People v. Cathy

Filed 11/23/05 P. v. Cathy CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, Plaintiff and Respondent, v. CHARLES RAY CATHY, Defendant and Appellant.

B175971 (Super. Ct. No. NA058508)

APPEAL from a judgment of the Superior Court of Los Angeles County. Mark C. Kim, Judge. Affirmed.

Robert Valencia, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Shawn McGahey Webb, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Charles Ray Cathy appeals from the judgment entered after a jury convicted him of being a felon in possession of a handgun (Pen. Code, § 12021, subd. (a)(1)) and of firing a gun with gross negligence. (Pen. Code, § 246.3.)^[1] According to Cathy, the trial court erred by denying his motion to dismiss a prior conviction allegation brought under the Three Strikes law and by denying his motions to replace his public defender. We affirm.

FACTS AND PROCEDURAL HISTORY

At around 4:30 a.m. on September 14, 2003, Charles Ray Cathy and Terence Crawford tried to force their way into the Long Beach apartment of Cathy’s former girlfriend, Patricia Manuel. They were stopped by Manuel’s adult son, Darryl Harris, who scuffled with Cathy. Harris pushed Cathy against a living room window, breaking it. Cathy told Crawford, “give me that,” and Crawford handed something to Cathy. Harris ran back inside the apartment and locked the door. Manuel looked out her bedroom window and saw a grey car drive off, go past her apartment, then back up. Soon after, three gunshots were fired from a nearby driveway. The incident was witnessed by neighbor Dina Galindo. The police were called and responded so quickly they spotted Cathy and Crawford driving off. The officers stopped and searched the car, where they found a 10-shot, 9 mm Ruger handgun that was registered to Crawford. The gun had one bullet in the chamber and six in the magazine. Another fully loaded magazine was found nearby. Galindo identified Cathy and Crawford as the men she had seen trying to enter Manuel’s apartment and firing gunshots in the direction of that apartment. The incident took place just four days after Cathy was released from jail after serving a prison sentence for robbery.

Cathy was charged with three counts: (1) discharging a firearm with gross negligence (§ 246.3); (2) being a felon in possession of a firearm (§ 12021, subd. (a)(1)); and (3) shooting at an inhabited dwelling. (§ 246.) Along with other sentence enhancements, the information alleged that Cathy had two prior convictions for purposes of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) These were a 1983 juvenile court adjudication finding that Cathy had committed armed robbery (§ 211), and a 1993 adult conviction for the same offense.

Before the trial began, Cathy brought two separate Marsden^[2] motions to replace his public defender because he believed the lawyer was not communicating with him and was not adequately preparing his defense. Both motions were denied.

The jury convicted Cathy of the first two counts, but acquitted him of firing at an inhabited dwelling. The prior conviction allegations were found true. Cathy moved to dismiss the Three Strikes allegation based on his 1983 juvenile court adjudication in the furtherance of justice. (§ 1385.) That motion was denied, but the court dismissed a prior prison term enhancement (§ 667.5, subd. (b)) and imposed a sentence of 30 years to life. On appeal, Cathy contends the trial court erred by denying his post-trial motion to dismiss the Three Strikes allegation and by denying his pre-trial motions to replace his public defender.

DISCUSSION

1. The Court Did Not Err By Denying Cathy’s Motion to Dismiss

Under section 1385, the trial court may dismiss a Three Strikes allegation in the furtherance of justice. A trial court’s ruling on such a motion is reviewed under the abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) The Three Strikes law establishes a sentencing norm under which we presume that a Three Strikes sentence is proper unless an exception applies. The trial court must consider whether, in light of the nature and circumstances of the defendant’s past and present qualifying felonies, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part. Because of this presumption, a trial court abuses its discretion in denying a motion to dismiss a Three Strikes prior conviction allegation only in limited circumstances, such as where the court was not aware of its discretion to dismiss, considered impermissible factors, or where the Three Strikes sentence produces an arbitrary or absurd result. It is not enough, however, to show that reasonable people could have disagreed with the full Three Strikes sentence. (Id. at pp. 377-378.)

Cathy moved to dismiss his prior juvenile adjudication of armed robbery because: (1) the jury in the present case acquitted him of the more serious offense of shooting at an inhabited dwelling; (2) all of his previous convictions were drug related and he needed a chance to rehabilitate himself; and (3) he was remorseful. The prosecutor opposed the motion based on Cathy’s long list of criminal convictions. These included: armed robbery adjudications as a juvenile in 1981 and 1983; an August 1989 conviction for drug possession (Health & Saf. Code, § 11350, subd. (a)); an October 1989 conviction for brandishing a firearm (§ 417, subd. (a)(2)); a December 1989 conviction for possession of cocaine base for sale (Health & Saf. Code, § 11351.5); a January 1992 conviction for battery (§ 242); a December 1992 conviction for armed robbery (§ 211); and a March 2001 conviction for corporal injury of a spouse or cohabitant (§ 273.5, subd. (a).) Many of these crimes occurred while Cathy was on probation or parole. As the prosecutor noted, the current offense occurred just days after Cathy’s release from prison on his 1992 robbery conviction. Based on the nature and number of Cathy’s offenses, the prosecutor contended Cathy was not a suitable candidate for the dismissal of a Three Strikes allegation. The trial court agreed with the prosecutor, denying the motion because Cathy’s “extensive history” showed this was “not a suitable situation where the court should exercise its discretion.”

Cathy contends the court erred for three reasons: (1) because the court’s statements focused solely on his criminal record, it shows that the court did not consider all the relevant factors; (2) because the juvenile robbery adjudication occurred before the passage of the Three Strikes law, using that adjudication as a strike violated the constitutional prohibition against cruel and unusual punishment; and (3) the sentence that would have been imposed if the allegation had been dismissed would have been sufficiently stern. We reject each in turn.

As to the first, just because the trial court referred to only Cathy’s criminal history when making its ruling does not mean it ignored all other factors brought to its attention. The court had Cathy’s written motion, heard the argument of defense counsel, and saw the probation report. The court’s focus on Cathy’s criminal history does not mean it considered only that factor. Nothing in the record affirmatively shows that the trial court ignored all the other information, and we therefore presume that the court considered all relevant factors. (People v. Myers (1999) 69 Cal.App.4th 305, 310.)

As to the second, we believe Cathy has confused the federal and state constitutional prohibitions against cruel and unusual punishment with either double jeopardy or ex post facto concerns. The Eighth Amendment to the United States Constitution contains a narrow proportionality principle which proscribes cruel and unusual punishment in noncapital cases. Under that principle, a sentence that is grossly disproportionate to the severity of the crime is not allowed. (People v. Meeks (2004) 123 Cal.App.4th 695, 707.) Analysis of that issue requires consideration of three objective criteria: the gravity of the offense and the harshness of the penalty; the sentence imposed on other criminals in the same jurisdiction; and the sentences imposed by other jurisdictions for the same offense. (Ibid.) The California Constitution also prohibits cruel or unusual punishment. (Cal. Const., art. I, § 17.) A punishment violates that provision if it is so disproportionate to the crime committed that it shocks the conscience and offends fundamental notions of human dignity. Determining that question requires examining the nature of the offense and the offender, with particular regard to the degree of danger both present to society, comparing the challenged penalty with the punishment for more serious crimes in California, and comparing the challenged penalty with the punishments prescribed by other jurisdictions for the same offense. (People v. Meeks, at p. 709.)

Cathy does not contend that his sentence is disproportionate under either of these tests. In fact, his briefs do not mention those tests at all.^[3] Instead, he argues that it was “unfair to change the effect of priors after they are sustained.” (Original italics.) This sounds much more like a double jeopardy or ex post facto argument. (People v. Sipe (1995) 36 Cal.App.4th 468, 488-489 [double jeopardy clause prohibits being punished twice for the same offense]; People v. Sweet (1989) 207 Cal.App.3d 78, 82 [ex post facto law aggravates a crime or makes it greater than when committed, or makes more burdensome the punishment for a crime after its commission].) It has long been the law that statutes imposing increased punishment on recidivists based on crimes that occurred before the habitual offender legislation was enacted do not violate the double jeopardy or ex post facto prohibitions. (Gryger v. Burke (1948) 334 U.S. 728, 732; People v. Eribarne (2004) 124 Cal.App.4th 1463, 1469 [considering Three Strikes]; Gonzales v. Superior Court (1995) 37 Cal.App.4th 1302, 1309 [same; the constitutionality of retroactive recidivism laws is well-settled]; People v. Sweet, supra, at pp. 82-83 [statute authorizing increased punishment for habitual drunken drivers did not violate ex post facto laws].) Therefore, to the extent Cathy can be deemed to have brought a double jeopardy or ex post facto challenge to his sentence, we reject his contentions and affirm the judgment.

As for Cathy’s third contention, he contends that dismissing one of the Three Strikes allegations would still have led to the imposition of a sufficiently stern sentence. According to Cathy, this would have been accomplished by doubling the sentence on the base count for discharging a firearm (§ 246.3), added to one-third the mid-term sentence on the handgun possession count. (§ 12021, subd. (a)(1).) In support of this contention, Cathy cites People v. Garcia (1999) 20 Cal.4th 490, 500 (Garcia), for the proposition that the trial court was obliged to consider the length of the sentence that would otherwise be imposed. We find several flaws in this argument.

First, Garcia concerned the propriety of a trial court order dismissing Three Strikes allegations as to some counts, but not others. In affirming that order, the Supreme Court said that a trial court must consider the defendant’s prospects for committing future crimes, which requires a consideration of the sentence to be imposed. (Garcia, supra, 20 Cal.4th at pp. 500, 503.) Garcia did not concern whether the sentence imposed was cruel or unusual punishment, however, and is therefore inapplicable to our inquiry. Second, although Cathy contends that a two strike sentence would have been enough, his brief fails to state how long that sentence would have been, and for good reason. The sentence for a violation of section 246.3 is one year, while the mid-term sentence for a violation of section 12021, subdivision (a) is two years. (§§ 18, 246.3, 12021, subd. (a).) Under Cathy’s formula, therefore, he would have received a sentence of just three years and four months. Thus, factually Cathy is wrong as this length of sentence for a violent ex-felon who discharged a weapon following an altercation is not “sufficiently stern.” Finally, the fact that an alternative sentence might be adequate does not mean the Three Strikes sentence is unlawful.^[4]

Ultimately, we conclude that the sentence imposed was not cruel or unusual. (See People v. Cooper (1996) 43 Cal.App.4th 815, 824-828 [Three Strikes sentence of 25 years to life for being a felon in possession of a firearm did not violate the federal or state constitutional bans against cruel punishment].) Nor do we believe that Cathy fell outside the spirit of the Three Strikes law. Given the nature of his offenses and his extensive history of recidivism, even while on parole or probation, combined with the fact that he committed the crimes at issue here just days after his release from prison, we hold that no abuse of discretion occurred.

2. No Error Occurred in Denying Cathy’s Marsden Motions

A. Standards Applicable to Marsden Motions

An indigent criminal defendant is entitled to an appointed defense attorney as part of his Sixth Amendment right to the effective assistance of counsel. Accordingly, under the rule first established in Marsden, supra, 2 Cal.3d at page 123, the trial court must appoint substitute counsel if the current appointed attorney is providing inadequate representation or if the attorney-client relationship has become embroiled in an irreconcilable conflict that make ineffective representation likely. (People v. Vera (2004) 122 Cal.App.4th 970, 978-979 (Vera).) When a defendant brings a Marsden motion, the court must give the defendant the opportunity to state the specific reasons why he believes he is not being adequately represented. (Id. at p. 979.) In order to prevail on such a motion, the record must clearly show that substitution of counsel is required under the Vera test. (People v. Lara (2001) 86 Cal.App.4th 139, 150.)

B. Cathy’s First Marsden Motion

On the morning of January 28, 2004, in an appearance before Judge Mark C. Kim, Cathy moved to replace his public defender, Jonathan Roberts. In a letter that was read to the court, Cathy contended that Roberts had not made a motion to dismiss any of the Three Strikes allegations, had not made a discovery motion to learn about the prosecution’s evidence, and had not made a Pitchess^[5] motion to discover whether there was anything in the arresting officers’ backgrounds to support Cathy’s theory that evidence had been planted. Cathy also complained that Roberts had not adequately interviewed him about the case, had not talked to his witnesses, such as his sister, and that Roberts’ phone would not accept collect calls, thus preventing his family from talking to Roberts. Ultimately, Cathy’s letter stated, he believed that even though trial was imminent, Roberts had done nothing to establish a defense. Judge Kim then asked Cathy directly whether his complaints boiled down to unhappiness with the amount of work done by Roberts and Roberts’ failure to adequately communicate with Cathy. Cathy confirmed that assessment.

Asked by the court to respond, Roberts said he had joined in co-defendant Crawford’s motion to suppress certain evidence. Roberts intended to make a motion to dismiss the Three Strikes allegations, had been hampered by his inability to obtain the court file regarding the juvenile adjudication for robbery that had been alleged as a strike, and intended to make a motion to dismiss at a later time. Roberts said his investigator had either interviewed, or at least tried to interview, all the prosecution witnesses. He received no messages from Cathy or his family, was unaware of any other witnesses, and did not know how Cathy’s sister could help the defense. Roberts admitted that his contacts with Cathy had been limited to perhaps three or four occasions, but said they had discussed the case in detail. According to Roberts, he had been denied access to Cathy due to staffing problems with the sheriff’s department. Roberts believed Cathy understood the gravamen of the case. Roberts did not make a Pitchess motion because he believed there was no basis for doing so. He had visited the crime scene, and said the crime scene had been photographed.

Cathy replied that Roberts must have been referring to another client, because he had met with Roberts just once. Cathy said he told Roberts about interviewing his sister, who would rebut some of the testimony from Harris and Manuel. Roberts promised to send his investigator down to interview the sister, but he never did. In response to an inquiry by the court, Roberts said there was nothing that would prevent him from representing Cathy to the fullest. Roberts also said he was not opposed to speaking with Cathy’s sister if she contacted him, or if he was given the means to contact her. The trial court found that there had not been a substantial impairment of Roberts’ ability to fully represent Cathy, and therefore denied the Marsden motion.

C. Second Marsden Motion

On the afternoon of January 28, 2004, hours after Judge Kim denied Cathy’s Marsden motion, Cathy made another motion to replace Roberts, this time before Judge James B. Pierce. Cathy told Judge Pierce that Roberts did not know the facts of the case, had little contact with him, did not return phone calls from Cathy’s family, and had not really spoken with him in detail about the case. As a result, according to Cathy, he had no rapport with Roberts because he did not believe Roberts could effectively represent him. Cathy said he did not trust Roberts because Roberts was not fully committed to the case. Cathy complained that Roberts had not investigated the case, that he had no trial clothes, that his family could not call Roberts collect, and that he did not understand the trial process. The court questioned Cathy about his knowledge of how jury trials worked, ascertained that Cathy had been tried by jury before, and offered to explain how that process worked in general.

Cathy also recounted asking Roberts how he could “feel comfortable with representing a client that is not cooperating with you?” That comment prompted the court to ask Cathy about why he was not cooperating with Roberts, and urged him to do so. The motion was continued until the next day.

When the Marsden hearing resumed on January 29, 2004, the court again focused on Cathy’s statement that he was not cooperating with Roberts. The court asked whether Cathy would sit down with Roberts and cooperate if the court ordered Roberts to do the things Cathy believed had not been done. Cathy demurred, contending Roberts should have done those things long before. Cathy denied that he was refusing to cooperate. The court asked again whether Cathy would cooperate with Roberts in contacting Cathy’s sister. Cathy said he would, but again objected that he did not want Roberts as his lawyer.

Cathy also contended that Roberts had lied to Judge Kim the day before about having seen Cathy at the county jail, because, according to Cathy, he had been at the Wayside facility, not the one in downtown Los Angeles. Cathy said that there should be a record of the visit, and asked the court to verify the records to prove that no visit took place. The court replied that the logbook would not show the absence of a visit, and also said that each county jail facility was still the county jail, no matter where it was located. Cathy confirmed that Roberts had not told Judge Kim he had been to the downtown jail, only that he had been to the county jail. Cathy then said that Roberts had also lied to Judge Kim about his investigator being denied access to Cathy, and about the failure of Cathy’s sister to ever try and contact him.

Roberts replied that there had been some confusion during the hearing with Judge Kim, clarifying that it was his investigator who had had difficulty getting in to see Cathy. Roberts did not have contact information for Cathy’s sister, but was willing to contact her. When the court asked how the sister was relevant, Cathy challenged Roberts to explain it to the court. Roberts said the sister would impeach Manuel because she could testify that Manuel’s mother had told her the incident did not happen as Manuel reported. Cathy did not challenge Roberts’ statements.

The court then questioned Roberts about his knowledge of the facts of the case, first asking whether Manuel was an important witness. Roberts said she was because she had witnessed the struggle between her son and Cathy. Roberts did not think she could testify about seeing a gun, but would testify to hearing gunshots. He also thought Manuel might testify the gun was not pointed at the house when it was fired. Because Manuel was inconsistent about whether she saw the gun being fired, Roberts identified Galindo and another person who was not available as the critical witnesses on where the gun had been pointed. He knew that Galindo was a disinterested witness, and would attempt to impeach her by certain inconsistent statements. Manuel’s and Harris’s prejudice against Cathy was a significant part of the defense case, Roberts said, because they made statements indicating they were very committed to seeing Cathy in jail for the rest of his life. Roberts said the location where the three shell casings were found was inconclusive as to whether they were fired at Manuel’s apartment, that there were no ballistic reports matching those casings to the gun, that Cathy’s prints were not on the gun, and that there was no gunshot residue on Cathy’s hands. As a result, Roberts believed Cathy was “not without an argument in this case.”

Finally, Roberts said if he were given contact information on Cathy’s sister, he would have his investigator get in touch with her. The court then said to Cathy that the “ball’s in your court” and asked for his sister’s contact information. Cathy provided the information. The court asked if Cathy had any other information or suggestions for Roberts, noting that it would be more helpful to hear it from Cathy instead of his sister. Cathy started to complain again, but the court said it had allowed Cathy to make his record and would not allow it. “We’re going to go forward, and I’d like your cooperation with him and I’d like you to give him the best chance that you can, no matter what percentage – we talked about this yesterday – no matter what percentage you’re at, it’s still going to help. Set aside these harsh feelings, and so forth, and let the chips fall where they may.” Roberts said he would send his investigator to speak with Cathy either that afternoon or the next day. Cathy said he wanted copies of the police report, the investigator’s work, and the statements from Manuel and Harris, so he could point out any lies or inconsistencies for impeachment purposes. When the court asked if there was anything else, Cathy replied, “That’s sufficient your honor, thank you.” Even though the court did not state for the record that it was denying Cathy’s Marsden motion, its minute order for that date reflects that the motion was denied.^[6]

D. Both Marsden Motions Were Properly Denied

We believe the trial court did not abuse its discretion in denying either of Cathy’s Marsden motions. As to the first, the trial court was not required to accept Cathy’s assertions of inadequate investigation. (Vera, supra, 122 Cal.App.4th at p. 979.) Roberts explained why he had not made a Pitchess motion. He had joined in Crawford’s motion to suppress, had taken steps to prepare a motion to dismiss some Three Strikes allegations, and had taken steps to interview all of the prosecutor’s witnesses. He had never heard about Cathy’s sister as a potential witness and expressed his willingness to meet with her to discuss what she knew. Roberts said there was nothing that would prevent him from representing Cathy to the fullest. As to the number of times Roberts met with Cathy, the frequency of meetings is not a reliable indicator of incompetence. (Id. at p. 980.) Roberts said he had met with Cathy three or four times and discussed the case with him fully. On this record, the court did not abuse its discretion in denying the first Marsden motion.

As for the second motion, a fuller record exists. In regard to Roberts’ trial preparation, he exhibited a comprehensive knowledge of the facts and evidence, including how key witnesses would testify and possible weaknesses in their testimony. On this record, it seems clear to us that there was no showing of inadequate representation. Regarding any supposed irreconcilable conflict between Cathy and Roberts, the trial court effectively mediated their dispute, getting Cathy to agree to cooperate with Roberts and provide contact information for his sister. Roberts agreed to have his investigator contact the sister, and Cathy said he would look over the statements of Manuel and Harris to identify for Roberts any inconsistencies or falsehoods. When the court asked Cathy if there were anything else, Cathy thanked the court and said what had transpired would be sufficient. On this record, it appears to us that whatever conflict existed between Roberts and Cathy had been resolved, justifying denial of the second Marsden motion.^[7]

DISPOSITION

For the reasons set forth above, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, J.

We concur:

COOPER, P.J. FLIER, J.

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^[1] All undesignated section references are to the Penal Code.

^[2] People v. Marsden (1970) 2 Cal.3d 118.)

^[3] To the extent he intends to actually raise the issue of cruel and unusual punishment as a ground for reversal, we therefore deem his contentions waived. (People v. Beltran (2000) 82 Cal.App.4th 693, 697, fn. 5.)

^[4] The trial court here stayed Cathy’s sentence on count 2 pursuant to section 654. Cathy apparently assumes that the trial court would not have done so if it had chosen to impose a two-strikes sentence, and our calculation is based on that assumption. Under Cathy’s scenario, if the count 2 sentence had been stayed, his prison term would have been only two years, however.

^[5] Pitchess v. Superior Court (1974) 11 Cal.3d 531.

^[6] Cathy’s appellate brief omitted most of these facts and gave only a one-sided version of the two Marsden hearings.

^[7] It is also arguable that Cathy actually withdrew his motion when he agreed to work with Roberts and told the court that its action had been sufficient. As noted, the court did not state one way or the other how it was ruling on the motion. Because the minute order states that the motion was denied, however, we treat it as such.