Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Super.Ct.No. RIF127533, Robert George Spitzer, Judge.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Emily R. Hanks, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King, J.
I. PROCEDURAL HISTORY
A jury convicted defendant of attempted manslaughter (count 1—Pen. Code, §§ 664, 192, subd. (a)) and assault with a firearm (count 2—§ 245, subd. (a)(2)). The jury additionally found that defendant personally used a firearm and personally discharged a firearm causing great bodily injury in his commission of the count 1 offense (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8), 12022.53, subd. (d)) and that he personally inflicted great bodily injury in his commission of the count 2 offense (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)). The trial court sentenced defendant to a 13-year aggregate term of imprisonment consisting of the following: the midterm of three years on count 1; the upper term of 10 years on the personal use enhancement to count 1, consecutive; the upper term of four years on count 2; and three years on the great bodily injury enhancement on count 2.
All further statutory references are to the Penal Code unless otherwise indicated.
According to the sentencing minute order, the court struck the great bodily injury enhancement attached to count 1.
Imposition of sentence on count 2 and its enhancement were stayed pursuant to the dictates of section 654.
II. FACTS
Defendant was charged with attempted murder stemming from a melee following a house party. The victim was stripped and beaten by a number of individuals in the front yard of the house where the party had occurred. Defendant was not involved in that altercation. After leaving the yard area, the victim returned for purposes of continuing the fight. The victim approached the defendant and started hitting him. He thereafter spit blood onto the defendant’s face. Defendant went into the adjacent house, retrieved a gun, and shot the victim.
On appeal defendant contends that: (1) the court improperly denied his Marsden motion, and (2) erred in imposing the upper term on the gun enhancement in the absence of a jury trial and a finding beyond a reasonable doubt. We affirm.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
III. DISCUSSION
A. The Trial Court Properly Conducted the Hearing on Defendant’s Marsden Motion
Defendant contends the trial court conducted an inadequate inquiry into defendant’s Marsden allegations requiring reversal of his convictions. We conclude that the trial court properly executed its duties with respect to defendant’s Marsden motion and acted well within its discretion in denying that motion.
“‘The rule is well settled. “‘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.’” [Citation.] The decision whether to grant a requested substitution is within the discretion of the trial court; appellate courts will not find an abuse of that discretion unless the failure to remove appointed counsel and appoint replacement counsel would “substantially impair” the defendant’s right to effective assistance of counsel.’ [Citation.]” (People v. Abilez (2007) 41 Cal.4th 472, 487-488.)
“Depending on the nature of the grievances related by defendant, it may be necessary for the court also to question his attorney. [Citations.]” (People v. Hill (1983) 148 Cal.App.3d 744, 753.) “‘[I]nquiry into the attorney’s state of mind is required only in those situations in which a satisfactory explanation for counsel’s conduct or attitude toward his client is necessary in order to determine whether counsel can provide adequate representation.’ [Citations.]” (Id. at pp. 753-754 [finding that allegations defense counsel had not communicated with defendant and not subpoenaed appropriate witnesses could not be properly determined without court inquiry into defense counsel’s motives].) “[A] judge cannot base his disposition of a request for substitution of counsel on his or her own confidence in the current attorney and observations of that attorney’s previous demonstrations of courtroom skill. [Citations.]” (Id. at p. 753.)
Here, the Marsden hearing was relatively short; therefore, we quote it almost in its entirety:
“THE COURT: . . . [¶] . . . [¶] Give me briefly what the problem is. I want to hear from [defense counsel], and I’ll hear from you again.
“THE DEFENDANT: [Defense counsel] is not representing me to his full capability. And I call him, ask him to see an investigator, he rarely comes and talks to me. I asked on the phone, he told me that he was not—he don’t know what he was doing. He’s not a good lawyer. And for me, I should find another lawyer. That’s why. [¶] . . . [¶]
“THE COURT: Go ahead, [defense counsel].
“DEFENSE COUNSEL: [Defendant] is charged with attempted first-degree murder, with a gun allegation and with a gang allegation. He seemed pretty upset that he wasn’t discharged at prelim. During the prelim the victim testified at the prelim, and one individual who was present at the house who did not see, actually see [defendant] allegedly do the shooting, but did testify that [defendant] ran inside the house asking, ‘Where is a gun? Where is a gun?’ And that individual sees [defendant] pick up a gun, leave into the garage, and two or three seconds later there were shots fired, four shots, one strikes the alleged victim. And then there was [defendant’s] own admission that he was shooting at the victim, but was just merely trying to scare him. [¶] Based upon those facts, I was unable to discharge him, unable to discharge him on the gang allegation. I’ve had my investigator talk to him on several occasions. [Defendant] has provided me a defense. A third person—as he was scaring the alleged victim, a third person grabbed his arm and, therefore, he accidentally shot the alleged victim. I’ve tried to interview seven or eight—or, I’m sorry, the investigator has tried to make contact with some of the people at the party, and none of the individuals have returned calls, or would want to make a statement. That’s where we’re at. [¶] These are very difficult charges. I was trying to attempt to settle the case, and I made [defendant] understand that once there was a preliminary hearing, since it’s a [section] 1192.7 case, the District Attorney’s Office has a policy there will be no offers, and that’s where we’re at.
“THE COURT: In this case, I can see that. [¶] Go ahead, [defendant], what would you like to add?
“THE DEFENDANT: I just feel like he’s not representing me, doing his job. It seemed like he doesn’t care about my case at all. I talked to him, he doesn’t come—he walk past me, come into the courtroom, doesn’t talk to me. He didn’t say anything. He told my mom that he can’t take four hours of his time to visit me and talk to me. He say just like he really doesn’t care. He’s not representing me to his best ability. He’s not trying.
“THE COURT: Thank you. He’s a pretty experienced lawyer. He knows what he’s doing. The lawyers here are very busy. There’s not much hand-holding going on. And they all do their very best. The jail-house-lawyer version of ‘very best’ is not exactly the same as the legal definition. Motion is denied.”
Defendant contends that while the court permitted defense counsel to reply to defendant’s complaints, defense counsel’s reply was nonresponsive to his concerns, i.e., he did not specifically address defendant’s contentions; thus, the court’s inquiry was per se inadequate. We disagree. Defendant essentially enumerated three vague bases for his motion to substitute counsel: (1) defense counsel was incompetent and/or disinterested in providing defendant with an adequate defense; (2) defense counsel failed adequately to communicate with defendant; and (3) defense counsel had not appropriately investigated his case. The responses by defense counsel and the court to defendant’s allegations sufficiently addressed defendant’s concerns and dispelled any notion that they were well founded.
First, the trial court would have been well within its rights in determining that defendant’s bald and vague implication that defense counsel was incompetent did not require a reply from counsel. (People v. Hill, supra, 148 Cal.App.3d at pp. 753-754.) This is because, as the court noted, defense counsel was “a pretty experienced lawyer” and “knows what he’s doing.” Nevertheless, the court afforded defense counsel an opportunity to respond. Defense counsel’s reply was responsive to the accusation. He noted what the case was about, recounted the specific circumstances of the crimes, related his investigations and what they had revealed, and shared his defense strategy. Thus, defense counsel’s revelations clearly show that he was competent to handle the case and had interestedly pursued the matter.
Second, defendant’s averment that defense counsel failed sufficiently to communicate with him was belied by defendant’s own statement and counsel’s response. Defendant asserted that defense counsel or his investigator, it is unclear to whom “he” refers, “rarely” visits him. Thus, defendant essentially admits that counsel or his investigator had had at least some visitation with defendant. Defendant cites no authority for a proposition that some minimum level of communication between defense counsel and defendant is required to amount to adequate representation. Moreover, defendant failed to assert precisely how any lack of communication had negatively affected defense counsel’s representation of defendant. Furthermore, defense counsel stated that, “I’ve had my investigator talk to [defendant] on several occasions.” To the extent that defendant and defense counsel’s portrayal of the circumstances differed, the trial court was entitled to believe defense counsel. (People v. Abilez, supra, 41 Cal.4th at p. 488.) Thus, defense counsel’s reply was responsive to defendant’s concerns and satisfactorily discounted any notion that visitation had been insufficient to maintain adequate representation.
Finally, defendant’s accusation that defense counsel was not adequately handling his case was directly belied by defense counsel’s response. As noted above, defense counsel indicated that his investigator had spoken with defendant several times. Defendant had given counsel the basis for his defense. The investigator had attempted to interview a number of percipient witnesses to the crime; however, those witnesses had proven reluctant or unwilling to help. Defense counsel attempted, unsuccessfully, to settle the case earlier on. Thus, counsel’s reply showed that he had been actively involved in preparing defendant’s case.
Ultimately, defendant’s allegations against counsel were far too vague to require an in-depth inquiry. Here, the court permitted defendant adequate time to catalog his grievances with counsel. Defendant’s concise and nebulous assertions notwithstanding, the court permitted counsel to respond. Counsel’s response directly reflected upon the bases asserted against him by defendant. The court then gave defendant an opportunity to reply, in which defendant made the same allegations he made initially with no further exposition. The trial court did not rely solely upon its confidence in counsel except where such was directly relevant to defendant’s accusations. Rather, the court relied predominantly on defense counsel’s response. Defendant’s interpretation of the judge’s statement that “[t]he jail-house-lawyer version of ‘very best’ is not exactly the same as the legal definition[]” is directly at odds with our own. While defendant characterizes the statement as meaning that defendants with state-appointed attorneys are entitled to less thorough representation than those employing their own, we view the statement as an assertion that incarcerated individuals oftentimes misconstrue the law and misconceive the role of an attorney and the efficacy of certain legal positions and/or arguments. We also note that defendant has not argued on appeal that defense counsel actually was incompetent. “Thus, we can infer his Marsden motion lacked substance because ineffective assistance of counsel is the foundation which supports the Marsden rule. [Citation.]” (People v. Brown (1988) 46 Cal.3d 432, 461.) The trial court appropriately inquired into defendant’s complaints and acted within its discretion in denying defendant’s motion.
B. The Trial Court Properly Imposed the Upper Term Sentence on the Count 1 Enhancement
Citing Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), defendant argues that the trial court imposed an upper term of 10 years for the personal use enhancement on count 1 based on aggravating facts which were neither admitted nor found true by a jury. As a result, defendant maintains the sentence is contrary to the Supreme Court’s decision in Cunningham and must be reversed. Defendant’s reliance on Cunningham is inapposite.
In Cunningham, the Supreme Court concluded California’s determinate sentencing law (DSL) violates a criminal defendant’s right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the extent it allows trial courts to impose an aggravated upper prison term “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, supra, 127 S.Ct. at pp. 860, 871.) However, in response to Cunningham, the Legislature amended the DSL effective March 30, 2007. (People v. Sandoval (2007) 41 Cal.4th 825, 836, fn. 2 (Sandoval).) As a result of the amendments, trial courts now have the discretion to select among the lower, middle, and upper terms specified by statute without stating ultimate facts deemed to be aggravating or mitigating under the circumstances and without weighing aggravating and mitigating circumstances. (Id. at pp. 846-847, citing § 1170, subd. (c), as amended by Stats. 2007, ch. 3, § 2.) Rather, “a trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions,” which are not relevant to the circumstances presented in this case. (Sandoval, supra, at p. 848.) “[T]he existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term.” (People v. Black (2007) 41 Cal.4th 799, 813.) Although broad discretion is afforded by the amended sentencing scheme, a trial court must set forth reasons for imposing the selected term, and its sentencing decision is subject to review for abuse of discretion. (Sandoval, supra, at p. 847; § 1170, subd. (c).)
Here, defendant was sentenced on June 29, 2007, after the effective date of the amendments to the DSL. In Sandoval, supra, 41 Cal.4th at pages 845 through 857, the court held it is constitutionally appropriate to apply the amended version of the DSL in all sentencing proceedings conducted after the effective date of the amendments, regardless of whether the offense was committed prior to the effective date of the amendments. We are bound by the Sandoval decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Defendant has not argued the trial court abused its discretion in imposing the upper term. Nor has defendant presented any viable reason why the amendments to the DSL were inappropriately applied in his case. In reaching its sentencing decision during the sentencing hearing on June 29, 2007, the trial court referred to at least one aggravating reason which is legally sufficient to support its decision to impose the upper term. As the trial court noted on the record, defendant’s crime inflicted great bodily injury upon the victim and defendant fired multiple gunshots. (See Cal. Rules of Court, rules 4.421(a)(1) & (c).) We therefore cannot conclude there is a sentencing error justifying a reversal of the sentence.
III. DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P.J., Gaut, J.