P. v. Ball

Filed 3/24/06 P. v. Ball CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Gregory T. Fain, Judge.

Sylvia Whatley Beckman, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and Daniel B. Bernstein, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

On December 16, 2004, appellant Jason Dwayne Ball pled no contest to an allegation in case No. F04901731-0 that he committed an assault with a firearm (Pen. Code, § 245, subd. (a)(2)).^[1] Ball admitted allegations he committed the offense for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (a)(2)), personally used a firearm (Pen. Code, § 12022.5, subd. (b)), and had a prior serious felony conviction within the meaning of the three strikes law (Pen. Code, § 1170.12, subds. (a)-(d)). In case No. F04901836-7, Ball pled no contest to one count of arson of an inhabited building (Pen. Code, § 451, subd. (b)). Under the plea agreement, Ball was subject to a prison term of 17 to 19 years.

The trial court sentenced Ball to the mitigated term of two years for assault with a firearm, which the court doubled to four years pursuant to the three strikes law.^[2] The court imposed a consecutive 10-year term for the gang enhancement and a consecutive 3-year term for the weapon use enhancement. Ball's total prison term is 17 years. The court imposed a restitution fine and granted applicable custody credits. On appeal, Ball contends the trial court erred when it failed to appoint different counsel to investigate his motion to withdraw his plea based on ineffective assistance of trial counsel. Ball further contends, and respondent concedes, that the trial court erred when it imposed prison terms for each enhancement.

PROCEEDINGS

On August 10, 2004, Ball appeared for the preliminary hearing in the arson case and for arraignment in the assault case. Ball made a Marsden motion.^[3] At the time, Ball was represented by the public defender in the arson case and by the Barker firm in the assault action. Ball complained that he had a conflict with his counsel. Counsel replied she had seen Ball in prison and was finishing another case. Counsel in both actions explained each appearance they had made on behalf of Ball. The court denied the Marsden motion and Ball's request for co-counsel status.

On September 30, 2004, Ball appeared in the aggravated assault case represented by Mr. Asami of the Barker firm. Ball informed the court that he wanted to bring a Marsden motion. Ball told the court that he was not getting along with Asami, they did not see eye-to-eye, and did not trust each other. Ball asserted there was no physical evidence which tied him to the case and Asami did not file a motion to suppress evidence or to dismiss the case. Ball stated Asami talked to him about taking a plea bargain. Ball said Asami was not willing to fight for him and he therefore had no trust in him. There was discussion about the arson case.

After Ball made his complaints, Asami explained he had been an attorney for eight years and worked primarily in the field of criminal law. Asami had been Ball's counsel after August 19, 2004. Asami stated he had obtained the preliminary hearing transcript from the arson case, but was having difficulty obtaining the transcript from the assault case. Asami explained that once he had the missing transcript, he would look into filing any appropriate motions.

Asami told the court that Ball had a list of potential witnesses and Asami gave the list to his investigator. The witnesses had not called the investigator back. Asami was keeping both actions on the same procedural track and he explained to the court that he did not think this would negatively impact the assault case. Asami believed there was a misunderstanding but did not believe he had done anything improperly as Ball's counsel. Asami pointed out that there was eyewitness identification of Ball as the shooter in the assault case. Contrary to Ball's assertion, there was evidence against him. Asami believed Ball had possession of the police reports. Ball claimed he only had one report.

Asami explained he had not yet tried to negotiate a plea because the two cases were off-track. The court explained to Ball that it is usually in the defendant's interest to have both cases resolved together. Ball claimed his counsel did not want to listen to him. The judge told Ball he could not get the missing preliminary hearing transcript and that counsel could not proceed on other matters until he received the transcript. Ball responded that he wanted to be released on his own recognizance. The court explained that the allegations against Ball were serious offenses.

The court assured Ball that Asami was doing the best job he could with limited resources. The court found there was not any substantial degree of conflict between Ball and Asami and it denied the Marsden motion.

Asami appeared with Ball on December 16, 2004, and entered into a plea bargain in both actions. When Asami appeared with Ball on January, 28, 2005, the court indicated it had received a letter from Ball stating that Ball had made allegations specific to Asami's representation. The court conducted a third Marsden hearing.

During the in camera hearing, Ball stated that he did not see eye-to-eye with Asami and did not understand Asami. Ball told the court that he asked Asami if Asami would â€