P. v. Pokorney
Filed 12/11/08 P. v. Pokorney CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Shasta)
----
THE PEOPLE, Plaintiff and Respondent, v. PAUL JAY POKORNEY, Defendant and Appellant. | C057189 (Super. Ct. No. 07F5459) |
Defendant committed a commercial burglary. Convicted of that crime and sentenced to five years in state prison, he appeals. He contends that (1) the trial court abused its discretion in denying his motion to disqualify the deputy district attorney who prosecuted him and (2) the imposition of the upper term for burglary violated his rights under Cunningham v. California (2007)549 U.S. 270 [166 L.Ed.2d 856] (Cunningham). We find no merit in defendants contentions, and therefore affirm.
BACKGROUND
Because the facts underlying defendants crimes are not pertinent to the resolution of defendants contentions on appeal, we provide only a brief summary.
Defendant and a female companion entered Home Depot and purchased a lawn mower and a drill. After taking the items to his car, he reentered the store, obtained another lawn mower and drill and tried to leave the store without paying for the items. He showed a Home Depot employee the receipt for the prior purchase at the exit.
A jury convicted defendant of second degree commercial burglary and petty theft with a prior, and the trial court found true the allegations that defendant served two separate prior prison terms. The court sentenced defendant to the upper term of three years for second degree commercial burglary and imposed and stayed the middle term of two years for the petty theft with a prior. The court imposed two consecutive one-year terms for the prior prison terms, for a total unstayed sentence of five years in state prison.
DISCUSSION
I
Motion to Disqualify Deputy District Attorney
Defendant moved to disqualify the deputy district attorney prosecuting his case because the deputy district attorneys wife represented defendant in parole proceedings. The trial court denied the motion.
On appeal, defendant asserts that the trial court abused its discretion in denying the motion to disqualify the deputy district attorney. We disagree.
Penal Code section 1424 governs resolution of a motion to disqualify the district attorney. The defendant must file a written motion at least 10 days before the matter is heard. (Pen. Code, 1424, subd. (a)(1).) The motion may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial. (Ibid.)
During selection of the jury, defense counsel stated that defendant had just raised an issue concerning the deputy district attorney handling the case, Brian Popkes. Defense counsel told the court that Popkess wife was the attorney who represented defendant in parole proceedings. Referring to the attorney-client relationship between defendant and Mrs. Popkes, defense counsel stated: Theyve had issues in the past. They have had words in the past. The trial court noted that raising this concern while potential jurors were waiting in the hall was not timely. The court said: If you want to bring it up again at some time when we dont have jurors waiting and present, Ill consider it.
Without filing a written motion, as required by Penal Code section 1424, defense counsel raised the issue again during jury selection. Counsel stated: Well, my client has a concern because Mr. Popkes and Mrs. Popkes are married and she is representing my client in a parole hearing. And on the other side, Mr. Popkes is prosecuting him, essentially. My client has a concern about that, due to the attorney/client privilege that [defendant] and Miss [sic] Popkes has. And concerned that however information is conveyed to Mr. Popkes, it could endanger my client. The appearance of impropriety, thats my clientss [sic] concern. Hes very uncomfortable with it. Defendant, himself, added: We had words -- me and his wife -- his wife [sic] -- we had words when I first was in jail. And it wasnt pleasant between us. Defense counsel said that the concern is a possible conflict of interest.
Deputy District Attorney Popkes stated that he and his wife had a strict practice of not sharing information about her clients. The extent of their discussion about defendant was that he had told her that he was prosecuting defendant and that defendant had waived a parole hearing, which was a matter of public record.
Noting that defendant had presented the court with no law concerning disqualification of a deputy district attorney, the trial court said that it did not believe that marriage created a presumption that client confidentiality was impaired. The court left open the possibility that defendant would present legal authority for his argument that the deputy district attorney should be disqualified.
Later, defense counsel said that he had not found any authority for his argument because his Westlaw [was] down. The trial court reiterated that it would keep its mind open on the matter, but the issue was not raised again.
On appeal, defendant contends that the trial court abused its discretion by denying his motion to disqualify the deputy district attorney. He claims that the deputy district attorneys impartiality [was] compromised by a conflict of interest. The contention is without merit because defendant did not establish a conflict of interest on the part of the deputy district attorney.[1]
As noted above, a motion to disqualifya district attorney may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial. (Pen. Code, 1424, subd. (a)(1).) This language establishes a two-part test: (1) is there a conflict of interest and (2) is the conflict so severe as to render it unlikely that defendant will receive a fair trial? (People v. Conner (1983) 34 Cal.3d 141, 148-149.)
A conflict, for purposes of Penal Code section 1424, exists whenever the circumstances of a case evidence a reasonable possibility that the DAs office may not exercise its discretionary function in an evenhanded manner. Thus, there is no need to determine whether a conflict is actual or only gives an appearance of conflict. [Citation.] But however the conflict is characterized, it warrants recusal only if [it is] so grave as to render it unlikely that defendant will receive fair treatment during all portions of the criminal proceedings. [Citation.] [] . . . [W]hether the prosecutors conflict is characterized as actual or only apparent, the potential for prejudice to the defendant -- the likelihood that the defendant will not receive a fair trial -- must be real, not merely apparent, and must rise to the level of a likelihood of unfairness." (People v. Eubanks (1996) 14 Cal.4th 580, 592, original italics.)
On appeal, a trial courts ruling on a motion for an order recusing a member of the district attorneys office, or the office as a whole, for a conflict of interest is reviewed for abuse of discretion, and its findings as to any underlying facts are reviewed for substantial evidence. [Citation.] (People v. Griffin (2004) 33 Cal.4th 536, 570.)
Here, defendant argues that the trial court abused its discretion because there was a conflict of interest on the part of Deputy District Attorney Popkes. Defendant states: Mr. Popkes wife represented [defendant] for purposes of his parole hearing and had an attorney/client communication wherein [defendant] imparted valuable communication regarding this case. Mr. Popkes was aware of his wifes representation of [defendant]. Although he indicated he did not discuss the particulars of [defendants] case with his wife, they at least had communication, by which Mr. Popkes was aware of the representation.
This argument falls well short of establishing that the trial court abused its discretion. Popkes and his wife discussed information about defendant available to the public, not confidential information. That information included the fact of Popkess prosecution of defendant and defendants waiver of a parole hearing. Defendant offers no authority for the proposition that we must presume that Mrs. Popkes shared defendants confidential information with Mr. Popkes, and we know of none. To have done so would have been a serious violation of Mrs. Popkess duty to keep client confidences. Therefore, we will not presume that she committed such a violation. The mere possibility that such confidences would be shared was not so grave as to render it unlikely that defendant would receive fair treatment. (People v. Eubanks, supra, 14 Cal.4th at p. 592.) Accordingly, the trial court did not abuse its discretion in denying the motion to disqualify the deputy district attorney.
II
Upper Term Sentencing
Defendant was sentenced to the upper term of three years for second degree burglary. On appeal, he asserts that imposition of the upper term without submitting the aggravating factors to a jury violated his jury trial rights pursuant to Cunningham, supra, 549 U.S. 270. This assertion is without merit because defendant was sentenced under the newest version of the determinate sentencing law, which does not violate jury trial rights.
Prior to defendants sentencing hearing on October 12, 2007, the Legislature enacted and the Governor signed Senate Bill No. 40 (signed into law as urgency measure on March 30, 2007). That bill amended the determinate sentencing law to vest the choice of the appropriate sentencing term within the sound discretion of the trial court. (Pen. Code, 1170, subd. (b).) The midterm is no longer the presumptive term from which a trial court can deviate only on the finding of aggravating factors. As a result, a trial court may sentence a convicted defendant to the upper term without factfinding by a jury. (People v. Wilson (2008) 164 Cal.App.4th 988, 992.)
Defendants argument does not take into account this change in the law. Because the determinate sentencing law has been amended to resolve the constitutional deficiencies found by the United States Supreme Court in Cunningham, the trial courts imposition of the upper term, using the new law, did not violate defendants jury trial rights. Therefore, defendants contention is without merit.
DISPOSITION
The judgment is affirmed.
NICHOLSON , J.
We concur:
SIMS , Acting P. J.
DAVIS , J.
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[1] Because we conclude that the contention is without merit, we need not determine whether (1) the untimeliness of the motion and the failure to file a written motion justified the denial and (2) the failure to cite authority in making the motion in the trial court forfeited consideration of the merits on appeal.
