IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
August 25, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
LADON BOWDEN, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F10399)
The opinion of the court was delivered by: Hoch , J.
P. v. Bowden
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Ladon Bowden of the felony of inflicting corporal injury on a former cohabitant that resulted in a traumatic condition, and of the misdemeanor of resisting a peace officer. As defendant waived a jury trial, the court sustained allegations that defendant had prior convictions in 1994 for the "serious" felony of robbery.*fn1 (§ 211, § 667, subd. (d) & § 1192.7, subd. (c)(19).) Defendant filed a renewal of his pretrial request that the court exercise its discretion to strike one or both of the prior serious felony conviction allegations pursuant to section 1385. The court declined the request and sentenced defendant to prison for 25 years to life. (§ 667, subd. (e).)
On appeal, defendant contends the trial court abused its discretion in denying his pretrial request for substitution of appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), and in declining to exercise its discretion to strike either of the prior serious felony conviction allegations under section 1385. As modified, we affirm the judgment.
The evidence at trial is not, for the most part, implicated in the arguments on appeal. We will incorporate any facts that are relevant in the Discussion.
Request for Substitution of Appointed Counsel
A. Marsden Motion
After defense counsel obtained several continuances of the trial date, the court held a hearing in camera in response to defendant's request to relieve the assistant public defender as his attorney. Defendant asserted several areas of dissatisfaction.
The one to which he limits his focus on appeal was his complaint that the public defender's office refused to run DNA tests of blood found in the vehicle where he and the victim had fought, because the tests would be too expensive. In his view, this apparently would establish that the blood was solely his own (because he claimed reports stated the victim did not have any visible lacerations) and thus was "super relevant to prove [his] innocence."
Defense counsel noted that the incident had taken place almost a year ago. Since then, the car had been released back to its owner (the victim), and defendant had since washed his clothing (which may indeed have been bloodstained according to photos). The only item taken into evidence was a bloodstained envelope that had been in defendant's pocket. However, defense counsel had spoken with her supervisors about testing it, and they did not believe that strategically it was important, given a cost of around $10,000 to test it and the fact that defense counsel could make the valid argument that blood visible to police in the car and on defendant had come from both the victim and defendant.
The trial court did not find anything inappropriate about defense counsel's strategic decisions. It denied the motion.
B. DNA Test
If a defendant seeks substitution of appointed counsel, the court must hold a hearing at which the defendant can relate the bases for a claim that counsel's representation is inadequate (or that there is an irreconcilable conflict between them, which is impairing effective representation). (People v. Marsden, supra, 2 Cal.3d 118.) We review the trial court's determination for an abuse of discretion, which occurs only where the record reveals an unmistakably substantial impairment of the right to effective assistance of counsel. (People v. Smith (2003) 30 Cal.4th 581, 604.)
In connection with the refusal to conduct a DNA test, the defendant argues that if blood on the envelope were his own, it would have been "extremely" relevant to a claim of self-defense and to proving that the victim had not incurred any traumatic condition, because he could argue that the blood in the car and on his person was the same. Therefore, he believes the trial court abused its discretion in failing to appoint another attorney to pursue this inquiry. (While the People address other aspects of defendant's complaints in the trial court, we will not follow suit [People v. Oates (2004) 32 Cal.4th 1048, 1068, fn. 10].)
Presumably defense counsel was aware that the police had described lacerations on the right side of the victim's face, with blood flowing from an apparent injury on the top of her head and her eye swollen shut, but only a small abrasion on defendant's forehead; and that in a post-arrest statement defendant had denied hitting the victim at all, and did not mention the victim biting his face. Similarly, defense counsel must have known that defendant intended to testify at trial about punching the victim only after she had bitten his cheek (which bled profusely), and had photographed the purported injury a few days later (which was an exhibit at trial).
In deciding whether to conduct an expensive test, the results of which might have shown blood only from the victim or from the both of them, defense counsel's decision to forego it was not such a departure from reasonable tactics that we could find an abuse of discretion on the part of the trial court in declining to replace appointed counsel. The DNA results would not have countermanded the evidence of a resulting traumatic condition, nor evidence that the victim in fact had bled at the scene of the crime. Nor, for that matter, would even the most favorable DNA results compel a jury to accept defendant's account of acting only in self-defense, as the prosecution could still argue that any wounds the victim inflicted were in her own self-defense. We therefore reject this argument.
Refusal to Strike Prior Conviction
A trial court may exercise its discretion under section 1385 to strike a finding that a prior conviction comes within the meaning of section 667, subdivision (d), if, and only if, a defendant can be "deemed outside the . . . spirit" of the statute, giving "preponderant weight" to inherent statutory factors (such as the background, character, and prospects of a defendant, as well as the nature and circumstances of the present and previous felony convictions) and ignoring any factors extrinsic to the statute (such as court congestion or antipathy to the sentencing consequences for the defendant). (People v. Williams (1998) 17 Cal.4th 148, 161.)
The burden is on defendant to demonstrate that the trial court's decision was irrational or arbitrary, rather than being one of alternative reasonable readings of the facts before the court. Toward this end, defendant must overcome a "strong" presumption that a court's denial of a request to exercise discretion under section 1385 is proper. (People v. Carmony (2004) 33 Cal.4th 367, 377, 378.) We turn to the record of these factors in the present case.
As the trial court noted in ruling on defendant's request, the present offense was alcohol-related (defendant and the victim having earlier been drinking at two downtown bars) and involved vicious unprovoked acts of violence that left the victim with a bloodied and swollen face, and a claimed memory loss. Witnesses had described defendant returning to the car after first beating the victim to punch her some more.
Defendant was born in 1971. His juvenile record included adjudications for battery (1983 & 1988), vehicle theft (1987 & 1988), and possession of cocaine (1988). In 1990-1991, he had convictions for vehicle theft, resisting arrest, sale of purported cocaine, and possession of cocaine. The first robbery in March 1993 involved a convenience store, during which defendant struck a bystander in the head, which rendered him briefly unconscious. In May 1994, defendant forced a cashier at gunpoint to the floor and threatened to shoot him in the head if he did not open the safe. He violated parole on four occasions, returning to custody. Although defendant did not commit any further violent offenses until the present matter, he had a November 1999 conviction for attempting to bring a controlled substance into a prison, and convictions for driving under the influence in 2001, 2002, and 2006. Between 2003 and 2006, he had six convictions for driving without a license. The trial court characterized defendant's record as a life of nonstop criminality, with a recurring theme of the involvement of alcohol (as in the present offense). While the trial court was willing to excuse the offenses that occurred in defendant's youth, it was greatly concerned about persisting problems defendant apparently had with substance abuse and anger control, and the threat these posed to public safety. The trial court described defendant as being very bright and articulate, and noted that this was significant in a positive sense and a negative sense. The trial court was troubled by how somebody of defendant's intelligence could find himself in defendant's position.
The probation report noted defendant earned a GED while in prison. He had worked as a roofer and tree trimmer for the previous three to five years, but was unemployed and without income at the time of his arrest. He denied having any problem with alcohol, but probation reports in previous cases indicated excessive alcohol use to the point of blacking out.
The trial court noted it was a difficult choice in deciding between a doubled prison term and a minimum indeterminate term of 25 years for defendant. However, it believed that defendant would only reoffend if it struck one of the prior serious felony conviction allegations and imposed the shorter term.
We summarily reject defendant's attempt to trivialize the nature of his present offense because the crime can be punished either as a misdemeanor or a felony. While the statute addresses a range of conduct, which at one end embraces even the infliction of a bruise (People v. Beasley (2003) 105 Cal.App.4th 1078, 1085-1086), the conduct underlying his conviction was violent and callous, and does not merit any considerations of leniency.
Defendant otherwise does not even slightly overcome the strong presumption in favor of the trial court's decision to decline to exercise its power to strike any of the prior serious felony conviction allegations. He does not identify any factor that the trial court ignored that mandates a contrary outcome. In essence, he seeks to reweigh the record, discounting the persistent nature of his criminal conduct to the present day, and claiming treatment for his alcohol abuse would be better than a lengthy period of incarceration. He also erroneously asserts that he has good prospects because he is gainfully employed and has the support of friends and family; as the probation report noted, he was unemployed and living with a girlfriend at the time of the offense.
Defendant has not demonstrated such a law-abiding character that it would be an abuse of discretion to find he is exactly the sort of recidivist at whom the Legislature and electorate have aimed with these sentencing provisions. For 25 years, defendant has failed to comply with the law despite numerous chances at probation and parole. It is immaterial that his later transgressions have not been violent. We therefore reject his claim.
Defendant's conduct credit is reduced from 325 days to 162 days. As modified, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment and forward a certified copy of it to the Department of Corrections and Rehabilitation.
We concur: RAYE , P. J. BUTZ , J.