Opinion
C094469
10-12-2022
THE PEOPLE, Plaintiff and Respondent, v. GERALD SPENCE, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 12F07031)
BOULWARE EURIE, J.
Defendant Gerald Spence contends the trial court erred at a sentencing hearing in 2021 in denying his motion for substitute counsel under People v. Marsden (1970) 2 Cal.3d 118. We conclude the error was harmless, at least in the context of the hearing where defendant made the motion. However, as we remand for resentencing under new legislation, we will direct the trial court to appoint substitute counsel for defendant's resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
The details of the underlying events are not relevant to this appeal. In sum, defendant was in a relationship with the victim. When she accused him of cheating, defendant tortured the victim for hours by choking her, striking her numerous times including with a golf club, binding her with duct tape and rope, forcing her to perform degrading acts, and threatening her with more torture and death. (People v. Spence (Oct. 7, 2016, C074941) [nonpub. opn.] (Spence I).)
We grant defendant's request to take judicial notice of our unpublished opinions in defendant's prior appeals. (Evid. Code, § 452, subd. (d).)
A jury found defendant guilty of torture (Pen. Code, § 206-count one), with a special finding of personal use of a deadly weapon (§ 12022, subd. (b)(1)); infliction of corporal injury on a cohabitant (§ 273.5, subd. (a)-count two), with special findings of personal use of a deadly weapon (§ 12022, subd. (b)(1)) and infliction of great bodily injury (§ 12022.7, subd. (e)); assault with a deadly weapon (§ 245, subd. (a)(1)- count three), with a special finding of infliction of great bodily injury (§ 12202.7, subd. (e)); infliction of corporal injury on a cohabitant (§ 273.5, subd. (a)-count four); and making a criminal threat (§ 422-count five). (Spence I, supra, C074941.)
Undesignated statutory references are to the Penal Code.
The trier of fact also found that defendant had two prior felony convictions. (Spence I, supra, C074941.)
The court imposed consecutive indeterminate terms of 25 years to life under the "Three Strikes" law for count one (torture) and count five (criminal threat). The court also sentenced defendant to two consecutive determinate terms of five years for the prior serious felony convictions (§ 667, subd. (a)) and a one-year consecutive term for personal use of a deadly weapon (§ 12022, subd. (b)(1)). Under section 654, the court stayed the remaining counts. Defendant's aggregate sentence was a determinate term of 11 years followed by a consecutive indeterminate sentence of 50 years to life. (Spence I, supra, C074941.) In Spence I, this court affirmed the judgment. (Ibid.)
On May 19, 2017, on its own motion, the trial court resentenced defendant to orally impose terms on the stayed counts. The court imposed a sentence of 25 years to life on count two, plus one year for the weapon enhancement, three years for the great bodily injury enhancement, and 10 years for the prior serious felony conviction enhancements; 25 years to life on count three, plus three years for the infliction of great bodily injury enhancement, and 10 years for the prior serious felony conviction enhancements; and 25 years to life on count four, plus one year for the weapon enhancement, and 10 years for prior serious felony conviction enhancements. The court again stayed these sentences under section 654. All other aspects of the sentence remained unchanged. (People v. Spence (Apr. 23, 2018, C084940) [nonpub. opn.] (Spence II).)
Defendant appealed and this court modified the sentence to strike the one-year weapon enhancement on count four, and remanded the matter to the trial court to recalculate defendant's presentence credits as of the date of resentencing. (Spence II, supra, C084940.)
On May 3, 2018, the trial court modified defendant's sentence to strike the one-year weapon enhancement term and recalculated defendant's custody credits.
On August 19, 2020, again on its own motion, the trial court determined that defendant's previously stayed sentence on count four needed further modification, because with the weapon enhancement stricken, and great bodily injury enhancement not alleged on that count, the conviction on count four no longer qualified as a serious or violent felony and defendant was entitled to resentencing. On July 9, 2021, the court modified the sentence on count four to impose the low term of two years doubled by the strike prior to four years and again stayed the sentence under section 654. The court recalculated defendant's presentence custody credits as of the date of this resentencing and ordered conduct credits to be determined by the Department of Corrections and Rehabilitation. However, the abstract of judgment did not reflect the court's oral recalculation of custody credits.
Defendant timely appealed.
DISCUSSION
I
Marsden Motion
Defendant contends the trial court erred in denying his Marsden motion because the attorney who represented him, Joseph de Illy, had committed errors in prior sentencing hearings and appeared confused about the nature of the current sentencing hearing. Defendant maintains that therefore he and defense counsel were embroiled in an irreconcilable conflict that risked ineffective assistance of counsel. We agree that the court erred but conclude the error was harmless. However, we agree with defendant's request that substitute counsel be appointed to represent defendant in resentencing on remand.
A. Background
The trial court conducted a closed hearing on defendant's Marsden motion, initially denying defendant's request for a substitute attorney to represent him on the motion.
When the court inquired what de Illy had done or not done that would support the motion, defendant responded that "the previous two times that I had to be resentenced was for failures by Mr. De Illy. [¶] The sentence correction that was ordered by the appeals court on the second direct appeal in 2018, your records show that Mr. De Illy was present but apparently Mr. De Illy is saying he thought [the present hearing is] for that, for the 2018 correction. He doesn't have a clue what's going on."
Defendant then proceeded to itemize a "list" of other failures he attributed to de Illy. The trial court stopped him to remind him that "this is not time for you to relitigate your appeal," and that the purpose of the hearing was only to resentence defendant on one count. Defendant acknowledged that the matter at hand was the initial sentence on count four of 25 years to life, which the court intended to "drop to four years." The court again asked defendant what de Illy had done or not done to prepare for the sentencing hearing on this count. Defendant again used the opportunity to discuss de Illy's past performance on various matters. The court repeated that defendant was arguing about things that had already been litigated. Defendant concluded with the assertion that "[t]he whole reason that I'm here, he was the attorney sitting at the table, and he didn't do anything in all the sentencings. And whether it's 2017, 2018 or now, it was him. He should have caught it. He didn't. That's ineffective assistance of counsel."
The court invited de Illy to respond by summarizing his experience and to address defendant's allegations. As to experience, de Illy stated that he had been a criminal defense attorney since 1977, "done easily 75 trials," and his current practice concerned postconviction issues. De Illy explained that his recollection of the case was "somewhat hazy," since he was appointed after defendant represented himself at trial in 2013 and was convicted. Defendant and de Illy disagreed on the merits of posttrial motions, so defendant litigated his own motions, and then de Illy was reappointed to handle sentencing. De Illy advocated for concurrent versus consecutive sentences to minimize the time defendant would serve. De Illy said he assumed the current hearing was because the appellate court had remanded the case to the trial court to calculate defendant's days in custody as of the date of resentencing. De Illy admitted that he and defendant "have a problem communicating," but de Illy argued that if the court gave defendant a new attorney, the "new attorney would [not] have any better ability to do what I can do right now which is simply to add up the days to calculate the actual credits."
The trial court found to the extent there was a conflict between defendant and de Illy, the court believed de Illy, and that defendant was confused about the legal history of the case. The court further found that de Illy had properly represented defendant, and there was not a breakdown in the relationship that would make it impossible for de Illy to represent defendant at the hearing. Lastly, the court found that "any deterioration in the relationship has been occasioned solely by the Defendant's attitude, and there's no reason why the Defendant cannot be adequately represented by counsel if he wants to be."
The trial court denied the motion. Defendant protested that de Illy "said that this [hearing] was just for calculation of presentence credit, and it's not." Defendant argued that de Illy "didn't even know what he's here for."
Defendant made an oral motion to represent himself at the hearing under Faretta v. California (1975) 422 U.S. 806, which the court granted, asking de Illy to be on standby.
B. Analysis
"Marsden established a defendant's right to raise the issue of ineffective assistance of counsel by means of a motion to discharge his or her attorney and appoint a new one. '" 'When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.'" '" (People v. Whitmore (2022) 80 Cal.App.5th 116, 128.)
"We review the court's decision declining to relieve appointed counsel under the deferential abuse of discretion standard." (People v. Whitmore, supra, 80 Cal.App.5th at p. 128.)" 'Denial is not an abuse of discretion "unless the defendant has shown that failure to replace counsel would substantially impair the defendant's right to assistance of counsel." '" (People v. Ng (2022) 13 Cal.5th 448, 500.)
A Marsden motion is prospective in nature, inquiring "whether the continued representation by an appointed counsel would substantially impair or deny the right to effective counsel." (People v. Dennis (1986) 177 Cal.App.3d 863, 870; see also People v. Smith (1993) 6 Cal.4th 684, 695.) "Whenever the motion is made, the inquiry is forward-looking in the sense that counsel would be substituted in order to provide effective assistance in the future. But the decision must always be based on what happened in the past." (Smith, at p. 695.)
Defendant asserts the trial court abused its discretion because defendant's motion was based on his complaint that de Illy "had led him into numerous sentencing errors in the past which had to be corrected across multiple resentencing hearings, and that errors would again result given that counsel was wholly unaware of the purpose of that hearing." Indeed, defendant complained at the Marsden hearing that de Illy "should have caught" the sentencing errors and "that's ineffective assistance of counsel." Defendant's claim has merit.
The record shows that de Illy did not raise any of the sentencing errors corrected in this case, but rather the trial court did on its own motion. When asked to respond to defendant's contention that he failed to catch sentencing errors, de Illy not only failed to address the errors, he also revealed that he did not understand the purpose of the instant hearing, as defendant pointed out multiple times to the court. De Illy thought the hearing was to recalculate custody credits after Spence II, which the trial court had done more than three years previously. De Illy repeated his fundamental misunderstanding of the purpose of the hearing twice. In addition, de Illy's preparation for the hearing evidently did not include reviewing the tentative ruling twice issued by the court indicating the sentence the trial court intended to impose on count four, even though the court's minute orders on the subject were served on de Illy. Had de Illy reviewed the tentative ruling, he would have been aware of the purpose of the hearing. We are compelled to conclude that de Illy was in no position to effectively represent defendant at the sentencing hearing. (See People v. Cotton (1991) 230 Cal.App.3d 1072, 1085 ["Counsel's duty at sentencing is to be familiar with the sentencing alternatives available to the court, to make sure that the court is aware of such alternatives, to explain to his or her client the consequences of the various dispositions available and to be certain that the sentence imposed is based on complete and accurate information"].)
Under the circumstances, the trial court abused its discretion in denying defendant's Marsden motion. However, the error was harmless, at least in terms of the result of the sentencing hearing at issue. "Marsden does not establish a rule of per se reversible error. [Citations.] Where there is Marsden error, we must reverse unless the record shows beyond a reasonable doubt that the defendant was not prejudiced." (People v. Knight (2015) 239 Cal.App.4th 1, 9.) The People have the burden to make this showing. (See People v. Reese (2017) 2 Cal.5th 660, 671.) In resentencing defendant, the court reduced defendant's sentence from 25 years to life, plus one year for a weapon enhancement, and 10 years for two prior serious felony convictions to the lower term of two years doubled to four years based on one strike prior. We agree with the People that defendant was not prejudiced by denial of his Marsden motion, because the hearing resulted in a reduced and stayed sentence that had no impact on the judgment or sentence to be served, and it was "extremely unlikely" that the court would grant probation (as defendant was ineligible for probation) or impose a lower sentence than the low term (i.e., dismiss count four).
Defendant argues that substitute counsel would have made a difference because the trial court could reconsider all its sentencing choices. (People v. Buycks (2018) 5 Cal.5th 857, 893 ["on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances' "].) Specifically, substitute counsel could have assisted in presenting arguments defendant raised in pro. per. submissions, e.g., that fines should be reduced based on his inability to pay (People v. Dueñas (2019) 30 Cal.App.5th 1157), and that the five-year felony enhancements imposed for his prior convictions under section 667, subdivision (a) must be stricken under Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393). Defendant concedes that these issues may be addressed on remand "based upon new sentencing laws." In that sense, the trial court's error is harmless beyond a reasonable doubt, because the People agree, as do we, that this case must be remanded for resentencing for the trial court to address the new legislation we discuss, post. Nonetheless, defendant asserts that he should be represented by different counsel on remand. We agree that, given de Illy's performance at the last sentencing hearing, the trial court should appoint substitute counsel to represent defendant, and we will so direct the court.
Less compelling is defendant's assertion that different counsel would have made a difference with respect to defendant's "issues related to proof of his prior convictions, that certain crimes should be reduced to misdemeanors, and that his credits should have been recalculated at the rate for a serious felony." The first item is not a sentencing issue and all three issues could have been raised in defendant's prior appeals.
II
Assembly Bill No. 518
After defendant filed his notice of appeal, the Legislature passed Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Assembly Bill 518). Assembly Bill 518 amended section 654 to grant trial courts discretion to select which out of multiple applicable punishments to execute, regardless of the length of each potential term in prison. (§ 654, as amended by Stats. 2021, ch. 441, § 1, eff. Jan. 1, 2022.) The parties agree that Assembly Bill 518 is retroactive to defendant's nonfinal sentence. We agree, as well. "Because Assembly Bill 518 was enacted while defendant's appeal was not yet final and it provides the trial court new discretion to impose a lower sentence, defendant is entitled to its ameliorative benefit." (People v. Mani (2022) 74 Cal.App.5th 343, 379.)
We also agree that applying Assembly Bill 518 retroactively requires that we vacate defendant's sentence and remand to the trial court to consider its discretion in light of the amendment to section 654. "Previously, where Penal Code section 654 applied, the sentencing court was required to impose the sentence that 'provides for the longest potential term of imprisonment' and stay execution of the other term[s]. (Pen. Code, § 654, former subd. (a).) As amended by Assembly Bill 518, Penal Code section 654 now provides the trial court with discretion to impose and execute the sentence of [any] term, which could result in the trial court imposing and executing [a] shorter sentence rather than the longe[st] sentence." (People v. Mani, supra, 74 Cal.App.5th at p. 379.)
At any of defendant's sentencings, the court, in selecting the counts to execute and those to stay, had no discretion under the former statute to impose punishment for any offense other than torture. The record discloses no other reason why the court made this selection; therefore we presume the trial court was not exercising the discretion not yet granted by Assembly Bill 518. (See People v. Gutierrez (2014) 58 Cal.4th 1354, 1390 ["Absent evidence to the contrary, we presume that the trial court knew and applied the governing law"].) Thus, applying Assembly Bill 518 retroactively, we conclude the trial court was" 'unaware of the scope of its discretionary powers . . . .'" (Gutierrez, at p. 1391.) The appropriate remedy is to remand for resentencing, unless the record" 'clearly indicate[s]'" the trial court would have imposed the same sentence" 'even if it had been aware that it had such discretion.'" (Ibid.) We find no such clear indication in the record-nor do the parties identify any-so we will remand for resentencing.
As discussed, because we conclude we must remand for resentencing, the trial court may revisit all its sentencing decisions. (See People v. Lopez (2022) 78 Cal.App.5th 459, 468-469; People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 ["the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant"]; accord, People v. Buycks, supra, 5 Cal.5th at p. 893.)
III
Senate Bill 1393
"Prior to 2019, trial courts had no authority to strike a serious felony prior that is used to impose a five-year enhancement under section 667, subdivision (a)(1). Senate Bill 1393 removed this prohibition. (Stats. 2018, ch. 1013, §§ 1, 2.) The legislation became effective January 1, 2019. (Cal. Const., art. IV, § 8, subd. (c).)" (People v. Jones (2019) 32 Cal.App.5th 267, 272 (Jones).) Prior to the new law, the trial court imposed two five-year enhancements under section 667, subdivision (a).
The parties agree, as do we, that Senate Bill 1393 applies retroactively to defendant's case, which is not final on appeal. (Jones, supra, 32 Cal.App.5th at pp. 272-273; People v. Reneaux (2020) 50 Cal.App.5th 852, 875-876.)
Defendant contends that remand is required for the trial court to exercise "informed discretion" under Senate Bill 1393. (See People v. Reneaux, supra, 50 Cal.App.5th at p. 876.) Defendant acknowledges that "[w]e are not required to remand to allow the court to exercise its discretion if 'the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] . . . enhancement' even if it had the discretion." (Jones, supra, 32 Cal.App.5th at pp. 272-273.) The People's position is that we need not reach the merits of defendant's claim that remand is required under Senate Bill 1393, because the trial court may revisit all its sentencing decisions upon remand to exercise its discretion under Assembly Bill 518. Nonetheless, our review of the record does not clearly indicate that the trial court would have imposed the enhancements had it been aware of its discretion not to do so. To be sure, in sentencing defendant, the trial court thanked the victim for her strength, dignity, and courage in the prosecution and trial of defendant, and concluded, "thanks to you, Mr. Spence will not be able to hurt another human being again." That said, the trial court imposed the enhancements without comment, stating only "the defendant is subject to two five-year enhancements pursuant to Penal Code 667[, subdivision ](a)." The probation report described the enhancements as automatic in similar language. We conclude that the court did not clearly indicate that it would not have struck the section 667, subdivision (a) enhancements, if the law at the time did not prohibit it. Therefore, we will remand this case to the trial court to exercise its discretion under Senate Bill 1393.
IV
Assembly Bill No. 1869
Defendant contends that following the enactment of Assembly Bill No. 1869 (2019-2020 Reg. Sess.) the main jail booking fee and the main jail classification fee the trial court imposed under Government Code section 29550.2 are unenforceable and uncollectable and must be stricken. The People agree, as do we. Assembly Bill No. 1869 repealed Government Code section 29550.2. (Stats. 2020, ch. 92, § 25, eff. July 1, 2021.) This legislation also enacted Government Code section 6111, which provides: "On and after July 1, 2021, the unpaid balance of any court-imposed costs pursuant to Section 27712, subdivision (c) or (f) of Section 29550, and Sections 29550.1, 29550.2, and 29550.3, as those sections read on June 30, 2021, is unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated." (Gov. Code, § 6111, subd. (a).) We shall vacate the main jail booking fee and main jail classification fee.
V
Custody Credits
At his original sentencing on October 11, 2013, defendant was awarded 335 days of actual custody credits and 50 days of local conduct credits. (§ 2900.5.) When defendant was resentenced in 2017, the court failed to recalculate defendant's custody credits. In Spence II, we remanded the case with directions to the trial court to recalculate actual custody credit as of the day of resentencing. (Spence II, supra, C084940.) On May 3, 2018, the trial court recalculated defendant's custody credits. However, after the July 9, 2021 resentencing hearing where the trial court orally recalculated defendant's custody credits, the court failed to update the abstract of judgment.
The parties agree, as do we, that defendant is entitled to recalculation of custody credits by the trial court reflected in the abstract of judgment as of the date of resentencing on remand. (§§ 2900.1, 2900.5, subd. (d); People v. Buckhalter (2001) 26 Cal.4th 20, 29 ["when a prison term already in progress is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody"].) Because the trial court did not do so, we will remand this matter for recalculation of defendant's actual custody credits.
DISPOSITION
The matter is remanded to the trial court to exercise its sentencing discretion under Assembly Bill 518 and Senate Bill 1393. The trial court is instructed to appoint substitute counsel to represent defendant in resentencing. In addition, we instruct the court to recalculate defendant's actual custody credit as of the date of resentencing. The main jail booking fee of $331.92 and main jail classification fee of $60.18 are vacated. Following resentencing, the trial court shall issue an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
We concur: MAURO, Acting P. J., HOCH, J.