Opinion
B296202
08-11-2020
THE PEOPLE, Plaintiff and Respondent, v. CUSTODIO ESPINOSA, Defendant and Appellant.
Laurie Wilmore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. YA093871) APPEAL from a judgment of the Superior Court of Los Angeles County, Hector M. Guzman, Judge. Affirmed in part, reversed in part, and remanded. Laurie Wilmore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Custodio Espinosa appeals from a judgment following a hearing, on remand, where the trial court declined to strike a sentencing enhancement. Defendant contends that the court erred by failing to grant his lawyer's request to be relieved as counsel and defendant's request for substitute counsel. He also contends that the court abused its discretion by not ordering a supplemental probation report and refusing to consider his rehabilitation following the initial sentencing hearing. We affirm the court's denial of counsel's motion to be relieved and defendant's motion for substitute counsel. We conclude the court did not abuse its discretion in failing to order a supplemental probation report but conclude that a remand is necessary because the court erred in refusing to consider defendant's conduct after the initial sentencing.
II. BACKGROUND
A. Initial Appeal
On October 25, 2016, following a jury trial, defendant was convicted of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) and carrying a switchblade knife on his person (§ 21510, subd. (b)). The jury found true the allegation that defendant personally used a handgun during the robbery. (§ 12022.53, subd. (b).) The trial court found true a prior serious felony conviction allegation and two prior separate prison term allegations (§§ 667, subd. (a)(1), 667.5, subd. (b)) and sentenced defendant to 27 years and six months in prison. Defendant appealed his conviction.
Further statutory references are to the Penal Code.
On May 16, 2018, we issued our opinion and struck one of defendant's prior separate prison term enhancements pursuant to section 667.5, subdivision (b). (People v. Espinosa (May 16, 2018, B281664) [nonpub. opn.].) We remanded for the trial court to consider whether to exercise its discretion to strike the firearm enhancement pursuant to newly enacted Senate Bill No. 620. (Stats. 2017, ch. 682, § 2.) We otherwise affirmed the judgment.
On January 1, 2019, following the issuance of the remittitur, Senate Bill No. 1393, which amended sections 667 and 1385 to provide trial courts discretion to strike a prior serious felony enhancement, became effective. (Stats. 2018, ch. 1013, §§ 1, 2.) B. Request to be Relieved as Counsel and Marsden Hearing
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
On January 24, 2019, after the remittitur issued, defendant, his appointed counsel, and the prosecutor appeared for a hearing. At the outset of the hearing, defense counsel advised the court that a conflict had arisen between him and defendant based on defendant's stated intention to file a claim of ineffective assistance of counsel. Counsel requested to be relieved.
The judge who had presided over the trial and initial sentencing had retired and a different judge presided over the hearing on remand.
The trial court denied counsel's request. It added, "Now, if your client is asking for a Marsden motion, I can entertain that, and we can discuss it further during that motion, and I can make a ruling on that . . . ."
Defense counsel responded, in part, "Well, if the court is not inclined to accept my representation that there's indeed a conflict, [defendant] would certainly want a Marsden motion."
The court then excused everyone from the courtroom except defendant and counsel.
During the Marsden hearing, defendant contended that trial counsel was ineffective because he did not prepare a "resentencing package" and did not request that the court order a supplemental probation report. Defendant then asked the court whether it "would . . . like to hear about the trial?" The court responded "No." And then it added, "Unless there's something specific about that that relates to these proceedings." When defendant began to respond, the court interjected, "[B]efore you move onto that, was there anything else between the time of your sentencing and today that you think [counsel] either [has or] has not done to properly represent you . . . ?" Defendant claimed that his counsel was unaware of recent changes to the law regarding prior serious felony enhancements, which the court interpreted as a reference to Senate Bill No. 1393.
The trial court responded to defendant's complaints about his counsel by noting that defendant's conduct and progress in prison, although commendable, made no difference to the court on remand. Further, the court observed that "[o]rdering a supplemental probation report is of no assistance to this court on the issues at hand, that is, whether to utilize its discretion under [section] 1385 to stay or strike the sentence on the gun enhancement or the prior conviction." And, as to Senate Bill No. 1393, the court reassured defendant that he would get the benefit of the new law in that the court would consider whether to exercise its discretion to strike the prior serious felony enhancement.
The trial court asked defendant, "Was there anything else that you wanted to add?" Defendant repeated that he and counsel had a conflict based on his intent to file an ineffective assistance of counsel claim. When the court asked, "Anything further?", defendant responded, "That's it, Your Honor."
The trial court then asked counsel whether he could ably represent defendant and counsel responded that he could. Counsel explained that the reason he had not prepared a "sentencing packet" was that counsel anticipated declaring a conflict. Counsel further indicated that if he was not relieved as counsel, he would request a continuance so that he could prepare additional submissions for the court.
The trial court denied defendant's Marsden motion.
After the prosecutor re-entered the courtroom, the trial court granted defendant's request to continue the hearing to February 4, 2019. C. Hearing
Defense counsel then filed a motion to strike the firearm and prior serious felony enhancements, a memorandum of points and authorities, and exhibits A through X, comprised of letters in support, records of defendant's participation in various programs, education progress reports, and other prison records.
Defense counsel argued that the trial court should exercise its discretion to strike the sentencing enhancements because the documents attached to defendant's motion demonstrated that defendant had, while most recently incarcerated, worked on his attitude and education and had tried to improve himself spiritually and physically. Counsel further argued that the facts underlying the conviction supported an exercise of discretion in defendant's favor.
The court then asked the prosecutor whether "[it] should . . . consider things that occurred after the sentencing?" The prosecutor stated that it would not be "appropriate" to do so.
After the parties argued their positions, the trial court stated that it would consider factors that arose after defendant committed his crime, but would not consider information "that is provided to the court . . . after sentencing."
The trial court cited remorse as an example of evidence that the court could consider. But the court noted that "I could not find any evidence of remorse in this case prior to sentencing." As to defendant's conduct following the initial sentencing, the court noted that although such conduct was "commendable—and I have reviewed all the documentation that [defense counsel] gave me—that is, in this court's opinion, not relevant . . . on the issue of whether it would utilize [its] discretion [to strike the sentencing enhancements]."
The trial court described defendant as "a danger to society—and I'm going back to the sentencing date." The court also agreed with the prior trial court's description of defendant as "a very, very dangerous individual," and stated that there "is a risk every day he remains free." The court then declined to strike the firearm and prior serious felony enhancements.
III. DISCUSSION
A. Section 1385
Section 1385, subdivision (a) provides: "The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal shall be stated orally on the record. The court shall also set forth the reasons in an order entered upon the minutes if requested by either party or in any case in which the proceedings are not being recorded electronically or reported by a court reporter. A dismissal shall not be made for any cause that would be ground of demurrer to the accusatory pleading."
"The standard for appellate review of a decision to dismiss charges or allegations in the furtherance of justice is whether the trial court abused its discretion in making that decision." (People v. S.M. (2017) 9 Cal.App.5th 210, 218.) "[I]n considering whether the furtherance of justice is served by dismissal under section 1385, . . . 'preponderant weight must be accorded to factors intrinsic to the scheme, such as the nature and circumstances of the defendant's present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects.'" (Id. at p. 220; see People v. Pearson (2019) 38 Cal.App.5th 112, 117 (Pearson) [trial court exercising discretion under section 1385 whether to strike firearm enhancement should consider factors listed at rules 4.410, 4.421, and 4.423 of Cal. Rules of Court]; see also People v. Williams (1998) 17 Cal.4th 148, 160-161 [section 1385's concept of "'furtherance of justice'" must be defined within the bounds of the statutory scheme at issue in a case].) B. Supplemental Probation Report
Defendant contends the trial court abused its discretion by failing to order a supplemental probation report. Where, as here, a defendant is ineligible for probation, the court is not required to order a probation report but may exercise its discretion to do so. (See § 1203, subd. (g).) Further, while courts have repeatedly expressed a preference for the ordering of supplemental probation reports (see, e.g., People v. Tatlis (1991) 230 Cal.App.3d 1266, 1273; People v. Bullock (1994) 26 Cal.App.4th 985, 990), a court does not abuse its discretion if it obtains additional mitigating evidence by other means (see, e.g., People v. Llamas (1998) 67 Cal.App.4th 35, 40 [finding no abuse of discretion when a trial court refused to order a supplemental probation report, in part, because mitigating evidence was introduced by defendant's petition and at hearing]). Here, defense counsel submitted voluminous exhibits that described defendant's post-sentencing conduct. Thus, the court obtained mitigating evidence through other means and did not abuse its discretion in failing to order a supplemental probation report. We express no opinion on whether it would be an abuse of discretion for the court to fail to order a supplemental probation report on further remand. C. Counsel's Request to be Relieved and Marsden Hearing
Rule 4.411(a)(2) of the California Rules of Court provides: "(a) . . . As provided in subdivision (b), the court must refer the case to the probation officer for: [¶] . . . [¶] (2) A supplemental report if a significant period of time has passed since the original report was prepared." Despite the mandatory language, Courts of Appeal have concluded a supplemental probation report is mandatory only for defendants who are eligible for probation. (People v. Franco (2014) 232 Cal.App.4th 831, 834; People v. Dobbins (2005) 127 Cal.App.4th 176, 180.)
"Nothing in the record suggests the trial court incorrectly believed it could not order a supplemental record if it wanted to do so." (People v. Franco, supra, 232 Cal.App.4th at p. 835, fn. 22.)
Defendant also contends the trial court erred by failing to relieve his counsel despite counsel having advised the court of a purported conflict of interest. We review a court's denial of counsel's request to withdraw for an abuse of discretion. (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133; People v. Kerfoot (1960) 184 Cal.App.2d 622, 682.)
A defendant has a right, under both the federal and state constitutions, to the assistance of counsel who does not labor "'under a conflict of interest that compromise[s] his or her loyalty to the defendant.' [Citation.] 'As a general proposition, such conflicts "embrace all situations in which an attorney's loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or his own interests. [Citation.]"'" (People v. Doolin (2009) 45 Cal.4th 390, 417.)
"In order to demonstrate a violation of the federal and state [c]onstitutions based on a conflict of interest, a defendant must show that his or her counsel was burdened by an 'actual' conflict of interest—one that in fact adversely affected counsel's performance. [Citation.] When determining whether counsel's performance was '"adversely affected"' by the purported conflict under this standard, we consider whether '"counsel 'pulled his punches,' i.e., whether counsel failed to represent defendant as vigorously as he might have, had there been no conflict."'" (People v. Perez (2018) 4 Cal.5th 421, 435.)
Here, defendant contends that his trial counsel labored under a conflict of interest because defendant intended to file, and later did file, a petition alleging ineffective assistance of counsel. Contrary to defendant's contention, "[t]he trial court need not 'accept a sweeping claim of conflict and "rubber stamp" counsel's request to withdraw.'" (Manfredi & Levine v. Superior Court, supra, 66 Cal.App.4th at p. 1134; Aceves v. Superior Court (1996) 51 Cal.App.4th 584, 592.) Moreover, that defendant later filed an ineffective assistance of counsel claim does not establish, on its own, the existence of an actual conflict. "Although being named as a defendant in a collateral lawsuit by one's client may place an attorney in a situation in which his or her loyalties are divided [citation], a criminal defendant's decision to file such an action against appointed counsel does not require disqualification unless the circumstances demonstrate an actual conflict of interest." (People v. Horton (1995) 11 Cal.4th 1068, 1106 [discussing defendant's filing of malpractice action against defense counsel].)
On November 25, 2019, defendant filed a petition for a writ of habeas corpus, claiming that his counsel was ineffective. On January 3, 2020, a panel of this court denied the petition, concluding that defendant failed to establish a prima facie case that but for the alleged errors, the outcome of his trial and/or his appeal would have been different.
Even assuming counsel labored under a potential conflict, defendant cannot demonstrate that counsel "pulled his punches." Defendant complains that his counsel was ineffective in "fail[ing] to object to the trial court's incorrect belief that [defendant] had expressed no remorse at his initial sentencing" when defendant had expressed remorse at his initial sentencing hearing. Defendant has mischaracterized the court's statement, which was, "I could not find any evidence of remorse in this case prior to sentencing" (italics added), which implicitly acknowledged the existence of such remorse at sentencing. Further, defendant's complaint that counsel should have supported his request for the court to consider post-sentencing rehabilitation with specific citations to authorities is meritless. "Competent counsel is not required to make all conceivable motions or to leave an exhaustive paper trail for the sake of the record." (People v. Freeman (1994) 8 Cal.4th 450, 509.)
Trial counsel, upon having his request to be relieved denied, successfully sought a continuance, submitted a motion to strike the sentencing enhancements supported by voluminous evidence, and argued that various mitigating circumstances supported the trial court's exercise of discretion in defendant's favor. We conclude that defendant's trial counsel's performance was not adversely affected by any purported conflict.
We also reject defendant's alternative argument that the trial court conducted an inadequate inquiry at the Marsden hearing. "'When a defendant seeks substitution of appointed counsel pursuant to . . . Marsden, supra, 2 Cal.3d 118, "the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel 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."' [Citation.] . . . [¶] "'We review the denial of a Marsden motion for abuse of discretion.' [Citation.] 'Denial is not an abuse of discretion "unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel."'" (People v. Streeter (2012) 54 Cal.4th 205, 230.)
Defendant's contention that the trial court conducted an inadequate inquiry by purportedly refusing to consider what happened at trial is meritless. At the hearing, defendant asked, "Would you like to hear about the trial?" The court responded, "No[,]" but then immediately added, "Unless there's something specific about that that relates to these proceedings." The court then provided defendant with an opportunity to explain why he believed trial counsel's representation was inadequate; and after defendant finished speaking, asked, "Anything further?" Defendant responded, "That's it, Your Honor." Thus, defendant was adequately permitted to explain his reasons for seeking substitution of counsel. Further, as we discussed above, the failure to replace counsel did not "'"substantially impair the defendant's right to assistance of counsel."'" (People v. Streeter, supra, 54 Cal.4th at p. 230.) The court did not abuse its discretion in denying defendant's Marsden motion. D. Post-Sentence Rehabilitative Evidence as Mitigating Factor
Defendant also contends that the trial court erred by refusing to consider evidence of his post-sentence rehabilitation. The Attorney General counters that defendant's post-sentence conduct was immaterial to the court's consideration of whether to strike the sentencing enhancements and cites Pearson, supra, 38 Cal.App.5th 112 in support. Defendant has the better argument.
Although a court, in considering whether to exercise its discretion in defendant's favor on a limited remand, need not conduct a full resentencing hearing, a defendant is entitled to "a full and fair opportunity to marshal and present the case supporting a favorable exercise of discretion." (People v. Rodriguez (1998) 17 Cal.4th 253, 258.) Indeed, in Pearson, supra, 38 Cal.App.5th 112, the court held that: "The factors that the trial court must consider when determining whether to strike a firearm enhancement under section 12022.53, subdivision (h) are the same factors the trial court must consider when handing down a sentence in the first instance." (Pearson, supra, 38 Cal.App.5th at p. 117.) Thus, Pearson supports the proposition that, on remand, a trial court should consider the same factors a court would consider at an initial sentencing. But Pearson does not impose a temporal limitation on the information a court may consider. To the contrary, "[t]he scope of information a sentencing court may consider is very broad, and includes the circumstances surrounding the crime and facts relating to the defendant which are not directly connected to commission of the crime for which he is being sentenced." (People v. Stanley (1984) 161 Cal.App.3d 144, 150; see People v. Guevara (1979) 88 Cal.App.3d 86, 93 ["'Circumstances' [in aggravation or mitigation] include 'practically everything which has a legitimate bearing' on the matter in issue"]; Cal. Rules of Court, rule 4.423(c) [mitigating sentencing factors include "[a]ny other factors statutorily declared to be circumstances in mitigation or that reasonably relate to the defendant or the circumstances under which the crime was committed" (italics added)].)
Thus, the trial court was mistaken in its understanding that it could not consider defendant's post-sentencing conduct. "'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
The Attorney General alternatively argues that even if the trial court abused its discretion, "remand is not necessary because the record shows that the trial court clearly indicated it would not have dismissed any of the enhancements." We disagree. While it is true that the court described defendant as a "very, very, dangerous individual," the court hedged its comment by limiting the basis for it to information "going back to the sentencing date." This record does not "clearly indicate" that the court would have declined to strike the firearm or prior serious felony enhancements had it known that it was permitted to consider defendant's post-sentencing conduct. (People v. Chavez (2018) 22 Cal.App.5th 663, 713 [remanding for resentencing under Senate Bill No. 620 where record did not "clearly indicate" that the trial court would have declined to strike firearm enhancement].) We therefore remand for the court to consider the full scope of its discretion whether to strike the sentencing enhancements.
IV. DISPOSITION
The orders denying counsel's request to be relieved and defendant's request to substitute trial counsel are affirmed. The judgment is vacated and remanded so that the court may consider whether to exercise its discretion to strike the firearm (§ 12022.53, subd. (b)) and prior serious felony (§ 667, subd. (a)(1)) enhancements in accordance with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.