People v. Archie CA2/5 ( 2022 )

Filed 8/30/22 P. v. Archie CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B314427
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA091842-01)
v.
GREGORY LAMONT ARCHIE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kathryn Solorzano, Judge. Affirmed.
Lenore De Vita, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
___________________________
Defendant was initially convicted of attempted murder and
robbery at a trial in which his counsel had an undisclosed conflict
of interest. When the conflict was discovered, defendant’s motion
for new trial was granted, but his multiple motions to dismiss
were denied, and his once-in-jeopardy plea was stricken.
Defendant subsequently entered a no contest plea to robbery
(Pen. Code, § 211),1 with enhancements for the use of a deadly
weapon (§ 12022, subd. (b)(1)), causing great bodily injury
(§ 12022.7) and having sustained a prior strike (§ 1170.12). He
now appeals.
The trial court concluded that defendant’s initial counsel
had been operating under a conflict because, at the time he
represented defendant, he was also under investigation by the
Los Angeles County District Attorney for Building Code and
Zoning Code violations. After his representation of defendant
terminated, the District Attorney filed a four-count misdemeanor
complaint against the lawyer. The ultimate disposition of the
charges against the lawyer is not indicated in the record in this
appeal.
The conflict was discovered shortly after defendant’s
sentencing. The trial court recalled defendant’s sentence and
sought briefing from both parties. Defendant requested a new
trial and, in the alternative, moved to dismiss the prosecution
due to his prior counsel having been conflicted. The trial court
granted the new trial motion, and denied the motion to dismiss.
Thereafter, defendant sought to pursue his once-in-jeopardy plea,
arguing that the prosecution’s failure to disclose to the trial court
1 All undesignated statutory references are to the Penal
Code.
2
that it was investigating defendant’s counsel constituted
prejudicial misconduct sufficient to justify dismissal. The court
struck the once-in-jeopardy plea, but informed defendant he was
entitled to an evidentiary hearing to establish prosecutorial
misconduct if he so chose. Defendant did not request such a
hearing, or raise the issue again. Instead, he proceeded to jury
selection on retrial, and ultimately accepted the prosecution’s
plea offer. He filed a notice of appeal and obtained a certificate of
probable cause on the trial court’s failure to dismiss and striking
of his once-in-jeopardy plea.
On April 26, 2022, defendant’s appointed counsel filed a
brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
The brief included a declaration that counsel had written to
defendant, explaining the brief that counsel was filing, and
informing defendant of his right to file a supplemental brief.
This court sent defendant a letter advising him that a Wende
brief had been filed and that he had 30 days to submit a brief or
letter raising any issues he wished us to consider. Defendant did
not file a supplemental brief.
We have examined the entire record and are satisfied that
defendant’s attorney has fully complied with counsel’s
responsibilities and that no arguable issues exist. (Wende, supra,
25 Cal.3d 436.) The trial court’s rulings were correct. Prior
counsel’s conflict denied defendant the effective assistance of
counsel. (People v. Harris (2014) 225 Cal.App.4th 1129, 1144.)
The trial court granted defendant’s motion for new trial on that
basis. Having been granted a new trial at his request, defendant
cannot be heard to complain the new trial is barred by double
jeopardy. (People v. Eroshevich (2014) 60 Cal.4th 583, 590.) It
was therefore appropriate to strike his plea of once-in-jeopardy.
3
While it is true that egregious prosecutorial misconduct may be a
sufficient basis for dismissal of charges (People v. Velasco-
Palacios (2015) 235 Cal.App.4th 439, 445), defendant was
repeatedly informed of his right to an evidentiary hearing on the
issue, and did not seek one.
DISPOSITION
The judgment is affirmed.
RUBIN, P. J.
WE CONCUR:
MOOR, J.
KIM, J.
4