San Francisco City &County Super. Ct. No. 02380293
The opinion of the court was delivered by: Margulies, Acting P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant was convicted of sale of narcotics after he sold cocaine base to an undercover officer. He contends the trial court abused its discretion in denying his motion for appointment of a new attorney and in admitting evidence of a prior drug arrest and conviction. In addition, defendant contends he is entitled to additional conduct credits for time spent in jail under an amendment to Penal Code section 4019. While we affirm defendant's conviction, we remand for modification of defendant's conduct credits pursuant to amended section 4019.
Defendant was charged in an information, filed November 26, 2008, with sale of cocaine base. (Health & Saf. Code, § 11352, sub. (a).) The information contained allegations demonstrating defendant's ineligibility for probation because he had sold cocaine base (Pen. Code, § 1203.073, subd. (b)(7)) and had sold cocaine base after a prior narcotics conviction (Pen. Code, § 1203.07, subd. (a)(11)). In addition, it alleged a sentence enhancement based on defendant's prior conviction for possession for sale of cocaine base. (Health & Saf. Code, §§ 11370, subds. (a) & (c), 11370.2.)
At a hearing on December 1, 2008, defendant asked to replace his court-appointed counsel. During the subsequent hearing, conducted pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), defendant explained that a previous lawyer had arranged a one-year plea bargain, but he had declined the deal. Defendant was disappointed his present lawyer had not been able to get a better deal, even though when he first assumed the representation, counsel said he would try to get defendant into treatment programs or a shorter sentence. Then defendant said, "He stated before going into the courtroom that he wasn't getting paid for my case, so I obviously, at that point, felt that he was not putting his full effort into getting me out of jail or getting me a good deal so that I could be home with my children and my wife for the holidays. That's all I wanted. . . . [¶] What really upset me, Your Honor, is that I was in court for a sales case, and they went ahead and did a preliminary hearing after I told [counsel] that I wanted to waive time and I did not choose to go through with that preliminary hearing that day. And the judge said that she chose to do it anyway." In addition, defendant contended counsel told him not to speak in court and had shushed him on occasion. Defendant suspected counsel was not dedicated to his case, and he was upset counsel had not called him to testify at the preliminary hearing.
Counsel responded, "I'm not sure what to say, really, because it's very articulate, but it's not true." As counsel explained, defendant had a previous attorney who obtained for him a plea bargain offer of six months in jail and six months in treatment. Although defendant initially accepted the bargain, which counsel thought was a "pretty good deal," he later withdrew his plea. Because defendant was on probation at the time the present offense occurred, the court set the preliminary hearing concurrently with a motion to revoke probation. On that day, counsel arranged for the plea bargain to be offered again, and the court agreed to postpone the preliminary hearing while counsel investigated treatment programs. Defendant initially seemed inclined to go along, but he eventually insisted on no more than six months in jail or a treatment program, despite counsel's warning that neither was feasible. At that point, the court lost patience, held the hearing, revoked defendant's probation, and sentenced him to a year in jail. Counsel had spent "quite a bit of time" explaining the options to defendant, but he went against counsel's advice in refusing the plea bargain. Counsel also explained he did not call defendant at the preliminary hearing because the judge gave him a signal "[s]he wasn't going to send him to prison."
With respect to defendant's claim the attorney had said he was not getting paid, counsel stated that when defendant had charged him with self-interest at the time of the preliminary hearing, he had explained "that I don't always get paid when I'm handling three or four cases in the same day. You get paid for one of them. It's not like I'm making a lot of money on his case. I tried to explain to him if he took this deal that I was offering him, I wouldn't be making any more money." Counsel acknowledged telling defendant to shut up one time when "he was pretty loud" at the preliminary hearing. Counsel was concerned defendant was disrupting the hearing.
The court denied the motion, explaining it did not believe counsel's work had been deficient. In the court's view, when counsel detailed various possible options to defendant, defendant understood them to be promises rather than possibilities and had become disillusioned as a result.
The case proceeded to trial on February 3, 2009. An undercover officer testified he purchased drugs from defendant and signaled to other officers, who made the arrest. Defendant testified in his own defense, claiming mistaken identity.
Prior to trial, the prosecution sought an in limine order permitting the introduction of evidence of "several prior, documented incidents involving narcotics offenses" by defendant, including two prior arrests for drug sales and a prior drug conviction, under Evidence Code section 1101, subdivision (b). The prosecution argued the prior conduct and conviction were admissible to prove defendant's knowledge of the "narcotic character of the substance" and his "intent for the purpose of sale." The court denied the motion, viewing the evidence as "more prejudicial than probative," but it noted it would consider permitting introduction of the prior conviction as impeachment evidence if defendant testified.
During cross-examination at trial, defendant claimed to have been confused by the undercover officer's conduct. When the prosecutor asked why, defendant responded, "Because I don't sell drugs." Somewhat later, the prosecutor questioned defendant about the circumstances surrounding the prior arrests and the conviction. In response, the court instructed the jury to consider the evidence only in evaluating defendant's credibility; the instruction was given twice, at the time of admission and in the formal jury instructions. The court later explained it had allowed the evidence because "the door was ...