Opinion
F079898
05-28-2021
THE PEOPLE, Plaintiff and Respondent, v. BOBBY MARINE FRANCO, Defendant and Appellant.
Deanna L. Lopas, 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, Kenneth N. Sokoler and Sean M. McCoy, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CR-6460)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Merced County. Donald E. Shaver, Judge. (Retired Judge of the Stanislaus Co. Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Deanna L. Lopas, 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, Kenneth N. Sokoler and Sean M. McCoy, Deputy Attorneys General for Plaintiff and Respondent.
Before Levy, Acting P.J., Franson, J. and Meehan, J.
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Following a jury trial, defendant Bobby Marine Franco was found guilty of unlawful possession of a firearm and ammunition, obstruction of a peace officer, and possession of methamphetamines. On appeal, defendant argues (1) the trial court abused its discretion and violated his statutory right to a speedy trial, and (2) in light of Senate Bill No. 136, his prior prison term enhancements should be stricken. We strike the enhancements, remand for resentencing, and affirm in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
While riding his bicycle to high school on December 10, 2018, E.Y. noticed something "shine" on his regular route near a dry creek bed. E.Y. immediately slowed down to explore what he had seen. E.Y. recognized the item as a firearm magazine. This caused him to look around to see if anything else was lying on the ground. Not seeing anything else, E.Y. picked up the magazine, put it into his school bag, and proceeded to school.
Understanding he should probably not have the magazine on campus, and in a hurry to get to class, E.Y. decided to toss the magazine into the bushes near the bike racks. E.Y. informed a staff member there was a magazine near the bike racks, but out of fear did not inform that person he had placed the magazine there himself. E.Y. then went to class.
The magazine was eventually found by School Resource Officer Timothy Gaches in the location E.Y. identified. After viewing video surveillance of the area, Gaches was able to identify E.Y. as the person who placed the magazine in the bushes near the bike racks.
Soon thereafter, while the school was on lockdown, Gaches removed E.Y. from his classroom and took him to an office. E.Y. admitted to Gaches that he had found the magazine on his way to school and brought it on campus. After confirming he saw nothing else near the magazine he discovered, E.Y. showed Gaches where he had found it on a cell phone map application. The location was near the bike path E.Y. took to school, near a ravine.
Approximately four or five police officers went to the location identified by E.Y. When they arrived, Officer Vince Sapien observed two men sifting through the leaves and tall grass next to the creek bed. According to Sapien, the men appeared to be " 'searching' for something." Sapien shouted to the men, asking them to talk. In response, one of the men started to run, causing the officers to chase that man while continuing to shout for him to stop. After stumbling, the man, later identified as defendant, was taken into custody. A pat down search revealed defendant was in possession of six nine-millimeter bullets, blue latex gloves, and what appeared to be methamphetamine wrapped in plastic.
The officers who were present then spread out and started searching the creek bed area. Eventually, a nine-millimeter gun was found by a K-9 that was called in when the officers already on the scene were unable to find anything. The gun was located near the spot where defendant and the other person were seen searching. When discovered, the gun did not have an attached magazine. The bullets in the magazine found by E.Y. were eventually identified as nine-millimeter bullets.
On April 24, 2019, defendant was charged in an information with 6 counts: possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1); count 1); having a concealed firearm on the person (§ 25400, subd. (a)(2); count 2); obliterating the identification of a firearm (§ 23900; count 3); unlawful possession of ammunition (§ 30305, subd. (a)(1); count 4); resisting, delaying, or obstructing arrest (§ 148, subd. (a)(1); count 5); and possessing a controlled substance (Health & Saf. Code, § 11377; count 6). As to counts 1 through 4, the information further alleged defendant had suffered a prior strike conviction pursuant to the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served two prior prison terms (§ 667.5, subd. (b)).
All subsequent dates refer to 2019 unless otherwise noted.
All statutory references are to the Penal Code unless otherwise noted.
On that same day, defendant waived a formal arraignment, entered pleas of not guilty to all charges, and denied the special allegations. After defendant refused to waive the time for trial, a jury trial was set for June 4.
On May 28, defense counsel requested a continuance of the June 4 trial date due to his planned vacation. The trial court found good cause to continue the trial date from June 4 to June 18, which was still within the 60-day window specified in section 1382. On June 14, the prosecution requested a continuance of the trial date due to the unavailability of witness E.Y. Citing the fact E.Y. had previously planned to attend summer camp, but could be available after June 22, the court found good cause and continued the jury trial to June 25, over defendant's objection. This placed the trial date two days beyond the expiration of the 60-day limit specified in section 1382.
The jury trial did in fact start on June 25. The prior conviction allegations were bifurcated, and defendant waived his right to a jury trial on those allegations. On the second day of trial, the trial court granted the prosecution's request to dismiss count 3.
The jury eventually returned verdicts of guilt on count 1 (unlawful possession of a firearm), count 4 (unlawful possession of ammunition), count 5 (obstruction of a police officer), and count 6 (possession of methamphetamine). Defendant was found not guilty of count 2 (carrying a concealed firearm). On July 2, defendant admitted the special allegations.
At the sentencing hearing held on August 13, the trial court denied defendant's request to strike his prior conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The trial court sentenced defendant to eight years in prison, as follows: on count 1, the upper term of three years, doubled due to the prior conviction, plus two one-year prior prison term enhancements; on count 4, the low term of 16 months, doubled due to the prior conviction, to be served concurrently with the term on count 1; on both count 5 and count 6, six months in jail, to be served concurrently with the term on count 1.
On September 4, defendant filed a timely notice of appeal.
DISCUSSION
I. The Statutory Right to a Speedy Trial
Defendant contends the continuation of the trial date from June 18 to June 25 violated his statutory right to a speedy trial and constituted prejudicial error. If we find defendant failed to preserve this issue for appeal, defendant argues in the alternative that defense counsel was ineffective for failing to move for a dismissal, causing him prejudice.
A. The Legal Standard Underlying the Statutory Right to a Speedy Trial
While the right to a speedy trial is guaranteed in both the United States and California Constitutions, those provisions reference this important right generally without providing specifics on how that right will be protected. (Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 776.) By enacting section 1382, the California Legislature sought to provide parameters on how that right would be preserved in the trial court. (Ibid.) However, it should be remembered, the statutory right to a speedy trial does not rise to the same level as the fundamental right that cannot be waived for good cause. (People v. Lomax (2010) 49 Cal.4th 530, 553.)
The language of this statutory right is found in section 1382, which provides:
"(a) The court, unless good cause to the contrary is shown, shall order the action to be dismissed in the following cases: [¶] ... [¶]
"(2) In a felony case, when a defendant is not brought to trial within 60 days of the defendant's arraignment on an indictment or information ...."
Dismissal of the action by the trial court is not automatic when the trial starts after this 60-day period. Instead, to preserve this issue for appeal, a defendant must not only raise an objection to a request for a continuance under section 1382 in the trial court, but must also move to dismiss the action in a timely manner. (People v. Wilson (1963) 60 Cal.2d 139, 146 (Wilson).) "The right to a speedy trial must therefore be asserted ... in the court where the prosecution is pending, and prior to the commencement of trial." (Ibid.)
A review of the record shows that while defense counsel objected to the motion to continue the trial date from June 18 to June 25, no motion to dismiss was ever made, either verbally or in writing. Therefore, under Wilson and the numerous cases that have followed since, this issue has not been preserved for appeal.
B. Defendant's Claim of Ineffective Assistance of Counsel
Alternatively, defendant contends defense counsel's failure to request a dismissal fell below an objective standard of reasonable performance and resulted in prejudice. To establish ineffective assistance of counsel, a defendant must show (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland)); People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) On review, we can adjudicate an ineffective assistance claim solely on the issue of prejudice, without determining the reasonableness of counsel's performance. (Strickland, at p. 697; Ledesma, at pp. 216-217.)
To establish prejudice, the defendant must make a showing "sufficient to undermine confidence in the outcome" that but for counsel's deficient performance there was a "reasonable probability that ... the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694; Ledesma, supra, 43 Cal.3d at pp. 217-218.) Defense counsel's failure to make a futile or unmeritorious motion is not ineffective assistance of counsel. (People v. Price (1991) 1 Cal.4th 324, 387.)
While it would have been preferable for defense counsel to have preserved this issue for appeal by formally seeking a motion to dismiss, as we will explain, we do not believe defendant suffered prejudice from this failure by defense counsel.
1. Good Cause Supported the Continuance
The dismissal of an action pursuant to section 1382 is dependent on the lack of good cause for a continuance past the statutory speedy trial deadline. (Baustert v. Superior Court (2005) 129 Cal.App.4th 1269, 1279 (Baustert).) Witness unavailability supports a finding of good cause for a continuance when five criteria are met:
"(1) the party seeking the delay has exercised due diligence in securing the attendance of the witness at trial by legal means, (2) the testimony of the witness is material, (3) the testimony is not merely cumulative, (4) the attendance of the witness can be obtained within a reasonable time, and (5) the facts about which the witness is expected to testify cannot otherwise be proven." (Baustert, supra, 129 Cal.App.4th at p. 1277, citing Owens v. Superior Court (1980) 28 Cal.3d 238, 250-251.)
The party seeking the continuance has the burden of proving that each of the above criteria is met. (Baustert, supra, 129 Cal.App.4th at p. 1277.) When evaluating these criteria and exercising discretion, the trial court must treat each case separately and recognize that each case is determined "by its own particular facts." (People v. Justice (1963) 211 Cal.App.2d 660, 665.)
A trial court's finding of good cause justifying a continuance in a statutory speedy trial case is reviewed for an abuse of discretion. (Baustert, supra, 129 Cal.App.4th at p. 1275.) To challenge a finding of good cause on appeal, a defendant must show the delay caused prejudice. (People v. Martinez (2000) 22 Cal.4th 750, 766-769.) In response to this claim, we are then required to weigh the impact of the delay and the fairness of the subsequent trial. (Ibid.)
As noted above, after the information was filed, and defendant pled not guilty to all charges and special allegations, a trial date of June 4 was selected. Following a motion by defense counsel on May 28, the trial was continued to June 18 to accommodate defense counsel's vacation.
On June 14, the prosecution brought a motion seeking a continuance of the new trial date due to the unavailability of E.Y., a "necessary witness." Both through the papers submitted to the court, and on the record before the court, the prosecutor explained the following: E.Y. had been available to testify on the original June 4 trial date. He only became unavailable once defendant was granted a continuance of the trial date from June 4 to June 18 due to defense counsel's vacation plans. After the new trial date of June 18 was selected, the prosecution learned E.Y. was scheduled to be at summer camp from June 16 through June 22. The prosecution was in contact with E.Y.'s father each time subpoenas were sent out. The prosecution presented this information to defense counsel on June 11, offering to stipulate to the content of E.Y.'s testimony, allowing the trial to go forward on June 18. Defense counsel, however, would not agree to this offer to stipulate.
In response to this motion and evidence, defendant offered no challenge to any particular facts submitted by the prosecution, but objected to the continuance. The trial court found the prosecution's evidence supported a finding of good cause, and the court continued the trial date to June 25.
We conclude the evidence presented by the prosecution satisfied the Baustert criteria for good cause to continue the trial beyond the speedy trial deadline: first, the prosecution acted diligently in securing the testimony of E.Y., through a subpoena and an offer to stipulate to the content of his testimony; second, E.Y.'s explanation for the appearance of the magazine at the school, which led to the discovery of the firearm and defendant near the ravine, was material evidence; third, that information was not cumulative of any other evidence; fourth, the short continuance of seven days, and only two days beyond the 60-day period, allowed the testimony to be obtained within a reasonable period of time; and fifth, no one other than E.Y. could testify as to how the magazine travelled from its original location near the ravine to the bushes near the bike rack at the school.
The trial court's finding of good cause was supported by the evidence and does not constitute an abuse of discretion.
2. Defendant was Not Prejudiced by the Continuance
A defendant who seeks to reverse a conviction by arguing he or she was denied the statutory right to a speedy trial "must prove not only unjustified delay in bringing his case to trial but also prejudice flowing from that delay." (People v. Johnson (1980) 26 Cal.3d 557, 574.)
"[I]f a defendant seeks pretrial relief, he is 'not required to affirmatively show that he [has] been prejudiced by the delay.' [Citations.] Upon appellate review following conviction, however, a defendant who seeks to predicate reversal of a conviction upon denial of his right to speedy trial must show that the delay caused prejudice: this court, in reviewing the judgment of conviction, must 'weigh the effect of the delay in bringing defendant to trial or the fairness of the subsequent trial itself.' " (People v. Johnson, supra, 26 Cal.3d at p. 574, italics added.)
Here, even assuming for the sake of argument that the trial court erred in granting the continuance, we conclude defendant has failed to show prejudice. He has failed to show the delay resulted in the unavailability of evidence, the dimming of witness memories, or any other form of prejudice. Indeed, when the prosecution requested the continuance, defense counsel had already requested and been granted a 14-day continuance for a personal vacation. Defendant fails to demonstrate how the further delay of only seven days from June 18 to June 25 due to E.Y.'s unavailability prejudiced him in any way. (See Wilson, supra, 60 Cal.2d. at p. 154 [following numerous continuances granted at the defendant's request or with his consent, he failed "to demonstrate how a further delay of less than one-third of that duration could have affected in any respect the fairness of his subsequent trial"].) The lack of prejudice is further evidenced by defendant's refusal to stipulate to the content of E.Y.'s testimony, which would have allowed the parties to proceed to trial without further delay. On this record, defendant cannot show he was prejudiced by the delay.
The trial court believed E.Y.'s two-week preplanned summer camp should be treated no differently than anyone else's preplanned vacation.
3. Defense Counsel was Not Ineffective
Because the trial court properly granted the prosecutor's request for a continuance based on good cause, defense counsel was not ineffective for failing to raise a futile motion to dismiss based on an allegedly unjustified continuance. (See People v. Price, supra, 1 Cal.4th at p. 387.) The record supports the conclusion the trial court would have denied a motion to dismiss on the same basis that it found good cause to support a short extension of the trial date. Furthermore, even if counsel should have raised the motion to preserve the issue for appeal, the outcome would not have been more favorable to defendant because he is unable to show on appeal he was prejudiced by the continuance. In sum, defense counsel's failure to move to dismiss did not prejudice defendant in any conceivable way.
II. Senate Bill No. 136
Defendant also contends Senate Bill No. 136 (2019-2020 Reg. Sess.) applies retroactively to him and requires that his prior prison term enhancements be stricken. The People concede and we agree.
Senate Bill No. 136 amended section 667.5, subdivision (b) to limit prior prison term enhancements to only prior terms that were served for a sexually violent offense as defined by Welfare and Institutions Code section 6600, subdivision (b). (§ 667.5, subd. (b), as amended by Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020.) Defendant's prior prison terms were served for 2014 convictions for criminal threats (§ 422, subd. (a)) and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), not for sexually violent offenses, and thus must be stricken.
DISPOSITION
The two prior prison term enhancements (§ 667.5, subd. (b)) imposed on count 1 are stricken. The matter is remanded to the trial court for resentencing. In all other respects, the judgment is affirmed.