Filed 8/20/14 P. v. Lopez CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058762

v.                                                                       (Super.Ct.No. RIF1204930)

JOE LOUIS LOPEZ, JR.,                                                    OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Thomas E. Kelly, Judge.

(Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to

art. VI, § 6 of the Cal. Const.) Affirmed with directions.

         Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and William

M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.


                                                             1
       In exchange for an indicated sentence of nine years in state prison, defendant Joe

Louis Lopez, Jr., pleaded guilty to one count of burglary and two counts of exhibiting a

deadly weapon. Further, he admitted he had suffered four prison priors, one of which

was also deemed a serious prior offense and a serious and violent felony for purposes of

sentencing.

       In this appeal, defendant contends the trial court erred by not conducting a

Marsden1 hearing to determine whether his dissatisfaction with his appointed counsel—

for failing to file a Romero2 motion to strike a 1990 serious and violent felony conviction

for first degree burglary, and apparently for not objecting to a witness identification of

defendant by prosecution witnesses outside the presence of defendant’s appointed

attorney—warranted appointment of a new attorney. Defendant also argues the trial

court erred in sentencing him to a nine-year prison sentence under the mistaken belief

that it was the lowest possible prison term available.

       We conclude the trial court conducted an adequate inquiry into the prepreliminary

examination identification. The trial court also correctly concluded that, in light of

defendant’s extensive criminal history, it could not have stricken the 1990 first degree

burglary conviction for purposes of sentencing. Therefore, the court was not required to

conduct further inquiry into whether new counsel should have been appointed. Moreover,



       1   People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

       2   People v. Superior Court (Romero) (1996) 13 Cal.4th 497.



                                              2
because the trial court could not have stricken the 1990 strike prior, the trial court correctly

concluded the lowest possible sentence available was nine years.

       However, in supplemental briefs, the parties agree the trial court entered an

unauthorized sentence when, in order to achieve the nine-year indicated sentence, it

stayed instead of striking four one-year prison prior enhancements. We therefore order

the trial court to strike the four prison prior enhancements, and we affirm the judgment as

corrected.

                                              I.

                                           FACTS

       The People charged defendant by information with one count of burglary (Pen.

Code,3 § 459, count 1) and two misdemeanor counts of exhibiting a deadly weapon (Pen.

Code, § 417, subd. (a)(1), counts 2 & 3). The People alleged defendant suffered four

prison priors for purposes of sentencing (Pen. Code, § 667.5, subd. (b)), to wit: (1) first

degree burglary on July 20, 1990 (Pen. Code, § 459); (2) second degree burglary on

October 28, 1996 (Pen. Code, § 459); (3) possession of a controlled substance on August

15, 2005 (Health & Safe. Code, § 11377), and (4) receiving a stolen vehicle on May 15,

2009 (Pen. Code, § 496d, subd. (a)). Finally, the People alleged defendant’s July 20,

1990 conviction for first degree burglary was a serious felony (Pen. Code, § 667,




       3Unless otherwise indicated, all undesignated statutory references are to the
Penal Code.



                                              3
subd. (a)), and a serious and violent felony (Pen. Code, §§ 667, subds. (c), (e)(1),

1170.12, subd. (c)(1)).

       On the day of trial, defendant chose to plead guilty to all counts and to admit all

special allegations for an indicated sentence of nine years in state prison. Defendant

admitted he unlawfully entered an inhabited dwelling with the intent to commit a theft

and admitted he brandished a knife at two victims. The trial court found a factual basis

for the plea. The court then accepted defendant’s guilty plea to the three counts alleged

in the information, and accepted his admission to the special allegations.

       On March 15, 2013, the date originally set for sentencing, defendant’s appointed

counsel informed the court that defendant wished to address the court, in what counsel

stated would be “tantamount to a Sanchez[4] hearing.” Defendant submitted a

handwritten “Affidavit of Statement” to the court, in which he claimed his Sixth

Amendment right to confront his accusers had been violated during his preliminary

examination. Defendant stated he saw the district attorney identify him to two witnesses

before they testified, and he argued his due process rights were violated because his

public defender was not present. In support of this argument, defendant submitted an

affidavit from another inmate who was present in the courtroom and also witnessed the

supposed “line up.” Finally, defendant argued that on December 27, 2012, he had asked

his public defender to file “a Romero motion,” but his attorney declined to do so, telling


       4   An apparent reference to People v. Sanchez (2011) 53 Cal.4th 80.




                                             4
defendant Judge Hernandez5 already indicated he would deny such a motion. Defendant

did not expressly state he was dissatisfied with his appointed counsel and did not ask the

court to appoint new counsel for him. But, he cited two decisions of the United States

Court of Appeals (2d Cir. & D.C. Cir.) for the propositions that a criminal defendant has

a Sixth Amendment right to effective assistance of counsel, and that a trial court must

inquire into the reasons for a defendant’s dissatisfaction when he voices a seemingly

substantial complaint about his appointed attorney.

       Defendant informed the court of his concern about the district attorney identifying

him to the witnesses prior to the preliminary examination. “I took it as violating my

Sixth Amendment right—without having my counsel in there.” Defendant also addressed

his apparent wish that he be permitted to move to strike his 23-year-old burglary

conviction. “I’m just trying to get a Romero motion—or my strike’s 23 years old—or try

to get my [strike] stricken.”

       With respect to the prepreliminary examination identification, the prosecutor

informed the court he had met with his two witnesses 30 minutes before the hearing

began, which he believed was not a violation of defendant’s Sixth Amendment right to

confront witnesses. The trial judge put the matter over so he could review defendant’s

written submission.




       5 Judge Hernandez arraigned defendant on the complaint and information, and
presided over some of defendant’s other pretrial hearings.



                                             5
       At defendant’s continued sentencing hearing on March 19, 2013, the trial court

addressed defendant’s assertion that the district attorney violated his Sixth Amendment

rights by having the witnesses identify defendant before the preliminary examination.

The court analogized the identification to an eyewitness identification “in the field,”

which is permissible. With respect to defendant’s assertion that his appointed attorney

did not file a Romero motion because Judge Hernandez indicated he would not grant it,

the trial judge stated, “I have to tell you, in all honesty, I’m not able to strike it either.”

Defendant responded he did not understand how Judge Hernandez would not honor a

request that had not yet been made. The trial judge explained he could only strike

defendant’s 1990 burglary conviction if he found defendant fell outside the spirit of the

three strikes law. Because of defendant’s additional prison commitments in subsequent

years, and his extensive criminal history, the trial judge stated he would likely be

reversed on appeal if he were to strike the 1990 prior.

       With respect to the indicated sentence, the trial court explained to defendant that

the lowest possible sentence available was nine years. This consisted of: (1) the low

term of two years for defendant’s burglary conviction under count 1 (§ 459), doubled

pursuant to the two strikes law based on defendant’s 1990 serious and violent conviction

for first degree burglary (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)); plus (2) a five-

year sentence enhancement for defendant’s 1990 serious felony conviction (§ 667,

subd. (a)). In contrast, the court stated that, if it were to strike defendant’s 1990 strike

prior and not double defendant’s burglary conviction pursuant to the two strikes law, it

would sentence defendant to 12 years in state prison. The court explained it would arrive

                                                6
at this sentence by imposing: (1) the middle term of four years for the current burglary

conviction; (2) three one-year enhancements for three of defendant’s prison priors; and

(3) a five-year enhancement for defendant’s 1990 serious felony conviction. The court

then added, “[s]o, bottom line, . . . it doesn’t get any better than nine years.”

       After some additional discussion, the court sentenced defendant to nine years in

state prison according to the indicated sentence, stayed the sentence on the four one-year

prison prior enhancements, and sentenced defendant to six months for each of

defendant’s misdemeanor convictions under counts 2 and 3, to run concurrently to the

sentence on the burglary count.6

                                              II.

                                        DISCUSSION

                                              A.

     THE TRIAL COURT CONDUCTED AN ADEQUATE MARSDEN INQUIRY

       “When a criminal defendant seeks substitution of counsel [pursuant to Marsden]

on the ground that appointed counsel is providing inadequate representation, a trial court

must give the defendant an opportunity to explain the reasons for the request. [Citations.]

Although no formal motion is necessary, there must be ‘at least some clear indication by

defendant that he wants a substitute attorney.’” (People v. Mendoza (2000) 24 Cal.4th


       6  As the People pointed out in their supplemental brief, the minutes of sentencing
and abstract of judgment erroneously indicate that a six-year sentence was imposed on
count 3, instead of the six-month term the trial judge imposed orally. We will direct the
trial court to correct the minutes and abstract of judgment accordingly.



                                               7
130, 156-157.) “[T]he court must permit [the defendant] to explain the basis of her [or

his] contention and to relate specific instances of inadequate performance. The court

must appoint a new attorney if the record clearly shows the current attorney is not

providing adequate representation or that the defendant and counsel have such an

irreconcilable conflict that ineffective representation is likely to result. [Citations.] If the

court holds an adequate hearing, its ruling is reviewed for abuse of discretion.

[Citation.]” (People v. Rodriguez (2014) 58 Cal.4th 587, 623.)

       Defendant contends the trial court erred prejudicially by not conducting a

meaningful inquiry into his dissatisfaction with his appointed counsel, as mandated by

Marsden. As a threshold matter, there is some doubt whether defendant did, in fact, want

a new attorney, such that Marsden was triggered in the first place. As noted, in his

written “Affidavit of Statement,” defendant argued his Sixth Amendment confrontation

clause rights and his due process rights were violated when the district attorney identified

defendant to two witnesses before the preliminary examination, outside the presence of

defendant’s public defender. Defendant made no statements in his written submission or

in open court to the effect that he wanted new counsel because of the prepreliminary

examination identification. Likewise, although defendant cited a federal appellate

decision about a trial court’s obligations to inquire into a defendant’s dissatisfaction with

his appointed counsel,7 defendant did not state in his written affidavit or in open court

that he wanted a new attorney based on his public defender’s refusal to file a Romero

       7   United States v. Simeonov (2d Cir. 2001) 252 F.3d 238, 241-242.



                                               8
motion. Instead, defendant appeared to express his wish that he be permitted to make

such a motion by stating, “I’m just trying to get a Romero motion.”

       In any event, assuming defendant did clearly indicate his desire for appointment of

new counsel, we conclude the trial court conducted an adequate inquiry into the reasons

for defendant’s dissatisfaction and was not required to inquire further whether new

counsel should be appointed. The trial court permitted defendant to sufficiently air his

grievance about the prepreliminary examination identification. Defendant told the court

he saw the district attorney “open[] the blinds” in the back of the courtroom and identify

him to two witnesses, which defendant “took . . . as violating [his] Sixth Amendment

right—without having [his] counsel in there.” Defendant told the court neither he nor his

public defender knew what the district attorney said to the two witnesses, but he felt the

identification violated his rights because, without such coaching, the witnesses might not

have been able to identify defendant on the witness stand. The trial court explained to

defendant that the identification was similar to a “one-person lineup,” which is

permissible and, in any event, the identity of the perpetrator was not an issue in this case

because defendant had taken responsibility for the offense. Indeed, the court opined that

the district attorney would have been incompetent had he not spoken to his witnesses

prior to the preliminary examination. No further inquiry was necessary.

       With respect to Romero, the trial judge articulated the issue as “your attorney

[did] not bring[] up a Romero motion and you indicated that Judge Hernandez wouldn’t

strike [the prior conviction] and you . . . hoped that I would . . . .” When the trial judge

indicated that he too would not grant such a motion, defendant said his public defender

                                              9
“told me that [Judge] Hernandez wasn’t going to honor [the motion].” And defendant

continued, “But I don’t understand. [Judge Hernandez isn’t] going to honor something

that he do[esn’t] even know [is] written up yet.”

       In response, the trial judge explained to defendant in some detail why neither he

nor Judge Hernandez could have stricken defendant’s 1990 strike prior. “The law is real

clear in this area. We do these Romero motions all the time. . . . [¶] . . . [¶] I’ll tell you

why I wouldn’t be able to strike your strike. And it is true, it’s an old one. It’s 1990. If

there was nothing else on your record, I probably would strike it. But unfortunately

you’ve picked up—I don’t have your full rap sheet, but I see that six years later, you had

another prison commitment for another burglary. It was a second-degree burglary. And

then you went it looks like nine years, and then you had a drug case that resulted in

another prison commitment in 2005. And then four years later you had another receiving

stolen property conviction which also resulted in prison.” Because defendant had “so

many subsequent convictions, all going to prison,” the judge said he could not make a

finding “that you’re outside the spirit of three strikes.” In fact, the judge told defendant

he would likely be reversed on appeal if he were to strike the 1990 prior. The judge said

he might have been able to strike the prior had defendant “went a series of years without

any further criminal activity,” because “at some point it [would] be remote enough that it

could be [stricken]. But we’re not there yet.” Finally, the judge explained to defendant

that the nine-year indicated sentence was the lowest prison term available to defendant,

and if the court were to strike the 1990 prior, the judge would sentence defendant to

12 years. Defendant reluctantly accepted this explanation.

                                              10
       Again, it is not entirely clear whether defendant did, in fact, want a new attorney.

From his statements, it appears defendant did not understand why Judge Hernandez

refused to “honor” a Romero motion before one was even filed, and expressed his

continued desire to file one. Defendant made no statements indicating he had a real or

potential conflict with his public defender over her refusal to file a motion that she

apparently viewed as futile. But even if defendant’s statements could be construed as an

implied request for appointment of new counsel, the trial court’s inquiry was adequate

under the circumstances. Contrary to defendant’s suggestion in his opening brief, the

trial court did not need to inquire further of defendant or of appointed counsel to ascertain

the reasons for counsel’s failure to file a Romero motion. Defendant stated those reasons

clearly on the record. Further inquiry from counsel would not have likely amplified the

record before the trial judge.

       Nor do we find any prejudice from the trial court not inquiring further because it

correctly ruled a Romero motion would have been futile. (Cf. People v. Gonzalez (2012)

210 Cal.App.4th 724, 743-744 [defendant did not show trial court erred prejudicially by

denying his request to withdraw self-representation and for reappointment of counsel

because defendant did not show reappointed counsel would have prevailed on a Romero

motion].) “[A] ‘court’s discretion to strike prior felony conviction allegations in

furtherance of justice is limited’ and that exercise of such discretion requires ‘strict

compliance with section 1385[, subdivision] (a), and is subject to review for abuse.’”

(People v. Wallace (2004) 33 Cal.4th 738, 747.) “‘[N]o weight whatsoever may be given

to factors extrinsic to the [Three Strikes] scheme’ and . . . ‘the court in question must

                                              11
consider whether, in light of the nature and circumstances of his present felonies and

prior serious and/or violent felony convictions, and the particulars of his background,

character, and prospects, the defendant may be deemed outside the scheme’s spirit, in

whole or in part, and hence should be treated as though he had not previously been

convicted of one or more serious and/or violent felonies.’” (Id. at pp. 747-748, quoting

People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)

       When reviewing the denial of a Romero motion, “‘“[t]he burden is on the party

attacking the sentence to clearly show that the sentencing decision was irrational or

arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to

have acted to achieve legitimate sentencing objectives, and its discretionary

determination to impose a particular sentence will not be set aside on review.””

[Citation.] Second, a ‘“decision will not be reversed merely because reasonable people

might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting

its judgment for the judgment of the trial judge.’”’ [Citation.] Taken together, these

precepts establish that a trial court does not abuse its discretion unless its decision is so

irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony

(2004) 33 Cal.4th 367, 376-377.)

       As the trial judge stated on the record, defendant suffered a prison prior a little

over six years after his 1990 strike prior, suffered an additional prison prior nine years

later, and suffered his fourth prison prior a mere four years later. But defendant’s

criminal history did not merely consist of those four prior convictions. In its pretrial

report filed for defendant’s arraignment and bail hearing, the probation department

                                              12
reported defendant had an extensive criminal history which, in addition to the admitted

priors, included: (1) May 14, 1990, misdemeanor convictions for second degree burglary

(Pen. Code, former § 461.2) and petty theft (Pen. Code, §§ 484, 488); (2) a December 21,

1990, felony conviction for burglary (Pen. Code, § 459) (just over five months after

defendant suffered his strike conviction); (3) a January 12, 1995, misdemeanor

conviction for possession of a controlled substance (Health & Saf. Code, § 11550);

(4) a September 16, 2005, felony conviction for sale or transportation of a controlled

substance (Health & Saf. Code, § 11379, subd. (a)); and (4) a September 12, 2008,

misdemeanor conviction for vandalism (Pen. Code, § 594, subd. (a)(2)). In other words,

considering defendant’s lengthy and extensive criminal history, the trial court reasonably

concluded defendant fell within the spirit of the three-strike sentencing scheme.

       We disagree with defendant’s suggestion that the facts of his most recent

convictions would have weighed in favor of striking his 1990 burglary conviction. True,

defendant burglarized an unoccupied residence in broad daylight and only managed to

steal a box containing costume jewelry. But when confronted, defendant displayed a

deadly weapon in a threatening manner to two victims. That defendant may have been

under the influence at the time of the burglary, would not weigh in favor of striking the

1990 prior when balanced against defendant’s extensive and prolonged criminal history.

       Defendant’s reliance on People v. Bishop (1997) 56 Cal.App.4th 1245 (Bishop)

does not alter our result. In that case, the People appealed from an order striking two

strike priors, and the appellate court affirmed the order. (Id. at pp. 1247, 1251.) In so

doing, the appellate court indicated the nature of the present crime and the remoteness of

                                             13
the defendant’s prior violent offenses operated to mitigate his three-strike sentence.

(Id. at pp. 1250-1251.) However, Bishop’s analysis was impliedly abrogated by

Williams, which limits a trial court’s discretion to matters intrinsic to the three-strike

sentencing scheme. (Williams, supra, 17 Cal.4th at p. 161.) The three strikes law

provides, “[t]he length of time between the prior serious and/or violent felony conviction

and the current felony conviction shall not affect the imposition of sentence.” (§ 667,

subd. (c)(3).) Thus, remoteness does not take a defendant outside the spirit of the very

law that expressly rejects remoteness as a basis for avoiding the law.

       In any event, Bishop is distinguishable. “The Bishop holding does not establish

that had the trial court denied Bishop’s motion such a decision would have been arbitrary

or irrational. [Citation.] Rather, the holding only establishes that the trial court did not

abuse its discretion in striking the two prior felony convictions. [Citation.] [¶] The

Court of Appeal in Bishop indicated that it might have denied Bishop’s motion had it

been the trial court. [Citation.] The Bishop court stated, ‘While the People and perhaps

even this court may be of the opinion that Bishop appears undeserving of leniency, the

paramount consideration is not what the prosecution, defense or appellate court might

conclude. Rather, what counts is what the trial court in this case concluded, as expressed

by the reasons it stated . . . .’ [Citation.] A comparison only demonstrates that

reasonable people might disagree.” (People v. Romero (2002) 99 Cal.App.4th 1418,

1434 [Fourth Dist., Div. Two].)




                                              14
          In sum, we conclude the trial court conducted an adequate inquiry into defendant’s

dissatisfaction with his appointed counsel and did not abuse its discretion by not

inquiring further.

                                               B.

            THE TRIAL COURT ENTERED AN UNAUTHORIZED SENTENCE

          Defendant contends the trial court erred by concluding the lowest possible

sentence available to defendant was nine years in state prison. According to defendant,

the court erroneously believed it could not strike the 1990 burglary strike, to avoid

doubling the sentence on defendant’s current burglary conviction. We have already

concluded the trial judge was correct in its view that, given defendant’s extensive

criminal history, neither he nor Judge Hernandez could have found defendant to fall

outside the spirit of the three strikes law, so the trial court did not abuse its discretion

when it concluded it could not reach a lower indicated sentence than nine years in state

prison.

          However, we directed the parties to submit supplemental briefs to address whether

the trial court imposed an unauthorized sentence when it stayed the four one-year prison

prior enhancements. The parties responded that the trial did impose an unauthorized

sentence, and this court should order the trial court to strike the prison priors. We agree.

          When a prison prior is pleaded and proven, the trial court must either impose a

one-year enhancement or strike it pursuant to section 1385—the court cannot simply stay

the enhancement. (§ 667.5, subd. (b); People v. Garcia (2008) 167 Cal.App.4th 1550,

1561-1562; People v. McCray (2006) 144 Cal.App.4th 258, 267-268.) A sentencing

                                               15
court may not impose a one-year prison prior enhancement under section 667.5,

subdivision (b), when the same prior conviction is used to impose a five-year serious

felony enhancement under section 667, subdivision (b). The court must strike the one-

year enhancement and may not simply stay it. (People v. Perez (2011) 195 Cal.App.4th

801, 805.)

       Here, the trial court imposed a five-year sentence enhancement for defendant’s

admitted 1990 burglary conviction, but stayed imposition of a one-year prison prior

enhancement for the same 1990 conviction. The court also stayed imposition of one-year

sentence enhancements for the three remaining admitted prison priors. This was error,

and it resulted in an unauthorized sentence. Rather than remand for the trial court to

exercise its discretion to impose or strike the section 667.5, subdivision (b), prison prior

enhancements, we order them stricken pursuant to section 1385.

       Finally, in its supplemental brief, the People directed our attention to an error in

the minutes of sentencing and the abstract of judgment. In its oral pronouncement of

sentence, the trial court sentenced defendant to six months for defendant’s misdemeanor

convictions under counts 2 and 3, to be served concurrently with the sentence in count 1.

The minutes and abstract of judgment accurately reflect a six-month sentence on count 2,

but incorrectly reflect a six-year sentence on count 3. “Where there is a discrepancy

between the oral pronouncement of judgment and the minute order or the abstract of

judgment, the oral pronouncement controls. [Citations.]” (People v. Zackery (2007) 147

Cal.App.4th 380, 385.) On our own motion, we may correct clerical errors in the record

to accurately reflect the oral pronouncement of judgment. (People v. Mitchell (2001) 26

                                             16
Cal.4th 181, 185.) Therefore, we will direct the superior court to correct the minutes and

abstract of judgment accordingly.

                                            III.

                                     DISPOSITION

       The superior court is directed to strike the four one-year enhancements under

section 667.5, subdivision (b), pursuant to section 1385, and to correct the sentencing

minute order and the abstract of judgment to reflect a six-month sentence for count 3.

       The superior court clerk shall forward the corrected minutes and abstract of

judgment to the Department of Corrections and Rehabilitation. In all other respects, the

judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                               McKINSTER
                                                                               Acting P. J.
We concur:



RICHLI
                          J.



MILLER
                          J.




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