Filed 10/10/14 P. v. Edwards CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,

         Plaintiff and Respondent,                                                    F067128

                   v.                                                    (Super. Ct. No. F07901966)

SHERION NED EDWARDS,                                                              OPINION

         Defendant and Appellant.



                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Tulare County. H. N.
Papadakis, Judge.
         Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Carlos A. Martinez and Kari Ricci Mueller, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-

        Before Kane, Acting P.J., Poochigian, J., and Peña, J.
       Appellant, Sherion Ned Edwards, pled no contest to petty theft with priors (Pen.
Code, § 666)1 and grand theft of personal property (§ 487, subd. (a)) and admitted three
prior prison term enhancements (§ 667.5, subd. (b)) and allegations that he had a prior
conviction within the meaning of the three strikes law (§ 667, subds. (b)-(i)). Edwards
also pled no contest to a trailing misdemeanor battery charge and he admitted that he
violated probation in two separate cases.
       On appeal, Edwards contends: 1) the court erred when it denied his request for a
Marsden2 hearing; 2) the court violated his right to equal protection by its failure to
award him two-for-two presentence conduct credit; and 3) the rule of lenity required that
he be awarded two-for-two presentence conduct credit. We affirm.
                                            FACTS
       On August 31, 2011, Edwards was identified as the driver of a van that was
spotted on a property from which corn hopper blades were stolen.
       On September 12, 2011, Edwards took a well pump engine that had been stolen
from John Torres to the SA Recycling Center. Tulare County Sheriff’s deputies
questioned Edwards about the engine and eventually arrested him.
       On May 17, 2012, the district attorney filed an information charging Edwards with
two counts of petty theft with prior convictions (counts 1 & 2), grand theft of personal
property (count 3), and attempted vehicle theft (count 4/§ 664 & Veh. Code, § 10851,
subd. (a)). The information also alleged three prior prison term enhancements and that
Edwards had a prior conviction within the meaning of the three strikes law.
       On November 20, 2012, Edwards entered his plea in this matter in exchange for a
maximum prison term of four years and the dismissal of the remaining counts and the
prior prison term enhancements. During the change of plea proceedings, Edwards asked

1      Unless otherwise indicated, all further statutory references are to the Penal Code.
2      People v. Marsden (1970) 2 Cal.3d 118 (Marsden).



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the court if he would receive 20 percent conduct credit and was erroneously informed that
he would receive only 15 percent conduct credit.3 Edwards replied that he would accept
the deal even if he received only 15 percent conduct credit.
Sentencing
       On March 11, 2013, the court sentenced Edwards to the middle term of four years
on his petty theft with prior convictions, the middle term of two years doubled to four
years because of Edwards’s prior strike conviction, and a concurrent doubled middle term
of four years on his grand theft conviction. In each case, the court awarded Edwards 817
days of presentence custody credit consisting of 545 days of presentence actual custody
credit and 272 days of presentence conduct credit.
       After the court finished pronouncing sentence on the above two counts, Edwards
asked if the 545 days of presentence actual custody credit would “double.” The court and
defense counsel responded that he received one-third credit (two-for-four) and that he
would receive a total of 817 days of presentence custody credit. Edwards stated he did
not “plead” to that and was told that he would be getting “half time” (one-for-one) credit.
He also told the court several times that he wanted a Marsden hearing. The court then
told Edwards that according to the latest appellate court decision, “offenses [that are
committed] prior to the 1st of October, 2011, don’t get half time” to which Edwards
replied:

       “I understand that, but that is not my Marsden hearing. My Marsden
       hearing is that I’m paying restitution for a crime -- I’m paying -- well, can
       we go into chambers or do I got to talk out here? I could talk out here.”


3      Edwards’s strike conviction limited him to earning 20 percent postsentence
conduct credit, i.e., conduct credit that did “not exceed one-fifth of the total term of
imprisonment.” (§ 667, subd. (c)(5); People v. Hill (1995) 37 Cal.App.4th 220, 224.)
Since none of his current offenses were violent felonies, he was not limited to earning
only 15 percent conduct credit (§ 2933.1).



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       When the court asked Edwards if he was talking about restitution or credits,
Edwards said he was talking about both. He then complained that he had been required
to plead to count 2, which had been dismissed at the preliminary hearing. Following
more discussion, Edwards complained that he was required to pay restitution for the
dismissed count 2. The prosecutor then explained that Edwards’s allegations were not
true because although the original count 2 had been dismissed, the remaining counts had
been renumbered.
       Some discussion then ensued regarding whether Edwards had a second strike
conviction that had not been alleged in the information after which Edwards asked for a
Morrissey4 hearing. The court responded that he should talk to his parole officer.
Edwards then stated:

       “Marsden. In fact -- I mean, in fact, I might even be incompetent. I got
       mental health papers here, as well, ‘cause I don’t understand nothing that’s
       going on right now. I misunderstand everything.”
       Edwards also contended that his plea agreement provided he would get half-time
credit and that defense counsel had told him that right before the court began
pronouncing sentence.
       After the court discussed sentencing on three unrelated misdemeanor charges, the
court asked Edwards if he was ready to be sentenced. Edwards replied that he wanted a
Marsden hearing because he did not understand what was going on. Edwards again
complained that defense counsel told him something totally different and he asked to see
a psychiatrist. The court, in pertinent part, responded that defense counsel got him a deal
for four years in prison and that all the misdemeanors would run concurrent. Edwards
denied being informed of that and claimed he was told something different.



4      Morrissey v. Brewer (1972) 408 U.S. 471.



                                             4
       The court then announced it was going to appoint another attorney to review the
matter to see if Edwards had grounds for withdrawing his plea. The court also obtained a
time waiver from Edwards and continued the hearing to another day. However, after a
recess, the court reconvened Edwards’s sentencing hearing without having appointed
substitute counsel and finished sentencing him. In pertinent part, the court stated that it
found the credits to be appropriate, sentenced Edwards to time served on a trailing
misdemeanor case, and terminated his probation in two other misdemeanor cases. The
court, however, did not conduct a Marsden hearing.
                                       DISCUSSION
The Marsden Issue
       It is well established that a defendant “may be entitled to an order substituting
appointed counsel if he shows that, in its absence, his Sixth Amendment right to the
assistance of counsel would be denied or substantially impaired.” (People v. Berryman
(1993) 6 Cal.4th 1048, 1070, overruled on other grounds in People v. Hill (1998) 17
Cal.4th 800, 823, fn. 1.) Under Marsden, when a defendant seeks to substitute appointed
counsel based on a claim of inadequate representation, the trial court must afford the
defendant an opportunity to articulate the basis for the request and to relate specific
instances of counsel’s deficient performance. (Marsden, supra, 2 Cal.3d at pp. 123-124.)
A defendant is entitled to relief if the record clearly shows that the appointed counsel is
not providing adequate representation or that the defendant and counsel have become
embroiled in such an irreconcilable conflict that ineffective representation likely will
result. (People v. Crandell (1988) 46 Cal.3d 833, 854, overruled on other grounds in
People v. Crayton (2002) 28 Cal.4th 346, 364-365; Marsden, supra, at pp. 124-125.) The
rule requiring a Marsden hearing applies equally posttrial. “[T]he trial court should
appoint substitute counsel when a proper [Marsden] showing has been made at any
stage” because “[a] defendant is entitled to competent representation at all times” during
the proceedings. (People v. Smith (1993) 6 Cal.4th 684, 695.)

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       Generally, the standard of review on appeal of a denial of a Marsden motion is
abuse of discretion. (People v. Barnett (1998) 17 Cal.4th 1044, 1085, citing People v.
Berryman, supra, 6 Cal.4th at p. 1070.) “An abuse of discretion occurs where the court’s
decision exceeds the bounds of law or reason.” (People v. Bell (1998) 61 Cal.App.4th
282, 287.) A trial court may abuse its discretion in ruling on a Marsden motion without
first hearing the defendant’s reasons for the motion. However, denial of a Marsden
motion under these circumstances does not require reversal where the record shows that
the failure to hold a hearing on the motion was harmless beyond a reasonable doubt.5
(People v. Chavez (1980) 26 Cal.3d 334, 348-349.)
       Towards the end of his sentencing hearing, Edwards requested a Marsden hearing
several times complaining that: 1) defense counsel told Edwards right before the court
sentenced him that he would receive one-for-one conduct credit; 2) he had been forced to
plead to a count that had been dismissed and was being required to pay restitution on that
count; and 3) he did not understand anything that was going on and needed to see a
psychiatrist.
       Edwards never voiced any specific complaints regarding his representation by
defense counsel, nor did he specifically ask the court to appoint substitute counsel.
Nevertheless, assuming Edwards’s complaints were sufficient to trigger the trial court’s
obligation to conduct a Marsden hearing and that the court implicitly denied Edwards’s
Marsden motion by its failure to rule on it, we conclude that if Marsden error occurred it
was harmless.
       In People v. Washington (1994) 27 Cal.App.4th 940 (Washington), the defendant
made a Marsden motion in conjunction with a motion for new trial. The trial judge never
conducted a Marsden hearing but the Court of Appeal concluded the error was harmless.


5      Chapman v. California (1967) 386 U.S. 18 (Chapman).



                                             6
The court reasoned: “[Defendant] has made no showing here either that his Marsden
motion would have been granted had it been heard, or that a more favorable result would
have been achieved had the motion in fact been granted. The failure to rule on the
motion did not affect [defendant’s] trial in any way. The motion was made only after he
had been convicted. The basis for such a motion at such a time could have been only that
his attorney had acted incompetently at trial or in filing the motion for new trial [citation]
or, possibly, that [defendant] believed that counsel would be unable to represent him
properly at sentencing. The fact that no Marsden motion was entertained does not
preclude [defendant] from attacking the competency of his attorney.... We cannot see
how the appointment of a different attorney would have gained [defendant] a new trial, or
could have had any effect on the sentence imposed, and we, of course, are able to review
[defendant’s] claims that the sentence imposed was improper. We therefore conclude
that the failure to consider the purported Marsden motion has not deprived [defendant] of
any arguments or otherwise irrevocably affected the verdict or sentence. Under the
circumstances, and on the record before us, we cannot see that [defendant] would have
obtained a result more favorable to him had the motion been entertained.” (Washington,
supra, 27 Cal.App.4th at p. 944.)
       Here, Edwards has not made any showing that his counsel was ineffective or that
he would have received a more favorable result had the court granted his Marsden
motion.6 Nor can we see how appointment of counsel would have benefited him.

6      Edwards contends the United States Supreme Court decision in United States v.
Gonzalez-Lopez (2006) 548 U.S. 140 (Gonzalez-Lopez) requires that Marsden error be
found to be reversible per se. Gonzalez-Lopez, however, is not controlling because in
that case, the court held that the denial of a defendant’s right to counsel of choice was
reversible per se (Gonzalez-Lopez, at pp. 147-150) and Edwards fails to explain why this
holding should apply to counsel that is appointed for indigent defendants. Edwards also
claims that although in Marsden our Supreme Court purported to apply a Chapman
standard of prejudice, the language in the opinion made it clear that the court viewed
Marsden error as reversible per se. However, recently in People v. Sanchez (2011)


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Edwards made his requests for a Marsden hearing near the conclusion of his sentencing
hearing. The only basis for a Marsden motion at that time was that defense counsel had
not properly represented him in entering his plea. However, Edwards did not claim that
defense counsel had provided inadequate representation during the change of plea
proceedings and his main complaint with respect to his plea was that his plea agreement
provided he would receive half-time conduct credit, i.e., one-for-one conduct credit, in
prison. However, this claim is refuted by the transcript of the change of plea
proceedings, which shows that the court clearly, albeit erroneously, advised Edwards that
he would receive only 15 percent conduct credit in prison and that Edwards stated he
accepted the plea even with this limitation on conduct credits he could earn. Further, the
only other complaints Edwards voiced regarding the entry of his plea were that he was
forced to enter a plea to a count that allegedly had been dismissed and that he was being
required to pay restitution on that count. These complaints, however, proved to be
unfounded because, as explained by the prosecutor, after the original count was
dismissed, the remaining counts were renumbered. Moreover, the failure to rule on
Edwards’s Marsden motion did not preclude Edwards from attacking the competency of
defense counsel in this appeal or in a petition for a writ of habeas corpus. Thus, in accord
with Washington, we conclude that if Marsden error occurred, it was harmless beyond a
reasonable doubt.

53 Cal.4th 80 (Sanchez), the Supreme Court reiterated that the Chapman standard of
prejudice applies to Marsden error when it noted that in Marsden it reversed because it
was not able to “‘conclude beyond a reasonable doubt that [the] denial of the effective
assistance of counsel did not contribute to the defendant’s conviction.’” (Sanchez, at p.
92 quoting from Marsden, supra, 2 Cal.3d at p. 124.) Finally, Edwards contends that the
Supreme Court’s express approval in Sanchez of the appellate court’s remand to the
lower court to hold a Marsden hearing without a discussion of prejudice (Sanchez, at pp.
92-93) is evidence that Marsden error requires reversal per se. However, Edwards’s
reliance on this aspect of Sanchez ignores that, as noted above, in that case the court
reiterated that Marsden error is not reversible if it was harmless beyond a reasonable
doubt.


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The Equal Protection Claim

               “Section 4019, which specifies the rate at which conduct credit can
       be earned by those in local custody, has undergone numerous amendments
       in the past few years. Insofar as we are concerned, the version in effect
       when defendant committed his crimes provided for deductions for every six
       days of confinement, such that if all possible days were earned, six days
       were deemed served for every four days of actual custody. [Citations.]

                “In conjunction with the ‘2011 Realignment Legislation addressing
       public safety’ [citations], section 4019 was amended to provide for
       deductions for every four days of confinement, so that if all possible days
       are earned, four days will now be deemed served for every two days of
       actual confinement. [Citation.] Originally, this change was to apply to
       those confined for crimes committed on or after July 1, 2011. [Citation.]
       By further amendment made before the realignment legislation became
       operative, this date was changed to October 1, 2011. [Citation.] Pursuant
       to the October 1, 2011, amendment [citation], subdivision (h) of section
       4019 presently states: “The changes to this section ... shall apply
       prospectively and shall apply to prisoners who are confined to a county jail
       ... for a crime committed on or after October 1, 2011. Any days earned by a
       prisoner prior to October 1, 2011, shall be calculated at the rate required
       by the prior law.” (People v. Ellis (2012) 207 Cal.App.4th 1546, 1549-
       1550 (Ellis), italics added.)
       In Ellis, we held that the most recent amendment to section 4019 applies only to
eligible prisoners whose crimes were committed on or after October 1, 2011, and such a
prospective-only application neither runs afoul of the rules of statutory construction nor
does it violate the principles of equal protection. (Ellis, supra, 207 Cal.App.4th at p.
1548.) That finding relied heavily upon the California Supreme Court’s opinion in
People v. Brown (2012) 54 Cal.4th 314, where the high court held that a prior amendment
to section 4019 that became effective on January 25, 2010, applied prospectively only.
(People v. Brown, supra, at p. 318; Ellis, supra, at p. 1550.)
       As noted earlier, the court awarded Edwards two-for-four presentence conduct
credit. Edwards concedes that this court in Ellis, as well as other courts, have rejected his
equal protection argument but he includes the argument for the purpose of possible



                                              9
review by the California Supreme Court. In accord with Ellis, we reject Edwards’s equal
protection claim.
The Rule of Lenity Issue
       In a related argument, Edwards contends the rule of lenity requires that the more
generous two-for-two credit provisions of the current version of section 4019 should be
applied to presentence custody on or after October 1, 2011, for crimes that occurred prior
to that date. We disagree.

               “The rule of lenity does not apply every time there are two or more
       reasonable interpretations of a penal statute. [Citation.] Rather, the rule
       applies ‘“only if the court can do no more than guess what the legislative
       body intended; there must be an egregious ambiguity and uncertainty to
       justify invoking the rule.”’ [Citation.] In other words, ‘the rule of lenity is
       a tie-breaking principle, of relevance when “‘two reasonable interpretations
       of the same provision stand in relative equipoise....’”’ [Citation.]” (People
       v. Manzo (2012) 53 Cal.4th 880, 889.)

              “[U]nder the rule of lenity[,] California [courts] will ‘“construe a
       penal statute as favorably to the defendant as its language and the
       circumstances of its application may reasonably permit....”’ [Citation.]
       However, application of the rule of lenity is inappropriate unless, after
       consideration of the intent of the statute, the canons of statutory
       construction, and an analysis of the legislative history, the statute is still
       ambiguous.” (In re Michael D. (2002) 100 Cal.App.4th 115, 125.)
       As noted above, section 4019, subdivision (h) provides: “The changes to this
section … shall apply prospectively and shall apply to prisoners who are confined to
[specified facilities] for a crime committed on or after October 1, 2011. Any days earned
by a prisoner prior to October 1, 2011, shall be calculated at the rate required by the prior
law.” While the first sentence of subdivision (h) expresses the Legislature’s intent that
application of the enhanced conduct credits are limited to defendants whose crimes are
committed on or after October 1, 2011, the second sentence of the subdivision arguably
implies any days earned by a defendant on or after October 1, 2011, should be calculated
at the rate required by the current law.


                                              10
       This court and another court have addressed this ambiguity and interpreted section
4019, subdivision (h) to give effect to both sentences, such that neither sentence will be
rendered inoperative, superfluous, void, or insignificant. In Ellis, we concluded: “In our
view, the Legislature’s clear intent was to have the enhanced rate apply only to those
defendants who committed their crimes on or after October 1, 2011. [Citation.] The
second sentence does not extend the enhanced rate to any other group, but merely
specifies the rate at which all others are to earn conduct credits. So read, the sentence is
not meaningless, especially in light of the fact the October 1, 2011, amendment to section
4019, although part of the so-called realignment legislation, applies based on the date a
defendant’s crime is committed, whereas section 1170, subdivision (h), which sets out the
basic sentencing scheme under realignment, applies based on the date a defendant is
sentenced.” (Ellis, supra, 207 Cal.App.4th at p. 1553.)
       In People v. Rajanayagam (2012) 211 Cal.App.4th 42 (Rajanayagam), the court
concluded: “[W]e cannot read the second sentence to imply any days earned by a
defendant after October 1, 2011, shall be calculated at the enhanced conduct credit rate
for an offense committed before October 1, 2011, because that would render the first
sentence superfluous.” (Id. at p. 51.) The Rajanayagam court explained its reasoning:
“[S]ubdivision (h)’s second sentence attempts to clarify that those defendants who
committed an offense before October 1, 2011, are to earn credit under the prior law.
However inartful the language of subdivision (h), we read the second sentence as
reaffirming that defendants who committed their crimes before October 1, 2011, still
have the opportunity to earn conduct credits, just under prior law. [Citation.] To imply
the enhanced conduct credit provision applies to defendants who committed their crimes
before the effective date but served time in local custody after the effective date reads too
much into the statute and ignores the Legislature’s clear intent in subdivision (h)’s first
sentence.” (Id. at p. 52.) We agree with the reasoning of Ellis and Rajanayagam.



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Because the ambiguity cited by Edwards has been properly resolved by statutory
construction of section 4019, subdivision (h), the rule of lenity is not applicable.
                                      DISPOSITION
       The judgment is affirmed.




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