Opinion
C071383
10-24-2017
THE PEOPLE, Plaintiff and Respondent, v. CHESTER LEON HARRIS, JR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 11F2994)
A jury found defendant Chester Leon Harris, Jr., guilty on two counts of committing a lewd act on a 14-year-old child (Pen. Code, § 288, subd. (c)(1); counts 4 & 5) and two counts of unlawful sexual intercourse with a minor (§ 261.5, subd. (d); counts 7 & 8), his stepdaughter. Nearly two months after the trial, Eric Alan Berg of Eric Alan Berg & Associates, Inc., filed a motion seeking a court appointment at the county's expense at his "customary hourly billing rate" to represent defendant post-conviction, claiming that defendant did not have funds to retain him. Berg had initially represented defendant in the case, prior to the appointment of the public defender. After the post-trial motion for court appointment was denied, defendant substituted in Berg as retained counsel in place of the public defender. Thereafter, Berg filed a motion for continuance "to investigate and bring to light" ineffective assistance of appointed trial counsel and prosecutorial misconduct as grounds for a motion for new trial. Berg scheduled the hearing on the continuance motion for the same day as the sentencing hearing. On that day, an associate of Berg, Keith C. Cope, appeared in court, expressed reluctance to proceed, and informed the court that Berg was in another court elsewhere. Before finally excusing the public defender, the judge tentatively denied a continuance and ascertained from defendant and Cope that retained counsel would represent defendant even if the court denied the continuance. Cope confirmed this after speaking with Berg over the phone. The trial court heard oral argument, denied a continuance, and proceeded with sentencing and pronouncement of judgment over Cope's objection that he was ignorant of the case and unprepared. Defendant was sentenced to an aggregate term of five years four months.
Undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.
Defendant asserts that the trial court abused its discretion when it denied his continuance motion. At our request, the parties filed supplemental briefing on a sentencing matter related to the lewd act convictions and section 654.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Pretrial Procedural History
An initial complaint charged defendant with various sex offenses against a 14-year-old child. At the arraignment on May 25, 2011, the trial court appointed deputy public defender, James Richardson, to represent defendant.
On June 7, 2011, Berg's associate, Mr. Cope, appeared in court and said Berg & Associates had been retained, and the court therefore relieved the public defender. The preliminary hearing was set for July 12, 2011.
On July 1, 2011, Mr. Cope filed a motion for continuance of the July 12th preliminary hearing on the ground that Mr. Berg had a conflict. Cope's declaration attested the conflict was with a preliminary hearing in a different case, which had been on the calendar since May 17, 2011, and Cope was informed and believed that each client wanted Berg's personal attendance. Cope offered no reason why Berg & Associates waited 21 days to seek a continuance on the ground of a conflict that should have been immediately apparent to them when the preliminary hearing was originally calendared on June 7, 2011. The prosecution filed a written opposition to the continuance, noting that the case was entitled to calendar preference under section 1048, subdivision (b), because the victim was then 15 years old. The prosecution further asserted that the prior preliminary hearing date had been rescheduled once because Berg was in trial on another case. The trial court maintained the July 12 preliminary hearing date, but noted the case might not go forward.
The prosecution noted that although the case was yet to have a preliminary hearing, "technically" the trial should have commenced on June 25, 2011, under section 1048, subdivision (b), which requires that the trial commence within 30 days after arraignment unless there is good cause.
On the morning of July 12, 2011, Cope appeared and requested a continuance, advising the court that the prosecutor was providing new discovery that day. The trial court continued the matter to July 13, 2011. On July 13, 2011, Berg appeared and waived the preliminary hearing, conditioned upon the prosecutor leaving a settlement offer open for six weeks after arraignment. The prosecutor was allowed to file an information, with arraignment scheduled for July 26, 2011.
On July 14, 2011, the prosecution filed a motion to obtain blood samples from defendant.
On July 15, 2011, the prosecution filed an information alleging six counts of sex offenses.
On July 26, 2011, Berg appeared at the arraignment and obtained a continuance in order "to be retained."
On July 27, 2011, Berg filed opposition to the prosecution's motion for blood samples, and requested a continuance of the hearing on the motion.
On August 2, 2011, Berg appeared in court with defendant, and the court granted the continuance to August 9, 2011, for arraignment on the information.
The court minutes for August 9, 2011, indicate "Berg still not retained." Berg did not appear on this date either. The minutes reflect that someone with the last name of Coston was standing in for Berg on that day. The trial court re-appointed public defender Richardson.
On February 24, 2012, the prosecutor filed the first amended information alleging the following eight counts involving the same victim:
Count 1: Forcible rape of the victim between October 1 and December 31, 2010 (§ 261, subd. (a)(2));
Count 2: Genital penetration by foreign object, a finger, between October 1 and December 31, 2010 (§ 289, subd. (a)(1)(C));
Count 3: Forcible rape between October 1 and December 31, 2010 (§ 261, subd. (a)(2));
Count 4: Lewd act upon a child under 14 and at least 10 years younger than defendant, between January 1, 2010, and December 31, 2010 (§ 288, subd. (c)(1));
The proposed information specified the act as "victim's hand on defendant's penis in the living room first time," but, on the prosecutor's motion, the trial court struck this language. (Capitalization omitted.)
Count 5: Lewd act upon a child under 14 and at least 10 years younger than defendant between January 1 and December 31, 2010 (§ 288, subd. (c)(1));
At the prosecutor's request, the court struck the words "victim's hand on defendant's penis in the living room last time." (Capitalization omitted.)
Count 6: Lewd act upon a child under 14 and at least 10 years younger than defendant between January 1 and December 31, 2010 (§ 288, subd. (c)(1));
The court struck the words "victim's hand on defendant's penis in the car." (Capitalization omitted.)
Count 7: Unlawful sexual intercourse with a minor under age 16 between October 1 and December 31, 2010 (§ 261.5, subd. (d)); and
Count 8: Unlawful sexual intercourse with a minor under age 16 between October 1 and December 31, 2010 (§ 261.5, subd. (d)).
The Jury Trial
Defendant was represented by public defender Richardson throughout his jury trial.
Prosecution's Case-in-Chief
Defendant lived with his girlfriend and her children, including the victim, who saw defendant as a stepfather figure. The victim testified that, when she was 14 years old, defendant called her into a room where he was sitting on a couch. He removed a pillow from his lap, exposing his erect penis. He grabbed her hand and had her masturbate him until he ejaculated. She then returned to the other room. She did not tell her mother. The victim testified that the same thing happened five or six times and she did not perform these acts voluntarily. She did them because she was scared of defendant. She was scared of him because she witnessed him being violent towards her mother, pushing her mother's head through a window. Contrary to her statement to police, the victim at trial denied ever masturbating defendant in a vehicle on their way to a Sonic in Anderson.
The victim also testified defendant had sexual intercourse with her twice. On the first occasion, defendant called the victim into the bedroom he shared with her mother. Her mother was in the adjoining bathroom taking a shower. Defendant was lying on the floor and made the victim sit on top of him. He exposed his penis, moved her shorts and underwear to one side, and inserted his penis into her vagina. He grabbed her hips and moved them. She started crying. When the sound of the shower stopped, defendant pushed the victim off of him and told her not to say anything. The victim testified she had never had intercourse before this incident. Contrary to her statement to police, the victim testified defendant did not insert his finger into her vagina during this incident.
The victim was inconsistent as to the date of the first incident. She testified that she thought the first incident happened during the summer before her freshman year in high school, but acknowledged that she told a police officer that it occurred in November 2010. She explained she is not good with dates.
The second sexual intercourse incident happened a few weeks later. Defendant sent the victim a text message that he was going to come to her room that night and she should leave the door open. She responded asking him not to. He nevertheless entered her room that night, woke her up, unzipped his pants, and took out his penis. He removed the bed covers and her clothes, pulled her to the side of the bed so her legs were off the bed, and put his penis in her vagina. The victim was scared and cried.
Defendant told the victim not to tell anyone about these incidents or she would lose her mother and brothers.
After the second incident of intercourse, the victim ran away from home twice because she did not know how to handle the situation. In May 2011, after the victim returned home the second time, she and her mother were watching a television show called Intervention, in which the topic of rape came up. The victim's mother said children do not run away unless something is wrong and asked if anyone had touched the victim inappropriately. The mother began listing names of people they knew. The victim nodded when the mother said defendant's name. The mother called the police.
A police officer testified he interviewed the victim, who described the incidents of sexual abuse to him. The victim also said that on one occasion in a van on the way to a Sonic, defendant had her give him a "hand job," which she described as defendant putting her hand on his penis and moving it up and down until white stuff came out. She also told police that defendant inserted his finger in her vagina before inserting his penis during the sexual intercourse incident in her mother's room. The officer believed the victim said the first incident of intercourse was in November 2010.
The jury heard audio taped pretext telephone calls from the victim, in the presence of a police detective, to defendant. The victim began the first call by telling defendant that her mother was asking questions about why she ran away, and the victim had been blaming it on her mother, but mostly it was due to the victim's anger at defendant for taking her virginity and making her touch his penis, and she was thinking about telling her mother. Defendant said, "Wow," and "Let me call you right back." When the conversation resumed, defendant said, "[P]ut your mom on the phone 'cause I know she's sittin' there." The victim said her mother was not there. Defendant said he did not understand where all this was coming from all of a sudden, and it was "bullshit." He hung up. The detective who was with the victim instructed her to text the defendant and threaten to tell her mother. The phone conversation resumed. Defendant accused the victim of "tryin' to catch [him] up on the phone" and called the accusation "crazy and untrue." The victim told defendant that having sex with her was not right and defendant said, "[I]f that happened then yes you're right it wouldn't be right." When defendant asked the victim where she was, she told him the location the police had told her to give and he asked her to call him back in ten minutes.
When the call resumed, defendant pressed the victim to disclose her location and she told defendant she would call him back. Before she hung up, defendant admonished her to "tell the truth."
When the conversation resumed, defendant asked the victim if she wanted him to tell her his location so the police could come pick him up. She said she was not asking for that. She told him she just did not want to be called a liar and what happened was wrong. Defendant said, "No one is saying that if that happened it wasn't wrong," and again asked if she wanted him to give his location so the police could come get him. She said she just wanted to talk about it, but if he was going to deny it, she would tell her mother. Defendant said, "[W]e talked about whatever it is that you're talkin' about a year ago." The victim told defendant, "[E]very night I think about it and it's not right." Defendant questioned why she still spent time with him alone and stated, "[I]t hasn't even been an issue. I haven't even looked at you or touched you in any kinda way." The victim said it bothered her that defendant said it did not happen. He responded, "Hold on. A year ago if we held this conversation I'm not sayin' nothin'." The victim asked if defendant was saying it did not happen. He said, "I'm not denying or I'm not admitting anything right now on the phone while I'm sitting here being set up." When she said she was not setting him up, defendant said he was not stupid. He apparently hung up the phone.
When the phone conversation resumed once more, defendant asked what the victim wanted from him. She said she did not know; she acknowledged that what happened was a year ago, but said she and her mother had been watching Intervention on television, and the girl said she became a drug addict because a man raped her. The victim said she did not want the same to happen to her. Defendant responded, "I told you before when it's not [sic], I would never come at you like that again. Okay? It was wrong, was a mistake." The victim asked if defendant loved her like a girlfriend; he said no. The victim asked, "[T]hen why, why did we have sex?" Defendant said, "[I]f you want me to tell you all this stuff I'll tell it all to you in front of the police if that's what you're gonna do. But don't do it over the phone and make me feel stupid." She said that was not what she wanted to do and told defendant she wanted to give him a chance to talk to her about it before they went to the police, because that was not what she wanted to do. Defendant responded, "[T]hings got weird. Okay? It got confused, cloudy, at one point in time. I hate myself for what happened. Okay?" He asked, "[I]s that all you what needed?" and followed up with, "So is that all the police needed just now?" She said she was not with the police, nor was she with her mother.
Defendant questioned, "[H]ow come you couldn't talk to me about this earlier or whenever?" He then said, "I mean 'cause remember when, you thought I was talkin' about something and then I told you back then, I told you in, in when you told me in the kitchen about it. I said I feel bad. I told you that." The victim said she was talking to defendant about it because it was in her head, and defendant asked if she wanted him to say where he was so the police could come get him. She said no.
The victim's mother testified that in 2004, the defendant shoved her head into the back of the couch, picked her up, threw her to the floor where she hit her head on a brick fireplace, chased her down the hallway, and pushed her head through a glass window. The victim witnessed this episode. The children were screaming, trying to stop the assault. The police were called and the victim was interviewed by the responding officer. The responding officer testified that the victim told him that she saw defendant push her mother's head against a glass window, breaking the window. The parties stipulated that on October 21, 2004, defendant sustained a conviction of section 243, subdivision (e), "battery on a noncohabitating individual," as a result of this incident. In addition to this prior incident, the victim testified that defendant becomes very angry and argumentative with her mother and it scares her.
The jury also heard evidence that defendant was caught shoplifting women's panties in August 2010 and said he did it because he was unemployed and his daughter needed clothes for school.
Defense Evidence
The defense called as a witness a police officer who testified the victim said the first incident of intercourse was around January 2010, and the second act of intercourse was perhaps November 2010.
The defense also called as a witness a female friend of the victim, who was 16 at the time of trial. She testified that defendant used to drive her and the victim to school and defendant seemed to have a good relationship with the victim. On cross-examination, the friend also testified the victim once said she was afraid of defendant because of his fight with her mother and once said she hated defendant. The friend also testified that the victim also told her defendant had raped her.
Defendant's son, who was 15 years old and living in Texas at the time of trial, testified that when he was eight years old and the victim was nine, he lived with defendant and the victim's family in Stockton. Defendant's son shared a room with the victim and one of her brothers; the boys slept on the bottom bunk and the victim slept on the top bunk. Almost every night, after her brother fell asleep, the victim got into the bottom bunk, removed the pajama bottoms and underwear of defendant's son, and got on his lap. About three times a week, she put his penis inside of her although his penis never became erect. Defendant's son also testified that the victim masturbated him with her hand every day. He told her to stop but she did not stop. When asked on cross-examination how his penis went inside the victim's vagina if he never got an erection, the son replied, "Because she put it in there," but then he said it was possible she just rubbed his penis against her vagina, and that it was possible that his penis never went inside of the victim's vagina. He testified that the victim's brother never woke up during any of these incidents and he never told him about them. Defendant's son testified he told the victim's mother about these incidents, and she told him that if he told anyone, she would kill him. He testified that this scared him. He further testified that he did not tell defendant because defendant was always out and when he was with defendant, other family members were always around. The boy later told his mother, who called child protective services, who interviewed the boy, but he denied that the incidents with the victim occurred because he was afraid of the victim's mother. On cross-examination, defendant's son admitted he was angry with the victim for accusing his father of rape and did not want his father to get into trouble.
Defendant testified and denied any sexual conduct with the victim. He claimed the incident in his bedroom while his wife was in the shower could not have happened because, according to him, he always showered with his wife in order to assist her because she was disabled. Defendant claimed the incidents described by the victim were not possible because the boys were always home playing games in the other room, and the headboard in the victim's bedroom moves anytime the bed moves and would have banged against the wall if they had sexual intercourse on that bed. He denied sending the victim text messages, claiming he had no access to a cell phone until the latter part of 2010.
Defendant testified that, on the morning of the day of the pretext call, the victim was upset with him because he would not allow her to go on a camping trip with a friend because she had run away from home. He had told her that it was his job to make sure she did not end up like her mother. Defendant testified that the victim's mother had a "problem with authority," did not graduate from high school, and had three children with three different men. Defendant testified that a year before the conversation on the morning of the pretext calls, he had made a similar statement to the victim and she told him she did not like to be compared to her mother. During the argument on the morning of the pretext calls, the victim referred to the earlier conversation and again said she did not like to be compared to her mother. Defendant also testified that he previously admonished the victim for sending pictures of herself to a boy after the pictures "[got] out." After they rectified that problem, defendant told the victim he had to be "more strict" on her. Defendant claimed the victim ran away because her mother was addicted to medication and physically and mentally abused the victim, not because of anything he did to her. Defendant interviewed with the police, but testified he did not tell them everything he told the jury, because he had been upset and in handcuffs.
Regarding the pretext calls, defendant testified that when he said during the call, " 'It's been almost a year,' " he was referring to the argument he had with the victim a year earlier. When the victim said, " 'I don't want to be touched sexually anymore,' " defendant said he thought the victim was "lashing out" at him because of the argument they had that morning. He said, "I was clarifying that she didn't have to do this. It was unnecessary. She was lashing out at me. That's what I thought." He testified there was no other explanation for her saying she did not want to be touched sexually anymore. He said the victim needed him out of the house so she could get her way. According to defendant, with him out of the picture, the victim would no longer be held accountable and could "basically manipulate and maneuver around the house free at will."
When confronted with his interview with police in which he repeatedly referred to an incident that he said occurred in 2009 when the victim "came on to" him and kissed him, defendant said he mentioned that because he wanted to make clear that was the only thing that happened between the victim and him. According to defendant, the victim came into defendant's bedroom, crawled up on his bed, laid her head on his chest and kissed him. Defendant was upset at the time because the victim's mother had run off with another guy.
Regarding his statement during the pretext call about hating himself, defendant said, "I hated myself for the reason before -- it getting to that point where she was calling me like this. I did. I hated myself for that. She had to be going through something." Defendant was asked about his statement where he said, " '[T]hings got weird. It got confused, cloudy at one point in time. I hate myself for what happened. '" Again, defendant said he was referring to arguments that had taken place between the two of them, even though the only thing the victim referred to during the call was defendant touching her sexually.
Defendant testified that when he said during the call that he "wouldn't come at her like that" again, he was referring to comparing the victim to her mother. He said the victim was still upset about that a year later because he had said that again to her that morning, and, in addition, she was upset because he would not let her go on the camping trip.
Defendant was asked about his statement during the call, " 'I told you before, when it's not -- I'll never come at you like that again. Okay? It was wrong. It was a mistake.' " Initially, he said he did not remember making that statement in response to the victim telling him that she had disclosed his conduct to her mother while watching a television show about an intervention and explaining she did not want to end up a drug addict like the girl on the show who had been raped. After reading the transcript, defendant testified that he then remembered having made that statement. But he claimed he was not "even listening at that point to what she was talking about." He said, "I was still talking about the argument we had that morning. It -- I knew that's what this was about. I knew that she was mad at me. I knew she was mad because she couldn't go on the trip. That's all I was talking to. I didn't hear nothing else she had to say about me doing anything with her."
Defendant admitted he was convicted of misdemeanor domestic violence in 2004, petty theft from Kohl's, and felony forgery in 2007. He said he stole from Kohl's because the victim needed the panties and they had no money.
Prosecution's Rebuttal Evidence
The victim testified she was never upset at defendant for accusing her of being like her mother. She said her mother showered with defendant, but also sometimes showered alone. Defendant's son lived with her for a short time when she was nine years old. She, her brother, and defendant's son slept in the same room at the time. She denied ever getting in bed with defendant's son or doing anything sexual with him.
The Verdicts
On March 16, 2012, the jury returned its verdicts, finding defendant not guilty on count 2, genital penetration by foreign object (§ 289, subd. (a)(1)(C)), but guilty on counts 4 and 5, lewd acts (§ 288, subd. (c)(1)), and counts 7 and 8, unlawful sexual intercourse (§ 261.5, subd. (d)). The jury was unable to reach a verdict on the two counts of forcible rape charged in counts 1 and 3, and one count of lewd acts charged in count 6. As to the counts upon which the jury was unable to agree, the trial court declared a mistrial.
Post-Trial Proceedings before Sentencing
After taking the verdicts and dismissing the counts on which the jury deadlocked, the trial court set a date of judgment and sentence. In doing so, the court stated, "Keep in mind this is the date for any post-trial motions as well as for any 1204 hearing." The parties agreed on the date of May 1, 2012.
Section 1204 permits the parties to introduce evidence and call witnesses relevant to the issue of aggravating and mitigating circumstances.
On April 11, 2012, Richardson filed a motion for a continuance of the sentencing hearing on behalf of defendant in order to obtain letters from defendant's family and friends about his good character.
A probation report was filed on April 18, 2012.
On April 25, 2012, the trial court granted a continuance of the sentencing hearing to May 21, 2012. In granting the continuance, the trial court told the parties, "The Court is granting the request for a continuance. It is a brief continuance, and the Court wants to assure that there are no issues post judgment and sentencing that could be raised because we did not continue the matter for two weeks."
On May 11, 2012, defendant filed an "ex parte sealed motion to relieve defense counsel James Richardson and to appoint new counsel," Eric Alan Berg, at the county's expense citing section 987.2. (Boldface & capitalization omitted.) Although the motion quoted a statute authorizing such appointment where the public defender has refused to represent the defendant, the motion did not assert or show that the public defender had refused to continue representing defendant. Instead, the memorandum of points and authorities asserted that Berg "has vast knowledge of the particulars of [defendant's] case. Large amounts of time have been spent by the undersigned law firm in preparing this case for preliminary hearing and for trial. Numerous witnesses have been interviewed extensively, which have been reviewed by Mr. Berg. Mr. Berg has worked closely with his private investigator . . . in preparation for [defendant]'s trial and spent a good deal of time reviewing all the materials the investigator . . . has prepared.
Section 987.2 provides in pertinent part: "(a) In any case in which a person . . . desires but is unable to employ counsel, and in which counsel is assigned in the superior court to represent the person in a criminal trial, proceeding, or appeal, the . . . assigned counsel shall receive a reasonable sum . . . to be paid out of the general fund of the county: [¶] . . . [¶] (3) In a case in which the court finds that, because of a conflict of interest or other reasons, the public defender has properly refused." (§ 987.2, subd. (a)(3), italics added.)
"In fact, the undersigned law firm has expended many attorney hours in preparation for the trial in this matter. This does not include the additional hours in staff time invested in this matter.
"If this court were to appoint Eric Alan Berg rather than a public defender, no unusual or excessive costs will be incurred by the appointment of defendant's present trial counsel in this case. This is so because the work has already been done in preparation for trial of this case. There would, of course, be additional preparation and litigation of pretrial motions and preparation for trial; however, Mr. Berg and his staff working on [defendant]'s case has vast knowledge of the case."
Notably, while Berg mentioned his intention to file a motion for new trial in the declaration we discuss post, neither the memorandum of points and authorities nor the declaration asserted the motion would require additional time.
The memorandum of points and authorities also said that if Berg were not appointed, another lawyer "would necessarily replicate and greatly increase the work involved in preparing for a motion for a new trial, thus eliminating any financial savings to the county." Berg requested appointment at a rate of $395 per hour, his "customary hourly billing rate."
In support of the ex parte motion to substitute Berg as appointed counsel and to be paid at the county's expense, Berg submitted a declaration dated May 10th, which attested as follows:
"1. I have met with [defendant] last week and I am informed and believe my investigator . . . met with [defendant] on May 9, 2012.
"2. I am informed and believe the defendant . . . has discussed with his attorney Mr. Richardson making a motion for a new trial due to ineffective assistance of his counsel, Mr. Richardson.
"3. I am aware of many of the grounds for a new trial and I believe them to be meritorious.
"4. I believe [defendant] wants to make a motion for a new trial and he wants me to represent him in that motion.
"5. I contacted Mr. Richardson and spoke to him twice by phone on May 9, 2012.
"6. I requested a copy of the file. He said that his office's policy is not to provide it until a Substitution of Attorney had been effected.
"7. He did admit to me that when he and [defendant] spoke, [defendant] raised issues of Mr. Richardson's ineffectiveness as his attorney and did discuss 'doing another Marsden hearing.'
People v. Marsden (1970) 3 Cal.3d 118 (Marsden).
Defendant did not make a Marsden motion in the trial court. On appeal, defendant does not raise any Marsden claim.
"8. I am an attorney duly licensed . . . and am employed at The Law Offices of Berg & Associates, Inc., once attorneys of record for [defendant].
"9. [Defendant] became a client of The Law Offices of Berg & Associates, Inc. on or about June 1, 2011.
"10. [Defendant] originally retained our firm but has already utilized all his funds available for his defense. I am informed and believe he does not have any further funds available from which to pay defense counsel or experts.
"11. [Defendant] is without the funds to retain counsel in this case and is seeking court appointed counsel. The court has already determined [defendant] is indigent and unable to pay experts in this case. His financial status has not improved since this finding; however, it has significantly worsened in that he owes the undersigned firm a significantly larger amount of money. . . .
"12. My office has a vast knowledge of the facts of this case, including the allegations against [defendant] and his defenses. The undersigned firm has knowledge of all of the witnesses in this matter that we are planning on calling at trial and also of potential witnesses that were either named in the reports or revealed by one of the parties to this action.
"13. The undersigned law firm spent 124.6 hrs investigating this case, and preparing it for trial.
"14. I am informed and believe that on July 22, 2011, my business manager talked to [defendant]'s sister and brother and they stated they did not know if they could get further funds for us to do any additional work.
Notably, nothing was said about defendant's ability to obtain funds from these family members around the time Berg executed his declaration in May 2012 or even if Berg had inquired about such resources.
"15. . . . [I]t is clear that I, Eric Alan Berg, know this case, know the facts of the case, and can effectively represent [defendant] in trial and post-trial proceedings.
"16. I am informed and believe that I, my private investigator, and staff members have a very good rapport and professional relationship with [defendant], spending many hours together in preparation for litigation of the trial and all motions leading up to trial. . . .
"17. I am requesting that I, Eric Alan Berg, be appointed at the hourly rate of $395.00 per hour. . . ." (Italics added.)
On May 15, 2012, the trial court denied defendant's ex parte motion to substitute Berg as appointed counsel at the county's expense.
Two days later, on May 17, 2012, defendant filed a "substitution of attorney," to substitute Berg for the public defender. (Boldface & capitalization omitted.) The document shows that defendant signed it on May 9th, a day before Berg's May 10th declaration supporting the motion for court appointment. The public defender signed his consent to the substitution on May 11th and Berg signed his consent to the substitution on May 16, 2012.
Also on May 17, 2012, Berg filed on defendant's behalf a motion to continue the sentencing hearing scheduled for May 21, a request for preparation of reporter's transcript of the trial, and a sealed ex parte motion to order preparation of the reporter's transcript at government expense. The continuance motion was noticed for May 21, the same day set for judgment and sentencing.
This motion was signed by Berg on May 16, 2012.
Neither the request nor the ex parte motion regarding the transcripts was noticed for a hearing or addressed to a specific courtroom or judge. Based on the trial court's comments we discuss post, it is apparent the court did not see these filings before the proceedings on May 21, 2012.
The motion for a continuance asserted in the memorandum of points and authorities that defendant "wishes to file a motion for a new trial, and wishes to investigate and bring to light the ineffectiveness of his counsel who represented him at trial, as well as the misconduct of the prosecution. There are a large number of issues that will need to be litigated related to the motion for a new trial. It is believed that by postponing the sentencing hearing, it will allow time for the Court to review and address the issues related to the defendant's anticipated motion for a new trial, as well as to allow the Court to make a ruling related to the defendant's pending ex parte motion. [¶] Following the hearing on the motion for a new trial, and in anticipation of the Court's [granting] that motion, the sentencing hearing would necessarily need to be postponed. Postponing the sentencing hearing will not substantially prejudice the parties, as there are many pending issues before the Court . . . ." (Italics added.) The motion did not request any specific amount of time but asked for a continuance "to a date that is convenient for all parties involved." In support of the motion for continuance, Berg submitted a declaration attesting that defendant "intends to move the court to grant a new trial based on the ineffectiveness of his trial counsel and prosecutorial misconduct and denial of [his constitutional rights] to notice, due process, effective assistance of counsel, confrontation, cross examination and a Fair Trial. [¶] . . . It is anticipated that postponement of the sentencing hearing will not substantially prejudice the parties. The defendant has a right to have his new lawyer review the record in order to prepare a motion for a new trial. If the defendant's motion for a new trial is granted, the sentencing hearing would be vacated and the matter set for new litigation dates." (Italics added.) Neither the continuance motion nor the accompanying declaration mentioned the specific ineffective assistance of counsel claims on which the new trial motion would be based nor any of the "large number of issues" to which Berg referred in his motion.
The ex parte motion for preparation of a reporter's transcript asserted in the memorandum of points and authorities that defendant wanted to move for a new trial "based on ineffective assistance of counsel, withholding of Brady[] material, denial of a preliminary hearing and prosecutorial misconduct. He needs the transcripts of all the court proceedings in order to investigate and raise the merits of his motion for a new trial. . . ." (Italics added.) In support of the motion for transcripts, Attorney Keith C. Cope, an associate at Berg's law firm, submitted a declaration in which he attested, "The Court has a pending ex parte motion by defendant; as well as a motion for a new trial." Cope also attested, "If the motion for a new trial is granted, as anticipated, defense counsel will need to have access to the pre-trial, and trial transcripts." Additionally, Cope attested, "In order for defense counsel to do so, defendant . . . needs the assistance of the Shasta County Court Reporter's Office to assist in preparing the transcript to aid his attorneys in effectively preparing to investigate and bring to light the merits of a motion for a new trial."
Brady v. Maryland (1963) 373 U.S. 83 .
This statement was inaccurate; no motion for new trial was ever filed.
Hearing on Continuance Motion and Sentencing
On May 21, 2012, the date set for sentencing, public defender Richardson was present, as was Cope from Berg's law firm, though Cope apparently sat in the jury box rather than counsel table according to the trial court's later statement. The trial court first sought to clarify who was representing defendant. Richardson said it was his understanding that Berg substituted in as retained counsel. Richardson had signed the substitution. Cope said he understood that the trial court declined to "have [defendant's] defense subsidized as it relates to Mr. Berg," but "some arrangement has been made and Mr. Berg has been retained to conduct sentencing of [defendant], as well as my understanding is that Mr. Berg feels there may be grounds to bring a motion for new trial." The court said, "We'll cross that bridge when we get to it." The trial court said defendant had the right to have retained counsel, but warned "that doesn't mean there's going to be a continuance, necessarily . . . ." The prosecutor objected to the substitution of counsel, stating that "defendants have a right to retain counsel, however, this has been a Ping-Pong-ball of a case. Mr. -- the public defender was originally appointed. Mr. Berg was retained and subbed in up to prelim." The court interrupted and asked if the prosecutor was saying the court "should deny the absolute right for him to have retained counsel?" The prosecutor said, "I am in this instance, yes." The court asked, "Even though it's an absolute right, according to the California Supreme Court?" The prosecutor said, "I don't know if it's an absolute right when you have previously had retained counsel, give up that retained counsel at [sic] the public defender, and then at whatever stage of the proceeding you choose to re-retain counsel again. I don't think the right should carry out that far, or if it does carry out that far."
The court asked if the matter was submitted, and the prosecutor said it was. The court said, "All right. Well, there is a substitution of attorney. The prosecution's objection is overruled. [¶] Mr. Cope, I want to make sure that everyone understands that that doesn't necessarily mean that there's going to be a continuance of the matter. I understand that request is going to be made, but that doesn't mean the case is going to be continued. [¶] I'm sure that's a factor that is taken into consideration when the decision was made to retain you, that that would not lead to an automatic continuance. That, of course, I don't expect you to comment on, because it invades the attorney-client privilege. [¶] I just want to make sure that everyone hears my thoughts on it before we proceed. [¶] And, so, Mr. Harris, is Mr. Berg's office your attorney at this point?" Defendant said yes.
The court relieved the public defender, who then turned over his file to Cope and left the courtroom. The court asked Cope to "take the seat at counsel table." Cope said, "I might say that I reluctantly take this seat . . . ." The court interrupted, stating that if Cope was not representing defendant, they had to get the public defender back and asked the bailiff to do so. Cope said, "Mr. Berg couldn't be here because he was ordered to be in another court, I believe, in Oroville." The court said it was ready to proceed. Cope said, "I had assumed that if the Court was inclined to grant the substitution of counsel, the very fact that Mr. Berg hasn't been able to review any of the materials he would need to review to conduct a sentencing today would warrant a continuance." The court said it was surprised because, "You know, the declaration from Mr. Berg indicated that he was very familiar with the case and, in fact, ready to proceed to a new trial, if necessary." The court asked if the Berg law firm was representing defendant. Cope said, "Well, Mr. Berg is [defendant's] attorney, and I am just --." The court asked where Berg was. Cope said, "Uhm, he was ordered to be in another court." When asked where, Cope said, "I believe he's in Oroville, Your Honor." The court said it was ready to proceed and wanted to make sure about defendant's representation before releasing the public defender.
The court gave Cope time to confer with defendant. After Cope did so, the court stated it was dangerous to assume that a motion to continue a sentencing hearing would be granted. Cope agreed but referred to Berg's declaration in support of the continuance, which said defendant had a right to have his new lawyer review the record to prepare a motion for new trial. The trial court referred to Berg's declaration from the ex parte motion to relieve the public defender and substitute Berg at the county's expense, in which Berg said he was ready to go and said nothing about needing time to file the new trial motion.
At that point, the public defender re-entered the courtroom, and the court told him it wanted "to make sure that there is still retained counsel on this case." Cope said he did not have a copy of Berg's ex parte declaration. The court said it did not matter if Cope had it; at this point, the court was trying to ascertain whether Cope was ready to proceed. Cope said, "I'm personally not ready to proceed." The court said it was ready to proceed. Cope asked to continue the sentencing hearing. The prosecutor objected. The trial court tentatively ruled, stating, "The Court has reviewed the written motion to continue and the Court does not find good cause to continue judgment and sentencing. It has been continued once before, if I recall. And, so, the Court is denying that request."
The trial court asked to confirm that Berg & Associates was representing defendant before letting the public defender leave the courtroom again. Cope said he would like to phone Berg. The court questioned whether Berg was available for a phone call, given Cope's assertion that Berg was in another courtroom, but nevertheless called a recess.
After the recess, Cope said, "I'm ready to announce that our office is retained and that's been ruled upon by the Court, but I must also inform the Court that I am not ready to proceed in sentencing, and I would object to the Court having me proceed to sentencing since I have not reviewed any of the materials in [defendant's] case, other than what I've been alerted to to prepare me to sign the motions." Cope said that if the court proceeded with sentencing with him representing defendant "that would be a forced incompetency of counsel . . . keeping in mind I haven't even reviewed the sentencing report."
The trial court said it did not understand why Cope had not read the sentencing report but would entertain oral argument on the motion to continue. The court asked if the Berg law firm would still continue to represent defendant if the court denied the motion to continue, and Cope said yes. The trial court consequently allowed the public defender to leave again.
When asked to proceed with oral argument on the motion to continue, Cope said "the only information that I have with regard to how Mr. Berg feels about the case" was the written motion for a continuance and a declaration signed by Berg. Cope repeated that he was unprepared and said that if the court denied a continuance, "I would be forced to writ this case and writ the Court's ruling. I'm loathe to do that, but I see no other way," and stated, "up until just a few moments ago I didn't know that I would be counsel of record or that our office would be counsel of record." The court, seemingly taken aback by Cope's claim of surprise, remarked that it was Berg & Associates who submitted the substitution. Cope said he had not had time to prepare himself; he thought Berg would be the one to represent defendant. Cope told the court, "I think he knows much more about the case than I do." Cope said, "I can't get around the procedural problem that has been created in this instance owing to Mr. Berg's absence from this courtroom," and "it would be a manifest injustice to [defendant] for Mr. Berg not to be here. I do know that Mr. Berg has a motion to -- for a new trial that needs to be heard. I suppose [defendant] could be sentenced prior to that, but I'm incompetent, utterly incompetent to conduct the sentencing in [defendant's] case." (Italics added.) Cope apologized for "having to put the court in this position," but then stated, "I think under these kinds of circumstances, the motion, of necessity, has to be granted."
As we shall note, post, Cope also had in his possession a written motion for new trial.
This court denied defendant's writ petition on June 13, 2013, case No. C073729.
As we discuss, post, the court never agreed with Cope's statement about the timing of when the new trial motion could be filed.
The prosecutor opposed another continuance, noting that: the victim had a right to have sentencing accomplished in a timely manner; the court already granted a continuance; and the substitution of Berg & Associates had been "[in] the works" since May 9 when the first substitution document was signed, the presentence report was filed on April 19, and therefore Berg and his associates had at least a couple of weeks to prepare for the May 21 sentencing. The prosecutor said, "I think it's very presumptuous of Mr. Berg to send incompetent counsel into this courtroom assuming that the Court was automatically going to grant any continuance or any request that Mr. Berg made and to not be present here as retained counsel to represent his client. It's prejudicial to the People. It's prejudicial to the Court and it's prejudicial to the victim." The prosecutor argued Berg's office had not given any excuse for not being prepared. The prosecutor further noted Berg's firm talked about filing a motion for new trial, but no such motion had been filed.
Cope replied that, regardless whether Berg was presumptuous "in how he's handled this matter and put me in this courtroom, the fact remains that I don't believe that this Court can go forward with the sentencing under the circumstances and afford [defendant] the right to competent counsel." Cope again apologized to the court. Cope said the previous continuance was obtained by the public defender but stated, "I suppose to the degree that it would help Mr. Berg to have the fruits of whatever efforts that were developed by the public defender's office so that he could competently represent [defendant] in this hearing, but if the Court denies that ability, then I think that would be error."
The public defender on May 21, 2012, filed a document entitled "Letter from Client and Letters in Support of Client" which, other than defendant's letter, contained only one character reference letter. The trial court considered this submission in its sentencing decision. Subsequently, on May 30, 2012, in a motion for bail pending appeal, Berg lodged more character reference letters, bearing dates of March and April 2012.
The trial court ruled: "The Court denies the motion to continue, finding that there is not good cause to continue. That brings us to judgment and sentencing."
When the court asked if there was any legal cause why judgment should not be pronounced, Cope said, "there's abundant legal cause, Your Honor. I'm looking at perhaps over a thousand pages of material that I haven't had the chance to review that apparently was brought to this Court by [defendant's] prior counsel that -- so I have to assume from that delivery to this Court that he felt that those documents were relevant. [¶] I haven't read the sentencing brief that was provided by the probation office, and at this point I -- I feel utterly unprepared and wholly lacking to represent [defendant]." The court overruled the objection and proceeded with sentencing. The victim's mother was in court, and the court allowed her to make a verbal statement.
After the prosecutor gave his recommendation on sentencing, Cope objected to sentencing, stating, "I cannot comment on any of the facts of the case. [¶] I can't tell the Court how well written the pre-sentence investigation report has been and, basically, my opinion, the Court has committed error in requiring an incompetent attorney to proceed with such a serious sentencing that wherein the total prison term is suggested at six years, four months, but counsel says that if certain conditions attach, he would ask for five years. [¶] I haven't had time to even research that issue, because I have spent probably less than an hour on this case, and that has been fully in this courtroom."
Defendant declined to make a verbal statement which would be subject to cross-examination, but he was sworn in for the sole purpose of stating that his written submission to the court was the truth.
The trial court sentenced defendant to an aggregate term of five years and four months, calculated as follows: the midterm of three years on count 7, unlawful sexual intercourse; one year on count 8, unlawful sexual intercourse (one-third the midterm); eight months on count 4, lewd acts (one-third the midterm); and eight months on count 5, lewd acts (one-third the midterm); with sentence on all counts to be served consecutively.
At that point, for the first time, Cope informed the court: "Your Honor, may I advise the Court I -- I have a notice of motion and motion for a new trial that as we speak will be filed posthaste tomorrow morning, and I'm asking the Court [to] set a hearing on that matter on either June 18th or June 22nd. It requires that we obtain transcripts, but I do have the draft motion in my hand as I speak." The court said, "Once it's filed with the Court, a date will be assigned at that time." The court said when the case was first set for sentencing after the jury was discharged, it had made clear that the judgment and sentencing date was a firm date for everything, including a motion for a new trial. And when Richardson obtained a continuance, the court said it told counsel this date was a "firm date," that there would be no further continuances, that any motions would have to be filed and heard on this date, and the court intended to proceed with judgment and sentencing. "So, whatever action the defense intends to take on behalf of the defense, sounds like that will be tomorrow morning, and I'll leave it to the defense to take whatever action it deems necessary . . . ." Thereafter, Cope told the court, "Well, I guess what I would be asking is, assuming for the sake of argument that the Court would give [defendant's] new counsel the chance to bring a motion for new trial, . . . what date might we propose to expedite the process." The court replied, "Well, I'm not going to expedite that process. I'm going to follow the usual process, which is --." Cope cut the trial court off, but the court continued, "if and when it is filed with the Court, that's the type of thing where the clerk would confer with the Court regarding a particular date and time." The court added, "jurisdictional issues . . . may have already come and gone in terms of the timing for it, but it will be addressed once the Court has an opportunity to review the motion for a new trial, and that's the way we typically proceed."
No motion for new trial was ever filed.
Post-Sentencing Proceedings
On May 24, 2012, the court received a memorandum from the probation officer noting an error in the calculation of custody and conduct credits.
On May 30, 2012, defendant filed a motion for release on bail or "[o]wn [r]ecognizance" pending appeal and for an order staying execution of judgment pending appeal. The motion was noticed for a hearing on May 31st. Thereafter, the prosecutor filed opposition, noting the defense failed to file and serve the motion at least three days before the hearing, as required by section 1201.5. The prosecution also noted that the defense never made a verbal or written motion for new trial, that Cope at the prior hearing just said it was his understanding that Berg felt there may be grounds for a new trial, and not until after judgment was pronounced did Cope claim to have a written motion to be filed, which in any event was never filed.
On May 31, 2012, a hearing was held regarding the credits and motion for release pending appeal. Berg represented defendant at the hearing. Berg asked for a continuance of at least a week on the issue of credits, saying he "just received the original probation report two days ago." Berg said he was not certain when he received the May 24th memorandum concerning the need to correct the credits. The court indicated a willingness to give Berg time but asked why he needed a full week. Berg said it was because the prosecutor was asking for more time regarding the defense motion for release pending appeal, and Berg wanted to give everybody time to prepare. The court stated that the prosecutor was not asking for a continuance; rather, the prosecutor was asking the court to deny the motion on procedural grounds in that it was not timely filed and served. The court said it would continue the matter of credits to Monday, June 4th, but the prosecutor said he was unavailable that day and acquiesced to a one-week continuance to avoid having to prepare a colleague to handle the hearing.
As to the defense motion, Berg asked for a continuance which would render filing and service timely. Berg acknowledged that if the trial court denied his motion on procedural grounds without prejudice, Berg would simply refile it. The prosecutor asked that the court deny the motion with prejudice. The court said that, if it denied the motion it would do so without prejudice, which would simply result in the defense refiling it, so it made more sense to simply continue the hearing unless the prosecution was willing to proceed on the merits that day. The prosecutor asked for a tentative ruling, and the court said its tentative ruling was to deny the motion on the merits, subject to argument. The prosecutor said he was willing to proceed.
The court proceeded to hear the merits of the defense motion for release pending appeal. The court first stated:
"I do want to comment on a statement on Page 4 at line nine [of the defense motion]. It states: 'In fact, the judge here misled the defense counsel into believing that a motion for a new trial might be heard after sentencing.'
In his motion, Berg wrote: "Counsel for defendant informed the judge that he had a Motion for New Trial prepared to file. Counsel showed the judge that it was currently ready to be filed and in his possession. Counsel requested that the judge give a date for the Motion for New Trial to be heard. The judge denied this request. The judge should have continued the Sentencing Hearing in light of the Motion for New Trial and set further dates to hear the Motion for New Trial. In fact, the judge here [misled] the defense counsel into believing that a motion for new trial might be heard after sentencing." Berg's written assertions are belied by the record.
"Mr. Berg, I would encourage you to get the transcript of the proceeding. The court did not mislead Mr. Cope when he was here into believing that a motion for new trial might be heard after sentencing.
"What happened was that he indicated before the court pronounced judgment and sentencing that the defense wanted a continuance because they intended to file a motion for a new trial, and the court denied the request for continuance stating numerous reasons for the court's ruling. The transcript will reveal the reasons the court gave for denying the request for another continuance of judgment and sentencing. I made it clear to counsel, because there was a question as to whether or not your office was actually the attorney of record because Mr. Cope wasn't seated at counsel table. Instead Mr. Richardson was seated at counsel table, Mr. Richardson being the public defender. When the court took the bench, I was somewhat surprised because I knew there was a substitution of attorneys substituting your office in.
"Instead, Mr. Cope was seated in the jury box, so because that presented some confusion, I wanted to make sure the record was clear as to who represented [defendant], and Mr. Cope was equivocal on that point despite the substitution of attorney, and so Mr. Richardson was reluctant to hand over discovery when Mr. Cope was being equivocal. So when it was clarified that, yes, your office was retained in this case, then I dismissed Mr. Richardson, relieved the public defender's office as attorney of record, and Mr. Richardson was about to leave and I asked Mr. Cope to be seated at counsel table, and Mr. Cope said that he did so with reluctance. That again presented confusion for the court. So I asked Mr. Richardson -- we actually -- I had someone get him from the hallway and bring him back in because it was still not clear whether or not your office, in fact, was retained counsel for [defendant].
"Mr. Cope then spent some time speaking briefly with [defendant] and then reported to the court that, yes, in fact, your office was retained counsel in the case, and at some point during that dialogue the court made it clear the court knew that there was going to be a request to continue the hearing; that I didn't want counsel to believe that the court would be granting that request; that I wasn't going to be ruling on that request until after it was clarified just who represented [defendant], and I wanted that to be very clear to both [defendant] and Mr. Cope before I allowed Mr. Richardson to again leave the courtroom.
"And Mr. Cope again confirmed that he represented, your office represented [defendant], and so Mr. Richardson was permitted to leave the courtroom, his office having been relieved as appointed counsel.
"Then the court went to, heard the motion for a continuance, denied it again for the reasons stated on the record, and then proceeded to judgment and sentencing asking if there was any legal cause why the court should not go forward. Mr. Cope either remained silent or announced that he was remaining silent. I can't remember how he put that, and so the court proceeded with judgment and sentencing, and at the conclusion of judgment and sentencing, Mr. Cope then said that he had -- it wasn't clear to me if it was a motion for new trial or a rough draft of a motion for new trial, but he had some written document and he was asking for a hearing date from this court, and I would not give him a hearing date, and I had the distinct impression that he was pressing me for a hearing date to somehow imply that the motion for a new trial would at some point be heard by this court postjudgment and sentencing, so I declined to give him a hearing date. I said it would proceed in the normal course, and I would leave it to defense counsel to do what they deemed appropriate under the circumstances, and I believe that I said that jurisdictional issues were presented, and I left it at that. So if Mr. Cope felt that he was [misled] into believing a motion for a new trial might be heard after sentencing, I take issue with that characterization, and I encourage you to get a transcript of that proceeding. [¶] So Mr. Berg, let me hear your argument on your motion."
Berg said he would set forth reasons why he was certain to win a new trial or even acquittal on appeal, and therefore it was unjust to make defendant sit in jail for even one more day. He began with defendant's May 9th request that Berg be appointed counsel to make a motion for new trial based on ineffective assistance of the public defender. Berg claimed, "At that point, when those papers were filed, [defendant] was automatically entitled to at least to a Marsden hearing."
The trial court corrected Berg, stating, "[T]here was no request for a Marsden hearing in the paperwork that was submitted to the court," and defendant did not merely ask at that point to substitute the Berg firm but asked for Berg's requested fees to be paid at public expense. In response, Berg stated that he filed paperwork showing defendant had discussed with the public defender whether there would be a new Marsden hearing. Berg said his paperwork indicated he was thinking about moving for a new trial on the ground of ineffective assistance of counsel, and therefore the trial court was obliged to hold a Marsden hearing but failed to do so and denied his request for a transcript. The court stated it did not recall denying a request for a transcript, and of course defendant was entitled to a transcript. Berg said he believed he made a motion for transcripts and therefore assumed the trial court must have denied it. The court stated it did not deny defendant a transcript and did not know why Berg did not have a transcript.
As we have noted, the request and motion for reporter's transcripts were not noticed for a hearing or for appearance in a specific courtroom or before a specific judge. And the defense failed to press for a ruling at the May 21st hearing or at any other time on its request and motion to order a reporter's transcript prepared. (See People v. Cunningham (2001) 25 Cal.4th 926, 984 [failure to "press for a ruling" on motion to sever forfeited the issue on appeal]; People v. Bolin (1998) 18 Cal.4th 297, 312-313 [venue motion forfeited where counsel failed to press for a ruling]; People v. Morris (1991) 53 Cal.3d 152, 195 [objection to admission of evidence forfeited by failure to press for a ruling in the trial court], disapproved as stated in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) " ' "[W]here the court, through inadvertence or neglect, neither rules nor reserves its ruling . . . the party who objected must make some effort to have the court actually rule. If the point is not pressed and is forgotten, [the party] may be deemed to have waived or abandoned it, just as if he had failed to make the objection in the first place." ' " (People v. Braxton (2004) 34 Cal.4th 798, 813 (Braxton).
Moving on, Berg said his May 9th paperwork asked for the public defender's file on defendant, but Berg's office did not get the thousand-page file until the day of sentencing on May 21st. Berg said that, "even though a defendant does not have a constitutional right to make a motion for a new trial, once the state gives him a statutory right for a motion for a new trial, that becomes a federal due process constitutional right to make a motion for a new trial, and he is entitled . . . to get rid of the lawyer that was ineffective. He is entitled to a hearing on that. He is entitled to transcripts. He is entitled to the file. He is entitled to prepared counsel . . . , and he is entitled to have time to do all of that." Berg went on to say: "that being said," Cope on May 21st had a written motion for new trial in his hand prepared to file. Berg said the court refused to give Cope a date for a hearing on the motion for new trial.
Berg tried to offer the reasons why he thought a new trial would have been granted. The prosecutor objected to Berg arguing the merits of an unfiled motion for new trial in this hearing on a motion for bail or own recognizance release pending appeal and request for stay of execution pending appeal. The trial court admonished Berg to stick to the issue. Berg continued, arguing "there was no attempt to investigate or present or persuade the jury as to the circumstances leading up to these false accusations against [defendant]. The fact that [the victim] had just run away, was living with and sleeping with her boyfriend; the fact that my client when he found out about that was . . . very upset about that and upset with the boyfriend and also upset with the boyfriend's family for allowing that to happen; the fact that all of that occurred right before these accusations were made against my client might have led -- if they had been investigated and presented, might have led a jury, probably would have led a jury to believe that the young lady certainly had a motive to make these things up, that is, the motive to get my client out of the way so she can continue to have relations with her boyfriend; that she can continue to sleep with her boyfriend in her boyfriend's house; that she can even continue to stay with her boyfriend in her boyfriend's home. The accusation that she made that my client was violent --." The prosecutor repeated his objection, and the trial court sustained it. Berg nevertheless continued, arguing: "there were accusations made that were clearly false that my client was violent; that [the victim] was afraid of him; that he was a bad man; that he had opportunity to do this; that . . . he even had a cellphone as a prelude to this. At every step of the way competent counsel could have and should have investigated and presented evidence that he was not violent; that, in fact, the mother was violent, the mother was a drug addict, the mother was the one that was violent to my client . . . ." The prosecutor again objected, and the trial court again sustained the objection. Berg moved on, arguing that defendant had family and friends who cared about him and believed him, and his employer was in court and was willing to take him back to work.
Berg was apparently unaware of defendant's prior domestic violence conviction and his own testimony in which he admitted being violent.
The prosecutor opposed the motion for release or stay of execution pending appeal and noted Cope said he wanted to file a motion for new trial only after judgment had already been pronounced.
Berg said Cope told the court he had a motion for new trial ready.
The court said, "Just to clarify. He didn't ask for a date for it to be heard until after judgment and sentencing, but in any event, even if on the day of judgment and sentencing he had asked for a hearing before judgment and sentencing went forward, the court made it clear that a request for a continuance was being denied and that now was the time to hear any motion or have any 1204 hearing, and the court made it very clear that now was the time for that . . . ."
The trial court denied the motion for release or stay of execution pending appeal, but ordered correction of the credits.
DISCUSSION
I. Motion for Post-Trial Continuance
Defendant argues the trial court abused its discretion by denying his motion to continue the hearing for pronouncement of judgment and sentencing. We disagree.
Section 1050, subdivision (e), states: "Continuances shall be granted only upon a showing of good cause. Neither the convenience of the parties nor a stipulation of the parties is in and of itself good cause." Under section 1050, subdivision (e), the trial court has broad discretion to determine whether good cause exists. (People v. Alexander (2010) 49 Cal.4th 846, 934 (Alexander).) On appeal, we review the denial of a motion for continuance for abuse of discretion. (People v. D'Arcy (2010) 48 Cal.4th 257, 287.) This standard of review applies to motions to continue sentencing hearings for the purpose of filing a new trial motion as well as requests for time to allow a defendant to retain different counsel. (People v. Snow (2003) 30 Cal.4th 43, 77 [continuance to prepare a new trial motion]; People v. Jeffers (1987) 188 Cal.App.3d 840, 849 (Jeffers) [continuance to permit representation by retained counsel].)
Here, it is apparent that the Berg law firm assumed that its substitution into the case four days before sentencing would force a postponement on the ground that a defendant is entitled to have retained counsel who is prepared. Defendant cites authority for the propositions that a defendant has the right to counsel of his choice (People v. Crovedi (1966) 65 Cal.2d 199, 206-207 (Crovedi)), and that a defendant is entitled to a continuance to secure an attorney of his choice. (People v. Haskett (1982) 30 Cal.3d 841, 852 (Haskett); People v. Reaves (1974) 42 Cal.App.3d 852, 855-856.)
The constitutional rights of due process and effective assistance of counsel encompass a right to defend with privately retained counsel of one's own choice. (United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 144 [165 L.Ed.2d 409, 416-417] (Gonzalez-Lopez); People v. Courts (1985) 37 Cal.3d 784, 789 (Courts); Crovedi, supra, 65 Cal.2d at p. 206.) Trial courts must make reasonable efforts to accommodate a defendant's choice of retained counsel. (Courts, at p. 790, citing Crovedi, at p. 207.) As a general proposition, a defendant is entitled to a continuance to secure an attorney of his or her choice. (Haskett, supra, 30 Cal.3d at p. 852 [a trial court did not abuse its discretion in denying a continuance for trial preparation by the defendant's newly retained attorney who substituted in for the defendant's previously retained attorney at the "eleventh hour"].) Moreover, the right to counsel of one's choice is illusory unless counsel is given opportunity to prepare. (Ibid.)
However, what defendant glosses over is that the right to defend with retained counsel is not absolute; it " 'must be carefully weighed against other values of substantial importance, such as that seeking to ensure orderly and expeditious judicial administration, with a view toward an accommodation reasonable under the facts of the particular case.' " (Courts, supra, 37 Cal.3d at p. 790, quoting People v. Byoune (1966) 65 Cal.2d 345, 346-347; Gonzalez-Lopez, supra, 548 U.S. at p. 152.) An unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay would violate the right to counsel. (Alexander, supra, 49 Cal.4th at pp. 934-935.) However, the trial court may reject a request for a continuance if the continuance would unreasonably disrupt the proceedings. (Haskett, supra, 30 Cal.3d at p. 852; People v. Bonville (1968) 267 Cal.App.2d 4, 9 (Bonville).)
Here, the trial court could properly have rejected the belated substitution and continuance motions made at the eleventh hour -- formally made one business day before sentencing -- on the ground that it would stall the proceedings. (Haskett, supra, 30 Cal.3d at p. 852 [trial court's refusal to allow a defendant the right to obtain counsel of choice does not violate due process if the substitution would disrupt the orderly administration of justice]; Bonville, supra, 267 Cal.App.2d at p. 9 [defendant's right to obtain counsel of choice must be exercised seasonably].) This was the point argued by the prosecutor; the court could deny the belated substitution if it would hold up the sentencing hearing. Accordingly, the trial court kept the public defender in the courtroom until the matter was resolved. The trial court gave fair warning that it might deny a continuance and ascertained that retained counsel would still represent defendant if the court were to deny the continuance. Only then did the trial court allow the public defender to leave the courtroom.
We take judicial notice of the fact that the day the motions were filed, May 17, 2012, was a Thursday and the date of the scheduled hearing for sentencing and pronouncement of judgment, May 21, 2012, was the following Monday. (Evid. Code, § 452, subd. (h); Hiner v. Olson (1937) 23 Cal.App.2d 227, 235.)
A defendant does not have an absolute right to a continuance to facilitate choice of counsel. A continuance may be denied if the defendant had a prior opportunity to find and prepare counsel but was unjustifiably dilatory in doing so. (Ungar v. Sarafite (1964) 376 U.S. 575, 590 [11 L.Ed.2d 921, 931] [denial of continuance for new lawyer to prepare did not violate due process where defendant had sufficient time to obtain counsel and did not request continuance until the day of trial]; Courts, supra, 37 Cal.3d at pp. 790-791.) Although courts seek to accommodate substitution of counsel requests to the fullest extent consistent with effective judicial administration, a trial court retains discretion to deny requests made in an untimely manner that would result in an unreasonable delay in the processes of justice. (Courts, at pp. 790-791 [defendant was diligent in contacting attorney two months before trial and took reasonable and timely steps to obtain representation, and apprised court of efforts at earliest possible time]; Jeffers, supra, 188 Cal.App.3d at pp. 849-850.)
In People v. Collins (1966) 242 Cal.App.2d 626 (Collins), the defendant substituted in retained counsel shortly before trial. On the day set for retrial after a mistrial, retained counsel -- who had substituted in about six weeks earlier -- moved for a continuance on the ground he was unprepared because he was still waiting to get paid by the defendant and had told the defendant that preparation would start when the fee was paid. (Id. at p. 636.) The appellate court held the trial court did not abuse its discretion in denying a continuance. The trial court "could reasonably take with a grain of salt the bland representation of defendant's experienced counsel that he had appeared on the day of trial, unprepared, expecting either a continuance or a release from his obligation to court and client." (Id. at p. 637.) It was reasonable for the trial court to recognize counsel's action as a delay tactic. (Ibid.)
Defendant argues Collins is distinguishable, because Berg did not handle the trial, lacked the file and transcripts needed to prepare a motion for new trial, and did not get back into the case until just before the sentencing hearing. Defendant blames the public defender for being unwilling to release his file until the substitution was sorted out.
However, defendant ignores his own failure to explain his dilatory conduct in getting retained counsel back into the case earlier. There is a significant span of seven weeks during which defendant did nothing, at least insofar as the record shows. Defendant made no showing whatsoever of any attempt on his part to bring back retained counsel during the seven weeks between the March 16th verdict and Berg's initial conversation with defendant around May 3rd (according to Berg's ex parte declaration signed May 10th, which said he spoke with defendant a week earlier). Furthermore, Berg allowed time to lapse while circumventing the normal Marsden procedures and attempting to secure court appointment of counsel of defendant's choosing at counsel's own "customary hourly billing rate." And Berg sought court appointment under section 987.2, subdivision (a)(3), a statute that only applies when the public defender has refused to represent a defendant. (See fn. 8, ante.) We also note that defendant here had already signed a substitution of counsel the day before Berg signed his declaration seeking court appointment at the county's expense at Bergs' rate but somehow financial arrangements were worked out between defendant and Berg the day after the court denied the motion. Defendant signed the substitution on May 9th; the public defender signed on May 11th; Berg signed on May 16th, the day after the motion for court appointment was denied; and the substitution was filed on May 17th. It seems apparent that the defense felt no sense of urgency despite the May 21st date for sentencing.
In responding to the People's contention on appeal that, based on defendant's May 9 signature, Berg expected to represent defendant 12 days before the hearing, defendant responded in his reply brief that Berg did not have the trial transcripts or the public defender's file and that Berg could not have been prepared to argue the new trial motion without those things. However, he does not deny that Berg expected to represent defendant 12 days before the hearing.
Moreover, Berg did not need the public defender's file or transcripts to make the new trial motion. In his declaration supporting the motion for appointment under section 987.2, subdivision (a)(3), Berg attested, "I am aware of many of the grounds for a new trial and I believe them to be meritorious." In his continuance motion, Berg attested, "There are a large number of issues that will need to be litigated related to the motion for a new trial." These numerous issues and purported meritorious grounds could have been advanced in a new trial motion, even if the motion might need to be supplemented later. To preserve the issues, the motion for a new trial could have been made orally or in writing on the day set for sentencing as long as it was made before judgment. (Braxton, supra, 34 Cal.4th at pp. 807, 818-819 [defendant entitled to limited remand for a new trial motion where the trial court refused to hear an oral new trial motion made before judgment]; see also § 1182 ["The application for a new trial must be made and determined before judgment," italics added].) Here, although he claimed to have a draft of the motion in hand at the end of the May 21st hearing, Cope did not move for a new trial before judgment was pronounced.
As we have noted, our standard of review here is abuse of discretion. On the record before us, we cannot say the trial court abused its discretion in denying the motion for a continuance; the record supports the court's implied finding that the professed need for a continuance was a delay tactic and would unreasonably disrupt the proceedings.
Defendant claims it is "indisputable" that: (1) the public defender did not turn over the 1,000-page file until the time of the sentencing hearing; (2) Berg was unable to attend because he was required to appear in another court; and (3) Cope was admittedly unprepared to represent defendant at the time of sentencing. However, as to the first point, as we have said, the new trial motion could have been made orally. (See Braxton, supra, 34 Cal.4th at p. 807.)
As to the second point, we do not know that Berg was "unable to attend because he was required to appear in another court." He purportedly had two court appearances that day, and the record offers no information as to why the other appearance was more important than defendant's sentencing hearing, or why Berg could not have sent an associate to the other court. Tellingly, Berg's motion for a continuance did not argue any scheduling conflict as a basis for a continuance. There is no explanation why he chose to miss this appearance, other than his assumption that the court would have to grant a continuance.
As to the third point, while it indisputable that Cope claimed to be unprepared, he failed to justify his lack of preparation, and his claim of total ignorance of the case was contradicted by Berg's own declaration. Berg declared that his office had "vast knowledge of the facts of this case." Yet, in court, Cope claimed to be totally ignorant about the case except for what he learned in court on the date set for sentencing.
The fact that Cope had in his possession a written motion for new trial, which he did not produce until after the court pronounced judgment and sentence, is further indication that the motion for continuance was a delay tactic, though the trial court did not learn of the written document until after denying the motion for continuance, imposing sentence, and pronouncing judgment.
We conclude the trial court did not abuse its discretion in denying the continuance.
II. Section 654
We requested supplemental briefing on the question whether the trial court committed section 654 error by ordering execution of consecutive sentences on the counts for lewd conduct and sexual intercourse, given indications in the record that the jury may have relied on the same act of sexual intercourse for both charges. Defendant's failure to raise this point in the trial court does not forfeit the issue on appeal. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17; People v. McCoy (2012) 208 Cal.App.4th 1333, 1338 (McCoy) [section 654 issue not forfeited by failure to object on that ground in the trial court].)
Section 654, subdivision (a), provides in part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . ."
In his opening brief, defendant stated there was "a substantial question on whether or not the court should have stayed one of both of the section 288 convictions as arising out of the same set of facts as the two convictions for unlawful sexual intercourse." He pointed this out as an example of why Cope needed time to prepare for sentencing, but did not advance it under a separate heading or subheading summarizing his argument. (Cal. Rules of Court, rule 8.204(a)(1)(B).)
We conclude there was no sentencing error.
A. Additional Background
Initially, the pleading specified what acts were alleged to constitute the lewd acts: Count 4 alleged victim's hand on defendant's penis in the living room first time. Count 5 alleged victim's hand on defendant's penis in the living room last time. Count 6 alleged victim's hand on defendant's penis in the car. At the start of trial, the court, without objection from the defense, allowed the prosecution to amend the information to delete the references to specific acts.
In closing argument to the jury, the prosecutor argued:
"We have alleged that there [were] six different acts that would constitute a lewd act with a child. But during your deliberations, you only need to all agree on three of them. If you all agree on all of them, that's fine. But if you don't agree on some of them, to find him guilty of counts four, five, and six, you all must agree at least on three of them.
"THE COURT: And they have to agree on the same three.
"[PROSECUTOR]: Correct. The six acts that we have alleged are [the victim] giving the defendant a hand job in the living room the first time, [the victim] giving the defendant a hand job in the living room a last time, and she testified that there were five to six times that this occurred. So if you all agree that this occurred five to six times, then that would be enough to find him guilty of at least two counts of lewd act with a child. [The victim] giving the defendant a hand job in the car on the way to [S]onic. The defendant placing his fingers in [the victim]'s vagina, and then the two acts of sex. The sex also counts as a lewd act with a child.
"And then counts seven and eight, the defendant having sex, again, with the victim. In these two counts, seven and eight, refer to the same acts as the counts in one and three, the forcible rape. [¶] Now if you find the defendant guilty of unlawful sexual intercourse, that means that you should also find the defendant guilt[y] of at least two counts of lewd act with a child. Because by him having sex with her, that also means he's committed a lewd act with her. [¶] So at a minimum, if you believe that the defendant and [the victim] had sex with each other, then the defendant would be guilty of at least four of the alleged crimes: The two acts of unlawful sexual intercourse and two acts of lewd act with a child. . . ." (Italics added.)
During deliberations, the jury asked the court: "We need clarification on counts 4, 5, + 6. How are these broken down? Do we . . . assign the Counts to specific incidents? E.g., do we assign each count to an act of sexual intercourse? Or, do these refer to manual ('hand-job')? [¶] Do the counts each pertain to a separate incident? [¶] E.g., if they engaged in sexual intercourse does one incident of this relate to one of counts 1 + 3 [forcible rape], one of counts 7 + 8 [sexual intercourse], and one (only) of counts 4, 5 + 6 [lewd act]? Can you have more than one count of 4 + 5 + 6 polled (decided upon) for a single incident of sexual intercourse? Does sexual intercourse count as the 'lewd and lascivious' charge?"
The trial court responded:
"You must reach your verdict on each count based on the evidence presented and the law which applies. [¶] The prosecution presented several acts which they believe constitute lewd or lascivious acts on a child. It is up to you to determine if any of these acts are a lewd or lascivious act. The Court may not direct you as to the evidence presented. It is up to you to decide what happened based on all the evidence.
"Based on the evidence presented and the jury instructions you were provided, if you believe beyond a reasonable doubt that the evidence presented of sexual intercourse constitutes a lewd and lascivious act, then you also may find that the evidence of sexual intercourse is a lewd act on a child because each count charges a separate crime.
"Your attention is invited to Jury Instruction 3515. Counts 4, 5, and 6 each charge a separate crime. You must consider each Count separately and determine if you are convinced beyond a reasonable doubt that Defendant committed each charged crime. A single incident of sexual intercourse cannot be the basis for more than one count of lewd or lascivious acts on a child. It can be the basis for one count of lewd or lascivious acts on a child if you are convinced beyond a reasonable doubt that the evidence presented of sexual intercourse constitutes a lewd and lascivious act.
CALCRIM No. 3515, as stated by the trial court, said: "Each of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one."
"You do not need to write on the verdict form which act you find is the act which constitutes the crime, but you all must agree to the same act. Your attention is invited to Jury Instruction 3501. Please review that instruction again before proceeding. [¶] If you are able to reach a verdict as to Counts 4, 5, or 6, do not mark anything on the verdict forms for Counts 4, 5, and 6 other than putting an 'X' next to 'Guilty' or 'Not Guilty.' " (Italics added.)
CALCRIM No. 3501 told the jury in this case: "The defendant is charged in Counts 4, 5, and 6 with lewd act upon a child sometime during the period on and between January 1, 2010 and December 31, 2010. [¶] The People have presented evidence of more than one act to prove that the defendant committed the offenses charged in Counts 4, 5, and 6. [¶] You must not find the defendant guilty unless: [¶] 1. You all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed for each offense charged; [¶] OR [¶] 2. You all agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period and have proved that the defendant committed at least the number of offenses charged."
The jury found defendant guilty on both counts of unlawful sexual intercourse (§ 261.5, subd (d); counts 7 & 8). The jury also found defendant guilty on two of the three counts for lewd and lascivious conduct (§ 288, subd (c)(1); counts 4 & 5). The jury was unable to reach a verdict on the third count for lewd and lascivious conduct (count 6) and the two counts of forcible rape (§ 261, subd. (a)(2); counts 1 & 3), and the court declared a mistrial as to those counts.
The trial court imposed and ordered execution of consecutive sentences on all four counts, totaling five years and four months, calculated as follows: the midterm of three years on the principal count 7, unlawful sexual intercourse; one year (one-third the midterm) on count 8, unlawful sexual intercourse; eight months (one-third the midterm) on count 4, lewd acts; and eight months on count 5, lewd acts. The court stated, "With regard to . . . [s]ection 654 stays, the Court understands it has the discretion in that regard to stay. However, the court finds that Counts 8, 4 and 5 were independent of and not merely incidental to each other, that the defendant entertained several criminal intents, and therefore, exercises [its] discretion and does not stay Counts 8, 4 and 5. [¶] Looking at whether it will be consecutive versus concurrent, the Court exercises its discretion and finds that the crimes and objectives predominantly were independent of each other, and therefore, imposes the terms consecutively, which is why the Court imposed one-third the midterm."
This statement was not accurate. If section 654 applies, the court has no discretion. It must impose and stay execution of sentence on the count that provides the lesser potential term of imprisonment. (See fn. 26, ante; People v. Duff (2010) 50 Cal.4th 787, 796; People v. Alford (2010) 180 Cal.App.4th 1463, 1469.) --------
B. Analysis
Defendant's supplemental brief argues that consecutive sentencing violates section 654, because it was "highly questionable if not impossible" for the trial court to determine whether or not the jury relied on the same two acts of sexual intercourse as the basis for both the charges of sexual intercourse (counts 7 & 8) and the charges of lewd acts (counts 4 & 5). As we shall explain, there is no section 654 violation.
Section 654 precludes multiple punishment where an act violates more than one criminal statute but a defendant has only a single intent and objective. (McCoy, supra, 208 Cal.App.4th at p. 1338.) In such circumstances, the court must impose but stay execution of sentence on all convictions except for the offense with the longest sentence. (Ibid.) We review the trial court's explicit or implicit factual resolutions concerning the application of section 654 for substantial evidence. (McCoy, at p. 1338.)
Where there is a basis for identifying the specific factual basis for a verdict, the trial court cannot find otherwise in applying section 654. (People v. Siko (1988) 45 Cal.3d 820, 825-826 (Siko).) In Siko, the court would not allow the People to posit an alternative factual basis (based on the evidence at trial) for two general molestation convictions other than the two specific sex acts for which the jury had also convicted the defendant of specific offenses, and therefore held section 654 precluded punishment for the generic offenses. (Ibid.) The charging instrument and verdict both had specified the lewd conduct as consisting of the two specific sex offenses, and neither closing argument nor the instructions suggested any other basis for the molestation counts. (Ibid.)
This court distinguished Siko in McCoy, supra, 208 Cal.App.4th at page 1339. In McCoy, a defendant with a history of domestic violence attacked the mother of his children in her apartment. He was convicted of both burglary and violation of a protective order. Based on the evidence, the defendant either (1) entered the residence, fled when the police arrived, and later returned to assault the victim, or (2) he was still somewhere inside the apartment when the victim spoke with police at the front door. (Id. at p. 1337.) On appeal, the defendant argued the jury did not make a specific factual finding whether he entered the residence twice and, if so, which arrival was the basis for the verdict on violation of the protective order. (Id. at p. 1338.) The defendant argued the trial court therefore could not make a finding independently that there were two arrivals and premise the defendant's punishment on one arrival being the violation of the protective order and the other arrival being the burglary. (Ibid.) This court rejected the defendant's argument, holding that, in the absence of some circumstance foreclosing its sentencing discretion, the trial court could base its decision under section 654 on any of the facts that are in evidence at trial, without regard to the verdicts. (McCoy, at p. 1340.) Noting the case law holding that a trial court could even rely on facts underlying verdicts of acquittal in making sentencing choices, this court reasoned that there was no "principled manner in which to distinguish between countenancing the use of facts that a jury rejected and the use of facts that may or may not have been the basis for a verdict." (Ibid.)
Here, there is no circumstance foreclosing the trial court's discretion. The jury was not asked to make special findings related to particular facts. There was no language in the charging document or verdict forms that narrowed the court's discretion. While the prosecutor's argument to the jury and the jury's questions during deliberations reflect a possibility that the jury used the two acts of unlawful sexual intercourse for both the two charges of sexual intercourse and the two charges of lewd acts for which the jury found defendant guilty, this is not the only possibility. It is also possible that the jury relied on the two incidents where defendant had the victim masturbate him in the living room as the basis for the two counts of lewd act. Although the prosecutor argued, based on the victim's statement to police, that there was a third "hand job" in the car on the way to Sonic, the victim denied that incident in her trial testimony. This inconsistency may explain why the jury failed to reach a unanimous verdict on the third count of lewd act.
Defendant cites People v. Coelho (2001) 89 Cal.App.4th 861. This court discussed that case in McCoy, supra, 208 Cal.App.4th at page 1339, footnote 6. This court noted that Coelho "extensively develops a methodology for identifying the factual basis of a verdict in the context of determining whether a recidivist provision for mandatory consecutive sentences is applicable. Coelho is premised on a defendant's right under the federal Constitution to a jury trial, concluding as a result that a sentencing court can rely only on the facts that actually were the basis for the jury's verdict. [Citations.] . . . As the right does not apply to statutes that mitigate punishment, such as section 654 [citations], Coelho is not relevant to the present analysis. As for Coelho's invocation of the 'rule of lenity' where the factual basis for a verdict is unclear [citation], this is a 'tie-breaking principle' of statutory interpretation [citation] where evidence of legislative intent is in equipoise as to which of reasonable interpretations should prevail [citation] . . . . Coelho does not provide authority for invoking this principle in the context of sentencing." (McCoy, at p. 1339, fn. 6.)
We conclude there was no sentencing error.
DISPOSITION
The judgment is affirmed.
MURRAY, J. We concur: RAYE, P. J. NICHOLSON, J.