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People v. Reed

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE


April 13, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
TYRONE LAMONT REED, DEFENDANT AND APPELLANT.

Superior Court of Alameda County, No. C156325, Trina Thompson-Stanley, Judge. (Alameda County Super. Ct. No. C156325)

The opinion of the court was delivered by: Bruiniers, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Appellant Tyrone Reed was convicted by a jury of four counts of aggravated sexual assault of a child (Pen. Code, § 269),*fn2 one count of forcible oral copulation (§ 288a, subd. (c)(2)), one count of forcible rape (§ 261, subd. (a)(2)), and one misdemeanor count of child abuse (§ 273a, subd. (b)). Reed was sentenced under the three strikes law to a term of 230 years to life in state prison. On appeal, Reed contends that: (1) substantial evidence does not support his convictions for aggravated sexual assault of a child; (2) the trial court erred by failing to inquire into the basis for a new trial motion asserting incompetence of counsel; (3) the trial court improperly sentenced him to consecutive terms for the aggravated sexual assault convictions; and (4) his aggregate sentence of 230 years to life constitutes cruel and/or unusual punishment. We agree in the published portion of the opinion only with Reed's second claim. We will therefore remand the matter to the trial court with directions to conduct a hearing on Reed's claim of ineffective assistance of counsel and for such further proceedings as may then be required.

I. Factual and Procedural Background

A second amended information charged Reed with aggravated sexual assault of a child-rape (§§ 269, subd. (a)(1), 261, subd. (a)(2); count one), forcible rape (§ 261, subd. (a)(2); count two), aggravated sexual assault of a child-rape (§§ 269, subd. (a)(1), 261, subd. (a)(2); count three), forcible rape (§ 261, subd. (a)(2); count four), aggravated sexual assault of a child-sodomy (§§ 269, subd. (a)(3), 286, subd. (c)(2); count five), forcible sodomy (§ 286, subd. (c)(2); count six), aggravated sexual assault of a child-oral copulation (§§ 269, subd. (a)(4), 288a, subd. (c)(2); count seven), forcible oral copulation (§ 288a, subd. (c)(2); count eight), felony child abuse (§ 273a, subd. (a); count nine), forcible oral copulation (§ 288a, subd. (c)(2); count ten), and forcible rape (§ 261, subd. (a)(2); count eleven).*fn3

As to all charges, it was alleged that Reed had a prior conviction for shooting at an inhabited dwelling (§ 246), which was a "strike" within the meaning of section 1170.12 and a prior serious felony conviction within the meaning of section 667, subdivision (a)(1). It was further alleged that Reed had a prior conviction for battery with serious bodily injury (§ 243, subd. (d)), which was a strike within the meaning of section 1170.12 and a prior serious felony conviction with the meaning of section 667, subdivision (a)(1). It was further alleged that Reed had served two prior prison terms within the meaning of section 667.5, subdivision (b). Finally, it was alleged that Reed had a prior conviction for sale/transportation/offer to sell a controlled substance (Health & Saf. Code, § 11352, subd. (a)), for which Reed had received probation.

Reed was tried by jury and convicted on counts one, three, five, seven, ten, and eleven. The jury found Reed not guilty of counts two, four, six, and nine. With respect to count nine, the jury found Reed guilty of the lesser-included offense of misdemeanor child abuse (§ 273a, subd. (b)). Count eight was dismissed. After a bench trial, the court found the prior conviction allegations to be true.

On January 30, 2009, Reed was sentenced, pursuant to the three strikes law, to state prison for the following consecutive terms:

( ( ( 45 years to life on count one; (2) 45 years to life on count three; 45 years to life on count five; (4) 45 years to life on count seven; 25 years to life on count ten; and (6) 25 years to life on count eleven. Reed was also sentenced to a concurrent one-year term in county jail on count nine. The aggregate term of Reed's sentence is 230 years to life. This timely appeal followed.

Because the sufficiency of evidence to support some of the convictions is at issue, it is necessary to present a somewhat detailed statement of the evidence presented at trial. Additional facts are contained in the discussion of issues to which they relate.

A. Prosecution's Case

Dianne Doe*fn4 testified that, in September 2006,*fn5 she moved from Reno to Oakland after her mother had a stroke and a heart attack and became unable to care for her. When Dianne first arrived in Oakland, she stayed with her maternal grandmother for a couple of days. After that, Dianne stayed a week at the California Hotel with Reed, who Dianne identifies as her father.*fn6 Dianne testified that, after that week, she went to stay with her father's sister, Keisha. Dianne could not remember how long she stayed with Keisha, but testified that it was about a month or two. Dianne was enrolled in school about a month after she arrived from Reno. After the period with her aunt, Dianne went to live with Reed at the California Hotel, where she remained until February 5, 2007. Dianne testified that she could not remember exactly when she returned to the California Hotel, but that she did so before her 14th birthday on November 10, 2006. Dianne remembered that Reed bought her a bottle of Hennessey for her 14th birthday.

Dianne testified that, after she returned to the California Hotel to live with Reed, she shared a hotel room with Reed, Reed's "baby mama" (Bahati), and Bahati's father. Reed was physically violent with Dianne. One day, Dianne had been at a school program, but Reed believed she had instead been with some boys. Dianne had a teacher talk to Reed to prove she was at the school program. That night, Reed slapped Dianne hard in the face, with an open hand.

One night, Dianne was "[h]alf asleep and half awake" in the bed with Reed, while Bahati's father slept on the couch. Bahati was not in the room that night. Dianne was wearing red pajama pants, underpants, and a white t-shirt to bed. Reed partially removed Dianne's pajama pants, moved her underwear to the side, and put his fingers inside Dianne's vagina. Reed asked Dianne if she was a virgin. Reed told her " `You ain't no virgin, because I was fingering the whole time while you were asleep.' " Dianne was surprised and scared. Reed then got on top of Dianne and got close to her face, telling her that if she was lying about being a virgin, he was going to slap her. Reed then said: " `Well, since you gave my body up first, I am going to have to take it, because a father is supposed to have his child's body.' " Dianne testified that at this point she "was too scared to think" and that she "tried to get up a little bit," but was unable. Next, Reed put his penis in Dianne's vagina. Dianne testified that she was scared of Reed and that she did not want him to touch her. Reed did not use a condom.

Dianne testified that Reed stopped when Bahati knocked on the door of the hotel room. Dianne ran into the bathroom and cried. When Dianne came out of the bathroom, five or ten minutes later, Bahati was in the hotel room. Dianne testified that this occurred on October 8. Dianne remembered the date because Reed had told her that Bahati was getting out of jail on October 8. When Bahati knocked on the door that night, Dianne believed she was coming home from jail.

Dianne testified that, the next night, Reed touched her vagina with his fingers. While Dianne was laying on her side in the bed, Reed pulled her red pajama pants down, pulled her underwear to the side, and tried to put his penis in Dianne's anus.*fn7 Dianne testified that Reed's penis went in a little, but "didn't go all the way in." Dianne pushed Reed away, but he pushed her back. Dianne was scared. Reed did not use a condom.

A couple of nights later, Dianne was asleep, as were Bahati and Bahati's father, when she was woken by Reed. Reed got up off the bed and made a circular motion with his finger that indicated to Dianne that she should roll over and get up. Dianne got up and put her hands on the bed because she was scared. While Dianne was bent over, Reed put his penis in her vagina from behind. Dianne testified that she did not want Reed to do this and that she was scared. Dianne tried to touch Bahati to wake her up, but was unsuccessful. Reed did not use a condom.

During that same week or two-week period, while neither Bahati or Bahati's father were in the room, Reed grabbed Dianne, picked her up, put her on the bed, pulled her pajama pants down, and pulled her underwear to the side. Reed then touched Dianne's vagina with his tongue. Dianne was afraid of Reed.

Dianne testified that she turned 14 on November 10 and that all four of the previously described incidents occurred before her 14th birthday. At some point, Reed told Dianne that "[i]f [she] ever told on him, he was going to sock [Dianne] in [the] face where [she would] have to eat out of a straw, and people go down there and kill [her] mama." Dianne believed Reed's threats. When she was growing up, Dianne had seen Reed beat her mother "like she was a dog."

One day after Dianne turned 14, Reed came to Dianne's school to pick her up because she and another girl were about to get into a fight. When they returned to the California Hotel, Reed whipped Dianne with a belt approximately 25 times. Dianne testified that Reed left bruises on her thighs and arms and caused a knot on her head. Dianne did not fight back because she knew she "would have been defeated."

The next day Dianne did not go to school. Reed picked out and bought some new panties for her. Afterwards, back at the California Hotel, Reed had Dianne model the underwear. Reed then put his mouth on Dianne's vagina. Dianne did not want Reed to do so. She was scared.

On the night of February 4, 2007, while everyone else in the room was asleep, Reed forced his penis inside Dianne's vagina. This time, Reed was rougher and it "[d]idn't feel so good." Dianne did not want Reed to do this and asked him to stop. Reed did not stop. Afterwards, Dianne experienced pain when she closed her legs and a burning sensation while urinating.

On February 5, 2007, Dianne called Reed from school and falsely told him that she had an after-school program so that he would not come to pick her up after school. Instead, Dianne called her maternal grandfather and had him pick her up. Dianne told her grandfather that Reed had been beating her and touching her private parts. Dianne's grandfather took her to the Oakland Police Department, where she gave a statement. Dianne was also taken to the hospital where a sexual assault exam was performed and her underpants (the same pair she had been wearing the night before) were collected. Photographs were taken of Dianne's body, which showed bruising on her right arm, at the bicep and forearm. The sexual assault examiner observed these bruises, as well as resolving bruises on the inside of both of Dianne's knees and a lump on her forehead. An abrasion to Dianne's cervix and blood were also noted. The abrasion was consistent with something external having entered the vagina. Vaginal and oral swabs were collected from Dianne and placed into a sexual assault evidence collection kit. Dianne's sexual assault kit, containing the swabs and the underwear, was transported to the Oakland Police Department.

Reed was arrested that evening at the California Hotel. Officers collected a pair of red pajama bottoms and a t-shirt from the room.*fn8

An oral swab was collected from Reed. The swab was placed into a sexual assault kit that was provided to the Oakland Police Department.

The criminalist at the Oakland Police Department Crime Laboratory, who performed the deoxyribonucleic acid (DNA) analysis in this case, testified that sperm and epithelial cells were found on the pair of underpants contained in Dianne's sexual assault kit. DNA from the sperm on the underpants was extracted and analyzed. A genetic profile for the sperm was generated and compared to a known DNA profile for Reed. The profiles matched. This particular nine locus profile occurs in approximately one in 25 trillion African Americans. The DNA profile of the epithelial cells taken from the underpants was compared to a known DNA profile for Dianne. The profiles matched.

Sperm and epithelial cells were also found on one of the vaginal swabs. It was not possible to separate out the sperm from the epithelial cells. The criminalist was unable to obtain a full profile for the male donor to the mixture, but she was able to obtain a partial profile. The partial profile was consistent with Reed's reference profile. The criminalist was able to obtain a full profile for the epithelial cell fraction from the vaginal swab. The profile matched Dianne's known profile.

Sperm and epithelial cells were also found in two stains on the pajama pants. DNA from the mixtures on the pajama pants was extracted and analyzed. The profiles were consistent with the reference profiles for Dianne and Reed. No evidence of a third person's DNA was found in any of the samples.

B. Defense Case

Reed's grandmother (Dianne's paternal great-grandmother), Lois, testified that Dianne came to Oakland "around September a couple of years ago. Maybe last year." Lois also testified that when Dianne first arrived she stayed at her house for a few days. According to Lois, Dianne then went to live with Reed's sister, Keisha.

Keisha was "not sure" how long Dianne stayed with Lois, but testified that it could have been "about a month" or a little shorter. Keisha also testified that Dianne next lived at her house for "[t]wo months, roughly" before she went to stay with Reed. After Dianne had been living with Keisha "[a]bout two weeks," Keisha registered Dianne for school.

Keisha's daughter, Unique, testified that on her birthday, October 7, Dianne was living with her and Keisha. Unique remembered this because Dianne went to a Chris Brown concert with Unique for her birthday.*fn9 Unique also testified that Dianne stayed at her house for "[p]robably about two months" after October 7. Reed did not testify.

C. Stipulations

The parties stipulated that Reed was born on February 25, 1969. The parties also stipulated that Dianne was enrolled in school on September 26, that her final day of enrollment was February 7, 2007, and that she had unexcused full-day absences on October 25, October 26, October 27, November 6, November 17, and December 11. Dianne also had unverified full-day absences on December 4, December 5, December 7, January 17, 2007, January 22, 2007, and February 6, 2007. It was also stipulated that records from the Santa Rita jail indicate that Bahati was in custody in Alameda County in 2006 from December 12 until December 20.

II. Discussion

Reed contends that: (1) substantial evidence does not support his convictions for aggravated sexual assault of a child; (2) the trial court erred by failing to inquire into the basis for a new trial motion asserting incompetence of counsel; (3) the trial court improperly sentenced him to consecutive terms for the aggravated sexual assault convictions; and (4) his aggregate sentence of 230 years to life constitutes cruel and/or unusual punishment. We address each of these arguments in order.

A. Sufficiency of the Evidence

First, Reed contends that his convictions on four counts of aggravated sexual assault of a child (§ 269) must be reversed because the evidence did not show beyond a reasonable doubt that Dianne was under 14 when the offenses were committed. Since September 20, 2006, section 269, subdivision (a), has provided: "Any person who commits [certain enumerated] acts upon a child who is under 14 years of age and seven or more years younger than the person is guilty of aggravated sexual assault of a child . . . ." (Stats. 2006, ch. 337, § 6, eff. Sept. 20, 2006; Prop. 83, § 5, as approved by voters, Gen. Elec. (Nov. 8, 2006).)*fn10 Substantial evidence supports the convictions.

1. Standard of Review

Substantial evidence supports a conviction if " `a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt.' " (People v. Johnson (1980) 26 Cal.3d 557, 576.) In determining the sufficiency of the evidence, we " `must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citations.] The [reviewing] court does not, however, limit its review to the evidence favorable to the respondent. . . . `[O]ur task . . . is twofold. First, we must resolve the issue in the light of the whole record-i.e., the entire picture of the defendant put before the jury-and may not limit our appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whether the evidence of each of the essential elements . . . is substantial; it is not enough for the respondent simply to point to some evidence supporting the finding, for "not every surface conflict of evidence remains substantial in the light of other facts." ' [Citation.]" (Id. at pp. 576-577, brackets & first ellipsis added.) "Evidence, to be `substantial' must be `of ponderable legal significance . . . reasonable in nature, credible, and of solid value.' [Citations.]" (Id. at p. 576, ellipsis in original.)

" ` "Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. [Citation.] To warrant the rejection of the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]" . . . .' [Citation.]" (People v. Barnes (1986) 42 Cal.3d 284, 306, last brackets added.)

2. Analysis

Here, Dianne testified that she turned 14 on November 10, 2006, and that all four of the offenses at issue occurred before her 14th birthday. Dianne also specifically testified that the first offense occurred on October 8. Reed concedes that it is the jury's exclusive province to weigh the evidence and the credibility of the witnesses, but contends that Dianne's testimony was physically impossible or inherently improbable and thus not sufficient to support his convictions for four counts of aggravated sexual assault of a child. (See People v. Young (2005) 34 Cal.4th 1149, 1181 ["unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction"].)

Reed suggests that it is physically impossible the first offense occurred on October 8. First, Reed points to Dianne's testimony that she arrived in Oakland in September, stayed with her grandmother for a couple of days, then stayed with Reed for a week, and then stayed with her aunt for about a month or two. Specifically, Dianne was asked: "How long were you living with your aunt Keisha?" Dianne responded: "Like for a month, something like that." Dianne was also asked: "For about a month?" Dianne responded: "Yeah, or two." Reed asks us to infer from this testimony that Dianne did not return to the California Hotel until at least November.*fn11 However, this would require us to view the evidence in the light most unfavorable to the judgment. The jury could reasonably have concluded from this same evidence that Dianne in fact returned to the California Hotel in October.

Dianne also testified that she did not remember when in September she arrived in Oakland, but that it was "[g]oing towards the end" of the month. But, Dianne also stated that she was enrolled in school about a month after she arrived.*fn12 The jury was free to resolve this conflict in Dianne's testimony in a way that supported her testimony that all four of the offenses at issue occurred before her 14th birthday. If Dianne moved to Oakland in early September, ample time existed for her to stay with her maternal grandmother for a few days, stay a week with Reed, and stay about a month with her aunt, before moving back to the Hotel California on or before October 8.*fn13

Finally, Reed argues that Bahati's jail records demonstrate that "Bahati would not have been available to show up at [Reed's] apartment and interrupt any ongoing molestation before the date of December 20, 2006." We are not persuaded. It was stipulated that Bahati was in custody in Alameda County from December 12 until December 20. However, this does not make it physically impossible that Dianne was first raped on October 8. Dianne testified that Reed told her on the date of the offense that Bahati was being released from jail. Even if we assume for the purposes of this appeal that the stipulated jail records conclusively establish that Bahati was not in fact being released from jail (at least in Alameda County) on October 8, the stipulated evidence only shows that Dianne may have been given incorrect information. That Bahati was unquestionably in custody between December 12 and December 20 does not mean, as Reed suggests, it was impossible or inherently implausible for Bahati to have interrupted the acts Dianne testified occurred on October 8.

Reed's arguments merely highlight that a reasonable jury could have reached the opposite conclusion. He has not demonstrated that the jury's actual verdict was not reasonably justified by the evidence. There was sufficient evidence that the offenses charged in counts one, three, five, and seven occurred before November 10, 2006. Reed has shown no violation of his due process rights.

B. Trial Court's Failure to Inquire into Reasons for Reed's Desire to Move for New Trial Based on Ineffective Assistance of Counsel

Next, Reed argues that the trial court erred by failing to make further inquiry when he sought to make a motion for new trial on the grounds of incompetence of counsel. Reed maintains that we must remand the case to the trial court for a full Marsden*fn14 inquiry into the basis for Reed's allegations of trial counsel's incompetence. On this point, we agree.

1. Background

The record reflects that, on both October 7, 2008 and October 27, 2008, Reed made two separate unsuccessful Marsden motions, asking the court to discharge the deputy public defender. After a verdict had been rendered, Reed's counsel filed a written motion for new trial, arguing that there was insufficient evidence for the jury to find beyond a reasonable doubt that any offenses occurred before Dianne's 14th birthday. On January 16, 2009, after the trial court considered and denied Reed's motion for new trial, the following exchange occurred on the record:

"Now, then, turning our attention to the sentencing of Mr. Reed, . . . . [¶] . . . Is there a letter that may have been prepared or filed and I did not see or any evidence of that or documents that you would like the court to review before pronouncing sentence?

"[DEFENSE COUNSEL]: No, Your Honor.

"THE COURT: Is there any --

"THE DEFENDANT: Can I say something?

"THE COURT: You need to speak with [defense counsel], please, Mr. Reed.

"(Short discussion off the record)

"[PROSECUTOR]: I do have one correction on my letter.

"THE COURT: Just one moment. [¶] Is there any legal cause why sentence should not now be imposed?

"[DEFENSE COUNSEL]: Your Honor, Mr. Reed is indicating to me that he wants to file a motion for incompetence of counsel. I have explained to him I don't know what vehicle to do. I have explained to him I will file the Notice of Appeal. In fact, I have one prepared for Mr. Reed to be filed today.

"THE COURT: Do we need to pass the matter so you and Mr. Reed can have a further conference not on the record regarding some delicate issues? Because I don't want to proceed to sentencing unless we are resolved on those issues. [¶] So, we are going to pass the matter.

"[DEFENSE COUNSEL]: Your Honor --

"THE COURT: Mr. Reed will be taken up to the 10th floor so he and counsel can have a private conference."

Sentencing was continued to January 30, 2009. On January 30, 2009, the record reflects the following colloquy:

"[DEFENSE COUNSEL]: Your Honor, Mr. Reed is asking me to ask the court to grant him a new trial based on my incompetence. [¶] And I explained to Mr. Reed when we stopped sentencing the last time, I went upstairs to speak to Mr. Reed. I tried to explain to him, and I am kind of glad this is getting on the record, that in my opinion he is much better or [sic] off having his appellate attorney argue any issues of incompetence. [¶] He just asked me what about the new trial motion based on my incompetence, and I thought --

"THE COURT: Counsel, I didn't want to invade your conversation. I was just taking a moment to allow you to confer with your client and then be free to be able to give your full attention to the comments of [the prosecutor.]

"[DEFENSE COUNSEL]: I think the court needs to be aware of what I just said, and I think it appears to me Mr. Reed would like to make that motion. I cannot make it for him, Your Honor. So, I am at a loss what to do.

"THE COURT: Let's take one thing at a time. [¶] At this time [the prosecutor] was in the midst of his recitation with regards to sentencing. I will address counsel again, and you will have an opportunity to share any additional comments with the court."

Later in the sentencing proceedings, the court asked if there was "[a]ny legal cause why sentence should not now be imposed?" The following exchange occurred on the record:

"[DEFENSE COUNSEL]: Excuse me. Mr. Reed is again indicating to me he wants to bring that motion regarding my incompetence.

"THE COURT: All right. Mr. Reed, respectfully, I understand your frustration at this time and perhaps the fact that you probably are quite overwhelmed by the set of circumstances you are now facing.

"There are procedures of which I have to adhere to, and when you are making a motion to set aside this case based on your counsel's incompetency, she's correct, that is not something that I can take into consideration at this time. It is something than an appellate lawyer will review with you and will go over with you in detail what your concerns are.

"But at this time you are before this court for a report and sentencing, and so the purview and things that I have to take into consideration are those things that are before me, the issues that were presented to me in open court. And any dialogue you may have had with your attorney, any preparation that may have taken place for your case is something that is not in the realm of things that I am privy to. So, someone else will have to examine what she did in preparation of your case, the presentation of it, as well as my ruling.

"So, I am not in the position to evaluate whether she was effective counsel or not, and turn around and review whether I am making an effective decision or not. Someone else will be in a position to do that.

"So, having said that, counsel, is there any legal cause why sentence should not now be imposed?"

"[DEFENSE COUNSEL]: No, Your Honor."

Thereafter, the trial court proceeded to pronounce Reed's sentence.

2. Analysis

Reed does not challenge the trial court's denial of the October 7 or October 27 Marsden motions. Rather, citing People v. Stewart (1985) 171 Cal.App.3d 388, 394-397 (Stewart), disapproved on other grounds in People v. Smith (1993) 6 Cal.4th 684, 691-696 (Smith), and People v. Winbush (1988) 205 Cal.App.3d 987 (Winbush), Reed argues that the trial court erred by failing to inquire into the reasons for his desire to move for a new trial on the basis of incompetence of counsel.

Although ineffective assistance of counsel is not one of the statutory grounds for granting a new trial, the issue may nonetheless be asserted as the basis for a motion for new trial. (§ 1181; People v. Fosselman (1983) 33 Cal.3d 572, 582-583.) In Stewart, reversible error was demonstrated when the trial court failed to conduct further inquiry into the defendant's allegations, made in connection with a new trial motion, that he had been inadequately represented. (Stewart, supra, 171 Cal.App.3d at pp. 393-394, 398.) At the hearing on the motion, the trial court asked the defendant and his counsel to divulge the basis for the claim of incompetence. (Id. at p. 393.) At an in camera hearing, the defendant stated that he was inadequately represented when counsel failed to call his personal doctor and "two witnesses up on the fourth floor." (Id. at p. 394.) With respect to the latter two witnesses, the trial court failed to question the defendant about their expected testimony. (Id. at p. 398.) The reviewing court reasoned: "The trial court did not inquire into the substance of the witnesses' expected testimony, but instead denied the motion without endeavoring to learn whether the testimony might have been material or even crucial and without appointing new counsel to assist the court in this regard. We believe this constituted error. `A trial judge is unable to intelligently deal with a defendant's request for [a new trial on the basis of trial counsel's incompetence or for] substitution of attorneys unless he is cognizant of the grounds which prompted the request.' [Citation.] A denial of appellant's motion for new trial based on ineffective representation without careful inquiry into the defendant's reasons for claiming incompetence ` "is lacking in all the attributes of a judicial determination." [Citations.]' [Citation.]" (Ibid., italics, 2d & last brackets added.)

The People argue that the trial court had no duty to undertake a Marsden inquiry because Reed never explicitly asked the court to appoint substitute counsel in order to pursue the new trial motion. The People are correct that in Stewart and Winbush the defendants specifically requested appointment of new counsel in connection with their motions for new trial. (Stewart, supra, 171 Cal.App.3d at p. 393; Winbush, supra, 205 Cal.App.3d at p. 989.) But Reed's argument on appeal is not that the trial court erred in failing to appoint substitute counsel. Rather, Reed argues that the trial court erred by failing to conduct any inquiry at all into the basis for his motion after he expressed his desire to move for a new trial on the basis of ineffective assistance of counsel.

On this point, the Stewart court stated: "[I]n hearing a motion for new trial based on incompetence of trial counsel, the trial court must initially elicit and fully consider the defendant's reasons for believing he was ineffectively assisted at trial. In so doing, the court must make such inquiries of the defendant and trial counsel as in the circumstances appear pertinent. If the claim is based upon acts or omissions that occurred at trial or the effect of which may be evaluated by what occurred at trial the court may rule on the motion for new trial without substituting new counsel. If, on the other hand, the claim of incompetence relates to acts or omissions that did not occur at trial and cannot fairly be evaluated by what occurred at trial, then, unless for other good and sufficient reason the court thereupon grants a new trial, the court must determine whether to substitute new counsel to develop the claim of incompetence. New counsel must be appointed when the defendant presents a colorable claim that he was ineffectively represented at trial; that is, if he credibly establishes to the satisfaction of the court the possibility that trial counsel failed to perform with reasonable diligence and that, as a result, a determination more favorable to the defendant might have resulted in the absence of counsel's failings."*fn15 (Stewart, supra, 171 Cal.App.3d at pp. 396-397.) The trial court here made no inquiry at all. That lack of inquiry constitutes reversible error.

The People's reliance on People v. Gay (1990) 221 Cal.App.3d 1065 (Gay), is misplaced. In Gay, the defendant, acting in propria persona status, filed a handwritten motion for new trial detailing the ways that appointed counsel had allegedly failed to provide an adequate defense. However, the defendant did not ask the court to appoint new counsel to argue the motion for new trial. (Id. at pp. 1066-1068.) On appeal, the defendant argued only that the trial court erred when it "failed to determine whether it should appoint substitute counsel to present his motion for new trial." (Id. at p. 1068.) The reviewing court held that "absent a request the court appoint substitute counsel to prepare and present a motion for new trial based on inadequate representation, the Stewart procedures concerning appointment of such counsel are not required." (Id. at p. 1071.) The court reasoned: "A trial judge should not be obligated to take steps toward appointing new counsel where defendant does not even seek such relief." (Id. at p. 1070.) The court also noted: "Since defendant did not request substitute counsel, the court was only required to consider and rule on defendant's motion for new trial. Since the court did so, we find no error. Defendant does not assert the court's denial of the motion itself was erroneous." (Id. at p. 1071.)

In Gay the basis for the claim of ineffective assistance was detailed before the trial court. (Gay, supra, 221 Cal.App.3d at 1067-1068, 1071 & fn. 1.) Unlike Gay, Reed here does not simply argue that the trial court erred in failing to appoint substitute counsel, but complains that the trial court did not make the inquiry necessary to assess Reed's motion for new trial. In any event, we believe that Reed's expressed desire to pursue a motion for new trial based on counsel's incompetence, the fact that defense counsel said "I cannot make it for him," and the context of Reed's prior unsuccessful Marsden motions, made it sufficiently clear that Reed was in fact requesting substitute counsel to pursue the motion for new trial.

People v. Mej¡a (2008) 159 Cal.App.4th 1081 (Mej¡a) presented circumstances similar to those presented here. At sentencing, defense counsel informed the court that the defendant " `would like to make a motion for a new trial based in large part on my conduct at the trial.' " Defense counsel also stated: " `And I can't do that for him.' " (Id. at p. 1084.) On appeal, the Fifth District Court of Appeal concluded that defense counsel's statements were adequate to put the court on notice that the defendant was requesting a Marsden hearing, triggering "an `imperative' duty to elicit from `defendant, in open court or, when appropriate, at an in camera hearing, the reasons he believe[d] he was inadequately represented at trial.' [Citation.]" (Id. at p. 1086, italics omitted.)

The trial court was found to have erred in denying the motion for new trial without asking the defendant himself, rather than counsel, about the basis for his incompetence claim. The reviewing court determined that this error mandated reversal and remand, reasoning as follows: " `On this record we cannot ascertain that defendant had a meritorious claim, but that is not the test. Because the defendant might have catalogued acts and events beyond the observations of the trial judge to establish the incompetence of his counsel, the trial judge's denial of the motion without giving defendant an opportunity to do so denied him a fair trial. We cannot conclude beyond a reasonable doubt that this denial of the effective assistance of counsel did not contribute to the defendant's conviction.' [Citations.]" (Mej¡a, supra, 159 Cal.App.4th at pp. 1086-1087.) The judgment was reversed and the matter remanded to the trial court with directions to hold a Marsden hearing to consider the defendant's reasons for his dissatisfaction with counsel. (Id. at p. 1088.)

Similarly, in People v. Mendez (2008) 161 Cal.App.4th 1362 (Mendez), the fact that the defendant's trial attorney informed the trial court that defendant wished to make a new trial motion based on competency of counsel was held adequate to put the trial court on notice of his request for a Marsden hearing. (Id. at p. 1365, 1367.) In Mendez, the court observed that Marsden imposes four requirements. "First, if `defendant complains about the adequacy of appointed counsel,' the trial court has the duty to `permit [him or her] to articulate his [or her] causes of dissatisfaction and, if any of them suggest ineffective assistance, to conduct an inquiry sufficient to ascertain whether counsel is in fact rendering effective assistance. . . . [¶] . . . [¶] Second, if a `defendant states facts sufficient to raise a question about counsel's effectiveness . . . ,' the trial court has a duty to `question counsel as necessary to ascertain their veracity. . . . [¶] Third, the trial court has the duty to `make a record sufficient to show the nature of [a defendant's] grievances and the court's response to them. . . . [¶] Fourth, the trial court must ` "allow the defendant to express any specific complaints about the attorney and the attorney to respond accordingly." ' " (Id. at pp. 1367-1368, italics & citations omitted.) As in Mendez, the trial court here made no such inquiry.

We are aware that the Third District has expressly declined to follow Mendez, as well as People v. Eastman (2007) 146 Cal.App.4th 688 (Marsden hearing required on request for new counsel on motion to withdraw plea) cited in Mendez, finding them inconsistent with our Supreme Court's holding in People v. Dickey (2005) 35 Cal.4th 884 (Dickey). (People v. Richardson (2009) 171 Cal.App.4th 479 (Richardson).)

In Dickey, the defendant in a capital murder trial sought appointment of separate counsel, after his conviction in the guilt phase but prior to commencement of the penalty phase, to pursue a motion for new trial based on incompetence of counsel during the guilt phase. (Dickey, supra, 35 Cal.4th at p. 918.) The trial court appointed separate counsel to present the motion, which was heard after the penalty phase and denied. (Id. at p. 920.) The Court rejected Dickey's claim of Marsden error, holding that Dickey had not clearly indicated that he wanted substitute counsel appointed for the penalty phase. Since the request he did make-for appointment of separate counsel to make his new trial motion-was granted "he has no grounds for complaint now." The Court further found that, on the record before it, a Marsden motion would have been baseless. (Id. at pp. 920-921.)

In Richardson, the defendant sent a presentencing letter to the court requesting a new trial on grounds including claims that his trial counsel had improperly persuaded him not to testify in his own behalf, and to lie to the court about his decision, and further that his counsel had failed to call four defense witnesses to testify. (Richardson, supra, 171 Cal.App.4th at p. 482.) The trial court did not conduct a Marsden hearing, but appointed separate counsel to investigate Richardson's allegations. (Id. at p. 483.) The attorney advised the court that he found no basis for a motion for new trial. (Ibid.) The Third District found no error because defendant's desire for substitute counsel was not made clear, and further that his subsequent communications with his original trial attorney were "utterly inconsistent with a request for substitute counsel." (Id. at pp. 484-485.)

We find Richardson distinguishable in that the bases for the defendant's claims of dissatisfaction with his trial counsel, and for his allegations of ineffective representation, were explicitly set forth on the record. It is the complete absence of any record here that requires remand. We would, in any event, respectfully disagree with our Third District colleagues' conclusion that Mendez is inconsistent with Supreme Court's holding in Dickey.

We agree with Mej¡a and Mendez. The record here shows that the trial court made none of the necessary inquiries about the basis for Reed's incompetence claim. As the trial court acknowledged: "[A]ny dialogue you may have had with your attorney, any preparation that may have taken place for your case is something that is not in the realm of things that I am privy to. . . . [¶] So, I am not in the position to evaluate whether she was effective counsel or not." Failure to undertake the "imperative duty" to make the requisite Marsden inquiries on such issues was error.

Reversal is required unless the record shows beyond a reasonable doubt that Reed was not prejudiced. (Marsden, supra, 2 Cal.3d at p. 126; Chapman v. California (1967) 386 U.S. 18, 24; Mej¡a, supra, 159 Cal.App.4th at p. 1087.) Division One of this district has held that a trial court's failure to conduct a post-conviction Marsden hearing is harmless where the defendant "has made no showing . . . 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." (People v. Washington (1994) 27 Cal.App.4th 940, 944 (Washington).) In Washington, the defendant made a Marsden motion in conjunction with a motion for new trial. The trial court heard and denied the motion for new trial, but failed to hold a Marsden hearing. (Id. at pp. 942-943.) In concluding that the Marsden error was harmless, the court observed that, because of the timing of the motion, the only basis for the motion could be that counsel performed ineffectively during trial or could not adequately represent the defendant at sentencing. (Id. at p. 944.) The court concluded, after its own review of counsel's actions, that no grounds for claiming ineffective assistance of counsel existed. The court observed: "We cannot see how the appointment of a different attorney would have gained [the defendant] a new trial, or could have had any effect on the sentence imposed . . . ." (Ibid.) Because the failure to hold a Marsden hearing did not deprive the defendant of any arguments on appeal or otherwise affect the verdict or sentence, the reviewing court concluded that the defendant would not have obtained a more favorable result had the motion been entertained. (Ibid.)

Washington is distinguishable because, in that case, the trial court denied the motion for new trial and the defendant did not raise any argument with respect to such motion on appeal. (Washington, supra, 27 Cal. App.4th at pp. 942-943.) Here, we simply cannot determine from the silent record before us whether further inquiry would have led to a different result.*fn16 The People point out that "[a]ppellant has not attempted to argue or cite any support in the appellate record that he would have, or should have, prevailed on the ineffective assistance ground in a motion for new trial." But, because it remains impossible on this record to determine whether further inquiry would have led the court to grant a new trial motion, we cannot conclude that the trial court's error was harmless beyond a reasonable doubt.*fn17 (See Marsden, supra, 2 Cal.3d at p. 126; Mej¡a, supra, 159 Cal.App.4th at p. 1087 [reversing and remanding when it was unknown what defendant might have shown after inquiry]; Winbush, supra, 205 Cal.App.3d at p. 991 ["appellate court cannot speculate upon the basis of a silent record that the trial court, after listening to defendant's reasons, would decide the appointment of new counsel was unnecessary"].)

C. Consecutive Sentencing

Next, Reed contends that the trial court had discretion to sentence Reed to concurrent, rather than consecutive, terms for the aggravated sexual assault of a child convictions (§ 269; counts one, three, five, and seven). We disagree.*fn18

Section 269, subdivision (c), currently provides: "The court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6." (Italics added.) Under section 667.6, subdivision (d), "[a] full, separate, and consecutive term shall be imposed" for each violation of certain sexual offenses enumerated in subdivision (e) "if the crimes involve separate victims or involve the same victim on separate occasions. [¶] In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions." (Italics added.)

Contrary to Reed's suggestion, the amendment that added subdivision (c) to section 269 was effective on September 20, 2006. (Stats. 2006, ch. 337, § 6, eff. Sept. 20, 2006; Prop. 83, § 5, as approved by voters, Gen. Elec. (Nov. 8, 2006).) Thus, section 269's provision for mandatory consecutive sentencing was effective before Reed's commission of the offenses charged in counts one, three, five, and seven. Reed does not argue that the offenses did not occur on "separate occasions," as defined by section 667.6, subdivision (d).

Even if subdivision (c) was not effective at the time the offenses were committed, we would nonetheless reject Reed's assertion that the trial court had discretion to sentence him to concurrent terms for counts one, three, five, and seven. Reed's argument rests on the faulty assumption that the mandatory consecutive sentencing provisions of section 667.6, subdivision (d), would not apply because section 269 offenses are not specifically mentioned in subdivision (e) of section 667.6.*fn19

A similar argument was rejected by the Fifth District Court of Appeal. (See People v. Jimenez (2000) 80 Cal.App.4th 286, 291 (Jimenez) [rejecting contention § 667.6, subd. (d) did not apply to aggravated sexual assault of a child by forcible sodomy].) Forcible rape, in violation of section 261, subdivision (a)(2), forcible sodomy, in violation of section 286, subdivision (c)(2), and forcible oral copulation, in violation of section 288a, subdivision (c)(2), have at all relevant times been predicate offenses for the application of both section 269 and section 667.6, subdivision (d). (See § 269, subds. (a)(1), (a)(3), (a)(4); former § 269, subds. (a)(1), (a)(3), (a)(4), added by Stats. 1994, 1st Ex. Sess. 1993-1994, ch. 48, § 1; § 667.6, subds. (d), (e)(1), (e)(4), (e)(7); former § 667.6, subd. (d), as amended by Stats. 2002, ch. 787, § 16.) When the jury found Reed had violated section 269 under the circumstances presented here, it necessarily found he had committed forcible rape (§ 261, subd. (a)(2)), forcible sodomy (§ 286, subd. (c)(2)), and forcible oral copulation (§ 288a, subd. (c)(2)). Thus, the factual predicate necessary to apply section 667.6, subdivision (d) was proved beyond a reasonable doubt. (See Jimenez, supra, 80 Cal.App.4th at p. 291; see also People v. Figueroa (2008) 162 Cal.App.4th 95, 99-100 [rejecting argument that Jimenez was wrongly decided]; People v. Glass (2004) 114 Cal.App.4th 1032, 1037 ["the Legislature anticipated that a defendant convicted of violating section 269 would be subject to the sentencing requirements of section 667.6, even though section 269 was not listed in section 667.6"].)

Consecutive sentencing was required under either section 269, subdivision (c) or section 667.6, subdivision (d). Accordingly, we reject Reed's argument that the matter should be remanded for consideration of concurrent terms.*fn20

D. Cruel and Unusual Punishment

Finally, Reed argues that his aggregate sentence of 230 years to life violates both the cruel and unusual punishments clause of the Eighth Amendment to the United States Constitution and the cruel or unusual punishment clause of article I, section 17 of the California Constitution. Reed forfeited this claim when he failed to raise it before the trial court. (People v. Norman (2003) 109 Cal.App.4th 221, 229; People v. Kelley (1997) 52 Cal.App.4th 568, 583.) In any event, Reed's argument is unpersuasive on the merits.

Under state constitutional standards, the issue is whether Reed's sentence "is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) "The Lynch court identified three techniques courts used to administer this rule. First, they examined the nature of the offense and the offender. [Citation.] Second, they compared the punishment with the penalty for more serious crimes in the same jurisdiction. [Citation.] Third, they compared the punishment to the penalty for the same offense in different jurisdictions. [Citation.]" (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136, citing In re Lynch, supra, 8 Cal.3d at pp. 425-427.)

With respect to the first prong of this analysis, we note that our examination of the nature of Reed and his offense must take into account his recidivism. (People v. Cartwright, supra, 39 Cal.App.4th at pp. 1136-1137; People v. Martinez (1999) 71 Cal.App.4th 1502, 1510-1511.) We also must consider the offense not only in the abstract, but also "the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his acts." (People v. Dillon (1983) 34 Cal.3d 441, 479.)

Here, Reed was 37 years old at the time he committed six felony sexual offenses on separate occasions, including four counts of aggravated sexual assault of a child, forcible rape, and forcible oral copulation, as well as one misdemeanor child abuse offense. The nature of the sexual offenses is extremely serious, even in the abstract. Furthermore, Reed was able to commit the offenses because of the position of trust and confidence he held as Dianne's parent and Dianne's isolation from her mother. Reed convinced Dianne not to tell anyone of his crimes by threatening Dianne and her mother with extreme physical violence. These facts make Reed's crimes particularly heinous. Reed also had two prior felony convictions for shooting at an inhabited dwelling (§ 246) and felony battery with serious bodily injury (§ 243, subd. (d)). Despite having spent much of his adult life in the criminal justice system for these and other convictions, Reed failed to reform. The nature of the current offenses, as well as his recidivism, make him a danger to society. This danger supports the sentence imposed.

Next, we compare the challenged penalty with punishments for more serious offenses committed in the same jurisdiction. On this point, Reed argues only that his sentence "is more severe than that prescribed by the Legislature for first degree murder." But, the punishment for first degree murder includes the death penalty-undoubtedly more severe than Reed's sentence. (§ 190, subd. (a).) Furthermore, Reed was not convicted of a single offense, but rather six felony sex offenses and a misdemeanor. Reed also ignores that a comparison of his "punishment for his current crimes with the punishment for other crimes in California is inapposite since it is his recidivism in combination with his current crimes that places him under the three strikes law." (People v. Ayon (1996) 46 Cal.App.4th 385, 400, disapproved on another ground in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10 (Deloza).) Reed has not shown that his punishment was any more severe than that of other defendants with a similar criminal history who are then convicted of six additional serious felonies.

Finally, we note that Reed has not argued that the punishment imposed in this case is disproportionate when compared with punishment imposed for the same offense in other jurisdictions. Rather, Reed appears to base his argument on the concurring opinion of Justice Mosk in Deloza, supra, 18 Cal.4th at pp. 600-601. In Deloza, the defendant was sentenced to a total of 111 years in prison. Justice Mosk's concurrence stated: "A sentence of 111 years in prison is impossible for a human being to serve, and therefore violates both the cruel and unusual punishments clause of the Eighth Amendment to the United States Constitution and the cruel or unusual punishment clause of article I, section 17 of the California Constitution." (Ibid.)

In People v. Byrd (2001) 89 Cal.App.4th 1373, 1383 (Byrd), the Third District Court of Appeal noted that because no other justice on the Supreme Court joined in Justice Mosk's concurring opinion, it has no precedential value. In addition, Byrd stated, "In any event, we respectfully disagree with Justice Mosk's analysis. In our view, it is immaterial that defendant cannot serve his sentence during his lifetime. In practical effect, he is in no different position than a defendant who has received a sentence of life without possibility of parole: he will be in prison all his life. However, imposition of a sentence of life without possibility of parole in an appropriate case does not constitute cruel or unusual punishment under either our state Constitution (People v. Young (1992) 11 Cal.App.4th 1299, 1308-1311), or the federal Constitution. (Harmelin v. Michigan (1991) 501 U.S. 957 [sentence of life without possibility of parole not cruel and unusual for possession of 672 grams of cocaine].) [¶] Moreover, in our view, a sentence such as the one imposed in this case serves valid penological purposes: it unmistakably reflects society's condemnation of defendant's conduct and it provides a strong psychological deterrent to those who would consider engaging in that sort of conduct in the future." (Byrd, supra, 89 Cal.App.4th at p. 1383, parallel citations omitted.)

We agree with the reasoning in Byrd. For all of the above reasons, we reject Reed's claim that his sentence constitutes cruel or unusual punishment under the California Constitution. Our conclusion is consistent with other Court of Appeal decisions. (See People v. Retanan (2007) 154 Cal.App.4th 1219, 1230-1231 [upholding sentence of 135 years, over the same objection, for multiple sex offenses]; People v. Sullivan (2007) 151 Cal.App.4th 524, 573 [upholding sentence of 210 years to life for multiple robberies]; People v. Wallace (1993) 14 Cal.App.4th 651, 666 [upholding sentence of 283 years 8 months for multiple sex offenses].)

We also reject Reed's Eighth Amendment claim. The prohibition against cruel and unusual punishment under the federal Constitution is applicable in non-capital cases only in exceedingly rare or extreme cases involving sentences that are "grossly disproportionate" to the offense. (Ewing v. California (2003) 538 U.S. 11, 20-21; accord, Lockyer v. Andrade (2003) 538 U.S. 63, 72-73; Harmelin v. Michigan, supra, 501 U.S. at p. 1001 (conc. opn. of Kennedy, J.).)

As the People correctly point out, in Harmelin v. Michigan, supra, 501 U.S. 957, life without parole was determined not to be disproportionate for possession of a large quantity of drugs. If a sentence of life without parole is not cruel and unusual for such an offense, then, we fail to see how a sentence of 230 years to life is cruel and unusual punishment for the seven violent and predatory offenses committed here.

III. Disposition

The judgment is reversed with directions to the trial court to make further inquiry into Reed's claim of ineffective assistance of counsel. If, after further inquiry, the court determines good cause exists for appointment of new counsel to fully investigate and present defendant's motion for new trial, the court shall appoint new counsel for that purpose and conduct further proceedings as necessary. If, on the other hand, the court determines after further inquiry that good cause does not exist for appointment of new counsel to fully investigate and present defendant's new trial motion, the court shall rule on the motion as presented by Reed. If the court denies the motion for new trial, the court shall reinstate the judgment.

We concur: Simons, Acting P. J., Needham, J.


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