Opinion
A159955
12-29-2021
THE PEOPLE, Plaintiff and Respondent, v. KEVIN COLLIGAN, Defendant and Appellant.
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR324611
BROWN, J.
Defendant appeals following a jury conviction for one felony count of making a criminal threat (Penal Code § 422) and two misdemeanor counts of child cruelty (§ 273a, subd. (b).) He contends that his convictions must be overturned because the trial court erred by denying his request for self-representation; by allowing him to withdraw a Marsden motion, despite having found an irremediable breakdown in the attorney-client relationship; and by preventing him from impeaching one of his victims with past conduct purportedly evidencing a crime. Defendant also seeks a reduction in his probation term in light of 1 Assembly Bill No. 1950 (A.B. 1950). We modify defendant's probation term, but otherwise affirm.
All further statutory references are to the Penal Code unless otherwise stated.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
BACKGROUND
On September 8, 2016 (September 8), defendant, his exwife, J.F., their young son, K.C., and J.F.'s daughter from a previous relationship, A.F., lived together in Fairfield. At approximately 2:00 a.m., defendant grabbed J.F. "really aggressively" while she was asleep in bed with K.C. He said J.F. "had no reason to be sleeping." He threatened her, saying that she "deserved pain," she "was a slave for him," and he would "burn [her] face so that nobody would ever look at [her] ever." He also said that if she called her friends, "the spics, that he would burn the house" before they arrived. J.F. testified that defendant sounded like an "evil," "possessed" person, and he continued making threatening statements through the afternoon. A.F., who was asleep in the next bedroom, woke up and tried to verbally defend J.F., but defendant told her that he would place her in a foster home. J.F. made audio recordings of defendant that morning, which she later sent to police. Three of these recordings were admitted into evidence.
In the first recording, defendant orders J.F. to lie down, saying, "Stupid whore, you don't deserve sleep." Defendant insults J.F. numerous times using profane language. He tells her that he will be listening the entire night should she decide to call the police, and he threatens to have her locked up by authorities. He says, "Do it. S-call the cops, see what happens to this house before they get here. Okay, see what fucking happens to this 2 house, I'll go fuckin' nuts-nuts bitch, nuts, like you've never seen before, whore. Never seen. Shut-and matter of fact, right now, you bring your fuckin' lips together like this, and you fuckin' seal 'em, bitch, and don't talk. '[C]ause I'm sick of your fucking voice, I'm sick of hearin' you and seein' you and smelling your dirty, Hispanic, spic, dirty-dirty ass, go back to your homeland and fuck off. Cry. Now. I wanna see your fucking tears. I wanna see your fucking pain. Whore. Cry. Please cry, I wanna see it. Are you crying yet?"
In the next recording, defendant continues to use profane and disturbing language to insult J.F. He demands that she pay him for an air rifle and says, "I will never forget or forgive what you fucking did, whore, bitch, cunt ...." When J.F. asks why defendant hit her, he denies having done so. J.F. says, "[L]et me call the police," and defendant responds, "[C]all them now, bitch, now, I wanna fight 'em. Do it. Do it, I wanna burn this fucking place to the ground, and destroy everybody, do it. There'll be a fuckin' explosion, and guns and everything. Call 'em, bitch, do it now. I'll take this fucking whole house hostage, do it. Do it, everybody will die. [¶] . . . [¶] Every fucking body will die except for [K.C.]. Do it." He continues, "It's my house, and nobody heard this but you, whore, so fuck 'em," and tells J.F. that if she called the police he would "[d]ecline any comment," and deny knowing what she was talking about. J.F. responds, "Oh yeah- yeah, most of the time you are the victim, right?" "You are the victim, I am the abuser, of the mentally guy is disable, right? And you are the person [who abuses] me." 3
In the third recording, defendant tells J.F., "Oh, and tell your fucking friends, the cops and the DA try to take my boy, be fucking trouble. I had a friend . . . he graduated explosives ordinance training school, he knows how to make explosives, bombs, repeat it and I'll deny it, I never said this, bitch. Fuck you." When J.F. asks defendant why he kicked her, he says, "Fuck you. Go call 'em, call the cops now. Do it. Do it," and says he was getting [K.C.] a "new mom" because J.F. was going back to her home country. J.F. asks defendant why he is screaming while K.C. was trying to sleep, and defendant says, "You're gonna sleep now, have an asthma attack away from [K.C.] and die, I will film you dying and enjoy it." When J.F. says that defendant "was going to get arrested," he responds, "Yep, they're gonna kill both of us, they're gonna have to kill [K.C.], so you better fucking think." "You better fuckin' think, because I'll keep him inside the house, and when the SWAT Team comes, with the guns and everything . . . they might burn this fuckin' house [unintelligible] machine guns, and he might get killed. So you think you fuckin' stupid whore, before calling 'em. Because you might put the son that you love so much in danger." Defendant then threatens to have J.F.'s mother arrested, he physically threatens the men in her family, and he threatens to "ruin" J.F.
J.F. testified she feared that defendant was going to hurt her or was "actually going to do something against [her]" or her daughter. When the noise woke K.C., he seemed scared and began to cry. J.F. feared defendant would act on his threat to burn down the house because he kept gas cans in the garage. 4 She did not sleep. She considered leaving, but she had nowhere to go.
Later in the morning on September 8, defendant and J.F. argued because she did not want defendant to take K.C. to the zoo when defendant had been drinking and smoking marijuana. J.F. testified that defendant "got aggressive again." He told her she was "a whore," that she "had no say because [K.C.] was his son," and she "couldn't stop him." At the time, J.F. was holding K.C. Defendant pulled K.C. by one arm, and she held on to his other arm and pulled. When K.C. started to cry, defendant grabbed J.F. and pushed her into a wall. While holding her arm, defendant pressed his body against hers and continued to yell insults at her. He threatened her with immigration, though she was a legal permanent resident. When J.F. threatened to call the police, he pulled her by the arm and threw her out of the house where she fell onto the outside pathway. Defendant closed the door. J.F. heard the children crying inside, so she called 911.
Approximately ten police officers, including Lieutenant Troy Oviatt, responded. When they arrived, J.F. stood outside on the sidewalk, crying hysterically. Oviatt described her as scared, upset, and hysterical. Oviatt heard defendant begin yelling and approached to speak to defendant through an open window. He tried to convince defendant to let the children out, but defendant refused. Defendant rambled about his distrust of the government and his belief that police were "plotting against him" and "only listening to [J.F.]." At one point, defendant mentioned firearms, which caused Oviatt to be concerned there might be weapons in 5 the home. When the children told Oviatt that defendant and J.F. were in an argument, defendant closed the window and paced throughout the house.
Oviatt attempted to build trust with defendant. He testified that, throughout the interaction, defendant's behavior was "[f]ragmented," and he oscillated between calm and conversational to angry and frustrated. After about twenty minutes, defendant let A.F., but not K.C., out of the house. The police considered whether they should enter the house by force and whether doing so would pose a risk to K.C.'s safety. After additional discussion with defendant regarding K.C.'s release, however, defendant let police retrieve the boy about thirty minutes after they arrived. Upon searching the residence, police retrieved a high-powered pellet gun.
The Solano County District Attorney charged defendant with one count of making criminal threats towards J.F. (§ 422 (count 1)); one count of battery on a spouse or child's parent (§ 243, subd. (e)(1) (count 2)); and two counts of cruelty to a child (§ 273a, subd. (b) (counts 3 and 4)). A jury found defendant guilty of counts 1, 3, and 4, but not guilty of count 2. The trial court suspended imposition of sentence and placed defendant on formal probation for four years. Defendant timely appealed. 6
The district attorney charged an additional count of assault by means of force likely to cause great bodily injury against A.F., but dismissed that count before trial.
DISCUSSION
Faretta v. California (1975) 422 U.S. 806 (Faretta).
Defendant first argues that his conviction should be overturned because he made an unequivocal, knowing, intelligent, and timely request to represent himself that the trial court erroneously denied based on its disagreement with defendant's constitutionally protected beliefs and his ignorance of the law. The Attorney General disputes this, contending that the court properly denied the Faretta request because of defendant's disruptive and obstructive behavior. We agree with the Attorney General, and we also find that defendant abandoned his request for self-representation.
A. Governing Legal Principles
A criminal defendant has a right to represent himself at trial under the Sixth Amendment to the United States Constitution. (Faretta, supra, 422 U.S. at pp. 835-836.)" 'A trial court must grant a defendant's request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of selfrepresentation. [Citations.] Second, he must make his request unequivocally. [Citations.] Third, he must make his request within a reasonable time before trial.'" (People v. Stanley (2006) 39 Cal.4th 913, 931-932 (Stanley).) An erroneous denial of a timely Faretta request is reversible per se. (People v. Butler (2009) 47 Cal.4th 814, 824.) 7
Nonetheless, a defendant's self-representation request may be denied where he or she engages in serious and obstructionist misconduct. (People v. Welch (1999) 20 Cal.4th 701, 734-735 (Welch); see Faretta, supra, 422 U.S. at pp. 834-835, fn. 46.) A self-represented defendant must "abide by rules of procedure and courtroom protocol" (McKaskle v. Wiggins (1984) 465 U.S. 168, 173), and Faretta warned that the "right of self-representation is not a license to abuse the dignity of the courtroom." (Faretta, at pp. 834-835, fn. 46.) The California Supreme Court has presumed that "the same rule applies to the denial of a motion for self-representation in the first instance when a defendant's conduct prior to the Faretta motion gives the trial court a reasonable basis for believing that his self-representation will create disruption." (Welch, at p. 734.)
In Welch, our Supreme Court held that the trial court did not abuse its discretion in denying a Faretta request where the defendant belligerently denied awareness of a calendar date set in his presence, turned his back on the trial court, interrupted the court several times to argue what had been declared to be a nonmeritorious point, accused the court of misleading him, refused to allow the court to speak, and refused several times to follow the court's admonishment of silence. (Welch, supra, 20 Cal.4th at p. 735.) In so holding, our Supreme Court cautioned that the extent of a defendant's disruptive behavior may not be fully evident from a cold record on appeal, and the trial court is in the best position to judge the defendant's demeanor. (Ibid.) Thus, the trial court possesses significant 8 discretion when it comes to deciding whether a defendant's motion for self-representation should be granted, and reviewing courts defer to the trial court's exercise of discretion absent a strong showing of clear abuse. (Ibid.)
B. Defendant's Faretta Request
On October 15, 2018, defendant's retained counsel requested that he be relieved as counsel because of a conflict. Defendant called his counsel "a fat liar" and accused counsel of sabotaging him and working with the prosecution. He said, "He's lying through his teeth. I mean the 'L' in lawyer stands for liar." The trial court relieved retained counsel.
The trial court then asked defendant whether he would like a public defender appointed, and defendant said, "Public pretender." The trial court interrupted and informed defendant that the public defender's office was staffed by very competent lawyers, and defendant could notify the court if he felt he was not receiving competent representation. The trial court said that defendant would be screened for public defender services and suggested he may be "pleasantly surprised that [he was appointed] a competent attorney."
In response, defendant asked to represent himself. He stated, "I've been told that four or five times and then they reject the things I say, and so-well, what I'd like to do is represent myself. [¶] Lawyers are scum, and I don't like lawyers. And I done it myself in a-I sued a landlord in Montgomery County and recovered $230.00. That's the kind of guy I am. I sue for small amounts of money and that [sic] he got stuck. And I stood up and 9 stated the facts, and he didn't even show up for court. I got a judgment in my favor on my behalf. [¶] In this case, when I have a lying, illegal immigrant with no right to be in this country; shouldn't be here, and needs to be deported back down to her adobe little hut to live and the[n] not call the police on me for-"
The court interrupted, "At this point, sir, I'm not going to entertain a Faretta. You've been disruptive. Earlier here, in court, I saw you in the audience with your lawyer. The Bailiff had to have several brief interactions with you. Instead of calmly asking the Court questions, you've insulted all sort of participants in the court. You needlessly insulted the person who's the other subject to this litigation. [¶] If you're going to represent yourself, you need to be able to calmly and dispassionately address the facts to the Court and the law, and you seem incapable of doing-" Defendant interrupted and said that he was confident he could represent himself better than his previous attorney. The trial court denied the Faretta motion "right now," telling defendant that "we can readdress that at a later date if you need." Defendant asked if his public defender could be a "heterosexual male, please, if available and not a woman, please?" The trial court responded that "these are the sorts of things that, again, reinforce my decision not to grant you pro per status. The law in the State of California is such that we don't look at peoples' gender; we don't look at sexual orientation. In terms of dispensing justice[, ] justice is blind to that."
Back in open court, the court said that defendant had asked to represent himself, and the court denied the request for the 10 "reasons [put] on the record in that closed hearing." Then, to "briefly recap," the court said, "[Defendant has] been disruptive. [Defendant] has implied that he thinks that there are things such as folks' race, gender, sexual orientation that may play a role in their ability to represent him. I found each of those thing [sic], at best, are obstructiveness. Clearly, he misunderstands the state of the law in the State of California, so I denied his right to represent himself. So I'm appointing the public defender to represent him."
After the court appointed counsel, defendant said, "[A]fter all I've been through with Spanish woman [sic], I do not want a Hispanic attorney or this guy right here. I've seen him around." The trial court clarified that the appointed counsel was not Hispanic, and defendant said, "Sure looks like it. He does to me." The trial court reiterated that counsel's "race" was irrelevant, and defendant interrupted the court, saying, "It means everything." Defendant again interrupted the court, saying, "Well, I don't have to work with-" at which point, the bailiff intervened and told defendant not to talk. Defendant went on to accuse his excused retained counsel of conspiring with the prosecution and demanded the name of the bailiff, which he had done twice previously, so he could "file a formal complaint" against him. The trial court interrupted to regain control of the courtroom and stated on the record that the bailiff had done nothing "untoward." 11
C. Analysis
Because defendant exhibited his unwillingness to respect the court process and abide by proper courtroom protocol during the October 15, 2018 hearing, the trial court did not abuse its discretion in denying his Faretta motion. "It would be a nonsensical and needless waste of scarce judicial resources to proceed to trial [without counsel] when, as here, defendant has shown by his conduct during pretrial proceedings that he is unable to conform to procedural rules and protocol." (People v. Watts (2009) 173 Cal.App.4th 621, 630.)
During the hearing, defendant exhibited disrespect and a lack of proper decorum towards multiple participants in the court process, including the victim and the attorneys. Defendant told the court the "L" in lawyer stands for liar, his retained counsel was a "fat liar," and lawyers were scum. He called the public defender the "Public pretender." He also embarked upon a diatribe, describing "this case" as having "a lying, illegal immigrant with no right to be in this country; shouldn't be here, and needs to be deported back down to her adobe little hut to live and they not call the police on me for . . .[, ]" and the court had to interrupt defendant to stop his rant.
Next, as the trial court outlined, defendant was disruptive. He interrupted the proceedings multiple times, starting the moment his matter was called as he attempted to get the name of the bailiff with whom he had developed a personal conflict instead of focusing on the court. The record further reflects that defendant "acted out" in court, engaging in "several brief 12 interactions" with the bailiff before his matter was called, culminating in his announcement that he intended to file a formal complaint against the bailiff. Defendant's actions required the trial court to state, "Just for the record, the Court observed [defendant] and his actions throughout the morning. The Court did not observe the Bailiff do anything that was untoward. The Bailiff properly directed [defendant]. [Defendant], when he acted out, the Bailiff properly redirected him. So [defendant] can file whatever he wishes, but the Court saw no merit to any of his accusations." "We are . . . aware that the extent of a defendant's disruptive behavior may not be fully evident from the cold record, and that one reason for according deference to the trial court is that it is in the best position to judge defendant's demeanor." (Welch, supra, 20 Cal.4th at p. 735.) On this record, the trial court did not abuse its discretion in denying the Faretta request.
Defendant claims the trial court impermissibly denied his Faretta request because of his personal beliefs and his lack of familiarity with the law, but a fair reading of the record refutes this contention. In camera, the trial court stated that it was denying the motion because defendant had been disruptive, and the court expressed its doubt that defendant could calmly and dispassionately conduct his representation. Although the trial court later stated in "briefly recap[ping]" its reasons for denying the Faretta motion that defendant misunderstood California law, prior to making that comment, the trial court confirmed that it put the reasons for the denial on the record in camera. Moreover, 13 even if the trial court had denied the Faretta motion on an improper basis, reversal would not be required. When a trial court denies a Faretta motion for an improper reason, a reviewing court will uphold the ruling if the record establishes that the defendant's request was nonetheless properly denied on other grounds. (People v. Best (2020) 49 Cal.App.5th 747, 761.) As previously discussed, the trial court denied the Faretta motion on a proper ground.
We also conclude that defendant abandoned his request for self-representation. Defendant argues that his failure to re-raise his Faretta request is not dispositive because the trial court's ruling left the "indelible impression that [he] could not hope for success in a renewed motion unless he changed his core beliefs." But in Stanley, supra, 39 Cal.4th at p. 933, in addition to finding that the defendant's Faretta request was not knowing and voluntary, our Supreme Court also determined that the defendant had "ultimately abandoned his desire to invoke his Faretta rights" because he accepted several appointed attorneys subsequent to the Faretta denial without ever renewing his request for self-representation. (Ibid., citing People v. Dunkle (2005) 36 Cal.4th 861, 909.) Here, the trial court said that it was denying defendant's Faretta request "right now" because defendant had been disruptive, but the court told defendant that "we can readdress that at a later date if you need." Defendant was thereafter represented by appointed counsel for over fifteen months, and, while he made two Marsden motions during that period, he did not renew his request for self-representation. As in 14 Stanley, his conduct constitutes an abandonment of his request for self-representation. (Stanley, at p. 933.)
II. The Marsden Motion
Defendant next contends that the trial court erred in allowing him to withdraw a motion to substitute his appointed counsel after the court found an "irremediable breakdown in the attorney-client relationship."
A. Additional Background
On January 23, 2020, defense counsel Hensley advised the trial court that defendant wished to make a Marsden motion. In an in camera hearing without the prosecution, the trial court inquired regarding defendant's concerns. Defendant stated that his phone calls were not returned in a timely manner and his counsel seemed to be "on the side of the prosecutor." Defendant told the court that he was "not comfortable with, you know, most attorneys. I loathe and despise them and, you know, particularly her." Hensley confirmed that she was not working with the prosecutor, and the court explained to defendant that it was not inappropriate for defense counsel to be friendly toward the court or opposing counsel.
The trial court then asked Hensley whether she had adequate communication with defendant such that she was prepared for trial, and she responded, "the issue of communication is an issue with my client." She explained that she had recently referred defendant's calls about travel expenses to her supervisor because she was unauthorized to assist with reimbursement, but, prior to that and including the recent 15 period, she had periods of regular contact with defendant. There had been times when she did not return defendant's calls due to her own schedule, but those were calls where he was just checking in with her about his location. Counsel went on to state that "the phone calls that I've had about [defendant] have been so extreme in terms of, um, particular issues that I'm concerned to relay to the Court because I do not want to say anything that would not [be] in [defendant's] legal interest." She continued, "[T]he extreme nature of statements he has made to me are such that, again, it goes to the issue of a breakdown of communication that, um, is in my mind, um - I am not able to overcome that. And my concern is, for example, it's all related to legal issues." Hensley recounted that, because of "statements made to me directly to me by [defendant] repeatedly in prior discussions," she had felt "very uncomfortable" contacting defendant to discuss how to proceed in light of his revocation of his time waiver when she learned that an impeachment witness would not attend the trial. "[I]t's an issue of just, um, again, a communication issue that is not related to the number of phone calls necessarily but related to the content of those conversations that from my perspective have been extreme and have resulted in him from [defendant's] expression of his unhappiness with me as his attorney, um, his desire for new counsel." Hensley said she brought the Marsden motion to the court's attention because she did not want to "stand in the way" of what defendant would choose to do. 16
The trial court expressed concern that defendant would not like any attorney, and noted that he was not required to like his attorney. The court then asked defendant whether he could successfully work with another attorney to bring the case to trial, and defendant said that he would. Defendant also denied making extreme statements, saying he just said what was on his mind.
The trial court next asked Hensley whether she believed defendant could have a good enough relationship with new counsel to take the case to trial. Hensley replied, "I'd like to think that I could continue to work with [defendant]," and the trial court reiterated its concern that a new attorney would not produce a different result, saying, "[W]hat [defendant] wants isn't the issue." Hensley said, "[I]t appears to me again based on, um, statements of my client to me that in fact there could be a circumstance where another attorney, um, may not, um, uh, result in such a strong opposition . . . [¶] . . . [¶] from [defendant] and an opposition that would potentially impair his ability to assist counsel at trial."
The trial court expressed concern that defendant might be attempting to delay his trial. The court told defendant that it would appoint a competent and reliable attorney, but it would not cycle through attorneys until he found one he liked. The trial court asked defendant and counsel the "final question" of whether there was "an irremediable breakdown in the attorney-client relationship." Defendant answered affirmatively, and trial counsel answered, "I, um -- I do hear what my client is saying, and I will not disagree with that at this time." The court 17 accepted counsel's "reluctant[]" response, and also "reluctantly" found "that there is [an] irremediable breakdown in the attorneyclient relationship. The Court is concerned-these are some relatively serious charges. I'm concerned that [defendant] receive a fair trial." The court said it would hold defendant to his word that he would make reasonable efforts to cooperate with his next counsel and asked defense counsel to invite the district attorney back in.
At that point, defendant inquired whether he could ask a question, and, receiving permission, he asked whether his time waiver was withdrawn so he would have trial on January 27th, which was only four days away. The trial court said, "If you do this, your trial is not going to occur next week because I'm going to appoint new counsel, and there's no lawyer out there that's going to be ready to go to trial on Monday, so your trial is likely to be continued for months." Defendant asked, "Months?" The trial court responded, "Yes." When defendant again asked for confirmation that his time waiver had been withdrawn, the court said, "I understand. But let me explain because if you want to change your position, now would be the time to do it." Defendant responded, "Yes, I'd like to get the trial on the 27th, please." The court reiterated that, if defendant got a new lawyer, the lawyer would not be ready on the 27th, and defendant said, "I'll work with [Hensley] then because I don't want to have to come back here again honestly." Defense counsel interjected that she wanted defendant to know that she intended to seek a continuance because of the potential impeachment witnesses who 18 were unavailable, and the trial court clarified for defendant that, even if defense counsel continued represent him, she would be asking for a continuance so trial may be delayed. Defendant responded, "Sure. I'd just like to leave it on the 27th like they said it would be." The trial court found that defendant withdrew his Marsden motion.
B. Legal Principles Governing Marsden Motions
A criminal defendant has the right to assistance of counsel. (Cal. Const., art. I, § 15; U.S. Const., 6th Amend.; Marsden, supra, 2 Cal.3d at p. 123.) This right may include the right to have appointed counsel discharged if it is shown that failure to do so would substantially impair or deny the right to assistance of counsel. (Marsden, at p. 123.) "The seminal case regarding the appointment of substitute counsel is Marsden, supra, 2 Cal.3d 118, which gave birth to the term of art, a 'Marsden motion.'" (People v. Smith (1993) 6 Cal.4th 684, 690.) "The legal principles governing a Marsden motion are well settled." (People v. Lara (2001) 86 Cal.App.4th 139, 150.) "When a defendant seeks new counsel on the basis that his appointed counsel is providing inadequate representation . . . the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance." (People v. Smith (2003) 30 Cal.4th 581, 604.) "A trial court should grant a defendant's Marsden motion only when the defendant has made 'a substantial showing that failure to order substitution is likely to result in constitutionally inadequate representation' [Citation], or stated slightly differently, 'if the record shows that the first 19 appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.'" (People v. Hines (1997) 15 Cal.4th 997, 1025.) "The court must appoint a new attorney" where the requisite showing is made. (People v. Rodriguez (2014) 58 Cal.4th 587, 623.)
The decision whether to grant a requested substitution is within the discretion of the trial court. (People v. Smith, supra, 30 Cal.4th at p. 604.) Appellate courts will not find an abuse of that discretion unless the failure to remove appointed counsel and appoint replacement counsel would "substantially impair" the defendant's right to effective assistance of counsel. (Ibid.)
C. Permitting Hensley's Continued Representation Was Not Error
Defendant argues that, having found an irreconcilable conflict, the trial court lacked authority to permit Hensley to continue as his counsel. Had the record clearly established an irreconcilable conflict such that ineffective representation was likely to result, and had the Marsden hearing ended immediately after the trial court so found, we would agree. (People v. Smith, supra, 6 Cal.4th at p. 696 [trial court should appoint substitute counsel where the record shows appointed attorney is not providing adequate representation or defendant and attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result].) But that is not what happened. The trial court did "reluctantly" find an 20 irremediable breakdown in the attorney-client relationship, but, with a record devoid of evidence to suggest the conflict at issue was anything other than one of defendant's own making, there was no error in permitting Hensley's continued representation after defendant agreed to work with her.
Notably, the concerns that defendant relayed in the Marsden hearing were insufficient to warrant replacement of counsel. Defendant complained his calls were not timely returned, but the trial court explained that Hensley's referral of his calls to her supervisor was not a breach of confidence. And Hensley confirmed regular contact between herself and defendant. Even minimal contacts between defendant and counsel are insufficient grounds to discharge appointed counsel. (People v. Silva (1988) 45 Cal.3d 604, 622 ["But the number of times one sees his attorney, and the way in which one relates with his attorney, does not sufficiently establish incompetence"].)
Defendant's belief that Hensley was working with prosecution, and his loathing of her and other attorneys, are similarly insufficient. During the hearing, Hensley confirmed she was not working with the prosecutor, and the trial court explained as much to defendant. Defendant's dislike and mistrust of Hensley was not a basis for substitution. (People v. Barnett (1998) 17 Cal.4th 1044, 1092.) "To be sure, defendant made plain that he did not like his lawyers and did not think highly of them. That, however, 'was not enough [to show a conflict of interest]. "[I]f a defendant's claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient 21 to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law." '" (People v. Memro (1995) 11 Cal.4th 786, 857; see also Morris v. Slappy (1983) 461 U.S. 1, 12-14 [a defendant does not have a Sixth Amendment right to a meaningful relationship with counsel]; Ng v. Superior Court (1997) 52 Cal.App.4th 1010, 1021-1023 [trial court abused its discretion by granting Marsden motion based on defendant's general statements there was a complete breakdown in the attorney-client relationship and he had lost confidence in his attorney], overruled on other grounds, Curle v. Superior Court (2001) 24 Cal.4th 1057.)
Hensley provided the most concerning information before the court when she said, "[T]he extreme nature of statements [defendant] has made to me are such that, again, it goes to the issue of a breakdown of communication that, um, is in my mind, um - I am not able to overcome that." But she explained that this was a communication issue "related to the content of those conversations that from my perspective have been extreme and have resulted in . . . [defendant's] expression of his unhappiness with me as his attorney." Thus, Hensley's remarks show that defendant's conduct drove the conflict, and there was no evidence to the contrary. Indeed, Hensley repeatedly said she raised the Marsden motion because she did not want to stand in the way of what defendant wanted. Just as defendant's dislike of his attorney cannot serve as a basis for substitution, "a defendant 22 may not force the substitution of counsel by manufacturing a conflict or a breakdown in the relationship through his own conduct." (People v. Johnson (2018) 6 Cal.5th 541, 574; see also People v. Walker (1976) 18 Cal.3d 232, 238 ["Defendant's initial refusal . . . to cooperate with appointed counsel by itself was not sufficient cause to require substitution of counsel"].)
Against this backdrop, after defendant changed his position regarding substitution and promised to work with Hensley, the court allowed defendant to withdraw his motion, in effect reconsidering its ruling as to the breakdown. The record reflects the court grappled with the role that defendant's conduct and lack of cooperation played. For example, the court expressed concern that, if substitution were granted, the court would end up with another Marsden motion, given defendant's dislike of attorneys. The court asked defendant whether he was "prepared to make all reasonable efforts to try to work with [a new attorney] to make this process a success?" And the court emphasized it would "hold [defendant] to" his promise to cooperate with a new attorney. For her part, Hensley had described defendant's conduct causing the issue between them, but had nonetheless stated she "would like to think that [she] could continue to work with [defendant]." It was therefore reasonable for the court's calculus to shift after defendant said he would work with Hensley. Indeed, the trial court would have erred in finding an irreconcilable conflict warranting substitution of counsel when faced with defendant's agreement to work with counsel going forward and a record devoid of evidence suggesting 23 that anyone other than defendant caused the prior conflict. (Cf. People v. Sanchez (2011) 53 Cal.4th 80, 92 [court erred by failing to hold Marsden hearing and appointing substitute conflict counsel to evaluate plea without sufficient showing]; Ng v. Superior Court, supra, 52 Cal.App.4th at p. 1023 [court "compounded its error" in improperly substituting appointed counsel by denying subsequent motion to reinstate prior counsel].)
Finally, defendant argues that his decision to proceed with Hensley was uninformed because it was fueled by the court's speculative statement that his trial would be delayed for months with new counsel, but we disagree. This case involved numerous electronic recordings and multiple potential witnesses to the afternoon incident on September 8. Furthermore, the record shows that, when defendant discharged his retained counsel and the court appointed a public defender, the court gave new counsel four weeks to become familiar with the case before even setting a trial readiness conference. Thus, it was not speculative for the trial court to state that new counsel would require more than four weeks to prepare. 24
Defendant frames his argument as one asserting that his waiver of the right of effective assistance of counsel was not knowingly made. Having found that the court did not commit Marsden error in allowing Hensley's continued representation of defendant, we do not address his argument in the context of waiver.
D. Any Error Was Harmless
Even if the court erred in allowing defendant to withdraw his Marsden motion and declining to replace Hensley, such error is harmless.
Defendant argues that the error in allowing him to proceed with Hensley warrants a presumption of prejudice. It is true that, "[i]n certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice." (Strickland v. Washington (1984) 466 U.S. 668, 692.) Defendant cites the following authorities in support of his argument for a presumption of prejudice: Geders v. United States (1976) 425 U.S. 80, 91, which held that a trial court's order preventing the defendant from consulting with his counsel during an overnight recess in between his testimony deprived the defendant of his right to assistance of counsel; Herring v. New York (1975) 422 U.S. 853, 864-865, which held that a state statute allowing a judge in a nonjury trial to deny defense counsel the opportunity to make a closing argument violated the Sixth Amendment right to assistance of counsel; and United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 148-152, which dealt with the Sixth Amendment right to retained counsel of choice, and which held that violation of that right is complete without a showing of prejudice. The right to retained counsel of choice is not at issue 25 here, and Geders and Herring are examples of cases where the government violated the right to effective assistance by interfering with the ability of counsel to decide how to conduct a defense. (Strickland, at p. 686.) These authorities are plainly inapposite.
Defendant also cites Crutchfield v. Wainwright (11th Cir. 1986) 803 F.2d 1103, 1108 (Crutchfield), for the proposition that "Strickland harmless error standard does not 'apply to situations where the state, the court, or the criminal justice system denies a defendant the effective assistance of counsel.'" In Crutchfield, the plurality found the Sixth Amendment right to assistance of counsel could be violated by a trial judge's admonition that defendant not discuss testimony with his attorneys during a short recess. (Id. at p. 1111.) Crutchfield is factually inapposite, and its statement that even a brief restriction on consultation between a defendant and his attorney was invalid is no longer good law. (Perry v. Leeke (1989) 488 U.S. 272, 274-275, 280; United States v. Cavollo (11th Cir. 2015) 790 F.3d 1202, 1217-1218.)
Geders and Herring stand in contrast to the category of cases where counsel deprives a defendant of the right to effective assistance by failing to render" 'adequate legal assistance.'" (Strickland, supra, 466 U.S. at p. 686, quoting Cuyler v. Sullivan (1980) 446 U.S. 335, 344, 345-350 [actual conflict of interest adversely affecting lawyer's performance renders assistance ineffective].)
The Ninth Circuit applies a presumption of prejudice where a motion to substitute counsel is denied and an irreconcilable conflict existed between the defendant and counsel, reasoning that such conflicts are tantamount to a denial of counsel altogether. (Schell v. Witek (9th Cir. 2000) 218 F.3d 1017, 10271028; Carter v. Davis (9th Cir. 2019) 946 F.3d 489, 507.) But a complete breakdown in communication is required to establish the requisite irreconcilable conflict (Carter, at p. 507), and this application of a presumption of prejudice is far from universal. (E.g., United States v. Lott (10th Cir. 2002) 310 F.3d 1231, 1250-1251 26 [district court's failure to appoint new counsel when faced with a total breakdown in communication is subject to review for error under Chapman]; United States v. Horton (4th Cir. 2012) 693 F.3d 463, 467 [assuming district court abused its discretion by denying request for new appointed counsel without inquiring into extent of breakdown in communication, but finding error harmless]; United States v. Ryals (7th Cir. 2008) 512 F.3d 416, 419 [reviewing error in failing to adequately inquire into breakdown in communication for prejudice].) Importantly, the United States Supreme Court has "never endorsed this line of precedent from [the Ninth Circuit]." (Carter, at pp. 508-509 [rejecting the application of a presumption of prejudice for alleged irreconcilable conflict between defendant and counsel in habeas petition and reviewing claim under Strickland].) Defendant does not point to any United States or California Supreme Court authority holding that denial of a motion to substitute counsel in the face of an irreconcilable conflict is error that warrants the application of a presumption of prejudice.
We thus apply the beyond-a-reasonable-doubt Chapman standard applied by our Supreme Court in Marsden. (Marsden, supra, 2 Cal.3d at p. 126, citing Chapman v. California (1967) 386 U.S. 18 (Chapman); People v. Chavez (1980) 26 Cal.3d 334, 348-349 [Marsden does not establish a rule of per se reversible error; any such error is analyzed for prejudice under Chapman]; see also People v. Loya (2016) 1 Cal.App.5th 932, 945 [denial of Marsden motion reviewable for error under Chapman].) As set forth below, under this standard, we agree with the Attorney 27 General that even if there were error, it does not provide a basis for reversal.
The evidence supporting defendant's convictions was strong. To sustain a conviction under section 422, the evidence must show: "(1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat-which may be 'made verbally, in writing, or by means of an electronic communication device'-was 'on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances." (People v. Toledo (2001) 26 Cal.4th 221, 227228.)" '[W]hether the words were sufficiently unequivocal, unconditional, immediate and specific [to convey] to the victim an . . . immediate prospect of execution of the threat can be based on all the surrounding circumstances and not just on the words alone.' [Citation.] '[I]t is the circumstances under which the threat is made that give meaning to the actual words used. Even an ambiguous statement may be a basis for a violation of section 422' [Citation.] The [jury] is 'free to interpret the words spoken 28 from all of the surrounding circumstances of the case.'" (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1433.)
The evidence on the criminal threat charge included testimony and corroborating audio recordings of defendant's threats on September 8. For example, defendant threatened to burn J.F.'s face and told her that if she called the police, he would burn the place to the ground and everyone would die except K.C.-a threat J.F. believed was credible because defendant kept gas cans in the garage. Defendant bolstered his threat by saying he had a friend who studied explosives. He threatened to take K.C. hostage if J.F. called the police, and he further threatened to assault anyone J.F. might call for help. J.F. testified that defendant sounded like an "evil," "possessed" person while making these statements, and she stayed up all night for fear that he would do something to her.
Section 273a, subdivision (b), which describes the misdemeanor crime of child cruelty, provides in relevant part, "Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death . . . willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor." Here, when J.F. attempted to stop defendant from leaving the house on September 8, he locked her out and kept the children inside. Initially, defendant refused to let the children leave the house after police arrived. Police negotiated with defendant for approximately 20 minutes before he let A.F. exit the house, and defendant kept K.C. inside for about another 29 ten minutes. Police debated entering the house by force. Defendant also mentioned firearms, causing the police to be concerned that defendant may have a weapon. J.F. testified that both children were crying, and Officer Oviatt confirmed that K.C. seemed afraid and the children wanted to leave the house.
In addition to the strength of the evidence, the record reflects Hensley's active participation in trial and communication between her and defendant. Hensley made mistrial motions and motions in limine, she cross-examined the government's witnesses, and she made an effective closing argument, resulting in an acquittal on the battery charge. During the Marsden hearing, both Hensley and defendant indicated they could work with each other. And the record reflects multiple instances of communication between defendant and Hensley prior to and during trial.
In sum, even if the trial court erred in allowing defendant to proceed to trial with Hensley, this record shows any such error was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. 18.)
III. The Section 633.5 Ruling
Defendant next argues that his constitutional rights to confront witnesses and to present a defense were violated because one of the trial court's in limine rulings effectively prevented him from impeaching J.F. with an instance of her alleged criminal conduct. 30
A. Additional Background
The prosecution moved to admit three recordings of conversations made by J.F. on her cell phone on September 8 on grounds that the recordings contained defendant's "actual threats." Hensley objected, arguing that the recordings violated defendant's federal and state right to privacy. She also objected to use of the recordings as illegal recordings under section 632, subdivision (a) because she claimed that the prosecution would have to proffer a witness to authenticate them, which would require the appointment of counsel for the witness (J.F.) because she would be subject to civil and criminal penalties.
In response, the district attorney directed the court to section 633.5, which provides an exception to section 632 for one who records a confidential communication for the purpose of obtaining evidence reasonably believed to be related to the commission of certain crimes, including domestic violence. Upon review of that statute, the trial court denied defendant's request to exclude the recordings because it found that section 633.5 applied and both exempted J.F. from criminal liability and rendered the recordings admissible. Hensley responded that section 633.5 conflicted with the federal right to privacy, and the trial court overruled the objection. Hensley stated that defendant's objections were ongoing and asked permission to file a written motion in limine for the record. The court accepted and reviewed the proffered written motion, and reiterated its ruling that section 633.5 rendered the recordings admissible and 31 eliminated liability for the witness. The court later confirmed that the objections defendant raised were ongoing.
B. Sections 632 and 633.5
Section 632, subdivision (a) makes it a crime to record a confidential communication without consent in certain circumstances. It provides, "A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2, 500) per violation, or imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment." Section 632, subdivision (d) provides a prohibition on the admission of recordings made under subdivision (a). However, People v. Guzman (2019) 8 Cal.5th 673, 677, held that, to the extent section 632, subdivision (d) seeks to prohibit the admission of relevant evidence in criminal trials, it is invalid under the "Right to Truth-in-Evidence" 32 provision of the Constitution enacted in 1982 (Cal. Const., art. I, § 28, subd. (f)(2)).
The version of section 632 effective in 2016 does not differ materially from the currently effective quoted version.
"Except as proof in an action or prosecution for violation of this section, evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section is not admissible in any judicial, administrative, legislative, or other proceeding." (§ 632, subd. (d).)
As defendant recognizes, section 633.5 provides an exception to the criminal liability set forth in section 632, subdivision (a). It states that section 632 does not "prohibit one party to a confidential communication from recording the communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of . . . any felony involving violence against the person . . . or domestic violence as defined in Section 13700." Under section 13700, "domestic violence" "means abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship." (§ 13700, subd. (b).) "Abuse" "means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another." (§ 13700, subd. (a).)
C. Analysis
Defendant's claim of constitutional error stems from his assertion that the trial court found, without substantial evidence and without holding an Evidence Code section 402 hearing (402 hearing), that J.F.'s recordings were legal under section 633.5. He further submits that J.F.'s trial testimony established the inapplicability of section 633.5, and, to the extent that a renewed objection to the trial court's prior ruling was needed after J.F.'s 33 testimony, his counsel was ineffective for failing to object. As set forth below, defendant's claims of error are unfounded.
Even accepting that the trial court had to find as a preliminary fact that J.F. reasonably believed she was obtaining evidence related to the commission of a crime enumerated in section 633.5 by making the recordings, no reversible error occurred with respect to the court's section 633.5 ruling. First, although defendant claims the trial court erred in making the in limine ruling without holding a 402 hearing, he did not argue to the trial court that J.F. did not make the recordings to obtain evidence reasonably believed to relate to defendant's commission of domestic violence, nor did he request a 402 hearing. (See People v. Smith (2007) 40 Cal.4th 483, 516 [stating in dictum that appellant "provides no authority supporting his contention that the trial court has a sua sponte duty to conduct an evidentiary hearing to determine a preliminary fact"].) In any event, the absence of a 402 hearing was not prejudicial under any standard since the record supports the applicability of section 633.5.
Notably, the record does not support defendant's assertion that the court "assum[ed] without evidence" facts establishing the applicability of section 633.5 at the in limine stage. Instead, the recordings before the court themselves support the court's determination. Specifically, the recordings portray defendant making a number of physical threats to J.F. and her family, and their content also suggests that defendant hit and/or kicked J.F. while she made them. In one recording, J.F. says directly to defendant that he, not she, is the abuser. 34
In addition, J.F.'s trial testimony establishes, rather than disproves, the existence of the preliminary fact at issue. On direct examination, J.F. testified that she did not sleep on September 8 because she feared defendant would do something to her, a belief the jury credited as reasonable given its verdict convicting defendant of violating section 422. J.F. said that she made the recordings because defendant twice had her unjustly jailed, and cross-examination revealed that J.F. had been arrested for acts of domestic violence against defendant in two states. When Hensley asked J.F. whether she thought about going to the police for help when she recorded defendant, J.F. referred back to her testimony on direct regarding the arrests, stating, "At that point in time, I was afraid because, like I had mentioned earlier, I was afraid of being arrested unfairly, um, due to his lies. You know, that the police would not believe me, and they would arrest me again." Taken in context with J.F.'s statement to defendant that he was the abuser, not she, J.F.'s testimony establishes she recorded defendant and did not call police because she was afraid the police would not believe her that defendant, not J.F., had committed domestic abuse. In light of this evidence, it is apparent that the trial court did not err in finding that section 633.5 applied, and any alleged failure to hold a 402 hearing was therefore harmless even under the standard of Chapman, supra, 386 U.S. 18, that defendant urges us to apply.
Finally, even if section 633.5 did not apply to the recordings, defendant has not established reversible error because he fails to show that he could have impeached J.F. with 35 her alleged misconduct. Citing People v. Clark (2011) 52 Cal.4th 856, 931, defendant relies on the rule that a witness may be impeached with prior conduct amounting to a felony, regardless of whether that conduct resulted in a conviction. "A witness may be impeached with any prior conduct involving moral turpitude whether or not it resulted in a felony conviction, subject to the trial court's exercise of discretion under Evidence Code section 352." (Ibid.) Moral turpitude has been described as conduct indicating bad character, a readiness to do evil or moral depravity of any kind. (People v. Lepolo (1997) 55 Cal.App.4th 85, 90.) "Whether the trial court admits evidence of past misconduct should be determined solely on the basis that that conduct evinces moral turpitude. The label is not important-the conduct is." (Id. at pp. 89-90.) Defendant does not address whether the conduct at issue involves moral turpitude anywhere in his briefing. The issue is therefore forfeited. (See, e.g., People v. Watkins (2009) 170 Cal.App.4th 1403, 1410 [argument forfeited on appeal where unsupported by relevant authorities or reasoned argument].)
Because defendant has not established that the conduct purportedly violating section 632, subdivision (a) could be used for impeachment, and because evidence in the record supports the applicability of section 633.5 to the recordings at issue, we also reject defendant's argument that Hensley rendered ineffective assistance by failing to re-raise an objection to the trial court's section 633.5 determination after J.F. testified. (People v. Mattson (1990) 50 Cal.3d 826, 876 [claim of ineffective 36 assistance based on failure to object must demonstrate not only a lack of tactical reason for the omission but also that the objection would have been meritorious had it been made].)
IV. A.B. 1950
Defendant's final contention in this appeal is that he is entitled to a reduction of his probation term to two years pursuant to A.B. 1950, which amended section 1203.1, subdivision (a) (section 1203.1(a)), by shortening the length of probation for many felony convictions to two years. The Attorney General does not dispute that A.B. 1950 constitutes ameliorative legislation applicable to cases that were not final on appeal as of its effective date, and we agree with the authorities that have so held. (People v. Quinn (2021) 59 Cal.App.5th 874, 883; People v. Schulz (2021) 66 Cal.App.5th 887, 895 [agreeing with Quinn and other decisions finding that A.B. 1950's ameliorative provisions apply retroactively under In re Estrada (1965) 63 Cal.2d 740].) The Attorney General argues, however, that defendant cannot take advantage of A.B. 1950's two-year term because subdivision (m) of section 1203.1 excepts from subdivision (a) offenses that carry specific probation lengths, and this case, involving a domestic violence victim, includes such an offense. For the reasons set forth below, we agree that defendant is not entitled to a reduction in his probation term to two years. 37
At the time of defendant's sentencing, former section 1203.1(a) applied and stated that "where the maximum possible term of the sentence is five years or less, then the period of suspension of imposition or execution of sentence may, in the discretion of the court, continue for not over five years."
A.B. 1950 amended sections 1203a and 1203.1 to restrict the length of most probation terms. (Stats. 2020, ch. 328, §§ 1 &2.) Effective January 1, 2021, misdemeanor probation terms are generally limited to one year (§ 1203a, subd. (a)), and felony probation terms are generally limited to two years (§ 1203.1(a)). Exempt from these limits are offenses that "include[ ] specific probation lengths within [their] provisions." (§§ 1203a, subd. (b), 1203.1, subd. (m)(1).)
Section 1203.097, which governs probation terms for crimes against domestic violence victims, falls within A.B. 1950's "specific probation lengths" exception and applies here. Section 1203.097 subdivision (a)(1) provides: "If a person is granted probation for a crime in which the victim is a person defined in Section 6211 of the Family Code, the terms of probation shall include . . . [¶] [a] minimum period of probation of 36 months, which may include a period of summary probation as appropriate." Thus, offenses that do not themselves carry a specific probation term, but that involve a domestic violence victim, have a specific probation term by virtue of section 1203.097. (See People v. Cates (2009) 170 Cal.App.4th 545, 547548 [conviction for felony assault by means likely to produce great bodily injury falls within section 1203.097 where the victim was a person described in Family Code section 6211].) As relevant here, "domestic violence" includes abuse perpetrated 38 against a former spouse or a cohabitant. (Fam. Code, § 6211, subds. (a), (b).) Here, the victim of defendant's criminal threat was J.F., his ex-wife and cohabitant. Defendant's felony conviction is thus for a domestic violence crime, and he is not entitled to a reduction of his probation term to two years. (§ 1203.1, subd. (m)(1).)
"(1) To intentionally or recklessly cause or attempt to cause bodily injury. "(2) Sexual assault. "(3) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another. "(4) To engage in any behavior that has been or could be enjoined pursuant to [Family Code] Section 6320." Family Code section 6203, subdivision (a) defines "abuse" to mean any of the following:
Furthermore, even if A.B. 1950's ameliorative provisions applied to defendant's felony conviction, his request for a two-year probation term would fail for the additional reason that his misdemeanor convictions carry specific probation terms of 48 months. (§ 273a, subd. (c)(1).) These misdemeanors are exempt from A.B. 1950 (§ 1203a, subd. (b)), so defendant could be ordered to serve a 48-month probation term even under A.B. 1950. (People v. Saxton (2021) 68 Cal.App.5th 428, 431 [a defendant convicted of a misdemeanor exempt from A.B. 1950 and a nonexempt felony can be ordered to serve a term of formal probation equal to the length of time specified by the exempt misdemeanor, though a probation violation can carry felony punishment consequences only during the first two years of the probationary term].)
Although defendant is not entitled to a two-year probation term, he is entitled to a slight clarification of his sentence pursuant to A.B. 1950. Where an offense falls within section 1203.1, 39 subdivision (m)(1), the period of probation "may continue for a period of time not exceeding the maximum possible term of the sentence." Here, the maximum term for defendant's section 422 conviction is three years. (§§ 18, subd. (a), 422, subd. (a), 1170, subd. (h)(1).) Thus, while defendant could be sentenced to four years of probation even under A.B. 1950 because of his misdemeanor convictions, he is entitled to a modification of the order suspending imposition of his sentence and ordering him to serve four years of probation to clarify that: (1) defendant can face felony punishment consequences for a probation violation only during the first three years of his probation term, and (2) any probation violation that occurs during the fourth year of his probation term can carry only misdemeanor consequences. (See People v. Saxton, supra, 68 Cal.App.6th at p. 431.)
Although this case is distinguishable from People v. Saxton, supra, 68 Cal.App.5th at p. 431, because the trial court here did not expressly state on the record at defendant's sentencing hearing that any probation violation that occurs during defendant's four-year probation term could carry felony punishment consequences, we nonetheless find the clarification warranted.
DISPOSITION
The trial court's order suspending imposition of sentence and ordering defendant to serve four years of formal probation, entered March 16, 2020, is modified to specify that: (1) Defendant may face felony punishment consequences for a probation violation during only the first three years of his probation term; and (2) any probation violation that occurs during the fourth year of defendant's probation term may carry 40 only misdemeanor consequences. As modified, the judgment is affirmed.
WE CONCUR: STREETER, ACTING P. J., ROSS, J. [*] 41
[*] Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.