Opinion
E042098
7-30-2008
THE PEOPLE, Plaintiff and Respondent, v. EDUARDO ESTAGIO FRANCO, Defendant and Appellant.
John L. Dodd, 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, Jeffrey J. Koch, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published
I. INTRODUCTION
A jury convicted defendant of crimes arising from three incidents of sodomy committed against his 12-year-old sister. In a bifurcated trial, the court found that a prior strike allegation was true. The court sentenced defendant to a determinate term of 36 years, plus an indeterminate term of 30 years to life.
Defendant was charged and convicted of the following crimes: Three counts of forcible lewd acts committed on a minor under age 14 (counts 1-3; Pen. Code, § 288, subd. (b)(1)) (all further statutory references are to the Penal Code unless otherwise indicated); three counts of committing a lewd act upon a minor under age 14 (counts 4-6; § 288, subd. (a)); sodomy of a person under the age of 14 with 10 years age difference between the victim and the defendant (count 7; § 286, subd. (c)(1)); sodomy by use of force (count 8; § 286, subd. (c)(2)); and aggravated sexual assault of a minor under the age of 14 years with 10 years age difference between the victim and the defendant (count 9; § 269, subd. (a)(3)).
Defendant contends: (1) because the court imposed the upper term sentences based upon facts not found by the jury, the sentence violates his Sixth and Fourteenth Amendment right to a jury trial under Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham); and (2) the trial court erred in failing to hold a Marsden hearing when he moved for a new trial based upon ineffective assistance of counsel. We reject these contentions. The People assert that we should correct an error by the trial court in tacking on one year to defendants determinate sentence for an enhancement that was not alleged. We will direct that the judgment be amended to correct the unauthorized sentence and affirm the judgment as modified.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
II. FACTUAL AND PROCEDURAL SUMMARY
A. Factual Background
In May 2003, defendant was paroled from state prison after serving a seven-year term. After his release, he moved back home to live with his mother, stepfather, and four younger sisters. One of his sisters was J., who was 12 years old at the time and had just finished the sixth grade.
During the summer of 2003, defendant sexually assaulted J., sodomizing her on three separate occasions. The first incident occurred while J. was watching TV with her cousin and her three sisters. Defendant called J. into his room to listen to a new CD. Upon entering the room, defendant pushed J. onto his bed and removed her clothing. He then locked the door to the room. Defendant covered J.s mouth with his hand and told her that he would kill her if she screamed. Defendant proceeded to sodomize J. While defendant was assaulting J., J.s cousin knocked on the door saying, "Mom and dads home. Come help with the groceries." Defendant stopped and while putting his clothes back on told J. again to keep her mouth shut or he would kill her. After this incident, defendant acted as if nothing had happened.
The second incident occurred about a month later. J. was at home with her mother and her three sisters when defendant called J. into his room. When J. entered the room, she noticed that defendant was drawing her name on cloth in "Old English" lettering. Upon entering the room, defendant pushed J. into a large walk-in closet, closing the door behind him. Defendant bent J. over and sodomized her again. J. was crying and asked defendant to stop. Defendant eventually stopped. J. ran out of the room and went to the laundry room to get a change of underwear. Defendant followed her and asked her what was wrong and she told him "nothing." Defendant told J. not to tell anybody and that he would kill her if she did.
The third and final incident occurred sometime later in the summer of 2003 while J.s three sisters were home. J. again was in defendants room. Defendant grabbed her and threw her on the floor. He then shut the door and locked it. He removed her clothes and sodomized J. J. tried to scream, but her face was pressed into the carpet.
J. testified that she was afraid of defendant. One night, defendant came home after being out with his T-shirt full of blood. J. saw defendant in the bathroom attempting to clean the blood off the shirt. When J. asked what happened, defendant told her that he had been in a fight. J.s observations added to her being afraid of her brother. J. described defendant in her diary as "mean and scary" and that she did not "want [defendant] to be [her] brother anymore." She also wrote, "I hate him" and "hopefully my mommy will believe me when I tell her."
After defendant moved out of the home in November 2003, J. was watching a movie on television about child molestation with her mother. J. asked her mother, "What if something happened here where we are living?" J. eventually told her mother what happened. The next day, J.s mother called the police and filed a report.
As noted above, a jury convicted defendant of three counts of forcible lewd acts committed on a minor under age 14 (§ 288, subd. (b)(1)), three counts of committing a lewd act upon a minor under age 14 (§ 288, subd. (a)), sodomy of a person under the age of 14 with 10 years age difference between the victim and the defendant (§ 286, subd. (c)(1)), sodomy by use of force (§ 286, subd. (c)(2)), and aggravated sexual assault of a minor under the age of 14 years with 10 years age difference between the victim and the defendant (§ 269, subd. (a)(3)). In a bifurcated trial, the court found true the allegation that defendant had one prior strike conviction, a 1997 robbery conviction.
B. Sentencing
Prior to sentencing, and without the assistance of his attorney, defendant submitted a notice of motion for a new trial based in part upon the alleged ineffective assistance of counsel. Separately, defendants counsel filed a motion for new trial on defendants behalf. The court denied the first because defendant was represented by the attorney who had filed the second motion; it denied the second motion on the merits.
The court sentenced defendant to an indeterminate sentence of 30 years to life on count 9—the charge of aggravated sexual assault of a minor. The court further sentenced defendant to the upper term of 8 years, doubled to 16 years for the prior strike conviction, on each of counts 1 and 2. Sentences for the remaining counts were stayed pursuant to section 654. Finally, the court stated that it was imposing an additional term of three years pursuant to section 667.5, subdivision (a) (prison prior for a violent felony), plus one year pursuant to section 667.5, subdivision (b) (prison prior for a felony). The total sentence is a determinate term of 36 years, plus an indeterminate term of 30 years to life.
In imposing the upper terms, the trial court took into consideration the following aggravating circumstances: (1) the crime involved a threat of bodily harm; (2) the victim was particularly vulnerable; (3) defendant took advantage of a position of trust; (4) the defendants violent conduct indicates a serious danger to society; (5) defendant served a prior prison term; (6) defendant was on parole at the time the crimes were committed; and (7) defendants prior performance on parole was unsatisfactory. The court stated that there were no mitigating factors.
C. Denial of Motion to Recall the Sentence
Approximately one month after defendant was sentenced, the United States Supreme Court, in Cunningham, held that Californias determinate sentencing law was unconstitutional because it placed "sentence-elevating factfinding within the judges province." (Cunningham, supra, 127 S.Ct. at p. 860.) Defendant thereafter moved the trial court to recall the sentence. Defendant argued that the imposition of the upper terms in his case was unconstitutional under Cunningham because it imposed the aggravated sentence based on facts determined "without jury findings or proof beyond a reasonable doubt."
By the time the defendants motion was heard, the California Supreme Court had decided People v. Black (2007) 41 Cal.4th 799 (Black II). Relying in part on that decision, the trial court denied defendants motion.
Black II was decided on July 19, 2007. The defendants motion was heard four weeks later, on August 17, 2007.
III. DISCUSSION
A. Constitutionality of Upper Term Sentences
Defendant contends that the trial courts imposition of upper term sentences on counts 1 through 8 violated his right to a jury trial under Cunningham because the upper terms were imposed based on facts which were not found true by a jury beyond a reasonable doubt. We reject this claim because defendant was eligible for the aggravated sentence because he committed the subject crimes while he was on parole.
In Cunningham, the high court held that the imposition of an upper term sentence under Californias determinate sentencing law (DSL), based on a judges finding by a preponderance of the evidence that circumstances in aggravation outweighed the circumstances in mitigation, violates a defendants Sixth and Fourteenth Amendment right to a jury trial. (Cunningham, supra, 127 S.Ct. at p. 871.) The court reasoned that "any fact that exposes a defendant to a greater potential sentence [than the statutory maximum] must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence." (Id. at pp. 863-864.) The court also held that the middle term is the maximum term a judge may impose under the DSL without the benefit of facts reflected in the jurys verdict—that is, facts found true by a jury beyond a reasonable doubt—or admitted by the defendant. (Id. at p. 868.)
Our state Supreme Court applied Cunningham in Black II. In that case, the court held that "imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions." (Black II, supra, 41 Cal.4th at p. 816.) The defendants record of prior convictions, the court explained, includes "not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions." (Id. at p. 819.) These issues, the court held, may be decided by the court based upon a preponderance of the evidence standard without violating the Sixth Amendment. (Id. at pp. 819-820 & fns. 8-9.)
In People v. Towne (June 26, 2008, S125677) ___ Cal.4th ___ (Towne), the state high court recently held: "the aggravating circumstance that a defendant served a prior prison term or was on probation or parole at the time the crime was committed may be determined by a judge and need not be decided by a jury." (Id. at [p. 9681].) The court explained: "In determining whether the offense was committed while the defendant was on probation or parole, the trial court is not required to make any factual finding regarding the charged offense. It need only determine the period during which the defendant was on probation or parole and compare those dates to the date of the charged offense, as found by the jury. The trial court may find this aggravating circumstance to exist, without engaging in any factfinding regarding the charged offense. Accordingly, a trial courts conclusion that the charged offense was committed while the defendant was on probation or parole, like a finding of a prior conviction, does not require judicial factfinding regarding the charged offense." (Id. at [p. 9685].)
The Towne court further held that "the aggravating circumstance that a defendants prior performance on probation or parole was unsatisfactory may be determined by a judge, so long as that determination is based upon the defendants record of one or more prior convictions." (Towne, supra, ___ Cal.4th ___ [p. 9681].) When, as in Towne, the "defendants criminal history, as recited in the probation report, indicates that several of his prior convictions occurred while he was on probation[,] . . . it seems beyond debate that the aggravating circumstance is included within the Almendarez-Torres exception and that the right to a jury trial does not apply." (Id. at [p. 9686]; see also People v. Yim (2007) 152 Cal.App.4th 366, 371.)
Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350].
Here, in imposing the upper terms on counts 1 through 8, the trial court found, among other aggravating factors, that defendant was on parole when he committed the current offenses. This finding is supported by certified records of the Department of Corrections and Rehabilitation concerning defendants prior conviction and sentence. According to these records, defendant was released on parole for his prior crime on May 28, 2003. The jury found that the subject crimes occurred in the summer of 2003. In November 2003, a "hold" was placed on defendant. And in January 2004, defendants parole was revoked. It is thus clear from the correctional record that defendant was necessarily on parole when the subject crimes occurred. Because this "legally sufficient aggravating circumstance . . . is justified based upon the defendants record of prior convictions," the courts imposition of the upper term does not infringe upon his constitutional right to a jury trial. (See Black II, supra, 41 Cal.4th at p. 816.)
Even if the facts that defendant was on parole at the time of the crime and his prior performance was unsatisfactory must be found by a jury, we believe the error harmless. In People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), our state Supreme Court recognized that the denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] (Chapman). (Sandoval, supra, at p. 838; Washington v. Recuenco (2006) 548 U.S. 212 [126 S.Ct. 2546, 165 L.Ed.2d 466].) The question the reviewing court must determine is whether the jury would have authorized the upper term sentence if the question of the existence of an aggravating circumstance or circumstances would have been submitted to the jury. "[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless." (Sandoval, supra, at p. 839.)
Here, in imposing the upper terms, the trial court took into consideration, among other things, the following aggravating circumstances: (1) the victim was particularly vulnerable; (2) defendant took advantage of a position of trust; and (3) defendants violent conduct indicates a serious danger to society. We find, beyond a reasonable doubt, that a jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true each of these three aggravating factors. (See Sandoval, supra, 41 Cal.4th at p. 839.) The victim was 12 years old and defendant was her brother living in the same house. The conduct occurred in their house over a three- to four-month period. On each occasion, the victim appears to have voluntarily entered defendants bedroom, the first time being when defendant invited her in to listen to a new CD. These facts also unequivocally support a further aggravating fact that the manner in which the crimes were carried out indicated planning. (See Cal. Rules of Court, rule 4.421(a)(8).) Thus to the extent that the aggravating factors found by the court were required to be found by a jury, we find the error harmless.
Defendant further contends that the courts reliance on the fact that he had served a prior prison term constitutes an unlawful dual use of facts because that fact was also used to support the sentence enhancement under section 667.5. (See § 1170, subd. (b); Cal. Rules of Court, rule 4.420(c).) An erroneous dual use of facts is subject to the Watson standard of harmless error. Specifically, "`the reviewing court must determine if "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." [Citation.]" (People v. Avalos (1984) 37 Cal. 3d 216, 233, citing People v. Watson, supra, 46 Cal.2d at p. 836.) For the same reasons any sentencing error was harmless under Sandoval and Chapman, any dual use of defendants prison terms was also harmless.
People v. Watson (1956) 46 Cal.2d 818.
B. Defendants New Trial Motion
Defendant contends that the trial court should have treated defendants notice of motion for new trial, submitted without the assistance of his counsel, as a request for a Marsden hearing. Because the court did not conduct a Marsden hearing, defendant contends that it impermissibly abridged defendants right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution. We reject this argument.
1. Relevant Facts
Prior to sentencing, defendant submitted a document titled, "NOTICE OF MOTION FOR NEW TRIAL [¶] ([Pen. Code,] § 1181)." It states in its entirety as follows: "TO THE DISTRICT ATTORNEY OF SAN BERNARDINO COUNTY AND/OR HIS REPRESENTATIVE: [¶] PLEASE TAKE NOTICE that on Oct[ober] 31, 2006, at the hour of 8:30 a[.]m[.] or as soon thereafter as counsel may be heard in the courtroom of the above-entitled court, the defendant will move for an order granting a new trial in the above-entitled case. [¶] This motion will be made on the ground that newly discovered evidence was found [and] ineffective assistance of counsel are the specific grounds within [Penal Code section] 1181 for the basis of the motion[.] [¶] Should the court determine not to grant a new trial, the defendant will move that, in lieu of ordering a new trial, the court find the defendant guilty of a lesser degree of the crime of which he was convicted, or of a lesser crime included therein. [¶] This motion will be based on this notice of motion, on the attached declaration and memorandum of points and authorities served and filed herewith, on such supplemental memoranda of points and authorities as may hereafter be filed with the court or stated orally at the conclusion of the hearing . . . ." We will refer to this document as "defendants motion."
Although the document refers to an "attached declaration and memorandum of points and authorities" and other possible supporting documents, no such documents are included in our record.
Defendants counsel also filed a notice of motion for new trial, with supporting memorandum of points and authorities, on behalf of defendant. This motion was based upon the grounds that (1) the court failed to admonish the jury with respect to certain testimony, and (2) the evidence was insufficient to support the verdict. This motion was set for hearing at the same date and time as defendants motion. Counsels motion does not mention defendants motion. Indeed, there is no evidence in the record that defendants counsel received or was aware of defendants motion. Nor does the district attorneys opposition to the motion filed by counsel acknowledge defendants motion.
There is no proof of service attached to defendants motion, and no other evidence that the district attorney ever received a copy of that document.
Defendants motion was brought to the attention of the trial judge, who responded in a handwritten note in the record that appears to read: "No action on this[.] [Defendant] is represented by [public defender]."
At a hearing, the court initially addressed defendant directly, stating: "Mr. Franco, sir, before we get started, . . . you prepared and sent to me a motion for new trial. [¶] I dont know if it got circulated back to you, but I had denied your request for that because your attorney had filed one on your behalf. [¶] So I want you to know that I did get your request. I did consider it, but given that I already had a motion filed for you, and we had a date set for hearing, Im going to go forward with the motion your attorney scheduled for you." The record does not indicate that defendant made any response to the courts comments.
The court then proceeded to hear argument on the motion submitted by defendants counsel. Nothing in counsels argument suggest that there was any conflict between defendant and counsel. The court denied the motion.
2. Analysis
Under Marsden, an indigent criminal defendant is entitled to substitute another appointed attorney if the record clearly shows that the first appointed attorney is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. (Marsden, supra, 2 Cal.3d at p. 123.) When a defendant seeks to discharge his appointed counsel on grounds of inadequate representation and obtain substitute counsel, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of his appointed counsels allegedly inadequate performance. (Ibid.) A Marsden hearing may be requested at any stage of the proceedings, including in connection with a post-conviction motion for new trial. (People v. Smith (1993) 6 Cal.4th 684, 694-695; People v. Kelley (1997) 52 Cal.App.4th 568, 579 (Kelley).)
A "trial courts duty to permit a defendant to state his reasons for dissatisfaction with his attorney arises when the defendant in some manner moves to discharge his current counsel." (People v. Lucky (1988) 45 Cal.3d 259, 281, fn. omitted.) "`Although no formal motion is necessary, there must be "at least some clear indication by defendant that he wants a substitute attorney." [Citations.]" (People v. Valdez (2004) 32 Cal.4th 73, 97.) A defendants request for a new trial based upon the alleged inadequacy or ineffectiveness of counsel does not, without more, constitute a request for substitute counsel for the purposes of triggering a Marsden hearing. (People v. Padilla (1995) 11 Cal.4th 891, 926-927, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
Here, defendants motion is, at most, a request for a new trial based upon the alleged ineffectiveness of counsel. He does not expressly request the discharge of his current counsel or seek to have a substitute attorney appointed, and there is nothing in the document that gives the court a "clear indication . . . that he wants a substitute attorney." (People v. Lucky, supra, 45 Cal.3d at p. 281, fn. 8.) The mere use of the phrase "ineffective assistance of counsel," without more, does not "suggest that a fundamental breakdown had occurred in the attorney-client relationship." (People v. Padilla, supra, 11 Cal.4th at p. 927.) Moreover, although the court addressed defendant directly with respect to his motion, defendant gave no indication that he wanted to discharge his attorney or seek to substitute his counsel. There was thus no duty to conduct a Marsden hearing.
Because defendant did not expressly or impliedly request a Marsden hearing, the trial court properly treated the document as what it purports to be: a request for a new trial by a defendant represented by counsel. "A criminal defendant does not have a right to simultaneous self-representation and representation by counsel." (People v. Bradford (1997) 15 Cal.4th 1229, 1368.) Thus, the court properly declined to consider the merits of defendants motion.
Defendant relies principally upon Kelley, supra, 52 Cal.App.4th 568. In Kelley, the defendant filed a written motion requesting a new trial on the basis of ineffective assistance of counsel. (Id. at p. 579.) The motion set forth "claims under penalty of perjury that his attorney refused to let him testify, and failed to subpoena, or failed to call, several material witnesses, the materiality of whom he set forth in detail." (Ibid.) In holding that the defendants motion was sufficient to trigger the need for a Marsden hearing, the Court of Appeal explained: "Although Kelley did not expressly seek to have his attorney replaced, his complaints plainly set forth an arguable case of the attorneys alleged incompetence, the requisite ground for replacement of counsel under Marsden." (Kelley, supra, at p. 580.)
Kelley is distinguishable. In contrast to the detailed fact-supported claims set forth by the defendant in Kelley, defendant in this case merely referred vaguely to "ineffective assistance of counsel" without any explanation whatsoever. He did not, as did the defendant in Kelley, set forth facts to support even "an arguable case of the attorneys alleged incompetence." (Kelly, supra, 52 Cal.App.4th at p. 580.) The mere recital of the "ineffective assistance" label does not constitute the kind of "clear indication" of the desire for new counsel necessary to trigger a Marsden hearing. Lastly, we note that defendants assertion of ineffective assistance of counsel appears along with other complaints relative to the general nature of the proceeding. On the facts before us, we do not believe that defendants motion for new trial places a trial court on notice that defendant wishes the appointment of new counsel.
C. Defendant Was Erroneously Sentenced to an Additional Year Under Section 667.5
The People note that defendant was erroneously sentenced to an additional year in prison for an enhancement pursuant to section 667.5, subdivision (b). In his reply brief, defendant agrees. So do we.
Section 667.5, subdivision (b), provides: "Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction."
The charging document does not allege any enhancement under section 667.5, subdivision (b). A sentence imposed pursuant to that section and subdivision is therefore unauthorized and subject to correction on review. (See People v. Johnson (2002) 96 Cal.App.4th 188, 209, disapproved on another point in People v. Acosta (2002) 29 Cal.4th 105, 134, fn. 13.) Accordingly, we will modify the sentence by striking the additional term and order that the abstract of judgment be corrected to reflect the proper sentence. (See People v. Moore (1974) 11 Cal.3d 790, 792; People v. Zackery (2007) 147 Cal.App.4th 380, 386, § 1260.)
The People also point to two clerical errors in the abstract of judgment. The abstract incorrectly states that the sentence on count 2 is 20 years, not 16 years; and the omission of the three-year term for the prior prison enhancement pursuant to section 667.5, subdivision (a). Our review of the record supports the Peoples argument. Defendant does not dispute the propriety of correcting these errors. We will order the abstract be modified accordingly.
IV. DISPOSITION
We modify the judgment by striking the one-year term imposed pursuant to section 667.5, subdivision (b). As modified, the judgment is affirmed.
We direct the trial court to prepare an amended abstract of judgment to reflect the following: (1) count 2 is to be modified to reflect that defendant was sentenced to 16 years, not 20 years; and (2) the addition of a three-year term for the prior prison enhancement pursuant to section 667.5, subdivision (a). The court is directed to forward an amended copy of the abstract of judgment to the Department of Corrections and Rehabilitation.
We concur:
Ramirez, P.J.
Miller, J.