Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, County Super. Ct. No. GA068141 Teri Schwartz, Janice C. Croft and Dorothy L. Shubin, Judges.
Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ryan M. Smith, Deputy Attorney General, for Plaintiff and Respondent.
TURNER, P.J.
I. INTRODUCTION
Defendant, Eddie James Smith, appeals from a judgment of conviction, after a jury trial, of battery with serious bodily injury (Pen. Code, § 243, subd. (d)) and assault by means likely to produce great bodily injury. (§ 245, subd. (a)(1).) The jury found defendant personally inflicted great bodily injury upon the victim. (§ 12022.7, subd. (a).) The jury further found as to both counts that defendant: was twice convicted of serious felonies within the meaning of sections 667 and 1170.12; had been convicted of firearm offenses on two occasions; and had served two prior prison terms. (§ 667.5, subd. (b).) In the middle of trial, defendant admitted he had two prior felony drug convictions. He was sentenced to 39 years to life in state prison. He received credit for 162 days, 141 days in actual pretrial custody and 21 days of conduct credit (§ 2933.1, subd. (a)). He was ordered to pay: a $200 restitution fine (§ 1202.4, subd. (b)); a $200 parole restitution fine (§ 1202.45); and $70,000 in restitution to the victim. (§ 1202.4, subd. (f).)
All further statutory references are to the Penal Code unless otherwise noted.
We appointed counsel to represent defendant on appeal. Counsel has filed a brief in which no issues are raised. (People v. Wende (1979) 25 Cal.3d 436, 441-442; see Smith v. Robbins (2000) 528 U.S. 259, 264.) On February 20, 2008, we advised defendant he had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or argument he wished this court to consider. Defendant filed a letter brief on February 29, 2008. Defendant raised three arguments: ineffective assistance of counsel; unjust denial of his substitution of counselmotion; and failure to continue the trial. We asked the Attorney General to brief those issues. We are required to discuss these contentions. (People v. Kelly (2006) 40 Cal.4th 106, 110; Cal. Const., art. VI, §14.) Additionally, we asked the parties to brief the question whether the trial court erroneously failed to impose $40 in court security fees under section 1465.8, subdivision (a)(1).
We conclude, following examination of the entire record, that appointed appellate counsel has fully complied with her responsibilities. No argument exists favorable to defendant. (Smith v. Robbins, supra, 528 U.S. at pp. 277-284; People v. Wende, supra, 25 Cal.3d at p. 441.) The arguments raised by defendant are frivolous. We modify the judgment to impose $40 in court security fees, and direct that the abstract of judgment be corrected. We affirm the judgment as modified.
II. BACKGROUND
Defendant was represented by Herbert Barish. On the day prior to trial, April 16, 2007, defendant expressed dissatisfaction with Mr. Barish and wanted a new attorney appointed. In a closed hearing, defendant stated Mr. Barish had not spoken to any of the available witnesses and had no defense. More specifically, defendant stated the prosecutor had subpoenaed a witness favorable to the defense—Aaron Wright. The trial court asked Mr. Barish whether Mr. Wright had been interviewed. Mr. Barish responded: “We have attempted to contact every witness he has given us. My investigator has actually gone to the residence to talk to people. Nobody seems to be in existence when we call or go to the residence. We tried to speak with the victim and the victim was non-responsive. [¶] I have visited with Mr. Smith. I just looked six times since he’s been in custody. He’s given me phone numbers, some of which are disconnected.” Defendant then angrily accused Mr. Barish of lying. Mr. Barish continued: “I even last night I called Mr. Brown’s sister to verify that we could get somebody -- one of the two witnesses that he was speaking about to come today. The other one is reported to be ill today. I’ve given this information, as I am required to, to the prosecution that we may be calling these two individuals. And she is aware of that.” Mr. Barish was asked about Mr. Wright. Mr. Barish said in response: “He’s subpoenaed by the prosecution. He hasn’t spoken to us.” The trial court asked Mr. Barish whether there was any reason to believe Mr. Wright would provide exculpatory evidence. Mr. Barish answered: “Since we haven’t been able to speak with him, it’s difficult to determine. As with most of the witnesses, they have been reluctant to speak with my investigator.” The trial court explained to defendant: “What [Mr. Barish] is saying is sometimes it doesn’t matter what a witness actually says when they are called to testify. Because even if the prosecution were to call a witness and the witness were to say something like, oh, Mr. Smith, he wasn’t even there. The prosecution could then bring in the police officer that took an earlier statement when the witness said Eddie Smith was there. And that gets presented to the jury. And that happens a lot. That’s a prior inconsistent statement.” The trial court ruled: “I don’t think there is any reason for me to believe that Mr. Barish should be relieved. I think he is doing the best he can given the fact that there may be some uncooperative witnesses. And that it’s difficult to predict how the testimony is going to play out. [¶] But he is right when he says he knows what they presented in the police report. And that is information that will be presented by the prosecution regardless of what these witnesses say. So I’m going to deny the motion.”
On the following day, April 17, 2007, defendant advised the trial court: “[T]he problem is [Mr. Barish is] . . . making me go to trial . . . without a defense. This is what I have been arguing about for four months, but I don’t understand that.” The trial court inquired of Mr. Barish, “[Y]ou have the witnesses you feel will benefit the defendant?” Mr. Barish responded: “A number of people have declined to speak with my investigator since I have been on the case . . . . We have called them, we have gone personally to their houses. One of them has declined to come in today –yesterday. We have to go with—and we never interviewed the person. He’s just—I’ve told counsel that the person may be a witness, but since we haven’t interviewed that witness, I can’t say whether the person would even be a reliable witness. Another person my client has [named] I did actually talk to personally that day I met Mr. Smith, and that witness indicated to me he was not a witness on this case . . . . He was there just as moral support for Mr. Smith. [¶] So I [am] going with what we have. I can’t create what we don’t have.”
At trial, the victim—John Campbell—identified defendant as the assailant. Mr. Campbell suffered severe injuries. Deputy Sheriff Tareq Abdulfattah spoke to defendant two days after the incident. Defendant admitted becoming “enraged” and punching Mr. Campbell “‘[l]ots of times.’” Defendant testified in his own defense. Defendant claimed Mr. Campbell initiated the altercation. Defendant did not know Mr. Campbell was badly hurt.
III. DISCUSSION
A. Ineffective Assistance Of Counsel
Defendant’s pro se letter asserts he was denied the effective assistance of counsel. Defendant asserts Mr. Barish: failed to track down witnesses favorable to the defense; never spoke to Cynthia Calhoun, an available witness, or called her to testify; and “never call[ed] any witness to the stand that could have alibi my story.” The Supreme Court has held: “A defendant claiming ineffective representation bears the burden of proving by a preponderance of the evidence both (1) that counsel’s performance was deficient, i.e., that the representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been more favorable to defendant, i.e. a probability sufficient to undermine confidence in the outcome. [Citations.]” (In re Ross (1995) 10 Cal.4th 184, 201; accord, People v. Lopez (2008) 42 Cal.4th 960, 966; People v. Williams (2006) 40 Cal.4th 287, 304.) “In order to prevail on [an ineffective assistance of counsel] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission. (People v. Zapien (1993) 4 Cal.4th 929, 980; People v. Fosselman (1983) 33 Cal.3d 572, 581.)” (People v. Ray (1996) 13 Cal.4th 313, 349.) The Supreme Court has also held: “Moreover, ‘[i]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.’ [Citation.]” (People v. Huggins (2006) 38 Cal.4th 175, 206, quoting People v. Kraft (2000) 23 Cal.4th 978, 1068-1069; People v. Anderson (2001) 25 Cal.4th 543, 569.) With respect to an alleged failure to investigate, the Supreme Court has held: “[T]he [defendant] must carry his burden of proving prejudice as a ‘demonstrable reality,’ not simply speculation as to the effect of the errors or omissions of counsel. (People v. Stephenson (1974) 10 Cal.3d 652, 661.) . . . The [defendant] must demonstrate that counsel knew or should have known that further investigation was necessary, and must establish the nature and relevance of the evidence that counsel failed to present or discover.” (People v. Williams (1988) 44 Cal.3d 883, 937; see In re Noday (1981) 125 Cal.App.3d 507, 521-522.)
The ineffective assistance of counsel argument posited by defendant is frivolous. There is no evidence Mr. Barish failed to interview any available witness who was willing to be questioned. There is no evidence any uncalled witness would have presented evidence favorable to defendant. (People v. Williams, supra, 44 Cal.3d at p. 917; In re Noday, supra, 125 Cal.App.3d at pp. 521-523.) There is no evidence the decision, if any, not to call a particular witness to testify was anything other than a tactical decision. (People v. Jones (2003) 29 Cal.4th 1229, 1254; People v. Bolin (1998) 18 Cal.4th 297, 334; People v. Williams, supra, 44 Cal.3d at p. 936.) There is no showing Mr. Barish’s actions fell below prevailing professional norms or it is reasonably probable, had he acted differently, a more favorable verdict would have been reached. (People v. Williams, supra, 40 Cal.4th at p. 304; In re Ross, supra, 10 Cal.4th at p. 207.)
B. Substitution of Counsel Contention
Defendant in his pro se letter argues the trial court unjustly denied his substitution of counsel motion made pursuant to People v. Marsden (1970) 2 Cal.3d 118, 123-126. The Supreme Court has explained: “When a defendant seeks discharge of his appointed counsel on the basis of inadequate representation by making what is commonly referred to as a Marsden motion, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of counsel’s inadequacy. (People v. Smith (2003) 30 Cal.4th 581, 604; People v. Hart (1999) 20 Cal.4th 546, 603; see Marsden, supra, 2 Cal.3d 118, 123-126.) ‘A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.’ (People v. Jones (2003) 29 Cal.4th 1229, 1244-1245; People v. Earp (1999) 20 Cal.4th 826, 876.) [¶] We review a trial court’s decision declining to discharge appointed counsel under the deferential abuse of discretion standard. (People v. Jones, supra, 29 Cal.4th 1229, 1245.)” (People v. Cole (2004) 33 Cal.4th 1158, 1190; accord, People v. Abilez (2007) 41 Cal.4th 472, 485-490.)
The argument the trial court abused its discretion is frivolous. A defendant has a right to an adequate and competent defense, not one of his or her own choosing. (People v. Cole, supra, 33 Cal.4th at p. 1192; People v. Welch (1999) 20 Cal.4th 701, 728-729.) Moreover, a defendant has a right to an opportunity to interview witnesses, but only if they are willing to be interviewed. (People v. Panah (2005) 35 Cal.4th 395, 458; Reid v. Superior Court (1997) 55 Cal.App.4th 1326, 1332; see People v. Hannon (1977) 19 Cal.3d 588, 601.) There was no evidence Mr. Barish had failed to interview an available, willing, potentially exculpatory witness. None of the witnesses defendant identified—including Mr. Wright and Ms. Calhoun—testified at trial for the prosecution or for the defense. The trial court conducted a full and fair hearing. (People v. Hart, supra, (1999) 20 Cal.4th at p. 604; People v. Barnett (1998) 17 Cal.4th 1044, 1091.)
C. Continuance
Defendant argues the trial court should have continued the trial because the defense was not ready. Defendant never requested a continuance of trial. By failing to request a continuance, defendant forfeited any claim the trial should have been continued. (People v. Brasure (2008) 42 Cal.4th 1037, 1075; People v. Lopez, supra, 42 Cal.4th at pp. 971-972.) Defendant’s pro se continuance argument is frivolous.
D. Court Security Fee
We asked the parties to brief the question whether the trial court erroneously failed to impose $40 in court security fees pursuant to section 1465.8. A court security fee is mandatory and must be imposed for every conviction. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866; see People v. Crittle (2007) 154 Cal.App.4th 368, 370-371.) The trial court’s failure to impose the mandatory fee results in an unauthorized sentence which may be addressed on appeal in the first instance. (See, e.g., People v. Turner (2002) 96 Cal.App.4th 1409, 1413; People v. Terrell (1999) 69 Cal.App.4th 1246, 1255.) The trial court should have imposed a $20 court security fee as to each of defendant’s two convictions. We modify defendant’s sentence to impose two $20 court security fees in the total amount of $40. (See People v. Jefferson (2008) 158 Cal.App.4th 830, 846.) The trial court is to personally insure the abstract of judgment is corrected to fully comport with the modification. (People v. Acosta (2002) 29 Cal.4th 105, 110, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
IV. DISPOSITION
The judgment is modified to reflect the imposition of two court security fees. Upon remittitur issuance, the superior court clerk is to prepare an amended abstract of judgment and serve it on the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
I concur: ARMSTRONG, J., MOSK, J., Concurring
There is a suggestion that the defendant and his attorney had a conflict. The trial court must have concluded that it had not reached the level so as to be “such an unreasonable conflict that ineffective representation is likely to result.” (People v. Jones (2003) 29 Cal.4th 1229, 1244-1245.)
“‘To the extent there was a credibility question between defendant and counsel at the [Marsden] hearing, the court was ‘entitled to accept counsel’s explanation.”’” (Id. at p. 1245). Thus, I agree there was no abuse of discretion—which is the applicable standard of review.
The claim of ineffective counsel is more appropriately resolved in a habeas corpus proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267). The failure to request a continuance of trial does operate as a forfeiture of that issue.
For the foregoing reasons, I concur in the judgment.