P. v. Borbon

Filed 10/12/07 P. v. Borbon CA3

Opinion following rehearing

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

A jury convicted defendant Victor Raul Borbon of second degree robbery (Pen. Code,  211;^[1]count 1) and attempted second degree robbery ( 211; count 2). The jury found the deadly weapon allegation ( 12022, subd. (b)) as to each count not to be true.

Sentenced to state prison for an aggregate term of five years (upper term of five years on count 1 and a concurrent midterm of two years on count 2), defendant appeals, contending (1) the trial court prejudicially erred in denying his request to discharge retained counsel, and (2) the trial courts imposition of the upper term for count 1 contravenes Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely). We will affirm the judgment.

FACTS

About 7:00 a.m. on November 15, 2003, defendant approached three people on a Stockton street and demanded money from Jesus Sandoval. Defendant grabbed some money from Sandoval and threw it on the ground, saying, That isnt enough. Defendant then, using physical force, demanded money from Russell Roberts. Roberts yelled, Here comes the cops and Cheryl Schofield dialed 911. Defendant picked up the money on the ground and fled. Defendant was caught a short distance away. The victims positively identified defendant.

DISCUSSION

I.

Defendant contends that the trial court prejudicially erred in denying his motion to discharge retained counsel, resulting in a denial of his rights to counsel and due process and requiring reversal of the judgment. We conclude that the trial court properly ruled.

Background

A complaint filed November 18, 2003, charged defendant with the current offenses. The public defenders office was appointed to represent defendant.

On December 2, 2003, the court suspended criminal proceedings pursuant to section 1368. On December 30, 2003, the court reinstated criminal proceedings after reviewing the reports of court-appointed doctors.

At a pretrial conference on May 24, 2004, defendant stated that he wanted a new attorney. At that time, he was represented by Harry Hudson. The court noted that defendant had been represented by several attorneys and appointment of new counsel would be defendants fourth attorney. The court informed defendant he could retain counsel if new counsel could be ready for trial on June 21, 2004 because there would be no further delays. Trial was later continued to June 24, 2004.

On June 23, 2004, defendant was represented by Hudson. The court again suspended criminal proceedings pursuant to section 1368. On June 24, 2004, the court appointed doctors to evaluate defendant. On July 22, 2004, the court reinstated criminal proceedings after reviewing reports from court-appointed doctors. Defendant made a Marsden motion.^[2]

At the Marsden hearing on July 28, 2004, Robert Williams represented defendant. Williams had been retained by defendant. The court relieved Hudson. Trial was later scheduled for November 2004.

On November 30, 2004, during jury selection, Williams questioned defendants mental competency, believing him to be possibly delusional based on defendants plan to testify and offer a defense of conspiracy amongst police and civilian witnesses and falsified police reports. Over defendants personal objection, the court declared a doubt and suspended criminal proceedings pursuant to section 1368.

On March 8, 2005, the first day of a mental competency trial, Williams stated that defendant believed himself to be competent and desired to begin the criminal trial. Defendant asked, If I excuse Mr. Williams now, will this all stop? After clarifying that defendant meant fire Williams, the court responded that the section 1368 trial needed to be completed. Defendant claimed he was competent and had been trying to get to trial since 2003. Williams chose to waive a jury for the competency trial. Defendant asserted that he wanted a jury. Williams noted that he had the right to choose, not defendant. Defendant then sought to discharge Williams and requested a hearing pursuant to Marsden. Defendant wanted a new attorney because Williams had been postponing trial.

On March 9, 2005, defendant reiterated that he wished to discharge Williams and complained about his representation. The court concluded that since counsel was retained, Marsden was inapplicable and declined to conduct such a hearing. The court informed defendant that he had other remedies. Williams outlined the procedure applicable to retained counsel pursuant to People v. Ortiz (1990) 51 Cal.3d 975 (Ortiz) and disputed that defendant, whose competence was in doubt, had the right to discharge him (Williams). Williams suggested that after the competency trial, defendant could seek to discharge him (Williams), assuming defendant was found competent. The court agreed, I was not planning on letting [Williams] be fired at this juncture when there is a question about whether [defendant is] competent or not, [defendant] . . . . [] . . . [] I am not going to allow Mr. Williams to be fired during the [section] 1368 proceeding unless I see something that is grossly different than what I have seen so far. [] So I see no grounds to allow Mr. Williams to be fired at this point. The court informed defendant that if found competent the prosecutor would have 60 days to bring defendant to trial. Defendant explained that was the reason he wanted to discharge Williams, because he led me to believe for six months that Im going to trial.

The competency trial commenced. Two doctors testified that defendant was competent to stand trial while the doctor called by defense counsel opined that defendant was marginally incompetent. After the doctors testified and during the proceedings, the court appointed an attorney, Kevin Ford, from Legal Referral Services, to advise defendant concerning his decision whether to testify at the competency trial. After conferring with Ford, defendant chose not to testify. On March 15, 2005, the court found defendant competent to stand trial and sent the matter to another department for trial setting.

On April 22, 2005, prior to opening statements at trial, Williams informed the court that defendant had some motions. The court responded, The only motion the Court will entertain is a motion to discharge counsel. Otherwise, the motions come from counsel. Defendant did not at that time seek to replace Williams. During trial, after the prosecution rested its case-in-chief, the court heard defendants complaints about counsels performance at trial and Williamss responses outside the presence of the prosecutor and jury in a Marsden hearing. The court found Williams was doing a lawyer-like job.

Analysis

Defendant only challenges the trial courts denial of his request to discharge retained counsel at the mental competency trial on March 8 and 9, 2005. He argues reversal is automatic.

Citing People v. Masterson (1994) 8 Cal.4th 965 (Masterson), People v. Jernigan (2003) 110 Cal.App.4th 131 (Jernigan), and People v. Tracy (1970) 12 Cal.App.3d 94 (Tracy), the Attorney General claims that because there was a doubt as to defendants competency to stand trial, the trial court properly assumed that defendant was not capable of acting in his own best interest despite the presumption of competence under section 1369, subdivision (f), and thus properly denied his motion to discharge counsel until the doubt had been resolved. We agree.

As the trial court determined, Marsden procedures are inapplicable to retained counsel. The Sixth and Fourteenth Amendments to the United States Constitution and article I, section 15 of the state Constitution, guarantee the right to counsel. The right to effective assistance of counsel encompasses the right to retain counsel of ones own choosing. [Citation.] [Citation.] (People v. Courts (1985) 37 Cal.3d 784, 789.)

The right of a nonindigent criminal defendant to discharge his retained attorney, with or without cause, has long been recognized in this state [citations]. . . . [] A nonindigent defendants right to discharge his retained counsel, however, is not absolute. The trial court, in its discretion, may deny such a motion if discharge will result in significant prejudice to the defendant [citation], or if it is not timely, i.e., if it will result in disruption of the orderly processes of justice [citations]. (Ortiz, supra, 51 Cal.3d at p. 983, fn. omitted.) Ortiz error is reversible per se. (Id. at p. 988.)

Trial of an incompetent defendant violates the due process clause of the Fourteenth Amendment to the United States Constitution [citation] and article I, section 15 of the California Constitution. Those protections are implemented by statute in California. A criminal defendant is incompetent and may not be tried or adjudged to punishment if as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. ( 1367, subd. (a).) Section 1368 mandates a competency hearing if a doubt as to a criminal defendants competence arises during trial. That may occur if counsel informs the court that he or she believes the defendant is incompetent ( 1368, subd. (b)), or [i]f during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant. ( 1368, subd. (a).) [] Whether on motion of the defendant or sua sponte, the trial court is required to suspend criminal proceedings and hold a hearing to determine competency whenever substantial evidence of incompetence is introduced. Substantial evidence is evidence that raises a reasonable doubt about the defendants competence to stand trial. [Citation.] Evidence regarding past events that does no more than form the basis for speculation regarding possible current incompetence is not sufficient. [Citation.] (People v. Hayes (1999) 21 Cal.4th 1211, 1281.)

It is a fundamental canon of criminal law, and a foundation of due process, that A person cannot be tried or adjudged to punishment while such person is mentally incompetent. [Citation.] (Masterson, supra, 8 Cal.4th at p. 968.) [A] section 1368 hearing is held only after there has been a prima facie showing of mental incompetence. Of necessity, therefore, defendants attorney must play a greater role in making fundamental choices for him, and cannot be expected to seek approval of strategic decisions made in the course of obtaining and presenting proof of incompetence. [Citation.] . . . [I]f counsel represents a defendant as to whose competence the judge has declared a doubt sufficient to require a section 1368 hearing, he should not be compelled to entrust key decisions about fundamental matters to his clients apparently defective judgment. [Citation.] (Masterson, supra, at p. 972.)

In Jernigan, the defendant was represented by appointed counsel who had doubts about the defendants mental competence. Counsel raised the issue when the defendant sought substitute counsel. After conducting an in camera hearing on both issues, the court agreed with counsel and denied defendants Marsden motion. (Jernigan, supra, 110 Cal.App.4th at p. 134.) The defendant refused to cooperate with the doctors appointed to evaluate him and failed to attend the competency hearing. The court found the defendant incompetent to stand trial. (Id. at p. 135.) On appeal, the defendant contended that the court should have appointed a second attorney to present the defendants position that he was competent. (Id. at pp. 134, 135.) In rejecting the defendants contention, Jernigan concluded that [t]he fact that counsel and her client differed on the central issue of defendants competency does not raise an actual conflict requiring the appointment of a second attorney. . . . To permit a prima facie incompetent defendant to veto counsels decision to argue that the client is incompetent would increase the danger that the defendant would be subjected to criminal proceedings when he or she is unable to assist counsel in a rational manner. [Citation.] (Id. at pp. 135-136.) Jernigan also concluded that the differing views did not bear[] upon counsels ability to represent her client. The sole purpose of competency proceedings is to protect the accused. [Citation.] Counsels interest in seeking to prove that defendant is incompetent is presumably based upon her judgment that it is in his best interest to do so. Certainly there is nothing in the record to suggest otherwise. (Id. at p. 136.)

In Tracy, the trial court allowed the defendant to discharge the public defender and to represent himself at a hearing held under section 1368 even though a diagnostic study reported that the defendant had a mental illness requiring treatment. (Tracy, supra, 12 Cal.App.3d at pp. 97-102.) Tracy concluded, Where a doubt has arisen as to a defendants sanity, it should be assumed he is not capable of acting in his own best interest [citations], and he should not be permitted to discharge his attorney until that doubt has been resolved. (Id. at p. 103.) Tracy cited People v. Hill (1967) 67 Cal.2d 105 (Hill) which stated, Obviously, where the attorney has doubts as to the present sanity of the defendant he should be able to make decisions as to how the proceedings should be conducted. [] When evidence indicates that the defendant may be insane it should be assumed that he is unable to act in his own best interests. In such circumstances counsel must be free to act even contrary to the express desires of his client. [Citation.] Conducting the trial according to the dictates of a defendant who, evidence indicates, may be insane, can result in prejudicial error. [Citation.] (Id. at p. 115, fn. 4.)

The trial court did not abuse its discretion in refusing to allow the discharge of Williams because it would have resulted in significant prejudice to defendant or a disruption of the orderly processes of justice unreasonable under the circumstances. The record reflects that defendant disagreed with counsels decision to pursue the competency proceeding. There is nothing in the record to suggest that Williams intent was anything other than to protect defendants best interests. Defendant requested to discharge Williams on the first day of the competency trial. Defendant never sought to represent himself; he wanted substitute counsel under Marsden which was inapplicable. Defendant had not retained new counsel to replace Williams. Without a continuance to retain new counsel (which defendant never requested) defendant would have been forced to proceed at the competency hearing without adequate representation which would have caused a significant prejudice to defendant. (People v. Turner (1992) 7 Cal.App.4th 913, 918.) Moreover, defendants competence was at issue and the trial court properly assumed defendant was unable to act in his own best interests. A continuance to retain new counsel would have caused a substantial delay, the very issue defendant was griping about with respect to Williams. Moreover, new counsel would have had to proceed to trial on the competency issue given the courts stated doubt and a doctors opinion that defendant was marginally incompetent. (People v.Stanley (1995) 10 Cal.4th 764, 804-805 (Stanley).)^[3]

Anticipating the conclusion that discharge would cause a significant prejudice to defendant, defendant argues such conclusion is contrary to the statutory presumption of competence ( 1369, subd. (f)). We disagree.

[T]he primary significance of the presumption of competence is to place on the defendant (or the People, if they contest his competence) the burden of rebutting it. [Citation.] The presumption is a rule of procedure; it cannot negate the fact the court here declared a doubt as to defendants competence. The rationale underlying [People v.] Samuel [(1981) 29 Cal.3d 489] and Hill[, supra, 67 Cal.2d 105]--that the person whose competence is in question cannot be entrusted to make basic decisions regarding the conduct of that proceeding--is unaffected by the presumption. (Masterson, supra, 8 Cal.4th at p. 974.)

We find no error.

II.

In an opinion filed in this case on January 16, 2007, we rejected defendants claim of Blakely error, citing People v. Black (2005) 35 Cal.4th 1238 (Black I). On January 22, 2007, the United States Supreme Court decided Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham), reaffirming its holdings in Blakely and Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] and overruling Black I, in part, to the extent it rejected the challenge that Californias judicial factfinding for imposition of the upper term violates Blakely.

(Cunningham, supra, at p. ___ [166 L.Ed.2d at pp. 864, 868, 873, 876].) On February 15, 2007, we granted defendants petition for rehearing, vacated the opinion filed on January 16, 2007 and directed the parties to file supplemental briefing on Cunningham. Subsequently, the California Supreme Court considered the effect of Cunningham in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825. Based on Black II, we again reject defendants claim of error.

At the beginning of the sentencing hearing, the court stated that it had read and considered the probation report. The probation report recounts defendants criminal history which includes the following felony convictions: 1986, second degree kidnapping and unauthorized use of a motor vehicle (Oregon); 1990, a violation of Health and Safety Code section 11352; 1999, burglary and grand theft (Nevada); and 1993, a violation of section 529, subdivision 3. Defendant also had nine misdemeanor convictions over 20 years, beginning in 1980. His misdemeanor convictions included cohabitant/spousal abuse ( 273.5) in 2000 and battery ( 242), two counts, in 1986. He also had four violations of probation in the five years prior to sentencing on the current offenses.

The trial court imposed the upper term for count 1 based on the following factors: the court was imposing a concurrent term on count 2 which could have been consecutive; count 2 involved physical force; defendants prior record is abysmal; and defendant lacked remorse.

Relying on Blakely and Cunningham, defendant argues that the upper term for count 1 must be reduced to the midterm because the trial court relied upon factors in aggravation which were not found true beyond a reasonable doubt by a jury.

In his supplemental letter brief, the Attorney General argues that the recidivism exception to the Blakely/Cunningham requirement applies. He further argues that any error was harmless beyond a reasonable doubt.

Black II held that imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (Black II, supra, 41 Cal.4th at p. 816.)

We conclude that the trial courts imposition of the upper term for count 1 did not violate defendants constitutional right to a jury trial because there were two aggravating factors exposing defendant to the upper term which fell within the exception to the Blakely/Cunningham exception. First, the jurys verdict on count 2, convicting defendant beyond a reasonable doubt, for which defendant received a concurrent term supported an aggravating factor. The court cited this factor in aggravation, that is, the defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed. (Cal. Rules of Court, rule 4.421(a)(7).)^[4]

Second, defendants criminal history. The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. [Citations.] [R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. [Citation.] (Black II, supra, 41 Cal.4th at p. 818.) The trial court stated that it had read and considered the probation report which recounts defendants criminal history. The trial court cited in aggravation that defendants prior record is abysmal. Rule 4.421(b)(2) sets forth as an aggravating factor the following: [t]he defendants prior convictions . . . are numerous or of increasing seriousness. Defendant had six felony convictions and nine misdemeanor convictions, that is, numerous convictions. (Ibid.)

The trial courts reliance upon additional aggravating factors, that is, the use of force in count 2 and defendants lack of remorse, was not unconstitutional. The [trial] courts factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating facts are found by the court, the upper term remains the maximum that may be imposed. Accordingly, judicial factfinding on those additional aggravating circumstances is not unconstitutional. (Black II, supra, 41 Cal.4th at p. 815.) Following Black II as we must (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450), we reject defendants claim of Blakely/Cunningham error.

DISPOSITION

The judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

BLEASE , Acting P.J.

NICHOLSON , J.

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^[1] Hereafter, undesignated section references are to the Penal Code.

^[2] People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

^[3] Defendant got more than he was entitled to when the court appointed advisory counsel during the proceedings as to defendants decision whether to testify. (See Stanley, supra, 10 Cal.4th at pp. 806-807.)

^[4] Further rule references are to the California Rules of Court.