Opinion
NOT TO BE PUBLISHED
APPEAL from a postjudgment order of the Superior Court of San Bernardino County, No. FSB 055511, and a petition for writ of habeas corpus, Arthur A. Harrison, Judge.
McINTYRE, J.
After a jury convicted Ralph Montecino Ryan of murdering James Ramirez, and found true several enhancements, the trial court sentenced him to a total term of 50 years to life in prison. This court reversed the judgment and remanded the matter to allow Ryan's newly retained or appointed counsel a reasonable opportunity to fully investigate and present a new trial motion. (People v. Ryan (May 27, 2009, D054601) [nonpub. opn.] (the Prior Opinion).) We specified that if a motion for new trial was not filed or the motion was denied, the judgment and sentence previously imposed would be reinstated. On remand, the trial court heard and denied the new trial motion.
On February 2, 2011, appellate counsel filed a brief on behalf of Ryan under the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende). Under Anders v. California (1967) 386 U.S. 738 (Anders), he listed as a possible but not arguable issue, whether the trial court erred in denying the new trial motion. We granted Ryan permission to file a brief on his own behalf. He has not responded. In a subsequently filed petition for writ of habeas corpus, Ryan asserted through the same attorney that filed the Wende appeal, that he received ineffective assistance of counsel on the new trial motion because newly appointed defense counsel filed the motion without reviewing the trial transcripts. After considering the allegations of the petition in light of the People's informal response we determined that Ryan had stated a prima facie case for relief and issued an order to show cause. An order consolidating the matters is filed concurrently with this opinion. We take judicial notice of our Prior Opinion and the record on appeal. (Evid. Code, §§ 459, 452.)
We reviewed the record pursuant to Wende, including the possible issue listed by counsel pursuant to Anders. Our review has disclosed no reasonably arguable issues on appeal. Competent counsel has represented Ryan on this appeal. However, we conclude Ryan is entitled to habeas relief based on ineffective assistance of counsel below.
PROCEDURAL BACKGROUND
After we issued our Prior Opinion, the parties appeared before the trial court on September 23, 2009, and the trial court appointed Janice Kuhr to represent Ryan. At this hearing, the court set a date for the new trial motion. Counsel and the court also discussed getting Kuhr a copy of the trial transcripts. The court noted that consulting with appellate counsel would be the "quickest" way to get the trial transcripts. On October 27, 2009, attorney Kerry Ganahl appeared on Ryan's behalf, and the trial court set a status hearing for the new trial motion. At the November 19, 2009, status hearing, the trial court noted that defense counsel had not received the trial transcripts, that appellate counsel may have sent them to Ryan, and that the transcripts were missing. Nonetheless, Ganahl represented that she could file the new trial motion by January 7, 2010. Based on this representation, the trial court set January 29, 2010, as the hearing date for the new trial motion. The trial court subsequently heard and denied the motion. At the hearing, defense counsel never mentioned that she prepared the motion without reviewing the trial transcripts.
DISCUSSION
In Strickland v. Washington (1984) 466 U.S. 668 (Strickland), the Supreme Court established the standard test for determining whether a defendant's Sixth Amendment right to counsel was violated. Under Strickland, a defendant must demonstrate that "counsel's representation fell below an objective standard of reasonableness" and "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 688, 694.) On the same day it issued Strickland, the Supreme Court decided United States v. Cronic (1984) 466 U.S. 648 (Cronic), again addressing the scope of the Sixth Amendment's right to counsel. In Cronic, the Supreme Court held that there are "circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." (Id. at p. 658.)
The Supreme Court has identified three situations in which courts should apply the Cronic standard of presumed prejudice. The first is when there is a "'complete denial of counsel'" at a critical stage in the trial proceedings. (Bell v. Cone (2002) 535 U.S. 685, 695-696, quoting Cronic, 466 U.S. at p. 659.) Second are situations in which a petitioner is represented by counsel at trial, but counsel "entirely fails to subject the prosecution's case to meaningful adversarial testing." (Bell v. Cone, supra, at p. 696.) And third, situations at trial where counsel could not render competent assistance. (Ibid.)
The first situation does not apply because Ryan had appointed counsel at a critical stage in the trial proceedings. Likewise, the third situation does not apply because the circumstances were not such that any counsel could not render competent assistance; e.g., where the trial court required counsel to represent a client at trial knowing counsel had no opportunity to prepare for trial. (See Cronic, supra, 466 U.S. at pp. 659-661, addressing Powell v. Alabama (1932)287 U.S. 45 [last-minute appointment of defense counsel].)
Ryan asserts the second situation applies because there was a breakdown of the adversarial process at a critical stage of the proceeding. We agree. An example of the second situation is counsel who was directed to file a timely appeal, but fails to do so. (Rodriquez v. United States (1969) 395 U.S. 327.) Such incompetency is per se prejudicial and there is no need to determine if there is a reasonable probability that the appeal would be successful. (Id. at pp. 329-330.)
Here, we ordered the trial court to "appoint new counsel to fully investigate and present a new trial motion." The record establishes, however, that defense counsel did not follow this directive because she brought a new trial motion without looking at the trial transcripts. Although counsel claims she repeatedly asked the trial court, on the record, for its assistance in obtaining the transcripts, this assertion is belied by the record. Finally, counsel never alerted the court that she prepared the new trial motion without obtaining and reviewing the trial transcripts. Had newly appointed counsel brought this issue to the trial court's attention, the court undoubtedly would have immediately realized that our remand order had not been complied with as it is impossible for newly appointed counsel, unfamiliar with the prior proceedings, to "fully investigate" a new trial motion without reviewing the trial transcripts.
We conclude that counsel's representation amounted to incompetence because she: (1) brought a new trial motion without obtaining and reviewing the trial transcripts; (2) made no effort to enlist the trial court's assistance in obtaining the transcripts; and (3) made no record that she filed the new trial motion without reviewing any transcripts. Counsel's filing of a new trial motion without reviewing the trial transcripts not only failed to comply with our remand directive, but amounted to a complete abdication of the minimum performance required of defense counsel. Counsel's performance was tantamount to nonrepresentation as she apparently filed the new trial motion based merely on letters from Ryan and discussions with prior trial counsel. The prejudice of these failings is inherent. Ryan is facing a life sentence, he is entitled to have newly appointed defense counsel fully investigate a new trial motion.
DISPOSITION
The relief sought in the petition for writ of habeas corpus is granted, the order denying a new trial is vacated and the matter is remanded. Within 30 days after issuance of the remittitur the trial court shall appoint new counsel and allow counsel a reasonable time period to fully investigate and present a new trial motion.
WE CONCUR: BENKE, Acting P. J., NARES, J.