P. v. Mendez

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Filed 4/11/08 CERTIFIED FOR PARTIAL PUBLICATION* IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F052340 Plaintiff and Respondent, (Super. Ct. No. 04CM7516) v. ROBERT MENDEZ et al., OPINION Defendants and Appellants. APPEAL from a judgment of the Superior Court of Kings County. Peter M. Schultz, Judge. Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant Robert Mendez. Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Perez. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine G. Tennant, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- * Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts 2, 3 and 4 of the Discussion. A jury found appellants Robert Mendez and Anthony Perez guilty of battery with infliction of serious bodily injury on a fellow inmate at the California Substance Abuse Treatment Facility in Corcoran. (Pen. Code, § 243, subd. (d).)1 The trial court found true the allegations that Mendez had five strike priors and that Perez had two, declined to strike any of them, and sentenced each to a 25-to-life term in state prison. On appeal, Mendez argues that the trial court s failure to hold a hearing on the grievance in his new trial motion about the competence of his trial attorney requires a remand for a Marsden2 hearing. Solely as to Mendez, we will reverse the judgment and remand the matter with directions to the trial court to hold a Marsden hearing and, on that foundation, either to appoint new counsel on his new trial motion or to reinstate the judgment or to proceed otherwise as authorized by law.3 On appeal, Perez argues that his assault with a deadly weapon strike prior is invalid, that the trial court committed an abuse of discretion by declining to strike his assault with a deadly weapon strike prior, and that he is entitled to additional presentence credits over and above those the trial court awarded. Solely as to Perez, we will remand the matter with directions to the trial court to award him 844 actual custody days plus 422 1 Later statutory references are to the Penal Code except where otherwise noted. 2 People v. Marsden (1970) 2 Cal.3d 118 (Marsden). 3 In deference to the common law doctrine of ripeness, we will not address Mendez s other issue (whether the trial court committed an abuse of discretion by not striking four of his five serious felony priors at his probation and sentencing hearing). (Alameda County Land Use Assn. v. City of Hayward (1995) 38 Cal.App.4th 1716, 1722; California Water & Telephone Co. v. County of Los Angeles (1967) 253 Cal.App.2d 16, 22; see People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 65, fn. 6.) If that issue were to ripen after remand, the parties shall have the right on appeal from the ensuing judgment to incorporate by reference the briefing now on file on that issue and to seek concurrent adjudication of new issues, if any, that might arise from proceedings after remand. (See Cal. Rules of Court, rule 1.5(a) [ The rules and standards of the California Rules of Court must be liberally construed to ensure the just and speedy determination of the proceedings that they govern. ].) 2. conduct credit days for a total of 1,266 presentence credit days, but otherwise we will affirm the judgment. FACTUAL BACKGROUND On March 27, 2003, correctional sergeant Mathew Juarez let cellmates Mendez and Perez out of their cell to make phone calls and, minutes later, let inmate Reuben Herrera out of his cell to attend a Board of Prison Terms hearing. Mendez and Perez ran toward Herrera, Perez punched Herrera in the face, and Herrera s knees buckled. Juarez activated his alarm, gave all inmates orders to get down, and positioned himself to utilize force. Mendez and Perez both repeatedly punched Herrera in the face with closed fists. Juarez twice ordered Mendez and Perez to stop fighting. Neither obeyed him. Juarez fired a .40 millimeter less lethal projectile at Perez s lower extremities. Mendez and Perez each took about 10 steps backward, lay down on their stomachs with their arms out, and made barking noises. Herrera slid down the wall, lay motionless on his back, and died. He suffered blunt force trauma behind the left ear causing a skull fracture and a brain injury and blunt force trauma to the left eye likewise causing a skull fracture and a brain injury. Each injury was capable of causing death. The more severe injury, the fracture behind the left ear, could have been caused by the projectile from Juarez s weapon, but the less severe injury, the trauma to the left eye, could not. Herrera suffered multiple non-life-threatening head injuries consistent with the infliction of multiple blows to the head. DISCUSSION 1. Mendez: Failure to Hold Marsden Hearing Mendez argues that the trial court s failure to hold a hearing on the grievance in his new trial motion about the competence of his trial attorney requires a remand for a Marsden hearing. The Attorney General argues the contrary. 3. At the probation and sentencing hearing, Mendez s trial attorney informed the trial court that her client was making a new trial motion based on competency of counsel. In open court, the trial court asked her, What does he say that was incompetent? Mendez interjected, Well, your Honor, there was a lot. I mean, there was eight witnesses here but none of them were called on my defense. [¶] There was exculpatory evidence. There was phone call recordings that stipulates time lines to what actually took place were never brought forth. [¶] The whole incident only occurred 11 seconds, which made it seemed like we were fighting with this individual for minutes. At that juncture, the trial court asked, What is it that your lawyer did or did not do that you think deprived you of a fair trial? Mendez replied, She didn t bring none of these into trial. The trial court replied, Okay. [¶] Give me one witness that should have been called and tell me what that witness could have testified to that would Mendez answered, Well, Mr. Herpe was the individual who was on the phone, and his transcript, he even stated to the D.A. s office that it was a one-on-one; that their individual was never which was me was never involved. [¶] That is crucial to my case, your Honor. This is on paper, and there was another individual named Delgado who stated it was a one-on-one which he was never subpoenaed or questioned. And he it s on record to state it was a one-on-one, your Honor. [¶] This is this is crucial to my defense. The trial court asked no more questions about Mendez s reasons for challenging his trial attorney s competence but instead, obliquely referring to an earlier continuation of the probation and sentencing hearing for a different reason, asked, And, Mr. Mendez, why didn t you mention this the last time that you were here for a sentencing? He replied, Because there was some conflict about the time about whether we can get this amount of time, and she asked me, she said that they were going to postpone it so figured, well, I ll just wait until it s time to The trial court asked, You figured you d have the victims come back a second time to be frustrated? Mendez answered, No. I 4. didn t ask to postpone the sentencing. It was it was done by The trial court replied, All right. I ll appoint [new counsel] to represent Mr. Mendez for the sole purpose of investigating as to whether or not there appears to be a basis for a motion for new trial based on incompetency of counsel. ¦ Tasked by the trial court to examine issues involving a possible ineffective assistance of counsel claim, Mendez s new counsel later reported his opinion after a review of the file that those issues were not appropriate at this time for a motion ¦ on that basis. He told the trial court that he had informed Mendez there may be possible issues on appeal that could be raised but that he was not in a position to make that judgment. Those issues, he opined, would be more properly addressed if and when an appeal is filed in this matter, to which the trial court replied, All right, and of course most ineffective assistance of counsel matters are raised by habeas. The trial court terminated new counsel s appointment and again assigned the case to Mendez s original trial attorney. The Attorney General acknowledges that Mendez made a new trial motion based on competency of counsel but emphasizes that he never indicated he wanted another attorney and on that basis argues that the trial court had no duty to conduct a Marsden hearing to investigate [his] complaints regarding his attorney s performance. He is mistaken. In People v. Stewart (1985) 171 Cal.App.3d 388 (Stewart), disapproved on another ground in People v. Smith (1993) 6 Cal.4th 684, 696, as stated in People v. Bolin (1998) 18 Cal.4th 297, 346, fn. 16, defendant personally instructed his appointed trial counsel to file a motion for new trial on the basis of incompetence of counsel. (Stewart, supra, at p. 393.) That was adequate to put the trial court on notice of defendant s request for a Marsden hearing. (Stewart, supra, at pp. 396-397.) Here, Mendez informed his trial attorney that he was making a new trial motion based on competency of counsel. That, too, was adequate to put the trial court on notice of his request for a Marsden hearing. As our Supreme Court emphasizes, the semantics employed by a lay 5. person in asserting a constitutional right should not be given undue weight in determining the protection to be accorded that right. (Marsden, supra, 2 Cal.3d at p. 124.) Marsden imposes four requirements that the trial court here ignored. First, if defendant complains about the adequacy of appointed counsel, the trial court has the duty to permit [him or her] to articulate his [or her] causes of dissatisfaction and, if any of them suggest ineffective assistance, to conduct an inquiry sufficient to ascertain whether counsel is in fact rendering effective assistance. (People v. Eastman (2007) 146 Cal.App.4th 688, 695 (Eastman), italics added; cf. People v. Mejia (2008) 159 Cal.App.4th 1081, 1086-1087 (Mejia).) In open court, Mendez identified by name two prospective witnesses who stated there was only one assailant, not two. He informed the trial court that one prospective witness told the district attorney he (Mendez) was not involved in the attack, but his trial attorney failed to call that person as a witness, and that the other prospective witness likewise characterized the assault as a one-on-one, but his trial attorney never subpoenaed or questioned that person, either. Although Mendez s grievance about the adequacy of appointed counsel suggested ineffective assistance within the scope of Marsden, the trial court failed to conduct an inquiry but instead appointed new counsel to determine whether there was a basis for a motion for new trial based on incompetency of counsel. (Eastman, supra, 146 Cal.App.4th at p. 695; italics added.) However, the trial court cannot abandon its own constitutional and statutory obligations to make the ultimate determination. (Id. at p. 697, citing, e.g., Cal. Const., art. 6, § 1 [judicial power of state is vested in courts]; Code Civ. Proc., § 170 [judge has duty to decide proceeding]; People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 721 [findings and recommendations of constitutionally limited nonjudicial officers must be independently reviewed by the court]; Hosford v. Henry (1951) 107 Cal. App. 2d 765, 772 [court cannot delegate own factfinding powers].) Here, the trial court simply listened to new counsel s opinion that there 6. were no issues involving a possible ineffective assistance of counsel claim and, with no inquiry at all, assigned Mendez s defense back to his trial counsel. Second, if a defendant states facts sufficient to raise a question about counsel s effectiveness, the trial court has a duty to question counsel as necessary to ascertain their veracity. (Eastman, supra, 146 Cal.App.4th at p. 695; italics added.) Here, the trial court failed to question Mendez s trial attorney at all. Third, the trial court has the duty to make a record sufficient to show the nature of [a defendant] s grievances and the court s response to them. (Eastman, supra, 146 Cal.App.4th at p. 696.) Here, immediately after Mendez identified the two prospective witnesses who characterized the assault as a one-on-one, the trial court asked him why he had not brought that up at the original probation and sentencing hearing, intimated that Mendez wanted the victims [to] come back a second time to be frustrated, and appointed new counsel. The trial court made no record at all about Mendez s additional grievances, if any, or about the trial court s response, if any, to his grievances. Fourth, the trial court must allow the defendant to express any specific complaints about the attorney and the attorney to respond accordingly. (Eastman, supra, 146 Cal.App.4th at p. 696, italics added.) The trial court made no record at all about Mendez s trial attorney s response, if any, to his grievances. No part of this procedure satisfied the requirements of Marsden. (Ibid.) The final question is whether the trial court s error was prejudicial to Mendez. There can be no doubt it was. (Marsden, supra, 2 Cal.3d at p. 126.) Here, we cannot determine whether he had a meritorious claim of ineffective assistance, but that is not the test. Had the trial court complied with Marsden s requirements, Mendez might have catalogued acts and events beyond the observations of the trial judge to establish the incompetence of his counsel. (Ibid.; cf. Mejia, supra, 159 Cal.App.4th at p. 1087.) We cannot conclude beyond a reasonable doubt that this denial of the effective assistance of 7. counsel did not contribute to the defendant s conviction. (Marsden, supra, 2 Cal.3d at p. 126, citing Chapman v. California (1967) 386 U.S. 18.) 2. Perez: Validity of Assault with a Deadly Weapon Strike Prior Perez argues that his assault with a deadly weapon strike prior is invalid. The Attorney General argues the contrary. The information alleged as a serious felony prior Perez s 4/05/95 conviction of PC 245(a)(1)-Assault w/deadly weapon in San Joaquin Superior Court case number SC058275A. The prosecutor sought to prove the prior with the preliminary hearing transcript, the change of plea proceedings, and the abstract of judgment. The preliminary hearing transcript shows that Perez and a fellow inmate each hit another inmate at California Youth Authority in the head and face with institutional-made weapon[s] of rocks in socks tied off with knots causing the victim to suffer excessive bleeding. The change of plea proceedings show an admonishment by the court that this involves an assault with a deadly weapon that will count as a strike in the future if you get any new felony under the Three Strikes and You re Out law and a stipulation to the preliminary hearing transcript as the factual basis of the plea. If in the future you get another strike and come back a third time, at that point in time the minimum sentence then becomes 25 to life, the court cautioned Perez. Do you understand those consequences?, the court asked. Yes, he answered. Later, after taking waivers, the court asked him, Then having all those rights in mind and all those consequences in mind, what is your plea to 245(a)(1), assault with a deadly weapon or instrument on [the inmate]? Perez replied, No contest. The ensuing abstract of judgment shows that Perez suffered a 04/05/95 conviction of PC 245(A)(1) ADW/Asslt w/force GBI in San Joaquin Superior Court No. SC058275. On the basis of those three documents, the trial court found that the parties all contemplated that and understood that the conviction was for a prior serious or violent felony, which would had 8. [sic] to have been assault with a deadly weapon and found the assault with a deadly weapon prior true. Perez challenges the sufficiency of the evidence in the preliminary hearing transcript of his commission of an assault with a deadly weapon prior. Additionally, he argues that the transcript is ambiguous as to which person used what item and contends that a rock in a sock could be a dangerous weapon without being a deadly weapon. His challenge is meritless. First, the trial court may look to the entire record of the conviction to establish proof of the substance of a prior conviction. (People v. Guerrero (1988) 44 Cal.3d 343, 355.) Here, the preliminary hearing transcript contains a sufficiency of the evidence of Perez s commission of an assault with a deadly weapon. He argues nonetheless that the prosecutor failed to prove he personally used a dangerous or deadly weapon within the meaning of item (23) in the § 1192.7 list of serious felonies that the three strikes law incorporates by reference to define a strike prior. (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1), 1192.7, subd. (c)(23) [ any felony in which the defendant personally used a dangerous or deadly weapon ]; italics added.) However, by adopting Proposition 21 in 2000, the electorate made an assault with a deadly weapon a serious felony (and, in turn, a strike prior) whether or not the defendant personally used the weapon. (People v. Luna (2003) 113 Cal.App.4th 395, 398; §§ 667, subd. (d)(1), 1170.12, subd. (b)(1), 1192.7, subd. (c)(31) [ assault with a deadly weapon ¦ in violation of Section 245 ].) Second, the preliminary hearing transcript shows that the weapon Perez used was a slungshot, which California case law clearly defines as a small mass of metal or stone fixed on a flexible handle, strap or the like, used as a weapon. (People v. Fannin (2001) 91 Cal.App.4th 1399, 1401-1402; italics added; cf. § 12020, subd. (a) [barring possession of, inter alia, any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sap, or sandbag ].) Instrumentalities like that are dangerous or deadly to others in the ordinary use for which they are designed, are weapons in the 9. strict sense of the word, and may be said as a matter of law to be dangerous or deadly weapons. (Cf. People v. Graham (1969) 71 Cal.2d 303, 327, disapproved on another ground by People v. Ray (1975) 14 Cal.3d 20, 29, fn. 7, and 32, as stated by People v. Aguilar (1997) 16 Cal.4th 1023, 1029; § 4502, subd. (a) [barring possession in a penal institution of, inter alia, any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, [or] sandbag ].) 3. Perez: Striking of Assault with a Deadly Weapon Strike Prior Perez argues that the trial court committed an abuse of discretion by declining to strike his assault with a deadly weapon strike prior. The Attorney General argues the contrary. Before striking a strike prior, the trial court has the duty to consider, in light of the defendant s new felony, strike priors, background, character, and prospects, if he or she is outside the spirit of the three strikes law, in whole or in part, so as to justify sentencing as if he or she had fewer strike priors or no strike priors at all. (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) On appellate review of a trial court s decision not to strike a strike prior, the deferential abuse of discretion standard applies. (Id. at p. 371.) Two fundamental precepts govern appellate review. (Id. at p. 376.) First, the party attacking the sentence has the burden to show clearly that the decision was irrational or arbitrary. (Carmony, supra, 33 Cal.4th at p. 376.) In the absence of that showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, so its decision will not be set aside on appeal. (Id. at pp. 376-377.) Second, the appellate court has no right to substitute its judgment for the trial court s, so the judgment cannot be reversed merely because reasonable people might disagree. (Id. at p. 377.) Taken together, the two precepts establish that a trial court commits no abuse of discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (Ibid.) 10. At the probation and sentencing hearing, Perez s trial attorney asked the trial court to strike his assault with a deadly weapon prior since almost ten years had elapsed from the date of the prior to the date of commission of the new felony, that on a record of very little evidence of his use of a deadly weapon the factual stipulation of the parties was solely responsible for the deadly weapon aspect of the prior, and that the new felony had only a serious bodily injury element, not a great bodily injury enhancement. (Cf. People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531.) In opposition to Perez s request, the prosecutor argued that it would not be in the interests of justice to strike any of the strikes due to the circumstances of this offense and his prior criminal history. After hearing the argument of both counsel, the court characterized the case as not an appropriate one in which to strike a strike prior. Contrary to the representation of Perez s trial attorney at the probation and sentencing hearing, not only had fewer than eight years elapsed from the date of the prior to the date of commission of the new felony but also the entire record of the conviction, not just the factual stipulation of the parties, showed his use of a deadly weapon. (See ante, part 2.) Finally, in terms of the spirit of the three strikes law, the distinction he urges between a serious bodily injury element and a great bodily injury enhancement is spurious. By the deferential abuse of discretion standard, the trial court s order was neither irrational nor arbitrary. 4. Perez: Presentence Credits Perez argues that he is entitled to additional presentence credits over and above those the trial court awarded. The Attorney General argues that he is entitled to no presentence credits at all. The premise of the Attorney General s argument is that Perez was already in prison custody at the time he committed the battery with infliction of serious bodily injury. He relies primarily on the holding in In re Rojas (1979) 23 Cal.3d 152 (Rojas): 11. Section 2900.5 does not authorize credit where the pending proceeding has no effect whatever upon a defendant s liberty. (Rojas, supra, at p. 156.) Congruently, People v. Bruner (1995) 9 Cal.4th 1178 (Bruner) later held that a prisoner is not entitled to credit for presentence confinement unless he shows that the conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period. (Id. at p. 1191.) The record belies the premise of the Attorney General s argument. The probation officer s report shows that Perez finished his state prison sentence on his second degree robbery strike prior on November 8, 2004, at which time he was released on parole to the custody of the Kings County Main Jail on his new felony. Since the sole reason for his loss of liberty after that date was the conduct that led to his conviction of his new felony, the rule in Bruner and Rojas is inapplicable. The premise of Perez s argument is that the probation officer erred in applying to her presentence credits calculation, and the prosecutor erred in urging the trial court to apply, the 15 percent limitation of worktime credit in section 2933.1. The record validates the premise of his argument. The statute provides that any person who is convicted of a [violent] felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit ¦. (§ 2933.1, subd. (a).) The probation officer calculated Perez s presentence credits as if the statute applied: From November 9, 2004, to today s date February 26, 2007, 844 actual days. [¶] I believe this is a 15 percent offense pursuant to 2933.1. That would be 126 good and work for a total of 970 days in custody. At the probation and sentencing hearing, the prosecutor argued that the 15 percent limitations are applicable because of 667.5(a)(7) [sic] as well as (a)(8) [sic] in that this offense is a life imprisonment as well as the defendant inflicted great bodily injury during the crime. On that basis, the trial court awarded presentence 12. credits from November 9, 2004, through February 26, 2007: 844 actual days for which 126 days conduct credits are awarded, a total of 970 days credit for time served. 4 Contrary to the reporter s transcript of the hearing, section 667.5 contains neither a subdivision (a)(7) nor a subdivision (a)(8) but does contain subdivisions (c)(7) and (c)(8), both of which correspond to the prosecutor s argument by designating as violent felonies, respectively, Any felony punishable by death or imprisonment in the state prison for life, and, Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or after July 1, 1977, or as specified prior to July 1, 1977, in Sections 213, 264, and 461, or any felony in which the defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55. Since battery with infliction of serious bodily injury is punishable by 16 months, two years, or three years in state prison (§§ 18, 243, subd. (a)), section 667.5, subdivision (c)(7) is inapplicable. Likewise, since pleading and proof of neither a great bodily injury enhancement nor a firearm use enhancement is in the record, section 667.5, subdivision (c)(7) is inapplicable. So Perez is entitled to a full award of section 4019 credits: 844 actual custody days plus 422 conduct credit days for a total of 1,266 presentence credit days. (In re Marquez (2003) 30 Cal.4th 14, 25-26.) DISPOSITION Solely as to Mendez, the judgment is reversed and the matter is remanded with directions to the trial court to hold a Marsden hearing and, on that foundation, either to appoint new counsel on his new trial motion or to reinstate the judgment or to proceed otherwise as authorized by law. (§ 1262.) 4 Inexplicably, the abstract of judgment shows zero actual days plus zero conduct credit days for a total of zero presentence credit days. 13. Solely as to Perez, the judgment is affirmed but the matter is remanded with directions to the trial court to award him 844 actual custody days plus 422 conduct credit days for a total of 1,266 presentence credit days and to send to every appropriate person a certified copy of an abstract of judgment so amended. Perez has no right to be present at those proceedings. (See People v. Price (1991) 1 Cal.4th 324, 407-408.) _____________________ Gomes, J. WE CONCUR: _____________________ Vartabedian, Acting P.J. _____________________ Cornell, J. 14.

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