Filed 8/11/16 Siringoringo v. Superior Court 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



STEPHEN LYSTER SIRINGORINGO,

         Petitioner,                                                     E063534

v.                                                                       (Super.Ct.No. FWV1500818)

THE SUPERIOR COURT OF SAN                                                OPINION
BERNARDINO COUNTY,

         Respondent;

THE PEOPLE,

         Real Party in Interest.



         ORIGINAL PROCEEDINGS; petition for writ of mandate/prohibition. Shahla S.

Sabet, Judge. Petition denied.

         Daniel G. Davis and Alan S. Yockelson for Petitioner.

         Ronald L. Brown, Public Defender (Los Angeles), Albert J. Menaster, Deputy

Public Defender, as Amicus Curiae on behalf of Petitioner.

         No appearance for Respondent.



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       Michael A. Ramos, District Attorney, Brent J. Schultze, Deputy District Attorney,

for Real Party in Interest.

       In this matter we are called upon to determine whether the complaint filed against

petitioner must be dismissed because counsel was not present to assist him during his

initial arraignment by two-way electronic audio-video communication. Because we

determine that there are no grounds mandating the dismissal of the complaint, we deny

the petition.

                              STATEMENT OF THE CASE

       On March 5, 2015, a felony complaint was filed against petitioner listing 74

counts of grand theft, unlawful activities in conjunction with loan modification, money

laundering, and conspiracy. On March 6, 2015, petitioner was arraigned by Judge Jerry

Johnson by two-way electronic audio-video communication while he was in custody at

county jail. No attorneys were present at the hearing. Although the minute order states

that “Defendant is advised of Constitutional and Statutory Rights. (as attached and

incorporated),” there is nothing attached and incorporated to the minute order. Petitioner

was provided with a copy of the complaint. A plea of not guilty was entered and special

allegations were denied. A conflict panel attorney was appointed for petitioner, pre-

preliminary and preliminary hearing dates were set for March 13, 2015 and March 18,

2015, respectively, and bail was set at $17,837,000. Petitioner signed a form titled,

“Waiver of Personal Presence Acknowledgment of Advisal of Constitutional Rights Via

Two-Way Electronic Audio-Visual System” (Waiver of Presence) and dated March 6,

2015, but no boxes indicating acknowledgement or consent were checked.


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       On March 13, 2015, private retained counsel appeared in court with petitioner. At

that time, counsel argued that based upon the Waiver of Presence and the lack of an

attorney, petitioner was never effectively arraigned and asked for a dismissal of the

complaint. Because the court was unfamiliar with this case, the request for dismissal was

denied without prejudice to a further hearing on the issue. At the parties’ request, the

preliminary hearing was moved to March 19, 2015.

       At the hearing on March 19, 2015, petitioner was given permission to file an

untimely “motion to dismiss for failure to afford due process arraignment and right to

private counsel.” The district attorney (DA) initially waived defects and indicated his

readiness to argue the motion. After counsel for the petitioner argued the motion, the

parties determined that an evidentiary hearing may be required for which the People were

not prepared. Petitioner waived time plus 30 days for his preliminary hearing, and the

court set a status hearing for April 10, 2015, and the hearing on the motion to dismiss for

April 13, 2015.

       On April 6, 2015, the DA filed written opposition to petitioner’s motion. On April

10, 2015, petitioner filed supplemental points and authorities in support of his motion

addressing the issue of his federal and state constitutional right to have counsel present at

arraignment. At the readiness hearing on that date, the hearing on the motion was

continued to April 20, 2015. Prior to that hearing, the People filed an opposition to

petitioner’s supplemental points and authorities. On the date of the hearing, supplemental

declarations were filed by petitioner. After listening to argument, the trial court

determined that no evidentiary hearing was necessary and denied the motion, at least in


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part, because the law does not require the presence of counsel at arraignment when a not

guilty plea is entered. This petition followed.

                                       DISCUSSION

       Petitioner contends (as does amicus curiae) that he has a constitutional and

statutory right to the presence of counsel at arraignment and that the only remedy for the

violation of that right is dismissal of the complaint. Consequently, he seeks an order of

this court directing the trial court to vacate its order denying his motion and to enter a

new order dismissing the complaint. The People do not contest that the right to counsel

attaches at arraignment. However, they argue, it does not follow that counsel is required

to be present at arraignment nor does it follow that the absence of counsel requires

dismissal of the complaint as a matter of law.

       This court recognizes the importance of the entitlement of one criminally accused

to have the assistance of counsel as guaranteed by the Sixth Amendment to the United

States Constitution. This opinion does not in any way diminish or denigrate that

fundamental right. Because we find that dismissal of the complaint is not mandatory

under the specific facts of this case, we assume, for purposes of this opinion and without

deciding the issue, that petitioner was entitled to have counsel present at the arraignment

hearing.

       While dismissal may be a proper remedy for a violation of constitutional rights,

petitioner has not shown that it is mandatory in the context of this case. Petitioner

concludes that if counsel was not present at his arraignment, he was illegally committed

and the complaint must be dismissed. None of the cases he cites stand for that


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proposition. In Hamilton v. Alabama (1961) 368 U.S. 52, the court reversed the

conviction and resulting sentence of death that had resulted from a trial because the

defendant was denied counsel at arraignment. (Id. at pp. 52-55.) It did not state that

dismissal of the action was required. (Ibid.) Petitioner here has not yet proceeded to

trial. Consequently, there is no conviction or sentence requiring reversal due to a

presumption of prejudice in that yet to occur proceeding. The opinion was also limited in

that it concerned a capital defendant and an arraignment proceeding that “may affect the

whole trial” because certain trial defenses, if not raised, would be irretrievably lost. (Id.

at p. 54.) Neither of those circumstances has been shown to be present here.

       Jennings v. Superior Court (1967) 66 Cal.2d 867, concerns a motion to set aside

an information under Penal Code section 995 after the defendant was denied the right to

present an affirmative defense at his preliminary hearing. (Id. at pp. 870-871, 874.) The

court granted relief ordering a writ of prohibition issue to prevent the defendant’s trial on

the tainted indictment. (Id. at p. 870.) Neither Jennings nor Penal Code section 995

requires the dismissal of a complaint for alleged defects in an initial arraignment hearing

as both contemplate the commitment resulting after a finding of probable cause at a

subsequent preliminary hearing. Whether or not counsel must be present at a preliminary

hearing is not the question before this court.

       Sundance v. Municipal Court (1986) 42 Cal.3d 1101, 1128-1129, reflects only that

the defendants did not challenge on appeal the trial court’s finding that their arraignment

procedures violated due process, so the issue was not considered by the Supreme Court.

It provides no authority for the proposition that dismissal is mandatory in this case.


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People v. Howell (1986) 178 Cal.App.3d 268, held that the judgment resulting from

defendant’s guilty plea must be overturned because he was not advised of his right to

appointed counsel at all stages of his case prior to his plea being entered. (Id. at pp. 273-

276.) Again, it does not stand for the proposition advanced by petitioner. While the

balance of the cases cited by petitioner reflect instances where dismissals were entered

and affirmed, none support the conclusion that dismissal was required in this case as a

matter of law. Structural error is found on very limited occasion in exceptional cases that

render a trial fundamentally unfair as a vehicle for the determination of guilt or

innocence. (People v. Mendoza (2016) 62 Cal.4th 856, 900.) This court has found no

case law concluding that the absence of counsel at an initial arraignment constitutes

structural error under every circumstance.

       On the other hand, there are cases that hold that a complete denial of counsel at

arraignment is not error per se and should be evaluated under the harmless beyond a

reasonable doubt standard. (People v. Cox (1987) 193 Cal.App.3d 1434, 1440 [harmless

error standard]; Macias v. Municipal Court (1986) 178 Cal.App.3d 568, 574-576 [not

error per se]; People v. Carlon (1984) 161 Cal.App.3d 1193, 1196-1197 [harmless error

standard]; see also People v. Romero (2008) 44 Cal.4th 386, 418-419 [applying harmless

error standard to violation of defendant’s constitutional right to be personally present at

all critical stages of the trial].) It has also been held that generally the denial of a criminal

defendant’s Sixth Amendment right to counsel is subject to a finding of prejudice before

dismissal is appropriate. (People v. Hayes (1988) 200 Cal.App.3d 400, 409-412 citing

United States v. Morrison (1981) 449 U.S. 361, 364 [Sixth Amendment deprivations


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subject to rule that remedies should be tailored to assure defendant effective assistance of

counsel and a fair trial and require showing of prejudice to merit dismissal].)

       In People v. Pompa-Ortiz (1980) 27 Cal.3d 519, similar to Jennings v. Superior

Court, supra, 66 Cal.2d 867 cited by petitioner, the court held that the denial of a

substantial right, such as the right to presence of counsel, at a preliminary hearing

rendered an ensuing commitment illegal and entitled a defendant to a dismissal under

Penal Code section 995. (Pompa-Ortiz, at p. 523.) Nevertheless, the court determined

that although the defendant had been entitled to have his motion to dismiss the

information granted, that fact did not require that his conviction be reversed after an

error-free trial coupled with no showing that his trial was prejudiced by the earlier error.

(Id. at p. 530.) Although the court stated that a pretrial challenge to irregularities in the

preliminary hearing would still proceed without the requirement to show prejudice (id. at

p. 529), an issue that was not before it, we are not convinced that the rule applies in this

case. (Cf. Reilly v. Superior Court (2013) 57 Cal.4th 641, 653 [Pompa-Ortiz dicta states

only that under certain facts relief without a showing of prejudice may be warranted].)

       Here, this court is narrowly focused on whether petitioner has demonstrated that

the absence of counsel at his first arraignment was in any way prejudicial to him. As

indicated ante, at the first hearing after the arraignment (held seven days later) petitioner

was represented by counsel of his choice. Since that time, in addition to the hearings

regarding the motion to dismiss that is the subject of this petition, petitioner has been

represented by counsel of his choice at a preliminary hearing where he was held to

answer on all counts and at his arraignments on the information and the first amended


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information. Petitioner makes no showing that the absence of counsel at the arraignment

on the complaint resulted in any prejudice at these later hearings or will prejudice his

eventual trial. By analogy of reasoning to People v. Pompa-Ortiz developments in this

action subsequent to the first arraignment have rendered any error at that hearing

harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)

Even if we assume that the first arraignment in this case was not held in conformity with

constitutional and statutory requirements, the trial court is not currently without

jurisdiction to act (see Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288-

291 [difference between fundamental jurisdiction and action in excess of authority

possessed]) because any error in that proceeding has since been cured.

       No other prejudice has been demonstrated. Petitioner states that he was prejudiced

by the denial of counsel of his choice but does not indicate that his chosen counsel would

have done anything differently had he been present. Petitioner claims he was not aware

of his ability to present a challenge under Code of Civil Procedure section 170.6, to

request to appear personally in court, or to argue for a reduction in bail (dubious claims

given petitioner does not deny that he was a licensed attorney), but does not claim that he

would have done so. He also claims he was denied the right to waive time for his

preliminary hearing (a right that he later exercised), and that he was denied his right to a

speedy preliminary hearing because conflict counsel appointed to him did not prepare for

that hearing. However, private counsel was retained and appeared with petitioner at the

pre-preliminary hearing that was set at the time of the first arraignment. There is no

claim that private counsel was not prepared to proceed in whatever manner was deemed


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fit with respect to the preliminary hearing, in fact, the opposite is true. Finally, petitioner

has not explained how any of these factors adversely affected the subsequent proceedings

or will prevent him from receiving a fair trial on the merits.

       Because we find an examination of the evidence proffered unnecessary to the

resolution of this petition, the request for judicial notice filed by the People on September

21, 2015, is denied.

                                       DISPOSITION

       The petition for writ of mandate/prohibition is denied.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                  CODRINGTON
                                                                                              J.

We concur:


RAMIREZ
                        P. J.


HOLLENHORST
                           J.




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