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People v. Young

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Jan 10, 2012
B227428 (Cal. Ct. App. Jan. 10, 2012)

Opinion

B227428

01-10-2012

THE PEOPLE, Plaintiff and Respondent, v. ANDREW LEE YOUNG, Defendant and Appellant.

Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. NA077229)

APPEAL from a judgment of the Superior Court of Los Angeles County. James B. Pierce, Judge. Affirmed in part; reversed in part and remanded.

Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Andrew Lee Young contends that his sentence for violating probation was erroneous because (1) he was denied his constitutional right to counsel, and (2) certain fees should not have been imposed. We agree with the parties that case No. NA077229 must be remanded for resentencing for the limited purposes of affording appellant his right to counsel and for correction of certain fees imposed.

BACKGROUND

Because the facts underlying the offenses are not at issue in this appeal, we summarize the procedural history relevant to appellant's claims.

On March 14, 2008, appellant was charged with six offenses in case No. NA077229: three counts of second degree commercial burglary (Pen. Code, § 459),two counts of grand theft of personal property (§ 487, subd. (a)), and one count of receiving stolen property (§ 496, subd. (a)). The information also alleged that appellant had suffered two prior convictions of serious or violent felonies (§§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i)). Represented by counsel, appellant pled not guilty to all counts and denied the special allegations. In March 2008, appellant requested to represent himself, and the court granted his request. On June 3, 2008, an amended information was filed charging the same six counts, but adding the second special allegation that appellant was convicted of two felonies within the meaning of section 1203, subdivision (e)(4).

All statutory references are to the Penal Code, unless otherwise noted.

On July 21, 2008, appellant withdrew his propria persona status. Represented by counsel, appellant pled nolo contendere to all six counts and admitted the special allegations. The court sentenced appellant to six years in state prison by imposing the upper term of three years on count 1 (second degree commercial burglary) doubled pursuant to the "Three Strikes" law (§1170.12, subds. (a)-(d)), and concurrent two-year sentences on each of the remaining counts. The court struck one of the prior strikes, suspended execution of sentence, and placed appellant on three years of formal probation.

While on probation, on March 29, 2010 appellant was charged with a new offense of second degree commercial burglary (§ 459) in case No. NA084896. The information also alleged two prior convictions of serious or violent felonies (§§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i)), and prior convictions of several felonies within the meaning of section 1203, subdivision (e)(4). Appellant represented himself, pled not guilty, and denied the special allegations.

On May 27, 2010, the parties appeared before a new judge on both cases, and a probation violation hearing was held in the prior case, in light of the new charge. Appellant represented himself. The prosecution presented its case and appellant testified on his own behalf. The court found appellant in violation of the terms of his probation. Before imposing sentence for the probation violation, the court informed the parties that it believed the six-year stayed sentence was erroneous, concluding that because the burglaries had occurred on three separate dates the sentences should have been imposed consecutively rather than concurrently. The court informed appellant that if a jury found him guilty on the new charge, the court would have to sentence appellant in both cases and that his sentence would likely be increased to 10 years. Appellant responded that he understood, but stated that an increased sentence would violate his plea and asked to withdraw his plea. The court responded, "There would be no plea, sir. You've already been found in violation [of probation] on that case." The court also stated that appellant could take the prosecution's prior plea deal of seven years, four months for both cases. Appellant stated that he wished to proceed to trial on the new charge, which was scheduled to begin the following day.

Appellant reiterated that while he wanted to represent himself at trial, he wanted the attorney who had represented him in the prior case to represent him at sentencing on the probation violation. The trial court called a recess, then informed the parties it had inquired and learned that appellant's prior attorney was not at the courthouse that day. Appellant asked to trail the matter for a week or so, but the court stated that it was going to proceed to sentencing. Over appellant's objection, the court imposed execution of the previously stayed sentence of six years.

On June 2, 2010, while the parties were sitting in the courtroom awaiting the jury's verdict on the new charge, appellant stated that he should have had an attorney at the prior hearings to revoke his probation and impose sentence, and asked the court to reconsider its ruling. The court declined, and the jury returned with a guilty verdict.

Appellant continued to represent himself. He admitted his prior convictions, and requested the court to strike his two prior felony convictions and reinstate his probation. The court stated that it had to resentence appellant and could not execute the previously imposed sentence because it was unauthorized. On the prior case (case No. NA077229), the court selected the midterm of eight months for each of the three commercial burglary counts, doubled to 16 months, to run consecutively for a total of four years, and stayed the sentences on the remaining counts. On the new case (case No. NA084896), the court selected the midterm of three years doubled to six years. The aggregate term on both cases is 10 years. This appeal followed.

Appellant filed a notice of appeal in both cases, but he only challenges the sentence in the prior case (case No. NA077229).
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DISCUSSION

I. Appellant Was Entitled to Counsel at Sentencing on the Probation Violation

Appellant contends he was deprived of his right to counsel guaranteed by the Sixth Amendment to the federal Constitution and article I, section 15 of the California Constitution when the trial court denied his request to have his prior attorney represent him during the sentencing for violating his probation. He argues that the matter must be remanded for a new sentencing hearing with counsel present. The People agree, and so do we.

It is well settled that "[a] criminal defendant has a constitutional right to counsel at all critical stages of a criminal prosecution, including sentencing." (People v. Doolin (2009) 45 Cal.4th 390, 453); Mempa v. Rhay (1967) 389 U.S. 128, 134-137.) While a criminal defendant may proceed in propria persona following a knowing and intelligent waiver of the right to counsel (People v. Crayton (2002) 28 Cal.4th 346, 362), a request to reassert his right to counsel is subject to the trial court's discretion under the totality of the circumstances (People v. Lawrence (2009) 46 Cal.4th 186, 196). Some of the factors to be considered include the defendant's reasons for seeking to revoke the waiver, and the delay or disruption revocation is likely to cause. (People v. Gallego (1990) 52 Cal.3d 115, 163-164.)

The record here does not suggest that appellant was trying to cause delay or disruption by requesting the presence of his counsel at the new sentencing hearing. Before imposing sentence, the court presented appellant with an unanticipated change in his prior agreed-upon sentence, involving complicated sentencing law, and denied appellant's request to withdraw his plea. But appellant had no opportunity to consult with his attorney on sentencing options, including whether he should accept the prosecution's offer. As the People note, "there would have been minimal or no disruption to the orderly administration of justice, because there was no ongoing trial and no compelling reason that the resentencing take place immediately. Although a jury trial was about to commence the next day in appellant's other, new criminal case, appellant made it clear he was not asking for counsel in that other case. The court could have either continued the resentencing in [the prior case] to allow counsel an opportunity to appear or could have offered appellant alternative representation."

Accordingly, we reverse the sentence on the probation violation and remand the matter (case No. NA077229) for a new sentencing hearing with counsel present representing appellant.

II. Imposition of Fees on Remand

Appellant contends the trial court erred in imposing a $30 security fee under section 1465.8 on each count of conviction and a court facilities fee under Government Code section 70373 on his sentence for violating probation (case No. NA077229). He argues that the amount of the court security fee in effect when the crimes occurred was $20, and that Government Code section 70373 does not apply where a plea is entered or a verdict rendered before 2009.

The information in case No. NA077229 alleged that the six offenses charged were committed in August 2007 and January 2008. At those times, section 1465.8, subdivision (a)(1) provided: "To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code." The amount of the court security fee was increased to $30 in the 2009 amendment to the statute, which did not become effective until January 1, 2010. Accordingly, at the resentencing upon remand, the trial court is directed to calculate the court security fee at $20 per count of conviction.

Appellant is also correct that the trial court erred in imposing a court facilities fee under Government Code section 70373, subdivision (a)(1), which provides: "To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463 of the Penal Code, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony and in the amount of thirty-five dollars ($35) for each infraction."

Government Code section 70373 became effective January 1, 2009, and does not apply to cases in which the defendant's conviction, including by plea or jury verdict, was rendered before the effective date. (People v. Davis (2010) 185 Cal.App.4th 998, 1000.) Appellant entered into a plea agreement and pled nolo contendere on July 21, 2008, before the statute's effective date. Accordingly, no Government Code section 70373 court facilities fee shall be imposed at resentencing.

DISPOSITION

The sentence on the probation violation in case No. NA077229 is reversed, and the case is remanded for resentencing for the limited purposes of affording appellant his right to counsel and for correction of fees imposed as stated herein. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_, Acting P. J.

DOI TODD
We concur: _, J.

ASHMANN-GERST
_, J.

CHAVEZ


Summaries of

People v. Young

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Jan 10, 2012
B227428 (Cal. Ct. App. Jan. 10, 2012)
Case details for

People v. Young

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ANDREW LEE YOUNG, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

Date published: Jan 10, 2012

Citations

B227428 (Cal. Ct. App. Jan. 10, 2012)