serious felony conviction within the meaning of the three strikes law and two prior prison term enhancements. On November 17, 2006, the jury found Roehrenbaeck guilty of all counts and allegations.
Unless otherwise indicated, all statutory references are to the Penal Code.
On January 16, 2007, the trial court sentenced Roehrenbaeck to the upper term of three years on count one, which it doubled to six years pursuant to the three strikes law. The court imposed consecutive sentences of 16 months (one-third the midterm) on counts two and three and a concurrent sentence of two years on count four. The court imposed consecutive terms of one year for each prior prison term enhancement. Roehrenbaeck’s total prison term is 10 years 8 months.
The trial court apparently misspoke at sentencing, finding the sentence on counts one, two and three was four years eight months doubled to eight years eight months.
On appeal Roehrenbaeck contends the trial court failed to make an adequate inquiry into grounds for inadequate representation by trial counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Roehrenbaeck also contends, and respondent concedes, that the trial court violated his right to a jury trial on factors used by the trial court to impose an upper term sentence. (California v. Cunningham (2007) 549 U.S. 270 (Cunningham).
FACTS
Carl Thetford was a resident of Southern California, but from July 2005 to March 2006, he worked as a construction superintendent in Planada and stayed in Merced County. Roehrenbaeck began working as a laborer for the same company in the middle of January 2006. Roehrenbaeck sometimes used Thetford’s truck, which contained Thetford’s possessions, including his personal checks.
Roehrenbaeck was hired through a company called Labor Ready, which directly paid him. Thetford signed a receipt for Roehrenbaeck everyday. Roehrenbaeck worked as a general laborer following Thetford’s directions. Thetford referred Roehrenbaeck for a job with another company at the conclusion of this job.
On April 21, 2006, Thetford had returned from vacation and noticed that the balance of his checking account was a lot less than it should have been. Eight checks on Thetford’s account had been written to Roehrenbaeck and cashed. Thetford did not write or sign these checks and did not authorize anyone to use them.
Thetford does not own a computer or use on-line banking. He did not become aware of a problem with his account until he returned from a vacation. There were also several electronic accounts Thetford did not authorize. One was to an A.T. & T. service account. Thetford did not have such an account. There were three PayPal transactions. Thetford did not know what PayPal was. There was a transaction with Intertrans, another company Thetford knew nothing about.
There were also transactions with WW web and with 800 numbers. When Thetford called one 800 number, he learned six accounts involving pornography and video pornography had been created using Roehrenbaeck’s name and Thetford’s social security number. Thetford never authorized Roehrenbaeck to use his social security number. Thetford received letters from Roehrenbaeck while Roehrenbaeck was in jail pleading with Thetford to drop the charges.
Detective John Mussotto of the Merced County Sheriff’s Department was the lead fraud investigator. Roehrenbaeck initially told Mussotto that he took none of Thetford’s checks. Later, Roehrenbaeck told Mussotto he took six or seven checks. There were two PayPal accounts, one in Roehrenbaeck’s name and the other in Thetford’s name. Roehrenbaeck told Mussotto that Thetford authorized the PayPal transactions. The statements for both accounts were sent to Roehrenbaeck’s address. Roehrenbaeck told Mussotto that Thetford gave him permission to use his personal information.
Mussotto explained that a PayPal account is an on-line money transfer service for making internet purchases.
Mussotto found a 16-gauge shotgun and a box of 16-gauge shotgun shells during a search of Roehrenbaeck’s residence. Roehrenbaeck told Mussotto that his grandfather brought the gun to Roehrenbaeck’s house and Roehrenbaeck kept it for protection against gang members who had threatened him. Mussotto testified that he retrieved evidence from Roehrenbaeck’s computer showing two large PayPal payments from Thetford to Roehrenbaeck.
Defense counsel, Leanna Rhodes, first learned about this computer evidence the day it was introduced. Rhodes explained to the trial court that this late discovery violated a standing discovery order in the case. The court told Rhodes the information was relevant and the court was going to permit its introduction into evidence. Rhodes requested a late discovery instruction to the jury. As respondent notes in footnote 11 of its brief, it does not appear that the trial court gave an instruction to the jury on late discovery. Rhodes did argue the point in her closing argument.
Frank Faulkner, Roehrenbaeck’s uncle, testified that the 16-gauge shotgun found in Roehrenbaeck’s residence was his. Faulkner said he left shotgun shells on the sofa when no one was home. The parties stipulated Roehrenbaeck was a convicted felon, who was prohibited from possessing a firearm or ammunition.
Marsden Motion
Appellant claims the trial court failed to consider all of the contentions he made concerning grounds to substitute his trial counsel to investigate a motion for new trial pursuant to Marsden. Because two grounds raised by appellant were not addressed by trial counsel during the Marsden hearing, we will reverse the judgment and remand for further proceedings.
The Marsden case holds that when a defendant seeks to discharge his appointed counsel and substitute another attorney, asserting inadequate representation, the trial court must permit the defendant to explain the basis of his or her contention and to relate specific instances of the attorney’s alleged inadequate performance. A defendant is entitled to new counsel if the record clearly shows that the first appointed attorney is not providing adequate representation or that the defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. (People v. Hart (1999) 20 Cal.4th 546, 603.) A defendant’s request that appointed counsel be relieved and new counsel appointed triggers a duty under Marsden to inquire further into the reasons for the defendant’s dissatisfaction. (People v. Hill (1983) 148 Cal.App.3d 744, 752-753.) The court must inquire on the record into the bases of defendant’s complaints and afford him or her the opportunity to explain specific instances of counsel’s asserted inadequacy. (Id. at p. 753.) This inquiry is not a pro forma function. (People v. Cruz (1978) 83 Cal.App.3d 308, 316.)
Here, appellant’s written motion for a Marsden hearing set forth that his counsel had a conflict of interest with the prosecutor, his speedy trial rights were violated, counsel failed to make a motion to suppress based on late discovery, and counsel failed to employ a handwriting expert to examine the checks appellant allegedly forged. Appellant further moved for a new trial based on the alleged ineffective representation of his trial counsel.
During the Marsden hearing defense attorney Rhodes told the trial court she had mentioned to appellant that some years earlier the prosecutor had filed a criminal action against her husband that was later dismissed. Rhodes mentioned this as an example of a prosecutor’s case having difficulty because of witnesses. Though there was no further discussion on this point, it appears there was no actual conflict of interest between the prosecutor and Rhodes.
Rhodes spoke at length regarding time waivers entered by appellant or his previous attorney at earlier stages of the instant action in the context of appellant’s speedy trial rights. Rhodes explained to the court that she reviewed the record and although there were some inconclusive records, it appeared to Rhodes that it would be very difficult to prevail on a speedy trial claim. Here too, it appears appellant’s concerns were addressed during the Marsden hearing.
The trial court, however, asked Rhodes about the motion to suppress evidence due to late discovery and whether a handwriting expert should have been employed to analyze the checks. Rhodes failed to comment on either point and appellant was not asked any questions on either issue. The trial court denied the Marsden motion. This was a pro forma hearing that failed to address points that were significant to appellant. Appellant’s contention, according to the lead investigator, was that Thetford wrote checks to him. It is impossible from the record for us to discern whether a handwriting expert would have been helpful on this point, or would have provided evidence of more value to the prosecution. Such expert testimony may or may not have been an important defense to count two.
As for the motion for suppressing information concerning belated discovery, Rhodes may or may not have had tactical reasons for failing to bring such a motion. The record is silent on this point. We decline the respondent’s invitation to employ a prejudice analysis to this issue because there may be relevant information or evidence outside the record on appeal that could affect this issue. These were matters raised, but not resolved, during the Marsden hearing. (See People v. Mejia (2008) 139 Cal.App.4th 1081, 1087 and People v. Eastman (2007) 146 Cal.App.4th 688, 695.)
Appellate counsel raises one more issue of potential ineffective assistance of trial counsel. Detective Mussotto testified that appellant had a prior conviction for first degree burglary. Defense counsel failed to object to this form of the question and to have the officer testify to a sanitized version of the felony conviction. As appellant points out, he had already stipulated that he had a prior felony conviction. In a renewed motion for new trial, appellant should be permitted to argue the prejudicial effect on the jury, if any, of Mussotto’s unsanitized testimony.
Cunningham Error
Appellant contends, and respondent concedes, that the trial court committed Cunningham error when it sentenced him to the upper term on count one. The trial court found there were no mitigating sentencing factors. As factors in aggravation, the court found the manner in which the crime was carried out indicates planning and sophistication and that appellant took advantage of a position of trust of the victim who befriended him and gave appellant a good job.
These findings are factually indistinguishable from those in People v. Sandoval (2007) 41 Cal.4th 825, 841-843 (Sandoval). The Sandoval court did not find the Sixth Amendment error to be harmless. (Id. at p. 843.) Appellant was not sentenced in this case pursuant to the new Determinate Sentencing Law (DSL), which had not yet been passed by the Legislature when appellant was sentenced on January 16, 2007. Under Cunningham and Sandoval, the trial court’s reliance on factors that had to be found true by a jury violated appellant’s Sixth Amendment rights. The trial court, on remand, can rely on the new DSL in sentencing appellant because its provisions are not subject to the Constitution’s ex post facto clause. (Sandoval, supra, 41 Cal.4th at pp. 853-858.)
Appellant has a criminal history that could be used as an aggravating factor without a finding by a jury. (People v. Black (2007) 41 Cal.4th 799, 812-818 (Black).) The trial court, however, did not rely on this factor when imposing the upper term.
DISPOSITION
The judgment is reversed and the matter is remanded with directions to the trial court to conduct a full Marsden hearing and, on that foundation, either to appoint new counsel on appellant’s new trial motion or to reinstate the judgment or to proceed as authorized by law. (§ 1262.) If judgment is reinstated, the court shall resentence appellant in accordance with Cunningham, Black, Sandoval, and the amended DSL.