Opinion
A157523
06-10-2020
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY HOSKINS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 171263B)
After defendant Anthony Hoskins was convicted of second degree murder and possession of a weapon by an ex-felon with various enhancements, the trial court sentenced him to 60 years to life in prison, of which 25 years to life was based on the jury's finding that Hoskins personally and intentionally discharged a firearm causing death (Pen. Code, § 12022.53, subd. (d)). In a prior appeal, we affirmed the judgment, except we remanded for resentencing under Senate Bill No. 620 (2017-2018 Reg. Sess.), which had recently vested sentencing courts with discretion to strike or dismiss firearm enhancements in the interest of justice. (See People v. Edwards et al. (May 30, 2018, A139460) [nonpub. opn.] (Edwards).)
Further undesignated statutory references are to the Penal Code.
Hoskins now appeals the sentence he received on remand arguing, among other things, that his attorney rendered ineffective assistance of counsel. We agree that his attorney was ineffective in appearing at the sentencing hearing unprepared to go forward and, particularly, in failing to request that the trial court exercise its newly-granted discretion under Senate Bill No. 1393 (2017-2018 Reg. Sess.) (S.B. 1393) to strike or dismiss the five-year enhancement for a prior serious felony conviction. Therefore, we will remand the matter for resentencing.
BACKGROUND
On May 3, 2019, the trial court sentenced Hoskins after remand from this court. At the start of the hearing, the court stated the case was remanded "for me to exercise discretion under 1385 with respect to the[ ] finding[ ] . . . that [Hoskins] had personally and intentionally discharged [a] firearm[ ] causing death within the meaning of 12022.53 (d)." The entire discussion of resentencing of Hoskins was as follows:
"THE COURT: First of all, as to Mr. Hoskins' case, are we to proceed on that matter today or
"[Defense counsel]: I'd ask that—he wants to do it today. I'm really not prepared to go forward today, but if you insist on going today knowing that. . . .
"THE COURT: All right. Well, having tried the case, I'm very familiar with the case. I'm also familiar with the Court of Appeals decision.
"In this case, there was, of course, the murder, but not only what's there, the murder, but Mr. Hoskins bragged about it afterwards, and there was evidence that Mr. Hoskins had used a firearm in other cases.
"Based on that, I decline to exercise my discretion under 1385 to strike the 12022.53(d) finding. So that finding is in full force and effect. [¶] Mr. Hoskins should be returned to the Department of Corrections to serve the time prescribed by law.
"[Defense counsel]: Thank you." (Italics added.)
There is no explanation as to why defense counsel was not prepared at this hearing on May 3, 2019. Defense counsel had represented Hoskins at trial. The record indicates defense counsel knew there would be a resentencing hearing for months and knew the date of the hearing for weeks.
Defense counsel appeared at a hearing in the superior court to "Review Remittitur" in December 2018. He appeared again on February 1, 2019, and the clerk's minutes show he was then expected to contact Hoskins "to determine if he waives his appearance for resentencing hearing." The clerk's minutes for a hearing held on March 15, 2019, reflect that the People were expected to prepare a removal order for Hoskins's appearance at the resentencing hearing. On April 18, an order for temporary removal of prisoner was filed, ordering Hoskins to be transported from Los Angeles, where he was in state prison, and produced at superior court on May 3 at 2:00 p.m.
DISCUSSION
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) "Construed in light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance. [Citations.] Specifically, it entitles him to 'the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.' " (Ibid.) Under this right, a defendant can "reasonably expect that before counsel undertakes to act at all he will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation." (Ibid.)
"A defendant is entitled under state and federal law to the assistance of counsel when a sentence is vacated on appeal and remanded for a new sentencing hearing." (People v. Rouse (2016) 245 Cal.App.4th 292, 297.) Thus, Hoskins was entitled to an attorney at the resentencing hearing who would assist him based on adequate investigation and preparation. But his attorney here admitted he was not prepared, yet he chose to go forward rather than requesting a continuance.
Further, "a defense attorney who fails to adequately understand the available sentencing alternatives, promote their proper application, or pursue the most advantageous disposition for his client may be found incompetent." (People v. Scott (1994) 9 Cal.4th 331, 351.) Hoskins contends his attorney was incompetent in (among other things) failing to alert the court to its new discretion under S.B. 1393. This law amended sections 667 and 1385 to grant courts the discretion to strike or dismiss prior serious felony convictions for sentencing purposes. (People v. Garcia (2018) 28 Cal.App.5th 961, 971; Stats. 2018, ch. 1013, §§ 1-2.) The law went into effect January 1, 2019, after we remanded for resentencing in Edwards, supra, but before the resentencing hearing. (Garcia, at p. 971.)
On this record, we agree with Hoskins. We can conceive of no reasonable tactical purpose for his attorney's omission. (See People v. Centeno (2014) 60 Cal.4th 659, 675-676 [where there was no conceivable "reasonable tactical purpose for defense counsel's omission," defense counsel's failure to object to prosecutorial misconduct was ineffective].) Indeed, the Attorney General does not even try to offer a possible tactical reason for defense counsel's failure to ask the court to strike or dismiss the five-year enhancement for the prior serious felony under S.B. 1393.
Instead, the Attorney General argues any error by the defense attorney was invited by Hoskins, citing People v. Lang (1989) 49 Cal.3d 991, 1032, abrogated on another point by People v. Diaz (2015) 60 Cal.4th 1176, 1190. In Lang, our high court held, "The invited-error doctrine operates . . . to estop a defendant from claiming ineffective assistance of counsel based on counsel's acts or omissions in conformance with the defendant's own requests." (49 Cal.3d at p. 1032.) In that case, defense counsel acceded to the defendant's insistent request that certain evidence not be presented. But the Lang court explained, "We observe, in conclusion, that defendant predicates the claim of ineffective assistance solely on his trial counsel's action in yielding to his demand, and not on any antecedent act or omission of counsel. Defendant does not contend, for example, that counsel failed to adequately investigate the availability of this evidence or to advise him regarding its significance. There is nothing in the appellate record to suggest that counsel's performance was deficient in either of these respects and it is the defendant's burden to establish ineffectiveness." (Id. at pp. 1032-1033.) Here, in contrast, Hoskins does contend his attorney failed to adequately prepare for the sentencing hearing. We do not believe the invited-error doctrine applies in this case.
The Attorney General next argues Hoskins cannot show prejudice. "The prejudice prong [of a claim of ineffective assistance of counsel] requires a defendant to establish that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' [Citation.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " (People v. Jacobs (2013) 220 Cal.App.4th 67, 75.) In this case, Hoskins received a lengthy sentence of 60 years to life where, as we noted in our underlying opinion in Edwards, the jury did not find the murder was premeditated or convict him of first degree murder. Had competent defense counsel alerted the court to S.B. 1393 and requested the court strike or dismiss the five-year enhancement for the prior serious felony, we believe there is a sufficient probability the trial court would have granted the request so as to undermine our confidence in the sentence. Accordingly, we will remand the matter for resentencing.
Hoskins argues his attorney was also ineffective in (1) failing to urge the court, in respect to the firearm enhancement, to impose a lesser enhancement under either subdivision (b) or (c) of section 12022.53 , and (2) failing to request a hearing on ability to pay various fees and a restitution fine under People v. Dueñas (2019) 30 Cal.App.5th 1157. On remand, Hoskins is free to make the arguments that he believes his attorney should have made. (See People v. Hill (1986) 185 Cal.App.3d 831, 834 ["When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme"].)
Hoskins argues the sentencing court appeared to be unaware of its discretion to impose a different, lesser firearm enhancement (i.e., 10 years for personal use of a firearm under subdivision (b) of section 12022.53 or 20 years for personally and intentionally discharging a firearm under subdivision (c) of the statute). He relies on People v. Morrison (2019) 34 Cal.App.5th 217, 223 (Morrison), in which the court held that a sentencing court has the discretion to impose an uncharged enhancement under section 12022.53, subdivision (b) or (c) "as a middle ground to a lifetime enhancement under section 12022.53, subdivision (d), if such an outcome [i]s found to be in the interests of justice under section 1385."
The Attorney General argues Morrison is inapposite because, in the current case, the enhancements under subdivisions (b) and (c) of section 12022.53 were charged. When the lesser firearm enhancements are charged and found true, it was already the case preMorrison that "the striking of an enhancement under section 12022.53, subdivision (d) would leave intact the remaining findings, and an enhancement under the greatest of those provisions would be mandatory unless those findings were also stricken in the interests of justice." (Morrison, supra, 34 Cal.App.5th at p. 222.)
We need not resolve the issue whether Morrison would apply in this appeal. While the record does not indicate the lesser firearm enhancements were dismissed, the trial court is in a better position to say whether the jury found the lesser enhancements true.
DISPOSITION
The matter is remanded for resentencing in accordance with this opinion.
/s/_________
Miller, J. WE CONCUR: /s/_________
Kline, P.J. /s/_________
Richman, J.