Opinion
F078854
06-26-2020
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY DEAN ALEC, Defendant and Appellant.
Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MCR057661A)
OPINION
APPEAL from a judgment of the Superior Court of Madera County. Joseph A. Soldani, Judge. Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant Timothy Dean Alec was convicted by jury of stealing a truck and a trailer, in violation of Penal Code section 496d, subdivision (a). In a bifurcated proceeding, the trial court found true that defendant served four prior prison terms within the meaning of section 667.5, former subdivision (b), and that he had two prior convictions for violating Vehicle Code section 10851, subdivision (a), for the purpose of applying the alternate sentencing scheme under section 666.5, subdivision (a). On count 1, the trial court sentenced defendant to an aggravated term of three years, plus an additional year under section 666.5, subdivision (a), and imposed the same term on count 2, to run concurrently with the term on count 1. In addition, the trial court imposed four years for the prior prison term enhancements, for a total determinate term of eight years in county jail.
All further statutory references are to the Penal Code unless otherwise noted.
As discussed in part IV. of the Discussion, the court erred in its pronouncement of judgment.
On appeal, defendant claims that the trial court erred when it denied his motion challenging the prosecutor's alleged race- and gender-based excusal of a potential juror, in violation of Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). He also claims that the trial court erred when it failed to provide him with a hearing on the postverdict motion he filed pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Finally, defendant requests that we strike the four 1-year prior prison term enhancements in accordance with Senate Bill No. 136, which amended section 667.5, subdivision (b), effective January 1, 2020 (Stats. 2019, ch. 590, § 1, pp. 1-4 (Senate Bill No. 136)). Alternatively, he requests that one of the enhancements be stricken on the ground that it was reduced from a felony to a misdemeanor pursuant to Proposition 47. (People v. Buycks (2018) 5 Cal.5th 857, 888.)
The People agree that defendant is entitled to have the four prior prison term enhancements stricken in light of Senate Bill No. 136 and also that one of the felony convictions is no longer a qualifying offense because it was reduced to a misdemeanor under Proposition 47. However, they dispute his entitlement to relief on his Batson/Wheeler claim and they contend that he abandoned his Marsden claim by failing to bring it to the trial court's attention. (People v. Jones (2012) 210 Cal.App.4th 355, 362 (Jones).)
We reject defendant's claim that the trial court erred in denying his Batson/Wheeler motion, but we conclude that the trial court's failure to act on defendant's Marsden motion was error and, on this record, we cannot find the error harmless beyond a reasonable doubt. Therefore, we conditionally reverse the judgment for further proceedings. We also agree with the parties that Senate Bill No. 136 entitles defendant to have the four 1-year prior prison term enhancements stricken. Finally, if the trial court reinstates judgment following proceedings related to defendant's Marsden motion, the court shall resentence defendant on counts 1 and 2 pursuant to section 666.5, as explained in part IV. of the Discussion.
The parties were provided with the opportunity to submit optional letter briefs addressing the error in the trial court's oral pronouncement of judgment, but they did not do so. (Gov. Code, § 68081.)
FACTUAL SUMMARY
Because our resolution of the issues in this appeal does not depend on the facts underlying defendant's convictions, we only briefly summarize those facts.
On October 6, 2017, just before 7:00 a.m., deputies responded to a report of a suspicious vehicle at a gas station in Madera County involving a white truck with a camper shell pulling a U-Haul auto transport trailer. A second white truck, which belonged to defendant, was on the transport trailer. When the first deputy arrived, codefendant Oscar Herrera, Jr. was sleeping in the passenger seat of the truck with the camper shell and defendant was inside the gas station. The ignition of the truck with the camper shell was "punched," meaning the ignition was removed or partially removed to allow the vehicle to start without a key and which is usually associated with vehicle theft.
Herrera is not a party to this appeal.
Herrera said the truck with the camper shell and the tools located inside it were his and he was helping a friend whose truck was not running. Defendant initially denied he was associated with the truck parked outside, but he subsequently admitted he "punched the steering column." He also said his vehicle had broken down, he was stranded at the gas station after getting into an argument with his brother and sister-in-law, and his friend arrived to assist him.
Regarding the stolen truck and trailer, the evidence showed the truck with the camper shell was driven off the lot of a nearby car dealership in Madera on the night of October 4, 2017, after the close of business. The key for the vehicle, which was locked in the office, was not taken. On October 5, 2017, at approximately 6:30 a.m., the trailer was taken from a U-Haul lot in Fresno prior to opening. Video surveillance footage showed a white truck with a camper shell arrive at the U-Haul lot. Two individuals got out, a third individual backed the truck up, and within six minutes of arrival, the group drove off with the trailer.
The next day at approximately 2:00 a.m., defendant and Herrera, along with a third unidentified individual, arrived at the gas station where defendant and Herrera were later contacted and then arrested by deputies. Defendant and Herrera did not have permission to take or possess either the truck with the camper shell or the trailer, nor did anyone else.
DISCUSSION
I. Batson/Wheeler Claim
A. Procedural History
On appeal, defendant challenges the prosecutor's dismissal of Juror No. 12, purportedly on grounds of race and gender. The record reflects that Juror No. 12 was seated for voir dire after the prior two potential jurors in the 12th seat were excused for cause and before the prosecutor or either defense counsel had exercised any peremptory challenges. Relevant to defendant's claim on appeal, Juror No. 12 responded to the trial court's inquiry regarding whether she, a relative, a close friend or a significant other had been stopped by police, investigated for a crime or charged with a crime, as follows:
We shall refer to defendant's counsel as defense counsel and his codefendant's counsel as Herrera's counsel.
"[JUROR No. 12]: Yes.
"THE COURT: And who is that?
"[JUROR No. 12]: Um, myself and my husband.
"THE COURT: All right. And how long ago were you stopped?
"[JUROR No. 12]: Over, I think, over eight years ago.
"THE COURT: And was this a traffic issue?
"[JUROR No. 12]: Yeah, I didn't do a complete stop.
"THE COURT: All right. Do you feel you were treated fairly by law enforcement?
"[JUROR No. 12]: Yes.
"THE COURT: And your husband's issue, is that another traffic stop?
"[JUROR No. 12]: Um, four months ago he had a head-on collision because he was under the influence. And he passed and so did the [other] party.
"THE COURT: I'm sorry to hear that. So is there anything about that circumstance—given the tragedy of it and the closeness in time that causes you any concern about your ability to be fair and impartial in this matter?
"[JUROR No. 12]: No."
In response to Herrera's counsel's greeting, Juror No. 12 said she was doing "[v]ery well." Counsel questioned Juror No. 12 regarding her experience with having her musical instrument stolen five or six years ago and then recovered, and whether she would have any problems serving on a jury with respect to "the recent events." Juror No. 12 stated no and then said, "Um, just in case I do do counseling with my kids, but I know it doesn't go that far, but I do counseling with them on Thursdays evenings and then, um, Tuesday—well, tomorrow because I'm trying to be more involved with the kids. I take them to cross country meets and things like that, but other things it wouldn't be in. But it's understanding. They understand. He wants to be in law enforcement so he's very happy that I'm here."
Defense counsel then questioned Juror No. 12. as follows:
"[DEFENSE COUNSEL]: ... Obviously, it's very stressful and emotional to remember kind of what happened with your husband. And very sorry that happened. [¶] In this case, there's no drugs or alcohol involved. And theres's any mention of police officers, and I want to make sure that you get part of the jury that it's part of one that fits you and that you fit. That you fit the jury. I just want to know that if the simple fact that police were involved and there's police questioning that that would trigger those memories, or if that would make it hard for you to kind of sit through the case?
"[JUROR No. 12]: No, I don't think so. So it won't.
"[DEFENSE COUNSEL]: Okay. I just want to make sure it's right for you. That's all that was about. A little bit weird. But I just didn't want you sitting there distressed. [¶] Let's talk a little bit about your son. You said your son's training to be in law enforcement or is in—
"[JUROR No. 12]: No, he wants to be. So he learns the codes and he knows how—what a highway patrol car has inside. And technologies. And he's just focused on this.
"[DEFENSE COUNSEL]: How old is he?
"[JUROR No. 12]: He's 11."
The prosecutor did not have any questions for Juror No. 12, and defense counsel and Herrera's counsel exercised a joint peremptory challenge to excuse Juror No. 3. After the seat was filled and the newly seated juror questioned, the prosecutor then excused Juror No. 1, who had a nephew who served 17 years in prison for attempted murder. The next juror to fill seat No. 1 was excused for cause and after the seat was again filled, defense counsel and Herrera's counsel excused Juror No. 10.
Seat No. 10 was then filled by a potential juror who said that he had been arrested and harassed by police, and that he had been convicted of a crime he did not commit. The prosecutor requested Juror No. 10 be excused for cause, prompting defense counsel to state that Juror No. 10 would be the second Hispanic juror excused. After the trial court denied the request, the court informed defense counsel he had raised an issue that was not appropriate at that juncture, but if he wanted to make a Batson/Wheeler motion based on the prosecutor's exercise of a peremptory challenge, he should ask to approach.
The prosecutor then exercised his second peremptory challenge to excuse Juror No. 12 and defense counsel objected. The court held a bench conference and defense counsel stated that the prosecutor had now excused two Hispanic jurors. The trial court responded that it could not tell if Juror No. 12 was Hispanic, but agreed her last name appeared to be Hispanic.
The court asked the prosecutor the reason for the excusal of Juror No. 12 and the prosecutor stated, "She said in her voir dire that her husband recently got in an accident and while he was drunk. I think it happened relatively recently. I don't think her head is going to be where it needs to be as a juror. [¶] On top of that, he did something wrong and there was probably some negative law enforcement experience that happened due to that. So based on those reasons I excused her." The court then summarily denied defense counsel's Batson/Wheeler motion and excused Juror No. 12 from the courtroom.
B. Legal Standard
The standards governing Batson/Wheeler claims are well established. Trial courts have broad discretion over jury selection (People v. Whalen (2013) 56 Cal.4th 1, 29-30, disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 44, fn. 17; People v. Lenix (2008) 44 Cal.4th 602, 608 (Lenix)), and peremptory challenges "are 'designed to be used "for any reason, or no reason at all[]"'" (People v. Armstrong (2019) 6 Cal.5th 735, 765 (Armstrong), quoting People v. Scott (2015) 61 Cal.4th 363, 387). "But there are limits: Peremptory challenges may not be used to exclude prospective jurors based on group membership such as race or gender. [Citations.] Such use of peremptory challenges violates both a defendant's right to a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution, and his right to equal protection under the Fourteenth Amendment to the United States Constitution." (Armstrong, supra, at pp. 765-766.) "[R]ace is irrelevant to a defendant's standing to object to the discriminatory use of peremptory challenges" and where, as here, a defendant and the excused juror do not share the same racial identity or gender, a Batson/Wheeler challenge may still be raised. (Powers v. Ohio (1991) 499 U.S. 400, 416; accord, People v. Parker (2017) 2 Cal.5th 1184, 1212; People v. Burgener (2003) 29 Cal.4th 833, 863.)
The record reflects that defendant is Native American.
With respect to jury selection, "'[t]here "is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination."' [Citations.] Under a now familiar three-step process, a defendant [bringing a Batson/Wheeler motion] must first 'make out a prima facie case "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." [Citation.] Second, once the defendant has made out a prima facie case, the "burden shifts to the State to explain adequately the racial exclusion" by offering permissible race-neutral justifications for the strikes. [Citations.] Third, "[i]f a race-neutral explanation is tendered, the trial court must then decide ... whether the opponent of the strike has proved purposeful racial discrimination."' [Citations.] The defendant's ultimate burden is to demonstrate that 'it was more likely than not that the challenge was improperly motivated.'" (Armstrong, supra, 6 Cal.5th at p. 766; accord, People v. Parker, supra, 2 Cal.5th at p. 1211; People v. Gutierrez (2017) 2 Cal.5th 1150, 1158-1159 (Gutierrez).)
C. Analysis
1. Standard of Review
Where, as in this case, the trial court seeks the prosecutor's justification for excusing the juror without finding that the defendant made a prima facie case of discrimination at the first step, we proceed to the third step of the Batson/Wheeler analysis. (People v. Krebs (2019) 8 Cal.5th 265, 290, citing People v. Scott, supra, 61 Cal.4th at p. 387, fn. 1.) As previously stated, "[i]n order to prevail, the movant must show it was '"more likely than not that the challenge was improperly motivated."' [Citation.] This portion of the Batson/Wheeler inquiry focuses on the subjective genuineness of the reason, not the objective reasonableness. [Citation.] At this third step, the credibility of the explanation becomes pertinent. To assess credibility, the court may consider, '"among other factors, the prosecutor's demeanor; ... how reasonable, or how improbable, the explanations are; and ... whether the proffered rationale has some basis in accepted trial strategy."' [Citations.] To satisfy [him]self that an explanation is genuine, the presiding judge must make 'a sincere and reasoned attempt' to evaluate the prosecutor's justification, with consideration of the circumstances of the case known at that time, [his] knowledge of trial techniques, and [his] observations of the prosecutor's examination of panelists and exercise of for-cause and peremptory challenges. [Citation.] Justifications that are 'implausible or fantastic ... may (and probably will) be found to be pretexts for purposeful discrimination.' [Citation.] We recognize that the trial court enjoys a relative advantage vis-à-vis reviewing courts, for it draws on its contemporaneous observations when assessing a prosecutor's credibility." (Gutierrez, supra, 2 Cal.5th at pp. 1158-1159, quoting & citing Lenix, supra, 44 Cal.4th at p. 613.)
On appeal, "[w]e review a trial court's determination regarding the sufficiency of tendered justifications with '"great restraint."' [Citation.] We presume an advocate's use of peremptory challenges occurs in a constitutional manner. [Citation.] When a reviewing court addresses the trial court's ruling on a Batson/Wheeler motion, it ordinarily reviews the issue for substantial evidence. [Citation.] [However, a] trial court's conclusions are entitled to deference only when the court made a 'sincere and reasoned effort to evaluate the nondiscriminatory justifications offered.' [Citation.] What courts should not do is substitute their own reasoning for the rationale given by the prosecutor, even if they can imagine a valid reason that would not be shown to be pretextual. '[A] prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives.... If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.'" (Gutierrez, supra, 2 Cal.5th at p. 1159; accord, Lenix, supra, 44 Cal.4th at pp. 613-614; People v. Silva (2001) 25 Cal.4th 345, 385-386.)
2. Justifications Neutral and Supported by Record
Defendant argues that the prosecutor's justifications for excusing Juror No. 12 were pretextual and unsupported by the record, and that the trial court abused its discretion by failing to engage in a sincere and reasoned evaluation of the reasons advanced by the prosecutor. Defendant acknowledges that a negative attitude toward law enforcement is a neutral reason to excuse a juror and that the recent death of a spouse could be distracting for a juror, but he argues the record contains "not even a glimmer that Juror [No.12] had any negative experiences with or attitude toward law enforcement[]" and the prosecutor did not ask Juror No. 12 any questions about her recent loss, indicating his justifications were merely pretextual.
"'[A] prospective juror's negative experience with law enforcement'" is a neutral basis for excusal, as defendant acknowledges. (Lenix, supra, 44 Cal.4th at p. 628; accord, People v. Reed (2018) 4 Cal.5th 989, 1001.) We agree with him that in this case, Juror No. 12 did not express negative feelings toward law enforcement and she stated that her 11-year-old son was interested in a career in law enforcement. However, the prosecutor's stated justification for excusing her stemmed from the fact that her husband apparently caused a fatal head-on collision while driving under the influence. It is reasonably inferable from her express statement regarding the collision and her husband's impairment that the matter would have most likely entailed a criminal investigation and charges but for the fact that he also died in the collision. "'[A] prosecutor may reasonably surmise that a close relative's adversary contact with the criminal justice system might make a prospective juror unsympathetic to the prosecution[]'" (People v. Jones (2013) 57 Cal.4th 899, 920, quoting People v. Farnam (2002) 28 Cal.4th 107, 138), and so long as the reason is not race-based, a prosecutor's concern, even if just based on a hunch, suffices to support the exercise of a peremptory challenge (People v. Winbush (2017) 2 Cal.5th 402, 434). Here, the prosecutor's concern is expressly supported by the record.
The second justification advanced was based on the recency of the fatal collision. Again, we agree with defendant that Juror No. 12 stated she was doing well when greeted by Herrera's counsel; she could be fair and impartial; and she would not have any problems serving on the jury. However, her husband's death had occurred only four months earlier and she was attending counseling with her elementary school aged children. The prosecutor voiced concern about her mental focus given the recent loss of her husband and, as with the first justification, that concern finds express support in the record.
Critically, the parties and the trial court were in the position to evaluate Juror No. 12's responses in the context of demeanor, tone and other factors that are not detectable on this cold record. "[E]ven a trivial reason, a hunch, or an arbitrary exclusion, if genuine and neutral, will suffice [citation]." (People v. Douglas, supra, 22 Cal.App.5th at p. 1170, citing People v. Hamilton (2009) 45 Cal.4th 863, 901; accord, People v. Winbush, supra, 2 Cal.5th at p. 434; People v. O'Malley, supra, 62 Cal.4th at p. 975; see People v. Hensley (2014) 59 Cal.4th 788, 803 ["Rigid jurors who appear emotionally detached and terse may be divisive during deliberations. They may not perform well as open-minded jurors willing and able to articulate their views and persuade others."]; People v. Trinh (2014) 59 Cal.4th 216, 242 [childless status one of multiple factors in excusing prospective juror].) "'Experienced trial lawyers recognize what has been borne out by common experience over the centuries. There is more to human communication than mere linguistic content. On appellate review, a voir dire answer sits on a page of transcript. In the trial court, however, advocates and trial judges watch and listen as the answer is delivered. Myriad subtle nuances may shape it, including attitude, attention, interest, body language, facial expression and eye contact.'" (People v. Jones (2011) 51 Cal.4th 346, 363, quoting Lenix, supra, 44 Cal.4th at p. 622.) Here, both proffered justifications are neutral and we do not find them inherently implausible on this record.
Citing People v. Hall (1983) 35 Cal.3d 161, 170, defendant argues in his reply brief that the prosecutor may not rely on a hunch at the third stage of review. To the contrary, a prosecutor may exercise a peremptory challenge to excuse a juror based on a hunch so long as the trial court finds the reason to be credible. (People v. Winbush, supra, 2 Cal.5th at p. 434; People v. O'Malley (2016) 62 Cal.4th 944, 975; People v. Douglas (2018) 22 Cal.App.5th 1162, 1170.)
We also observe that the prosecutor exercised only four peremptory challenges in total, three prior to accepting the panel and the fourth to excuse a juror newly seated following a peremptory challenge exercised by defense counsel. From defense counsel's objections and comments, we are able to discern that the prosecutor's other three peremptory challenges were also used to excuse jurors who were or appeared to be Hispanic. The first juror excused by the prosecutor had a nephew who served 17 years for attempted murder; the third juror excused by the prosecutor stated he had been harassed and arrested by the police, and he had been convicted of a crime he did not commit; and the fourth juror excused by the prosecutor was ill with a sinus infection and the prosecutor was concerned she did not want to be there and "her head [would not] be in it." Defendant does not challenge the excusal of those three jurors on appeal and in our view, the prosecutor's stated reasons for excusing Juror No. 12 are consistent with the exercise of his other three peremptory challenges: either negative experience with law enforcement or concern over mental focus.
In contrast, the defense jointly exercised nine peremptory challenges, Herrera's counsel exercised five individual challenges and defendant's counsel exercised three individual challenges.
The racial makeup of neither the venire panel nor the sworn panel is discernible from the present record.
The trial court did not perform a comparative juror analysis and the parties do not rely on one on appeal. (Gutierrez, supra, 2 Cal.5th at p. 1174.)
3. Prosecutor's Failure to Question Juror No. 12
Defendant points to the prosecutor's failure to question Juror No. 12 and argues this failure "weighs heavily in favor of a finding that [the] explanation by the prosecutor was a sham and the striking of Juror [No. 12] was improperly motivated." We agree that "[a] failure to engage in meaningful voir dire on a subject of purported concern can, in some circumstances, be circumstantial evidence suggesting the stated concern is pretextual." (People v. Lomax (2010) 49 Cal.4th 530, 573; accord, Flowers v. Mississippi (2019) ___ U.S. ___, ___ [139 S.Ct. 2228, 2249].) Here, however, the trial court, defense counsel and Herrera's counsel questioned Juror No. 12 thoroughly on the subjects that formed the bases for the prosecutor's excusal of Juror No. 12. On this record, any further exploration by the prosecutor on those subjects would have been cumulative and might even have been negatively received by the trial court and the potential jurors in the courtroom.
4. Defense Counsel's Failure to Respond to Prosecutor's Justifications
The California Supreme Court has observed that defense counsel's failure to respond to the prosecutor's statement of reasons at the trial court's invitation is "significant." (People v. Hardy (2018) 5 Cal.5th 56, 80 (Hardy); accord, People v. Mai (2013) 57 Cal.4th 986, 1052; People v. Jones, supra, 51 Cal.4th at p. 361.) This is so because, as the moving party, the defendant bears the burden of persuasion and the failure to respond to the prosecutor's stated justifications deprives the prosecutor of the opportunity to explain further or otherwise defend those justifications, deprives the trial court of the opportunity to view the justifications advanced through the lens of the defendant's observations and arguments, and, on review, deprives the appellate court of a more fully developed record. (Hardy, supra, at pp. 80-81.)
In this case, after defense counsel set forth the grounds for his Batson/Wheeler motion, the prosecutor offered his justifications for excusing Juror No. 12. While the trial court did not expressly invite further argument, the record does not suggest that either defense attorney was precluded from further comment. That neither counsel offered further comment undermines defendant's present claim that the justifications were pretextual. (People v. Jones, supra, 51 Cal.4th at p. 361; People v. Mai, supra, 57 Cal.4th at p. 1052 & fn. 27.)
5. Trial Court's Failure to Make Express Findings
Finally, we agree that the trial court did not make a record here and merely denied defendant's Batson/Wheeler motion after the prosecutor gave his reasons for excusing Juror No. 12, but this does not compel departure from the usual deference on review. It is well established that "'[w]hen the prosecutor's stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings.'" (People v. Williams (2013) 56 Cal.4th 630, 653; accord, Hardy, supra, 5 Cal.5th at p. 76.) "'Some neutral reasons for a challenge are sufficiently self-evident, if honestly held, such that they require little additional explication.'" (Hardy, supra, at p. 77, quoting Gutierrez, supra, 2 Cal.5th at p. 1171.)
In People v. Jones, the trial court listened to the prosecutor's statement of justification, offered defense counsel an opportunity to respond and, after defense counsel declined to comment further, denied the defendant's Batson/Wheeler motion without further discussion. (People v. Jones, supra, 51 Cal.4th at p. 361.) The California Supreme Court rejected the defendant's argument that this bare ruling was not entitled to deference and it concluded that the trial court was not required to do more than it did. (Ibid.) The high court pointed out that "the [trial] 'court denied the motions only after observing the relevant voir dire and listening to the prosecutor's reasons supporting each strike and to any defense argument supporting the motions. Nothing in the record suggests that the trial court either was unaware of its duty to evaluate the credibility of the prosecutor's reasons or that it failed to fulfill that duty.'" (Ibid., quoting People v. Lewis (2008) 43 Cal.4th 415, 471, disapproved on another ground in People v. Black (2014) 58 Cal.4th 912, 919-920.)
6. Conclusion
It is incumbent on the prosecutor and the trial court to ensure a record that is sufficient to permit us to defer to the court's express or implied findings on review. (Lenix, supra, 44 Cal.4th at pp. 623-625; People v. Silva, supra, 25 Cal.4th at p. 385; People v. Long (2010) 189 Cal.App.4th 826, 848.) Although the record here did not include any express findings by the court, this is not a case where the prosecutor's proffered justifications are inherently implausible or, critically, contradicted by the record. (Armstrong, supra, 6 Cal.5th at p. 777 ["We departed from that stance of deference in Gutierrez, but only because the proffered reasons lacked inherent plausibility or were contradicted by the record, and the trial court did not ask the prosecutor to elaborate."]; People v. Long, supra, at p. 848 ["We are unable to extend normal deference to the trial court's implied finding on this point when another stated reason, though pronounced 'legitimate' by the trial court, was demonstrably inaccurate."].) We find defendant's burden of demonstrating error unmet in this case and, therefore, we affirm the trial court's ruling on his Batson/Wheeler motion. (Gutierrez, supra, 2 Cal.5th at pp. 1158-1159.) II. Marsden Claim
A. Procedural History
The jury returned the verdicts on November 7, 2018, and the matter was set for sentencing on December 11, 2018. On December 11, 2018, both the probation officer and defense counsel requested a continuance. During the hearing, defendant stated that he did not want to waive his right to appeal and he wanted a new trial because he was supposed to testify and did not get to do so. The trial court told him they "have to do these things in stages." Defendant responded that he did not know anything about the law and the court stated they were just addressing sentencing. Defendant continued that he did not want to be sentenced, he wanted to appeal, he had never seen the store video before, and he did not know the law. The trial court told defendant to let his attorney do the talking. After defendant waived time for sentencing, the trial court continued the sentencing hearing to January 9, 2019.
On December 17, 2018, defendant filed a Marsden motion, seeking the discharge of appointed counsel and substitution of a new attorney based on inadequate representation. He also filed a premature notice of appeal. On December 20, 2018, the superior court clerk served the parties with a notice that the hearing on defendant's Marsden motion was set for January 9, 2019.
At the first post-Marsden motion hearing on January 9, 2019, defense counsel requested a continuance to address defendant's prior felony convictions in light of Proposition 47, which the trial court granted. Defendant started to speak regarding his records, but the trial judge interrupted him and told him to let his attorney speak for him. There was no mention of the Marsden motion.
At the next hearing on February 6, 2019, defense counsel provided an update regarding the Proposition 47 issue and requested a two-day continuance to allow for the Proposition 47 reduction hearing, which was scheduled on February 8, 2019. The trial court granted the continuance. During the hearing, the following exchange occurred:
"THE DEFENDANT: Um, Your Honor, I'd like to ask you one question, please.
"THE COURT: Why don't you ask your attorney.
"THE DEFENDANT: "I've asked. I asked him and he doesn't answer me.
"THE COURT: Well, ask him and then maybe he can ask me. I don't want you to say anything that's going to hurt your case.
"THE DEFENDANT: I know. It's—"
Defense counsel then interrupted and, without speaking with defendant, explained that defendant was concerned about having his bond reinstated. Defendant then provided additional information regarding the bond. The trial court stated it would "make it easy" and remanded defendant with no bail. Referring to defendant's other cases, the court stated, "Those other matters aren't on calendar so there's no way we can address it. Those other matters aren't on calendar today so we can't address them, they're just not on the calendar."
During the third and final hearing on February 8, 2019, defense counsel conceded that he did not have the necessary evidence with him showing the value of the vehicle underlying defendant's prior felony conviction was $950 or less for the purpose of reducing it to a misdemeanor under Proposition 47, and he informed the trial court that defendant's mother was present and wanted to speak before defendant was sentenced. The court subsequently sentenced defendant without affording his mother an opportunity to speak. After the sentence was imposed, the following exchange occurred:
"THE DEFENDANT: Do I get to say anything before, because I thought I get to speak about what—about anything before I get sentenced. Like my mother wanted to come—she wanted to say something, because I'm in in-home house care for both my parents, and I also wanted to say some things that pertain to my trial, that—
"THE COURT: Well, yeah, absolutely, I just sentenced you, but—
"THE DEFENDANT: I could recommend a lot of things, too, man. I'd like to say some things that took place in the trial.
"[DEFENSE COUNSEL]: I want to give you a recommendation on the record, and then you can tell the judge whatever you'd like to tell the judge.
"THE DEFENDANT: I didn't have a lot of good things of what was going on at the trial, too. I'd just like to put it out there on [the] record.
"THE COURT: [Defendant], hold on just a minute. Your attorney wants to say something.
"[DEFENSE COUNSEL]: [Defendant], I just want to make sure that you have been informed that I'm recommending that you not speak about any of the specific details of trial or, kind of, make statements regarding that. There's a court reporter here, she's taking down all of—everything you're saying, and there will be a record of it. And at subsequent proceedings, what you say here could be used against you if you have another trial. Okay? If you would still like to speak, that is your right, but I just want to make sure that you have been advised.
"THE DEFENDANT: Yes, thank you.
"THE COURT: All right. [Defendant], in regards to your comments to the sentencing, not to the trial.
"THE DEFENDANT: Not to the trial?
"THE COURT: No, to the sentencing.
"THE DEFENDANT: There was a lot of things in trial that I want to put on record that's not getting on record, like the exhibits. I wanted to keep putting—
"THE COURT: We're not going to do that. You want to speak to the sentencing, you can, but we're not going to talk about the trial. This is not the forum for it. You can file an appeal and talk about the trial in your appeal.
"THE DEFENDANT: Okay. Just about the sentencing then?
"THE COURT: Yes, sir."
Defendant's mother was permitted to speak after counsel raised the issue again and, as the hearing came to a close, defendant inquired about his appeal and asked if counsel was still his attorney, stating, "Is [he] still my—we had a Marsden hearing on him and it never took place, so is he still my attorney?" (Italics added.) After the court told defendant yes, defendant stated, "He should have never been my attorney."
B. Legal Standard
"The legal principles governing a Marsden motion are 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.'"'"' (People v. Vines (2011) 51 Cal.4th 830, 878, italics added[, overruled on another ground by Hardy, supra, 5 Cal.5th at p. 104]; cf. People v. Wharton (1991) 53 Cal.3d 522, 580 ['When the basis of a defendant's dissatisfaction with counsel is set forth in a letter of sufficient detail, however, a full-blown hearing is not required'].) In People v. Sanchez (2011) 53 Cal.4th 80 [(Sanchez)], we held that if a defendant requests substitute counsel 'at any time during criminal proceedings,' the trial court must, under Marsden, 'give the defendant an opportunity to state any grounds for dissatisfaction with the current appointed attorney.' (Id. at p. 90.) But when a defendant asks for new counsel, a trial court's duty to undertake the Marsden inquiry 'arises "only when the defendant asserts directly or by implication that his counsel's performance has been so inadequate as to deny him his constitutional right to effective counsel."' (People v. Leonard (2000) 78 Cal.App.4th 776, 787.)" (People v. Johnson (2018) 6 Cal.5th 541, 572-573.)
"If the court holds an adequate hearing, its ruling is reviewed for abuse of discretion." (People v. Rodriguez (2014) 58 Cal.4th 587, 623, citing People v. Panah (2005) 35 Cal.4th 395, 431.)
C. Analysis
1. Abandonment
There is no dispute that in this case, defendant filed a Marsden motion claiming inadequate representation that was set for hearing on January 9, 2019, or that the trial court failed to hold a hearing or otherwise address the motion. Defendant contends the court committed reversible error. Relying on the decision in Jones, the People argue only that by failing to bring his Marsden motion to the trial court's attention, defendant abandoned his claim. (Jones, supra, 210 Cal.App.4th at p. 362.)
In Jones, the defendant filed two Marsden motions prior to trial. (Jones, supra, 210 Cal.App.4th at pp. 359-360.) The first Marsden motion was denied after a hearing. (Id. at p. 359.) The second motion was filed approximately six months later and set for hearing. (Id. at p. 360.) Four days later, the trial court continued the trial date by stipulation to the day after the Marsden motion hearing. (Ibid.) Defense counsel thereafter moved to continue both the Marsden motion and trial. (Ibid.) The court granted counsel's request and several more continuances were granted by minute order, all of which referenced the Marsden motion. (Ibid.) Jury trial was then set before again being continued. (Ibid.) The minute order continuing the trial date did not mention the Marsden motion nor did the subsequent minute orders continuing the trial date. (Ibid.)
On the date of trial and prior to selecting the jury, the trial court stated, "'We've resolved most of the issues that counsel had brought before us. There was a couple of issues that counsel were thinking about, and so this is the time. If anybody has anything else that they want to say, put it on the record, make a pitch, or whatever. So feel free.' [The d]efendant was present but remained silent." (Jones, supra, 210 Cal.App.4th at pp. 360-361.)
Relevant to finding of abandonment in Jones, in People v. Braxton, the California Supreme Court addressed the issue of forfeiture by abandonment in the context of a new trial motion. (People v. Braxton (2004) 34 Cal.4th 798, 813-814.) The court explained, "If the trial court's failure to hear or rule on the new trial motion appears to be inadvertent, the defendant must make some appropriate effort to obtain the hearing or ruling." (Id. at p. 813.) "This is an application of the broader rule that a party may not challenge on appeal a procedural error or omission if the party acquiesced by failing to object or protest under circumstances indicating that the error or omission probably was inadvertent." (Ibid.) The court concluded that "when a trial court has failed to hear a defendant's motion for a new trial, the defendant need not bring a second or supplemental motion for new trial under section 1202. On the other hand, a defendant may forfeit the issue for appellate review by failing to press for a hearing or by acquiescing in the court's failure to hear the new trial motion." (Id. at p. 814; accord, People v. Ramirez (2006) 39 Cal.4th 398, 472-473 ["In order to preserve an issue for review, a defendant must not only request the court to act, but must press for a ruling."].)
Relying on the general rule discussed in People v. Braxton, the Jones court held, "[The d]efendant had the duty of bringing his [Marsden] motion to the trial court's attention at a time when the oversight could have been rectified. [Citation.] We conclude [the] defendant's failure to raise the issue before the matter proceeded to trial constituted abandonment of his claim." (Jones, supra, 210 Cal.App.4th at p. 362; accord, People v. Vera (2004) 122 Cal.App.4th 970, 981-982 [unstated complaints regarding counsel deemed abandoned where the defendant did not take advantage of trial court's offer to hold a second Marsden hearing].)
Defendant acknowledges the decision in Jones, but relies on People v. Armijo (2017) 10 Cal.App.5th 1171 (Armijo) for the proposition that on the facts of this case, he did not forfeit review of his claim through abandonment in the trial court. We agree with defendant.
In Armijo, prior to pleading no contest to the charge against him, the defendant sent two letters to the trial court requesting appointment of new counsel based on ineffective assistance of counsel. (Armijo, supra, 10 Cal.App.5th at p. 1173.) The first letter was rendered moot by the unrelated replacement of counsel, but the trial court failed to hold a hearing on the second letter. (Id. at p. 1174.)
The Court of Appeal distinguished Jones on two grounds. (Armijo, supra, 10 Cal.App.5th at pp. 1182-1183.) First, in contrast with Armijo, defense counsel in Jones was fully aware of his client's Marsden motion and, therefore, the failure to press the issue rested largely with counsel. (Id. at p. 1182.) Second, the appellate court thought it possible that the defendant did not raise the issue at the court hearing immediately following his second letter because he mistakenly thought the court received it and denied it. (Id. at p. 1183.) In fact, the court had not yet received the letter. (Ibid.)
In this case, defendant expressed dissatisfaction with his appointed counsel. Shortly thereafter, he filed a Marsden motion. Defendant was in court three times after the Marsden hearing was set by minute order, but the minute orders following those hearings, which were set for "RPO and Judgment," do not contain any mention of the motion. The motion was also never mentioned by the trial court or defense counsel and although defense counsel's firm was served with the hearing notice, nothing in the record indicates that defense counsel was actually aware of the motion. At the very end of his sentencing hearing, defendant mentioned he did not receive a Marsden hearing, but the trial court made no comment regarding the motion.
Defense counsel was with Ciummo & Associates.
It is unclear how defendant's Marsden motion was overlooked by the trial court and the parties, but there is nothing in the record suggesting it was anything other than an inadvertent omission. However, unlike in Jones, where the appellate court laid the responsibility largely at the feet of defense counsel because the record supported counsel's awareness of the motion, here there is no indication in the record that counsel was aware of the motion.
Furthermore, and critically, unlike in Jones, defendant was at no time invited to speak to any issues left unresolved. To the contrary, defendant was repeatedly told to speak with his attorney when he attempted to raise issues, and the trial court made it clear that it would not address any issues other than those on calendar. Finally, once defendant had been sentenced, the court did not speak to the unresolved Marsden motion even when defendant mentioned it, instead concluding the hearing by telling defendant that he or defense counsel could file the notice of appeal.
On these facts, we find the decision in Armijo more persuasive. Therefore, we reject the People's argument that defendant forfeited review of his Marsden claim by abandoning it in the trial court.
2. Error Requires Conditional Reversal
"It is well settled that a court 'must promptly consider a motion for substitution of counsel when the right to effective assistance "would be substantially impaired" if his request were ignored.'" (People v. Clark (2011) 52 Cal.4th 856, 916.) Although a "'full-blown hearing is not required'" where basis for dissatisfaction with counsel is set forth by the defendant in sufficient detail (People v. Freeman (1994) 8 Cal.4th 450, 481, quoting People v. Wharton, supra, 53 Cal.3d at p. 580), the trial court in this case never addressed defendant's pending Marsden motion at all, which was error (People v. Johnson, supra, 6 Cal.5th at p. 572). The People do not contend otherwise nor do they contend that the error was harmless.
Marsden error "requires reversal unless 'the record shows beyond a reasonable doubt that the error did not prejudice [the] defendant.'" (People v. Winn (2020) 44 Cal.App.5th 859, 871 (Winn); accord, Sanchez, supra, 53 Cal.4th at p. 87; People v. Loya (2016) 1 Cal.App.5th 932, 945.) Recently, in Winn, which also involved a postverdict Marsden motion, the Court of Appeal concluded "that this is that rare case that does not compel reversal ...." (Winn, supra, at p. 871.) There, however, the trial court held a Marsden hearing and explored one of the two grounds identified in the defendant's motion, which was counsel's failure to call an expert witness to testify. (Id. at pp. 868-870.) The appellate court concluded the trial court erred by failing to address the defendant's second claim that counsel did not allow him to testify in his own defense and by focusing on the adequacy of counsel's present or future representation without consideration of past performance. (Id. at pp. 870-871.) On appeal, the defendant's claim was limited to counsel's failure to allow him to testify and the Court of Appeal concluded that because the evidence against him was overwhelming, the trial court's failure to explore his claim that counsel deprived him of his right to testify was harmless. (Id. at p. 871.)
Here, in contrast, the trial court did not hold a Marsden hearing or otherwise address defendant's pending motion, and defendant checked every available box on the form motion regarding the bases for the motion, including "Other," where he wrote, "My counsel has not accepted the plea bargain, filed motions or subpoena witnesses or obtain evidence that would have been critical to defense[,] didn't use exculpatory evidence, had no defense." On this record, we are unable to discern the precise bases for defendant's motion and given the trial court's failure to address the motion at all, we cannot find the error harmless beyond a reasonable doubt. (Sanchez, supra, 53 Cal.4th at p. 92; Armijo, supra, 10 Cal.App.5th at p. 1183.) Accordingly, defendant is entitled to a conditional reversal and a hearing on his postverdict Marsden motion. (Sanchez, supra, at pp. 92-93; Armijo, supra, at p. 1183.) If defendant's Marsden motion is denied or if it is granted and newly appointed counsel either files postverdict motions that are denied or makes no motions, the court shall reinstate the judgment. (Sanchez, supra, at pp. 92-93; Armijo, supra, at pp. 1183-1184 & fn. 6.)
III. Senate Bill No. 136
As previously set forth, the trial court imposed four 1-year prior prison term enhancements. (§ 667.5, former subd. (b).) The parties agree that defendant is entitled to relief from the enhancements in light of Senate Bill No. 136, which amended section 667.5, subdivision (b), effective January 1, 2020.
Pursuant to section 667.5, subdivision (a), and subject to an exception not relevant here, trial courts are required to impose a three-year sentence for each prior, separate prison term served by the defendant for a violent felony where the current offense is also a violent felony, as defined in subdivision (c) of the statute. For other felonies, pursuant to former subdivision (b), and subject to exceptions not relevant here, trial courts are required to impose an additional one-year term for each prior, separate prison term or county jail felony term. As amended by Senate Bill No. 136, subdivision (b) of section 667.5 limits imposition of the additional one-year term to each prior, separate prison term served for a conviction of a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b).
In accordance with the California Supreme Court's decision in In re Estrada (1965) 63 Cal.2d 740, 744, "'"[a]n amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute's effective date" [citation], unless the enacting body "clearly signals its intent to make the amendment prospective, by the inclusion of either an express saving clause or its equivalent" [citations].'" (People v. Lara (2019) 6 Cal.5th 1128, 1134, quoting People v. DeHoyos (2018) 4 Cal.5th 594, 600.) We agree with the parties that Senate Bill No. 136 is retroactive under Estrada and, therefore, the amendment to section 667.5, subdivision (b), applies in this case.
We also agree with the parties that none of defendant's prior convictions is a qualifying offense under section 667.5, subdivision (b), as amended. Therefore, we order the four 1-year prior prison term enhancements stricken, rendering moot defendant's alternative argument that he is entitled to relief from one of the enhancements because the underlying felony conviction has been reduced to a misdemeanor under Proposition 47. (People v. Buycks, supra, 5 Cal.5th at p. 888.)
IV. Error in Pronouncement of Judgment
Finally, although defendant did not object to the sentence in the trial court or raise the issue on appeal, "a sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (People v. Scott (1994) 9 Cal.4th 331, 354.) Errors of this type are "'clear and correctable' independent of any factual issues presented by the record at sentencing." (Ibid., citing People v. Welch (1993) 5 Cal.4th 228, 235.) Therefore, "[a] claim that a sentence is unauthorized ... may be raised for the first time on appeal, and is subject to judicial correction whenever the error comes to the attention of the reviewing court." (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6, citing People v. Scott, supra, at p. 354.)
As evidenced by the record, there was some confusion regarding section 666.5, including a discussion whether section 666.5 is an enhancement or a substantive offense. Perhaps as a result of this uncertainty, or perhaps due to an inadvertent misstatement, the trial court sentenced defendant to the aggravated term of three years, which we note is the aggravated term under section 496d, but the middle term under section 666.5. The trial court then purported to add a one-year enhancement under section 666.5, for a total term of four years. While the aggravated term under section 666.5 is four years and the record is clear that the court intended to impose an aggravated term, the sentencing triad under the statute does not include a term of one year.
Whatever the cause, "section 666.5 ... is not an enhancement statute, but rather is an elevated or alternate sentencing scheme which provides a greater base term for certain recidivists. It does not 'add' any sentence to a base term in accordance with the recognized definition of an 'enhancement.'" (People v. Demara (1995) 41 Cal.App.4th 448, 455; accord, People v. Lee (2017) 16 Cal.App.5th 861, 869-870.) Given that the prosecutor specially alleged defendant had two prior convictions for violating Vehicle Code section 10851 within the meaning of section 666.5 and that the trial court found the allegations true, the sentencing triad of two, three or four years under section 666.5 applies in this case, without reference to the sentencing triad under section 496d. In the event that judgment is reinstated following proceedings on defendant's Marsden motion, the trial court shall resentence defendant on counts 1 and 2 under the triad in section 666.5.
DISPOSITION
Pursuant to Senate Bill No. 136, the four 1-year prior prison term enhancements imposed under section 667.5, former subdivision (b), are stricken. The judgment is conditionally reversed and the matter remanded to the trial court to hold a Marsden hearing. If defendant's request for substitute appointed counsel is granted, the court is directed to appoint new counsel to assist defendant, and to entertain such postverdict motions as newly appointed counsel may file. The court shall reinstate the judgment if (1) defendant's request to appoint new counsel is denied, or (2) the request is granted but newly appointed counsel declines to file any postverdict motions as may be appropriate or the court denies any motions filed. If the judgment is reinstated, the trial court shall resentence defendant on counts 1 and 2 under section 666.5, subdivision (a), as set forth in part IV. of the Discussion, and shall forward the order following resentencing to the appropriate authorities.
MEEHAN, Acting P.J. WE CONCUR: SNAUFFER, J. DE SANTOS, J.