Filed 1/16/15 P. v. Chavarria 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H040215
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. 201626)

         v.

MARCUS DANIEL CHAVARRIA,

         Defendant and Appellant.


         Marcus Daniel Chavarria appeals from the order after judgment, filed June 7,
2013, denying his petition for recall of his Three Strikes sentence under Penal Code
section 1170.126.1 (See § 1237, subd. (b).) “Section 1170.126 creates a substantial right
to be resentenced and provides a remedy by way of a statutory postjudgment motion.”
(Teal v. Superior Court, supra, 60 Cal.4th at p. 600.) The trial court found Chavarria was
ineligible for resentencing because he did not meet the threshold statutory requirement
for bringing a petition for recall of sentence under section 1170.126.
         Chavarria, who has appointed counsel on appeal, claims that the trial court
violated his constitutional rights by summarily denying the petition without appointment
of counsel to represent him. He does not assert that the trial court erred in finding him
statutorily ineligible for resentencing.

1
       All further references are to the Penal Code unless otherwise specified. The
California Supreme Court has resolved that the denial of a petition for recall pursuant to
section 1170.126 is an appealable order under section 1237, subdivision (b), even if the
ground for denial was that petitioner failed to meet the threshold eligibility requirement.
(Teal v. Superior Court (2014) 60 Cal.4th 595, 597-599, 601.)
                                                  I
                                        Procedural History
       On June 4, 2013, Chavarria filed his petition for recall of sentence. He relied on
section 1170.126, which was added by initiative measure in November 2012. (Prop. 36,
§ 6, approved Nov. 6, 2012, eff. Nov. 7, 2012.) A copy of the abstract of judgment of his
1998 conviction was attached to his petition. It showed that Chavarria was convicted of
(1) inflicting corporal injury upon a spouse with an enhancement for personal infliction
of great bodily injury (former §§ 273.55, 12022.7, subd. (d)), (2) battery with serious
bodily injury (§§ 242, 243, subd. (d)), and (3) attempted false imprisonment with an
enhancement for personal infliction of great bodily injury (§§ 236, 237, 664, former
§ 12022.7, subd. (d)). He was sentenced to a 20-year prison term plus an indeterminate
term of 25 years to life under the Three Strikes law.
       In its June 7, 2013 order, the trial court explained that it was denying Chavarria’s
petition because defendant had been convicted of “a serious/violent felony” (see
§§ 667.5, subd. (c)(8), 1192.7, subd. (c)(8)), and, consequently, he was not eligible for
resentencing under section 1170.126.
                                                  II
                                            Discussion
A. No Prima Facie Showing of Eligibility to Petition for Recall of Sentence
       Chavarria frames the question on appeal as “whether a petitioner who makes a
prima facie showing is entitled to the assistance of counsel in prosecuting his
resentencing petition.” We first point out that Chavarria has not made a prima facie
showing that he was entitled to possible relief pursuant to section 1170.126.
       Subdivision (b) of section 1170.126 provides in part: “Any person serving an
indeterminate term of life imprisonment imposed pursuant to [the Three Strikes law]
upon conviction, whether by trial or plea, of a felony or felonies that are not defined as


                                              2
serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of
Section 1192.7, may file a petition for a recall of sentence . . . .”2 (Italics added.)
       The enhancement under former section 12022.7, subdivision (d), that attached to
two of the felony convictions for which Chavarria is now serving a 25-years-to-life term
under the Three Strikes law rendered those felony convictions serious and violent. (See
§ 667.5, subd. (c)(8) [“Any felony in which the defendant inflicts great bodily injury on
any person other than an accomplice which has been charged and proved as provided for
in Section 12022.7 . . .”]; § 1192.7, subd. (c)(8) [any “felony in which the defendant
personally inflicts great bodily injury on any person, other than an accomplice . . .”].)
Consequently, Chavarria’s petition did not show prima facie eligibility to petition for
recall of sentence pursuant to section 1170.126.
B. No Right to Counsel to Prosecute Frivolous Petition for Recall of Sentence
1. Generally Governing Law
       The Sixth Amendment to the United States Constitution establishes that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . have the Assistance of
Counsel for his defence.” “It is beyond dispute that ‘[t]he Sixth Amendment safeguards
to an accused who faces incarceration the right to counsel at all critical stages of the
criminal process.’ Iowa v. Tovar, 541 U.S. 77, 80-81, 124 S.Ct. 1379, 158 L.Ed.2d 209
(2004); see United States v. Cronic, 466 U.S. 648, 653–654, 104 S.Ct. 2039, 80 L.Ed.2d


2
       Section 1170.126, subdivision (b), provides in full: “Any person serving an
indeterminate term of life imprisonment imposed pursuant to paragraph (2) of
subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12
upon conviction, whether by trial or plea, of a felony or felonies that are not defined as
serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of
Section 1192.7, may file a petition for a recall of sentence, within two years after the
effective date of the act that added this section or at a later date upon a showing of good
cause, before the trial court that entered the judgment of conviction in his or her case, to
request resentencing in accordance with the provisions of subdivision (e) of Section 667,
and subdivision (c) of Section 1170.12, as those statutes have been amended by the act
that added this section.” (Italics added.)
                                                3
657 (1984); Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 9 L.Ed.2d 799
(1963).” (Marshall v. Rodgers (2013) __ U.S. __, __ [133 S.Ct. 1446, 1449].)
A criminal defendant’s Sixth Amendment right to counsel extends to “sentencing in both
noncapital, see Glover v. United States, 531 U.S. 198, 203-204, 121 S.Ct. 696, 148
L.Ed.2d 604 (2001); Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967),
and capital cases, see Wiggins v. Smith, 539 U.S. 510, 538, 123 S.Ct. 2527, 156 L.Ed.2d
471 (2003)” (Lafler v. Cooper (2012 __ U.S. __, __ [132 S.Ct. 1376, 1385-1386]; see
People v. Doolin (2009) 45 Cal.4th 390, 453.)
       “Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963),
established that an indigent criminal defendant has a right to appointed counsel in his first
appeal as of right in state court. Evitts v. Lucey [(1985) 469 U.S. 387 [105 S.Ct. 830]]
held that this right encompasses a right to effective assistance of counsel for all criminal
defendants in their first appeal as of right. [The United States Supreme Court] based [its]
holding in Douglas on that ‘equality demanded by the Fourteenth Amendment.’
372 U.S., at 358, 83 S.Ct., at 817. Recognizing that ‘[a]bsolute equality is not required,’
[the court] nonetheless held that ‘where the merits of the one and only appeal an indigent
has as of right are decided without benefit of counsel, . . . an unconstitutional line has
been drawn between rich and poor.’ Id., at 357, 83 S.Ct., at 816 (emphasis in original).”
(Coleman v. Thompson (1991) 501 U.S. 722, 755-756 [111 S.Ct. 2546].)
       “In Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), and
Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), [the
United States Supreme Court] declined to extend the right to counsel beyond the first
appeal of a criminal conviction. [The court] held in Ross that neither the fundamental
fairness required by the Due Process Clause nor the Fourteenth Amendment’s equal
protection guarantee necessitated that States provide counsel in state discretionary
appeals where defendants already had one appeal as of right. . . . Similarly, in Finley [the
court] held that there is no right to counsel in state collateral proceedings after exhaustion
                                              4
of direct appellate review. 481 U.S., at 556, 107 S.Ct., at 1993-1994 (citing
Ross, supra).” (Coleman v. Thompson, supra, 501 U.S. at p. 756.) In Coleman v.
Thompson, the Supreme Court determined that a habeas corpus petitioner had no “right to
counsel to appeal a state collateral determination of his claims of trial error.”3 (Id. at
pp. 756-757.) Further, federal courts have consistently held that a felon has no
constitutional right to be represented by an attorney on a statutory, postjudgment motion
to reduce a final sentence. (See, e.g., U.S. v. Webb (11th Cir. 2009) 565 F.3d 789,
794-795 (per curiam) [Sixth Amendment right to counsel that normally applies in
sentencing or resentencing hearing does not apply to a motion under § 3582, subd. (c)(2),
to reduce sentence based upon post-sentencing amendments to federal sentencing
guidelines]; U.S. v. Taylor (4th Cir. 2005) 414 F.3d 528, 530 [no federal constitutional
right to counsel when government brings motion to reduce a final sentence pursuant to
Fed. Rules Crim. Proc., rule 35(b)]; U.S. v. Whitebird (5th Cir. 1995) 55 F.3d 1007, 1011
[no constitutional right to appointed counsel to bring motion pursuant to 18 U.S.C.
§ 3582(c)(2)].)
2. Cases Relied Upon by Appellant
       In claiming a constitutional right to counsel, Chavarria relies upon two United
States Supreme Court cases, Gardner v. Florida (1977) 430 U.S. 349 (Gardner) and

3
        In Gagnon v. Scarpelli (1973) 411 U.S. 778 [93 S.Ct. 1756], the United States
Supreme Court rejected the contention that a state is constitutionally compelled to
provide counsel for indigents in all probation or parole revocation cases (id. at
pp. 787-790) but the court did hold that “there will remain certain cases in which
fundamental fairness—the touchstone of due process—will require that the State provide
at its expense counsel for indigent probationers or parolees.” (Id. at p. 790.)
Fundamental fairness presumptively requires the provision of counsel “where, after being
informed of his right to request counsel, the probationer or parolee makes such a request,
based on a timely and colorable claim (i) that he has not committed the alleged violation
of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter
of public record or is uncontested, there are substantial reasons which justified or
mitigated the violation and make revocation inappropriate, and that the reasons are
complex or otherwise difficult to develop or present.” (Ibid.)
                                              5
Mempa v. Rhay (1967) 389 U.S. 128 [88 S.Ct. 254] (Mempa), and two California
Supreme Court cases, People v. Shipman (1965) 62 Cal.2d 226 (Shipman) and In re
Clark (1993) 5 Cal.4th 750.
       In Gardner, supra, 430 U.S. 349, a plurality of the United States Supreme Court
concluded that “petitioner was denied due process of law when the death sentence was
imposed, at least in part, on the basis of information which he had no opportunity to deny
or explain.” (Id. at p. 362.) In reaching that conclusion, the court stated: “[I]t is now
clear that the sentencing process, as well as the trial itself, must satisfy the requirements
of the Due Process Clause. Even though the defendant has no substantive right to a
particular sentence within the range authorized by statute, the sentencing is a critical
stage of the criminal proceeding at which he is entitled to the effective assistance of
counsel. [Citations.] The defendant has a legitimate interest in the character of the
procedure which leads to the imposition of sentence even if he may have no right to
object to a particular result of the sentencing process. [Citation.]” (Id. at p. 358,
fn. omitted.)
       The Gardner case does not help Chavarria. First, Gardner was a capital case and
this case is not. Second, while Gardner mentioned that sentencing is a critical stage of a
criminal prosecution and applied principles of due process, it did not address the right to
counsel at postconviction proceedings. We accept that original sentencing or
resentencing upon remand following an appeal is a critical stage of a criminal prosecution
but the resentencing sought by Chavarria does not fall into those categories.
       In Mempa, supra, 389 U.S. 128, which involved two consolidated cases applying
Washington state law, sentencing had been “deferred subject to probation.” (Id. at
p. 130.) The petitioners pleaded guilty and were placed on probation without imposition
of sentence; they were later sentenced upon revocation of probation without the benefit of
counsel. (Id. at pp. 130-133.) The United States Supreme Court stated the basic rule that
“appointment of counsel for an indigent is required at every stage of a criminal
                                              6
proceeding where substantial rights of a criminal accused may be affected.” (Id. at
p. 134.) It determined that a lawyer must be afforded to defendants at the deferred
sentencing stage of the proceeding. (Id. at p. 137.)
       Charvarria was sentenced in 1998. His 2013 petition for recall under
section 1170.126 did not constitute deferred sentencing. Rather, the petition initiated a
statutory, postconviction procedure to seek a reduction of sentence.
       Shipman, supra, 62 Cal.2d 226 has been described as “[t]he seminal case setting
forth the modern requirements for obtaining a writ of error coram nobis” in California.
(People v. Kim (2009) 45 Cal.4th 1078, 1092.) A writ of error coram nobis is a narrow
remedy to vacate a conviction and has limited application.4 (Ibid.)
       In Shipman, the California Supreme Court stated that “[i]t is now settled that
whenever a state affords a direct or collateral remedy to attack a criminal conviction, it
cannot invidiously discriminate between rich and poor. . . . Although the United States
Supreme Court has not held that due process or equal protection requires appointment of
counsel to present collateral attacks on convictions, it has held that counsel must be
appointed to represent the defendant on his first appeal as of right. (Douglas v.
California, 372 U.S. 353 [83 S.Ct. 814, 9 L.Ed.2d 811].) Since the questions that may be
raised on coram nobis are as crucial as those that may be raised on direct appeal, the

4
        “To qualify as the basis for relief on coram nobis, newly discovered facts must
establish a basic flaw that would have prevented rendition of the judgment.
[Citations.] . . . New facts that would merely have affected the willingness of a litigant to
enter a plea, or would have encouraged or convinced him or her to make different
strategic choices or seek a different disposition, are not facts that would have prevented
rendition of the judgment.” (People v. Kim, supra, 45 Cal.4th at p. 1103.) “Because the
writ of error coram nobis applies where a fact unknown to the parties and the court
existed at the time of judgment that, if known, would have prevented rendition of the
judgment, ‘[t]he remedy does not lie to enable the court to correct errors of law.’
[Citations.] Moreover, the allegedly new fact must have been unknown and must have
been in existence at the time of the judgment. (People v. Shipman, supra, 62 Cal.2d at
p. 230 . . . .)” (Id. at p. 1093.) “[T]he writ of error coram nobis is unavailable when a
litigant has some other remedy at law.” (Ibid.)
                                                7
Douglas case precludes our holding that appointment of counsel in coram nobis
proceedings rests solely in the discretion of the court. [¶] A state may, however, adopt
reasonable standards to govern the right to counsel in coram nobis proceedings.”
(Shipman, supra, 62 Cal.2d at pp. 231-232.) The court established that where “an
indigent petitioner has stated facts sufficient to satisfy the court that a hearing is required,
his claim can no longer be treated as frivolous and he is entitled to have counsel
appointed to represent him” and entitled to counsel on appeal but “in the absence of
adequate factual allegations stating a prima facie case, counsel need not be appointed
either in the trial court or on appeal from a summary denial of relief in that court.” (Id.
at p. 232, italics added.)
       In re Clark, supra, 5 Cal.4th 750, the California Supreme Court concluded that
“[i]n limited circumstances, consideration may be given to a claim that prior habeas
corpus counsel did not competently represent a petitioner.” (Id. at p. 779.) It explained:
“An imprisoned defendant is entitled by due process to reasonable access to the courts,
and to the assistance of counsel if counsel is necessary to ensure that access, but neither
the Eighth Amendment nor the due process clause of the United States Constitution gives
the prisoner, even in a capital case, the right to counsel to mount a collateral attack on the
judgment. (Murray v. Giarratano (1989) 492 U.S. 1 [106 L.Ed.2d 1, 109 S.Ct. 2765].)
This court has held, however, that if a petition attacking the validity of a judgment states
a prima facie case leading to issuance of an order to show cause, the appointment of
counsel is demanded by due process concerns. (People v. Shipman, supra, 62 Cal.2d
226, 231-232; cf. Coleman v. Thompson (1991) 501 U.S. [722] [115 L.Ed.2d 640,
111 S.Ct. 2546].) [¶] Regardless of whether a constitutional right to counsel exists, a
petitioner who is represented by counsel when a petition for writ of habeas corpus is filed
has a right to assume that counsel is competent and is presenting all potentially
meritorious claims. (But see, Coleman v. Thompson, supra, 501 U.S. [722] [115 L.Ed.2d
640] [where no right to counsel exists there can be no constitutionally ineffective
                                               8
counsel]; Antone v. Dugger (1984) 465 U.S. 200 [79 L.Ed.2d 147, 104 S.Ct. 962] [failure
to raise claims in first petition not excused on ground that counsel was rushed].) [¶] If,
therefore, counsel failed to afford adequate representation in a prior habeas corpus
application, that failure may be offered in explanation and justification of the need to file
another petition.” (Id. at pp. 779-780.) This holding has no application to this case.
       No coherent constitutional principle can be derived from the holdings of the
foregoing cases to establish a right to counsel under the circumstances of this case.
Chavarria has not shown that proceedings on a postconviction petition for recall of
sentence pursuant to section 1170.126 are part of a criminal prosecution within the
meaning of the Sixth Amendment. Neither has he established that he has a constitutional
right to counsel under existing case law based upon principles of due process. A petition
pursuant to section 1170.126 is not the first appeal of right. It does not even challenge
the validity of the original sentence. Although due process may afford a right to counsel
in certain proceedings beyond the coverage of the Sixth Amendment, Chavarria has not
demonstrated that the fundamental fairness demanded by due process required the
appointment of counsel to represent him on his petition for recall, which lacked any
arguable merit because he was patently statutorily ineligible for relief under
section 1170.126.
                                       DISPOSITION
       The order denying the petition for recall of sentence is affirmed.




                                              9
                                  _________________________________
                                  ELIA, J.


WE CONCUR:




_______________________________
RUSHING, P. J.




_______________________________
PREMO, J.
