Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Before Vartabedian, Acting P.J., Wiseman, J., and Cornell, J.
APPEAL from a judgment of the Superior Court of Kern County, Super. Ct. No. SC081181A, Richard J. Oberholzer, Judge.
Carlo Andreani, 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, Louis M. Vasquez, Brian Alvarez, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Defendant Sean David Shupp was convicted of possessing a controlled substance in prison and sentenced to the four-year upper term, plus four 1-year enhancements for prior prison terms. He argues that: (1) the trial court erred when it refused to relieve retained counsel and appoint successor counsel; (2) the retained counsel was ineffective because she failed to object to imposition of the upper term in the absence of any statement of reasons; and (3) the imposition of the upper term contravened the United States Supreme Court’s decision in Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
We affirm. We previously issued an opinion in this appeal on November 1, 2006. The present opinion follows a remand from the United States Supreme Court for reconsideration of issue (3), the Blakely issue, in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). We will reiterate our previous discussion of issues (1) and (2). On issue (3), our Supreme Court’s recent application of Cunningham in People v. Black (2007) 41 Cal.4th 799 (Black II) is dispositive and requires affirmance.
PROCEDURAL HISTORY
We need not discuss the facts underlying the conviction, as these are not pertinent to the issues raised on appeal. Shupp was convicted in 2000 of several counts of possessing drugs in prison (Pen. Code, § 4573.6). The jury also found true allegations that defendant had three prior convictions for assault with a deadly weapon and had served five prison terms for five offenses in addition to the three assaults. The court imposed a three strikes sentence of 29 years to life based on the prior assaults.
Subsequent statutory references are to the Penal Code unless noted otherwise.
A series of appeals ensued. In the first (No. F037676), we reversed all but one of the drug-possession convictions. We also vacated the sentence, stating that the prior assaults did not count as strikes unless certain factual findings were made. The trial court made those findings on remand and reimposed the three strikes sentence. In the second appeal (No. F043439), we again vacated the sentence and remanded, holding that the trial court contravened People v. Guerrero (1988) 44 Cal.3d 343 by relying on evidence outside the records of the prior convictions.
At the hearing on the second remand, the People conceded that they could not prove the priors were strikes. The court imposed the current sentence, consisting of the upper term of four years, plus four 1-year enhancements for four prior prison terms served (§ 667.5, subd. (b)). This was to run consecutively to the sentence imposed in another case.
Shupp then filed the present appeal. We issued our decision affirming the judgment on November 1, 2006. After the United States Supreme Court decided Cunningham, Shupp filed a petition for certiorari. The high court granted the petition, vacated the judgment, and remanded. This court recalled its remittitur, reinstated the appeal, and requested supplemental briefing.
DISCUSSION
I. Failure to appoint new counsel
Shupp contends that the trial court violated his right to counsel under the Sixth and Fourteenth Amendments when it failed to grant his request to relieve his retained counsel, Ms. De La Pena, and appoint new counsel to represent him. We find no error because we agree with the People that Shupp’s request was not unequivocal and because Shupp later abandoned his request for new counsel.
At the September 15, 2005, hearing, originally set for sentencing after remand, Ms. De La Pena told the court that Shupp wanted her law firm relieved and new counsel appointed because this court (in case No. F043439) found the firm’s representation ineffective. The court responded that it did not see how this court’s finding created a conflict for her personally since it was isolated to one issue and involved Ms. De La Pena’s husband, not her. The court stated that, in any event, the firm was retained and Shupp was free to fire the De La Penas at any time. Ms. De La Pena then stated that Shupp was “destitute” because he could not get his money from state prison and would need appointed counsel. The court then stated it would hold a Marsden hearing to determine the issue.
People v. Marsden (1970) 2 Cal.3d 118.
At the Marsden hearing, counsel said that Shupp believed a conflict had caused his relationship with counsel to deteriorate to a point where he felt the De La Pena firm could no longer competently represent him. The court informed Shupp that he had the burden to show that the attorney should be relieved and new counsel appointed. It explained that Shupp could fire his attorney at any time for any reason. After a short conference with counsel about the purpose of a Marsden hearing, Shupp said, “One of the things, Your Honor, is I’d like to get into the legal office at the pretrial place and go through the legal directory and speak with my family and try to raise the money to hire an attorney. But that’s why I’m asking, in the—in the meantime, if you can appoint me counsel in case I cannot hire an attorney financially. Then we’d already have everything going.” The court then said, “we can do what you’d like. If you want some time to hire an attorney, I’ll give you a little bit of time to do that.” It continued, “[h]owever, this matter is finally resolved by the Appellate Court,” and told Shupp there was nothing else to be done. Shupp said that his appellate attorney had advised him to hire new counsel and to ask the court to appoint new counsel. He said, “That’s the decision I’m making.” There was further discussion on what else needed to be done. The court offered, “If you want a continuance to try to hire an attorney, I’ll give you that opportunity to do that.” Shupp said, “I’m in prison for life, anyway. So it doesn’t matter.” The court then said it did not find any grounds for relieving the De La Pena firm and appointing a new attorney “because there are no issues that have to be decided.” The court reiterated, “[i]f you want to hire another attorney, I will allow you time to do that. [¶] I will give you a week or two to go see if you can go get another attorney.” Shupp said, “I would appreciate that.” When Ms. De La Pena asked about her status, the court informed her, “[y]our status is that you’re still the attorney until he fires you.”
We first address the trial court’s assertion that the matter was finally resolved by the appellate court and that no further issues were left for decision. This was error. Our decision in case No. F043439 remanded for resentencing. Sentencing is a critical stage of criminal proceedings for purposes of the Sixth Amendment. (People v. Crayton (2002) 28 Cal.4th 346, 362 [Sixth Amendment right to counsel applies at all critical stages of prosecution, including sentencing stage].) There were sentencing choices to be made, including the decision whether to impose the low, mid-, or upper term. Having said as much, however, does not of necessity lead us to conclude that Shupp was denied his right to counsel under the Sixth and Fourteenth Amendments in this case.
We also agree that Marsden is not applicable when a defendant, indigent or otherwise, wishes to relieve retained counsel. Under Marsden, when a defendant in some manner moves to discharge current appointed counsel, the trial court’s duty is to inquire as to the reasons for appellant’s dissatisfaction and exercise its discretion in deciding whether to replace counsel. (People v. Marsden, supra, 2 Cal.3d 118, 123; People v. Lucky (1988) 45 Cal.3d 259, 281.) However, “[i]n light of the importance of the right to counsel of choice and the sensitive nature of the relationship between a criminal defendant and his lawyer, we must not allow a defendant’s indigence to prevent him from discharging in a timely manner the retained counsel he no longer wishes to represent him.” (People v. Ortiz (1990) 51 Cal.3d 975, 987; see also Griffin v. Illinois (1956) 351 U.S. 12, 19 [“[t]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has”].)
Although the trial court invoked the wrong procedural mechanism and was mistaken as to whether all issues had been decided by the previous appeal, we do not find reversible error. A fair reading of the record leads us to conclude that Shupp was not interested in having counsel appointed to represent him; what he really wanted was time—time to retain new counsel or rule out the possibility of being able to do so. Shupp asked if “in the meantime” the court could appoint counsel “in case” he could not financially afford to hire new retained counsel. This is not an unequivocal request for new counsel. (See People v. Marshall (1997) 15 Cal.4th 1, 25-26 [court should evaluate all of defendant’s words and conduct to decide whether he or she truly wishes to give up right to counsel (request for self representation)]; People v. Hines (1997) 15 Cal.4th 997, 1028 [a defendant who used the word “if” never made an unequivocal assertion of right to self-representation].) Further evidence of the equivocal nature of Shupp’s request can be found in the letter written to the court dated September 2, 2005, and attached to the RPO. Shupp writes, “I would ask the courts to allow me a continuance to retain counsel and or appoint counsel until new counsel is retained.” (Italics added.) Shupp requested that the court either grant him a continuance or appoint counsel “in the meantime.” The court said it was willing to give Shupp more time in order for him to see if he could retain new counsel, and Shupp said he would “appreciate that.” In other words, the court granted the requested continuance in lieu of appointing indigent counsel. Shupp accepted this as a reasonable way to achieve his ultimate goal of hiring new counsel. The court granted a two-week continuance “to see if [Shupp could] retain his own counsel.” Shupp’s request was an “either/or” proposition, and his stated preference was the continuance, which the court granted. The record also establishes that Ms. De La Pena understood that she was to continue to represent Shupp until she received information that Shupp had hired another attorney.
Two weeks later, at the September 29 hearing, Ms. De La Pena appeared as counsel for Shupp. No mention was made of any attempt by Shupp to seek appointed counsel or to replace Ms. De La Pena. It is well-established that, under such circumstances, an appellant’s failure to renew his complaints upon returning to court can only be interpreted as an abandonment of his earlier request for new counsel. (People v. Vera (2004) 122 Cal. App.4th 970, 981; cf. People v. Lovings (2004) 118 Cal. App.4th 1305, 1312.) Shupp’s failure to renew his request constitutes an abandonment of his request for appointed counsel.
II. Ineffective assistance of counsel
Shupp claims counsel was ineffective because his attorney failed to object to the imposition of the upper term when the trial court failed to give a statement of aggravating factors justifying the imposition of the upper term. A sentencing court is required to provide a statement of reasons on the record for selecting and imposing the upper term. (§ 1170, subd. (b); Cal. Rules of Court, rule 4.406(b).) The trial court overlooked this requirement when sentencing Shupp on September 29, 2005. Shupp cannot challenge the error directly because counsel failed to object at sentencing. (People v. Tillman (2000) 22 Cal.4th 300, 302 [failure of sentencing court to make findings required by statute is waived if party fails to bring error to sentencing court’s attention]; People v. Scott (1994) 9 Cal.4th 331, 348 [defects in the trial court’s statement of reasons at sentencing are waived unless challenged at the time of sentencing].)
Having waived the direct challenge, Shupp has re-characterized his challenge as a claim of ineffective assistance of counsel. To succeed on a claim of ineffective assistance of counsel, an appellant must show that counsel’s performance was deficient when reviewed by an objective standard of reasonableness under prevailing professional norms, and he must show prejudice, i.e., that it is reasonably probable, but for counsel’s failings, the result would have been more favorable to the defendant. (People v. Riel (2000) 22 Cal.4th 1153, 1175.) When a defendant cannot establish the second prong of this test, it is unnecessary to first consider whether counsel’s performance was deficient. (People v. Cox (1991) 53 Cal.3d 618, 656.) To establish prejudice, an appellant must show a reasonable probability that the result would have been different had counsel not made the error. (Strickland v. Washington (1984) 466 U.S. 668, 693-694.)
Here, there is no reasonable probability that the sentencing court would have sentenced Shupp to anything other than the upper term even if counsel had objected to the court’s failure to state its reasons for doing so. The trial court made its sentencing choice—it imposed the upper term. Shupp’s argument that the middle term is the presumptive term is not persuasive for this reason. The claim of error is that counsel did not object to the trial court’s failure to state its reasons for making the choice it did. The court had sufficient factors in aggravation from which to justify its sentencing choice and no identifiable or proffered factors in mitigation. (Cal. Rules of Court, rules 4.421 & 4.423.) It is true that the trial court could not use the four prior prison term enhancements as aggravating factors because they were used to enhance the sentence. (See § 1170, subd. (b).) And, the court could not use the fact that Shupp was an inmate when he committed the crime as an aggravating factor because this was an element of the offense. (Cal. Rules of Court, rule 4.420(d); § 4573.6.) The trial court, however, could consider the violent nature of the offenses committed and the fact that Shupp’s prior convictions are many and of increasing seriousness. (See People v. Roberson (1978) 81 Cal.App.3d 890, 893 [although court cannot use arming allegation both as enhancement and factor in aggravation, it could use defendant’s pattern of violent conduct itself to find aggravation], overruled on other grounds in People v. Crowson (1983) 33 Cal.3d 623.) It could also consider that Shupp had been convicted of murdering his cellmate during the pendency of this case. (See People v. Whitten (1994) 22 Cal.App.4th 1761, 1766 [scope of information a sentencing court may consider is very broad and includes practically everything which has legitimate bearing on sentencing].)
We take judicial notice on our own motion of the opinion filed in case No. F039199, in which this court affirmed Shupp’s conviction of second degree murder. (Evid. Code, § 452, subd. (d).) The trial court noted the murder conviction at sentencing.
Given this record, we can say with certainty that the failure of counsel to object to the court’s failure to state its reasons for imposing the upper term has not prejudiced Shupp.
III. Blakely/Cunningham
Shupp argues that the trial court violated the Sixth Amendment as interpreted in Blakely and Cunningham when it imposed the upper term. In Blakely, the United States Supreme Court held that a sentence for kidnapping imposed under the Washington sentencing scheme violated the defendant’s Sixth Amendment right to a jury trial. (Blakely, supra, 542 U.S. at pp. 298, 304.) Under Washington law, the trial court could impose a sentence longer than 53 months only if it found substantial and compelling reasons to do so. (Id. at p. 299.) The judge found that the crime was committed with “‘deliberate cruelty’” and imposed a sentence of 90 months. (Id. at p. 298.) The Supreme Court held that this violated the Sixth Amendment as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466, 490: “‘Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” (Blakely, supra, 542 U.S. at p. 301.) It did not matter that the offense was a class B felony and that class B felonies carried a maximum sentence of 10 years; the state’s sentencing law did not allow the sentence to exceed 53 months without judicial fact finding. “Our precedents make clear … that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Id. at p. 303.) The court continued:
“In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment,’ [citation], and the judge exceeds his proper authority.” (Blakely, supra, 542 U.S. at pp. 303-304 .)
On January 22, 2007, the United States Supreme Court issued its decision in Cunningham, overruling People v. Black (2005) 35 Cal.4th 1238 (Black I) and holding that Blakely applies to the imposition of upper terms under California law. (Cunningham, supra, 549 U.S. ___ [127 S.Ct. at pp. 860, 871].) The imposition of an upper term under California law as it stood then was erroneous, therefore, unless it was supported by prior convictions, facts found by the jury, or facts admitted by the defendant.
It has since been amended in response to Cunningham. (Stats. 2007, ch. 3; see Black II, supra, 41 Cal.4th at p. 808, fn. 2.)
After the parties filed their supplemental briefs in this case, the California Supreme Court issued its decision in Black II. It held that the upper term imposed in that case was not erroneous under Cunningham because it was authorized by the defendant’s prior offenses and the jury’s finding that the defendant committed the offense by means of force and fear. (Black II, supra, 41 Cal.4th at pp. 816-817, 818.) Whether the trial judge would have imposed the upper term based on one of these factors alone was irrelevant; the question was only whether it could have done so under the sentencing law. It could: California’s determinate sentencing law allows the trial court to impose the upper term based on a single aggravating factor. Each of these two factors authorized the upper term independently under California law and each was independently established by means consistent with the Sixth Amendment as interpreted in Blakely and Cunningham. The presence of either one alone would have been sufficient to render the upper term constitutional. (Black II, supra, at pp. 813, 814-815, 820.)
Black II makes clear that the trial court need not have relied expressly on one of the factors approved by Blakely and Cunningham so long as one of those factors was present in the record and the court was aware of it. The trial court in Black did not assert at sentencing that it was using the defendant’s prior convictions as an aggravating factor in support of the upper term. Instead, it said it was imposing the upper term because of “‘the nature, seriousness, and circumstances of the crime.’” (Black II, supra, 41 Cal.4th at p. 816.) It also stated that it considered “other aggravating circumstances set out in the district attorney’s sentencing brief.” These included the defendant’s criminal history. The probation report included the defendant’s criminal history also. This was sufficient even though the trial court did not mention defendant’s criminal history explicitly. (Id. at p. 818.)
Further, where a factor properly established under the Sixth Amendment is present, the court’s reliance on other factors that would not satisfy the Sixth Amendment on their own does not undermine the sentence:
“[S]o long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Black II, supra, 41 Cal.4th at p. 813.)
In light of all this, we conclude that there was no constitutional error in the imposition of the upper term in the present case. It is true, as we have discussed, that the trial court did not state on the record of the most recent sentencing hearing its reasons for imposing the upper term. It is also true that the convictions underlying the four prior prison terms could not be the basis of the upper term because they were the basis of the four 1-year enhancements. (See People v. McFearson (Jan. 7, 2008, F051882) ___ Cal.App.4th ___ [pp. 22-25].) There can be no question in this case, however, but that Shupp had a long list of additional prior convictions and that the sentencing judge was aware of these.
A single trial judge, Richard Oberholzer, presided over each stage of this case. His signature appears on each of the probation reports filed in the case, under the statement, “I HAVE READ AND CONSIDERED THE PROBATION OFFICER’S REPORT.” The first probation report, filed in the trial court on February 27, 2001, lists nine prior convictions. There were three violations of section 12021, subdivision (a) (being a felon in possession of a firearm); three violations of section 245, subdivision (a) (assault with a deadly weapon); one violation of section 148 (resisting a peace officer); one violation of Health and Safety Code section 11550, subdivision (a) (using a controlled substance); and one violation of Health and Safety Code section 11350, subdivision (a) (possessing a controlled substance).
The court’s comments at the earlier sentencing hearings also reveal the trial judge’s thorough acquaintance with Shupp’s record of prior convictions. At the hearing on February 27, 2001, the court stated that it had read the probation report. It also said to defense counsel:
“Perhaps you would like to address the 245, defendant fired once at a victim with a Derringer after an argument with a traffic matter, 8/21/98, for which he was sent to prison for four years.
“He has in ’95, in ’97 he has weapons charges for which he went to prison on both of those.
“In ’93 he has assault with a deadly weapon of 245(a)(1) with a weapon charge for which he went to prison for two years, paroled, returned to custody again.
“And then in ’90 a 148.
“He has a history of violent crimes. And you’ve submitted this motion that I should strike these priors, and it would appear to the Court as though he is an extreme danger to society.”
The fact that the court twice sentenced defendant as a third striker also, of course, reveals the trial judge’s acquaintance with defendant’s criminal record. Those prior convictions—three assaults with a deadly weapon—were alleged in the information and found true by the jury. They were not among the convictions for which the four prior-prison-term enhancements were imposed, which were alleged and found true separately. In reversing the three strikes sentences, we did not question the existence of the three prior assaults; the only issue was whether they qualified as strikes under the law as it existed at the time.
For all these reasons, the rule of Black II—that a defendant is constitutionally eligible to receive the upper term if there were prior convictions in the record and the sentencing court was aware of them—applies here, and its requirements were met. That the court did not rely expressly on the prior convictions does not constitute federal constitutional error because the Sixth Amendment question is whether the state of the record is such that the defendant is eligible for the upper term; if he is, the court may choose any valid state-law reason for imposing it. The court’s failure in this case to state on the record any reasons for imposing the upper term was state-law error and was waived, as we explained in part II of this opinion.
In a letter filed on November 1, 2007, Shupp cites People v. Cardenas (2007) 155 Cal.App.4th 1468, 1479-1483, in which Division Seven of the Second District Court of Appeal found reversible Blakely error because the trial court imposed the upper term based on its view that the crime involved planning and sophistication. The defendant had prior misdemeanor convictions and the Court of Appeal assumed they were included in the probation report (id. at p. 1482), but it held that this was not enough under Black II. The court stated:
“[T]he language of Black II strongly suggests the trial court must have at least relied on the defendant’s prior criminal record as one of its reasons for imposing the high term before it can be considered as making the defendant ‘eligible’ for the high term and thus ‘authorizing’ that elevation of the sentence and allowing the trial court to use otherwise constitutionally infirm factors in deciding to do so.” (People v. Cardenas, supra, 155 Cal.App.4th at p. 1481.)
Respectfully, we disagree with this reading of Black II. Relying on the defendant’s prior convictions is precisely what the trial court did not do in Black II. What the trial court relied on was “‘the nature, seriousness, and circumstances of the crime.’” (Black II, supra, 41 Cal.4th at p. 816.) The trial court stated that it merely “considered … the other aggravating circumstances set out in the district attorney’s sentencing brief,” which included the defendant’s prior convictions. (Id. at p. 818, italics added.)
Admittedly, in footnotes, the Black II opinion makes an oblique reference at one point to “[i]ts [i.e., the trial court’s] conclusion that defendant’s prior convictions were numerous” (Black II, supra, 41 Cal.4th at p. 818, fn. 7) and at another to “the trial court’s reliance upon [the defendant’s] criminal history” (id. at p. 820, fn. 9). These references are mysterious, because the Supreme Court’s description of what happened at the sentencing hearing says that the trial court based the upper term on the nature, seriousness, and circumstances of the crime; it further states that the trial court said it considered the other factors discussed in the district attorney’s brief. If the trial court had gone on to state its reliance on prior convictions or its conclusion that those convictions were numerous and of increasing seriousness, it would have been natural for the Supreme Court to point this out.
We think this difference between relying and considering is crucial. A key point of Black II is that determining the maximum sentence for which a defendant is eligible and choosing factors upon which to base the sentence imposed are two different logical operations. In determining eligibility, the court surveys (or considers) the record and determines whether a fact found by the jury, a fact admitted by the defendant, or a prior conviction renders the upper term constitutionally available under Blakely and Cunningham. If one of these factors is present—say a prior conviction—the court may impose the upper term, but it need not rely on that same factor when it chooses to impose it. Where the prior conviction makes the upper term available, the court may choose any valid state-law factor as the basis for imposing the upper term. For these reasons, we decline to follow People v. Cardenas, supra, 155 Cal.App.4th 1468.
DISPOSITION
The judgment is affirmed.