(Santa Clara County Super. Ct. Nos. CC512127 & CC503983). Trial Judge: Honorable Griffin Bonini.
The opinion of the court was delivered by: McAdams, J.
CERTIFIED FOR PUBLICATION
On May 1, 2007, defendant was convicted by the court of felony infliction of corporal injury on a spouse and a misdemeanor violation of a protective order (Pen. Code §§ 273.5, subd. (a), 273.6, subd. (a)) in action number CC512127.
At the same time, defendant was also convicted by the court of felony assault with a deadly weapon and misdemeanor driving with a suspended or revoked license in action number CC503983. With respect to both actions, defendant admitted that his prior conviction qualified as a "strike" within the meaning of the Three Strikes law. (Pen. Code §§ 667, subds. (b)-(i); 1170.12.) He also admitted that his prior conviction qualified as a serious felony with respect to action number CC503983. (Pen. Code § 667, subd. (a).)
In action number CC512127, the court sentenced defendant to the upper term, doubled, for a total term of eight years. In action number CC503983, the court reduced the assault conviction to a misdemeanor pursuant to Penal Code section 17, credited defendant with 259 days in custody, and deemed the sentence served.
On appeal, defendant makes two claims. First, he argues that reversal of his conviction is required because his right to counsel under Article I, section 15, of the California Constitution was violated when his attorney resigned in mid-trial from the State Bar while charges were pending. Second, he argues that successor counsel who represented him at his sentencing hearing rendered ineffective assistance of counsel when he failed to make a motion for a new trial on the basis of trial counsel's mid-trial resignation. On this second point, defendant has also filed a petition for writ of habeas corpus, to which he has appended successor counsel's declaration, and State Bar records pertaining to trial counsel's resignation. We agree that defendant's state constitutional right to counsel was violated by his attorney's mid-trial resignation from the State Bar with charges pending, and that such a violation requires reversal without inquiry into attorney competence. Therefore we need not address defendant's claim of ineffective assistance of counsel against successor counsel. We will reverse the judgment on direct appeal and dismiss the petition for writ of habeas corpus as moot.
Case number CC503983 On September 16, 2005, defendant drove his car in front of his girlfriend's car and stopped suddenly at a stoplight. Then, he backed his car into her car, hitting it. When the light changed, he fled. Defendant stipulated that he did not have a valid license at the time.
On November 20, 2005, defendant "head-butt" his live-in girlfriend in the face and also kicked her. Her nose bled. When the police arrived, defendant's girlfriend's nose was swollen and had a small cut on the bridge. She also had a small cut on her lower lip and a five-inch abrasion from her right cheek to her hairline. Defendant stipulated to the existence of a valid restraining order against him with respect to the victim at the time of the offense.
Facts Relating to Counsel's Status with the State Bar during Trial
The trial took four days over the course of several months: November 20 and 21, 2006; March 15 and May 1, 2007. On April 27, 2007, between the third and fourth days of trial, Mr. Guzzetta resigned from the State Bar with charges pending.*fn2 State Bar records further show that as of that date, he was not eligible to practice law.
At the start of the sentencing hearing, the trial court stated: "This was a court trial done over a several month period on a time-waived basis with Mr. Guzzetta serving as Mr. Vigil's counsel for the trial. And I assume counsel are aware that Mr. Guzzetta during the pendency of this case was stripped of his ability to practice law in California, became a non-active member by resigning in lieu of being terminated. So it was essentially involuntary resigning is my understanding. [¶] Now what is critical here is also that during this case Mr. Guzzetta believed himself to be an active member of the Bar during the latter portions of the trial. . That turned out to be incorrect. In fact, he was not active as an attorney in California as of the date he signed that resignation; therefore he in fact participated in the latter part of this trial as a non-certified attorney in the State of California. [¶] Is that -- I'm hoping that is not news to anyone."
When the prosecutor indicated some surprise, the court went on to state: "Because I do remember in court him representing to the court his status with the State Bar proceedings and representing to the court at that time that he believed himself to be an active member, would be able to wrap up his practice including this trial; but in fact that was not the case. He was not an active member as of the date he signed the resignation." The prosecutor indicated that he also remembered the conversation between Mr. Guzzetta and the court but that "[t]he part that I was not aware of was that the State Bar deemed him to be inactive, unable ...