P. v. Curtis

Filed 3/23/07 P. v. Curtis CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant pleaded no contest to five violations of the sex-offender registration provisions of Penal Code section 290:^[1]failing to update his registration within five days of his birthday ( 290, subd. (a)(1)(D) [count 1]), failing on or about August 4, 2003, to register a new address ( 290, former subd. (a)(1)(A); Stats. 2002, ch. 17,  1, eff. Mar. 28, 2002 [count 2]); failing on or about October 2, 2003, to register a new address ( 290, former subd. (a)(1)(A); Stats. 2003, ch. 634,  1.3, eff. Sept. 30, 2003 [count 3]), failing to notify the last registering agency of a change of address ( 290, former subd. (f)(1); Stats. 2003, ch. 634,  1.3, eff. Sept. 30, 2003 [count 4]), and failing to update registration within five days of release from custody ( 290, former subd. (e)(2); Stats. 2002, ch. 17,  1, eff. Mar. 28, 2002 [count 5]). Defendant admitted four prior convictions: three for purposes of section 1170.12 and subdivisions (b)-(i) of section 667, and one for purposes of section 667.5, subdivision (b). The trial court sentenced defendant to four years in prison on count 1, and to concurrent terms of four years each on counts 2 through 5. It struck the section 667.5, subdivision (b), prior pursuant to section 1385.

On appeal, defendant maintains that his conviction for failing to update his registration as a sex offender within five days of his birthday must be stricken as imposed in excess of jurisdiction, that certain sentences constitute multiple punishments and must be stayed, and that the trial court abused its discretion in denying his motion to substitute counsel. We modify the judgment but affirm it as modified.

FACTS

Defendant last registered as a sex offender on February 25, 2002. His birthday is February 20, 1959, but he did not register within five days of his birthday in 2003. He was in jail in Santa Clara County from January to May of 2003, a time period that included his February 20 birthday. From September 24 to December 12, 2003, defendant was living at an address in Stockton, and failed to update his registration accordingly.

DISCUSSION

I. Validity of Conviction and Sentence for Count 1

Defendant contends that his conviction and sentence on count 1failing to update his registration within five days of his birthdayare for a crime that is a legal impossibility and that they must be set aside. He claims that his conviction and sentence on count 1 violate state law and ex post facto and due process principles.

Defendant correctly states that the record shows he was incarcerated on February 20, 2003, and for five days thereafter. Conceding that nothing in section 290.4 expressly exempts otherwise eligible sex offenders from being required to register while they are incarcerated, he argues that various provisions of section 290.4 should be interpreted as creating such an exemption.

The People maintain that because defendant did not seek and obtain a certificate of probable cause, we may not entertain his claim. We agree.

The rules governing a defendants right to appeal are stated in section 1237.5 and California Rules of Court, rule 8.304(b).

Section 1237.5 provides: No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.

California Rules of Court, rule 8.304(b), states in relevant part: (1) . . . [T]o appeal from a superior court judgment after a plea of guilty or nolo contendere . . . the defendant must file in that superior courtin addition to . . . notice of appeal . . .the statement required by Penal Code section 1237.5 for issuance of a certificate of probable cause. [] (2) Within 20 days after the defendant files a statement under (1), the superior court must sign and file either a certificate of probable cause or an order denying the certificate. [] (3) If the defendant does not file the statement required by (1) or if the superior court denies a certificate of probable cause, the superior court clerk must mark the notice of appeal Inoperative, notify the defendant, and send a copy of the marked notice of appeal to the district appellate project.

Defendants who fail to obtain a certificate of probable cause may raise only two types of issues on appeal: (1) search and seizure issues and (2) postplea issues that do not challenge the pleas validity. (See People v. Panizzon (1996) 13 Cal.4th 68, 75 [relying on a former iteration of the relevant rule of the Cal. Rules of Court]; see Cal. Rules of Court, rule 8.304(b)(4).) The People argue, and defendant tacitly acknowledges, that defendant did not obtain a certificate of probable cause. Accordingly, this court cannot consider his claim. Defendant proposes that we consider a number of possible legal or equitable tactics for circumventing the foregoing rule of limitation, such as vacating his conviction as in excess of jurisdiction or treating the case as involving a postplea erroneous failure to dismiss a legally impossible conviction. But these ideas founder on another rule, the requirement that section 1237.5 be strictly observed. (People v. Mendez (1999) 19 Cal.4th 1084, 1098; see also In re Chavez (2003) 30 Cal.4th 643, 653-654.) In enacting section 1237.5, the Legislature evidently sought to promote judicial economy in the appellate system as a whole, for it established a mechanism that did not invite consideration of the peculiar facts of the individual appeal. (Mendez, supra, at p. 1098.) Mendez further explained that the search for judicial economy on the peculiar facts of the individual appeal has turned out to be futile . . . [and] must be abandoned. (Ibid.) To undertake the efforts defendant suggests would require us to consider the peculiar facts (ibid.) of defendants appeal, i.e., that because he was in custody in February of 2003 he need not have updated his registration as a sex offender. To consider these facts and the applicable law would be to ignore Mendez, which we are not authorized to do. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

II. Claim of Excessive Unstayed Sentences

Defendant contends that the sentences on all but one count must be stayed. He claims that imposing the sentences on the other counts violated section 654. He also claims a violation of his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and article I, sections 7 and 15 of the California Constitution. And he claims, as additional legal consequences of the courts purported error under section 654, a violation of his rights to a liberty interest created by section 654 (see Hicks v. Oklahoma (1980) 447 U.S. 343, 346) and to not be placed twice in jeopardy for the same offense under the federal (U.S. Const., 5th & 14th Amends.) and state (Cal. Const., art. I,  15) double-jeopardy clauses.

This is a postplea matter that we will entertain on appeal despite defendants failure to seek and receive a certificate of probable cause. (See People v. Panizzon, supra, 13 Cal.4th 68, 75.)

Defendant, as noted, presents his constitutional claims as additional legal consequences of the courts purportedly erroneous ruling. (See People v. Lewis and Oliver (2006) 39 Cal.4th 970, 990, fn. 5; see id. at pp. 997, 1000, 1024, 1029, 1031, 1055.) In such a case, rejection on the merits of a claim that the trial court erred on the issue actually before that court necessarily leads to rejection of the newly applied constitutional gloss as well. No separate constitutional discussion is required in such cases, and we therefore provide none. (Id. at p. 990, fn. 5.)

Accordingly, our disposition of defendants section 654 claim, to which we now turn, resolves his constitutional claims as well.

Section 654, subdivision (a), states in relevant 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.

Imposing the sentences without staying any of them constituted multiple punishments, even though the court ordered the sentences to run concurrently. (In re Wright (1967) 65 Cal.2d 650, 652-653.) Section 654, in turn,  precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts.  (People v. Spirlin (2000) 81 Cal.App.4th 119, 129.)

Defendant relies on People v. Britt (2004) 32 Cal.4th 944, which stated:  Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.  (Id. at pp. 951-952.) Defendant maintains that all five charges here really amount to the same course of conduct: moving to Stockton without registering. Thus, all five charges were committed incident to a single objective.

We enjoy a limited scope of review of the trial courts necessary determination that defendants acts were divisible and subject to multiple punishments. We defer to the courts explicit, implicit, or necessary factual findings. Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial courts determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)

The People concede that there is no substantial evidence to support the trial courts necessary determination that defendant harbored more than one intent and objective in committing the crimes described in counts 2, 3, and 4. Counts [2], [3], and [4], the People concede, are one omission[:] [defendant]s failure to notify authorities of his move from San Jose to Stockton. We agree with the concession, and will order the sentences on counts 3 and 4 to be stayed.

By contrast, defendant cannot benefit from section 654s limitation on punishment with respect to counts 1, 2 through 4, and 5. In count 1, defendant pleaded no contest to failing, on or about February 28, 2003, to update his registration within five days of his birthday ( 290, subd. (a)(1)(D)). The information charged that the offense occurred in Santa Clara County. Although counts 2 through 4 contain allegations of acts occurring on two different dates (August 4 and October 2, 2003), at best for defendant (and as the People concede), all of the offenses regard defendants failure to notify authorities of his move from San Jose to Stockton. In count 5, defendant pleaded no contest to failing, on or about May 13, 2003, to update registration within five days of release from custody ( 290, former subd. (e)(2)). Not only does the information allege markedly different dates for the three groups of offenses (i.e., count 1, counts 2 through 4, and count 5), but substantial evidence supports the trial courts necessary determination that defendant harbored different objectives in (1) failing to register as a sex offender on his birthday or five working days afterward, (2) failing to notify authorities of his move from San Jose to Stockton, and (3) failing to register as a sex offender on his release from custody or five days afterward. We cannot agree with defendant that all five charges amount to the single course of conduct of moving to Stockton without registering.

Defendant relies in part on an ambiguous statement by the trial court. The court asked a deputy probation officer in attendance what defendants credits were. The deputy probation officer provided numbers, and then added gratuitously, also, your Honor[] was running all the counts concurrently because the case involves the same course of conduct. The court replied: Correct. Thank you. We cannot divine from the foregoing exchange, which did not even involve counsel, that the court was finding the same intent and objective for all five offenses under section 654. The term course of conduct is vaguethe probation officer may have been thinking of the fact that all of defendants offenses were for failing to register as a sex offenderand in its laconic reply the court may have been referring only to its intention to impose concurrent terms rather than contemplating the rules under section 654. We presume that the court understood it must stay sentences if section 654 requires doing so. Defendants interpretation of the courts reply to the deputy probation officer, by contrast, would require a conclusion that the trial court was ignorant of that duty. To be sure, the court did impose concurrent unstayed terms on counts 2, 3, and 4, and the People concede that no substantial evidence supports those rulings. But even given the Peoples concession that the terms on those counts fall within the ambit of section 654, the courts sentencing rulings do not automatically show ignorance of the statutory requirements; the court may simply have felt that the evidence supported a finding of different objectives for each offense alleged in those counts.

We will modify the judgment and order correction of the abstract of judgment to reflect stays on counts 3 and 4. Section 654, subdivision (a), provides in essence that the sentences carrying the shorter potential terms of imprisonment are to be stayed, but in this case all of the counts carried the same maximum potential term ( 290, former subd. (g)(2); Stats. 2002, ch. 17,  1, eff. Mar. 28, 2002; Stats. 2003, ch. 634,  1.3, eff. Sept. 30, 2003), so it is proper to stay counts 3 and 4.

III. Denial of Marsden Motion

Defendant claims that the trial court erred by denying his motion to substitute counsel under People v. Marsden (1970) 2 Cal.3d 118. He also claims that the courts ruling had the additional legal consequences of violating his rights to due process of law, presumably under the Fifth and Fourteenth Amendments to the United States Constitution and article I, sections 7 and 15 of the California Constitution, and to rights he asserts he enjoys to conflict-free counsel under the Sixth and Fourteenth Amendments to the federal Constitution and article I, sections 7 and 15 of the state Constitution.

On April 5, 2005, and as described, defendant pleaded no contest to all counts and admitted four prior convictions. At the time he was represented by the public defender. On May 19 the public defender declared a conflict and on May 26 the trial court appointed the alternate defender. On September 1 the court denied a motion by defendant, now represented by the alternate defender, to withdraw his no-contest pleas. On October 27 the court denied defendants renewed motion to withdraw his pleas and a Marsden motion. On November 18 the court denied a second Marsden motion. On March 8, 2006, the alternate defender declared a conflict and the court appointed new counsel again. The new counsel, defendants third appointed advocate, did not move to withdraw defendants pleas, and defendant did not file any more Marsden motions.

Defendants due process claim appears only in the heading for this issue. He provides no argument in support, and we will not entertain his due process claim. It is the duty of counsel by argument and the citation of authorities to show that the claimed error exists. [] . . . Contentions supported neither by argument nor by citation of authority are deemed to be without foundation, and to have been abandoned.  (Estate of Randall (1924) 194 Cal. 725, 728-729; see Cal. Rules of Court, rule 8.204(a)(1)(B); In re Barbara R. (2006) 137 Cal.App.4th 941, 949.)

We will entertain defendants remaining claims. A challenge on appeal to the denial of a postplea Marsden motion is entertainable by the reviewing court without a certificate of probable cause, even if some of defendants complaints pertained to his trial counsels pre-plea conduct. (People v. Vera (2004) 122 Cal.App.4th 970, 978.) Such is the case here.

As noted, defendant presents his remaining constitutional claimsto conflict-free counselas additional legal consequences of the courts purportedly erroneous ruling. Although defendant has preserved those constitutional claims for review, as we explained in the previous part of this discussion, in a case in which a constitutional claim not presented to the trial court is preserved because it is an additional legal consequence of a properly preserved claim of error under state law, rejection on the merits of a claim that the trial court erred on the issue actually before that court necessarily leads to rejection of the newly applied constitutional gloss as well. No separate constitutional discussion is required in such cases, and we therefore provide none. (People v. Lewis and Oliver, supra, 39 Cal.4th 970, 990, fn. 5.)

Turning to the merits, we conclude that defendants Marsden claim does not entitle him to relief. Any error was harmless, because defendant eventually received the relief he had sought in his Marsden motion: a new attorney, his third, replaced the alternate defender, his second counsel, who in turn had replaced defendants original counsel. Defendants third appointed counsel could have moved to withdraw defendants no-contest pleas, and did not do so. Defendant did not complain of his third counsels failure to move to withdraw the pleas. Therefore, whether or not the trial court abused its discretion (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1003) in denying defendants Marsden motion, any such abuse of discretion was harmless under any standard (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836)any prejudice to defendant was eliminated when the court appointed third counsel to represent defendant and defendant did not complain further. (See People v. Lloyd (1992) 4 Cal.App.4th 724, 731-732 [trial courts error in failing to consider the defendants first Marsden motion was rendered harmless when the defendant did not again present his reasons to replace counsel at a later hearing].) In sum, [d]efendants [conduct when represented by third counsel] can only be interpreted as an abandonment of his . . . complaints. (Cf. People v. Lovings (2004) 118 Cal.App.4th 1305, 1312 [the defendants conduct at change of plea hearing indicated that Marsden concerns were gone].) (People v. Vera, supra, 122 Cal.App.4th 970, 981.)

DISPOSITION

The judgment is modified to stay the sentences on counts 3 and 4. The superior court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections. As modified, the judgment is affirmed.

Duffy, J.

WE CONCUR:

Bamattre-Manoukian, Acting, P.J.

Mihara, J.

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^[1]All further statutory references are to the Penal Code unless otherwise specified.