People v. Shareef CA2/1

Filed 8/31/20 P. v. Shareef CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B297530
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA144051)
v.
ABDUR SHAREEF et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Kelvin D. Filer, Judge. Affirmed as modified
with directions.
William G. Holzer, under appointment by the Court of
Appeal, for Defendant and Appellant Abdur Shareef.
Maggie Shrout, under appointment by the Court of Appeal,
for Defendant and Appellant Safari Williams.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael R. Johnsen and Kristen J. Inberg,
Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Abdur Shareef of one count of
robbery (Pen. Code,1 § 211) with gang and firearm enhancements
(§§ 186.22, subd. (b)(1), 12022.53, subd. (b)). The same jury
convicted defendant Safari Williams of two counts of robbery
(§ 211) with gang and firearm enhancements (§§ 186.22,
subd. (b)(1), 12022.53, subd. (b)), and one count of possession
of a firearm by a felon (§ 29800, subd. (a)(1)). In a bifurcated
proceeding the court found true certain recidivist allegations
as to each defendant, including that Williams had served a prior
prison term for purposes of section 667.5, subdivision (b).
The trial court sentenced Shareef to 25 years in state prison,
and Williams to prison for 76 years to life, including one year for
the prison prior enhancement.
Shareef and Williams contend that insufficient evidence
supports the gang enhancements. Shareef also claims his
sentence violates the proscription against multiple punishments
under section 654 because the robbery conviction and the gang
enhancement both relied on his use of a firearm.
Williams raises three additional claims on appeal: (1) The
trial court abused its discretion when it denied her motion for
new counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118(Marsden); (2) The prosecution’s gang expert improperly opined
on the meaning of Williams’s gang parlance during jailhouse calls
with Shareef; and (3) Because of a post-conviction amendment to
section 667.5, subdivision (b), the one-year prison prior should be
stricken from her sentence.
We agree with Williams that she is entitled to the benefit
of the amendment to section 667.5, subdivision (b), and therefore
1Unless otherwise specified, subsequent statutory
references are to the Penal Code.
2
will strike one year from her sentence. In all other respects, we
affirm the judgments.
FACTS AND PROCEDURAL SUMMARY
A. Background
According to police officer and gang expert Alex Zamora,
Shareef is a member of the Hoover Criminals (the Hoovers) gang.
Hoovers is composed of nine “sets” tied to the Los Angeles streets
they control, including 74th Street, 92nd Street, and 94th Street.
Williams is either a member of the 92nd set or 94th set or, at
the time she committed her robberies, was working to become a
member of those sets.
Members of the Hoovers commit crimes, including drug
sales, pimping, robberies, and murder, and generate revenue by
selling narcotics and reselling stolen items. But, Officer Zamora
stated, gang members can also commit crimes for their own
personal interest without benefiting the gang.
On August 6, 2017, Williams was in jail and awaiting
release the next day. She spoke with Shareef and a third person
by phone. They discussed another person who was using the
gang moniker, “[L.K.]”2 Williams, however, claimed the moniker
“[L.K.]” belonged to her, dating back to when she was part of the
Hoovers’s 74th set. She told Shareef, “I am Killer Skirt herself.”
According to Officer Zamora, “skirt” is a derogatory term used to
refer to members of a rival gang.
Williams told Shareef she was going to “holler,” which meant
she would instigate a confrontation with the other person using
the L.K. moniker. In order to earn the right to use the name,
2 We refer to the moniker as “L.K.” in order to protect the
identity of the person discussed during that phone conversation.
3
Officer Zamora opined that Williams needed “go out in the street
and commit some kind of crime, work, on behalf of the gang to
basically earn a spot in the gang, get that name passed on to
[her].”
Williams concluded the call by saying, “watch what I’m
about to do. I’m about to . . . show them really how to gangbang
on the dead homie. I want a cold nine deuce and a nine four put
on. I want some nine deuce bitches to put me on and I want some
94 bitches. On Hoover. It’s just like that. On Hoover. Just based
on the fact, I’m from every groove line.”
Officer Zamora opined that “put on” meant committing
crimes in order to become part of the Hoovers’s 92nd and 94th
sets. He further opined that “every groove line” referred to the
Hoovers’s origins as the “Hoover Groovers” and that Williams was
asserting a connection to every set of the gang. Officer Zamora
interpreted Williams’s comments to mean she intended to prove
she deserved the Lady KS moniker.
B. The August 11, 2017 Robbery of S.C.
S.C. knew Williams from prior encounters. On August 11,
2017, four days after her release from jail, Williams asked S.C. to
meet her at 92nd Street and Broadway. S.C. drove to the location
and saw Williams waiting in a truck with others. Williams exited
the truck and walked toward 92nd Street, then returned to the
truck. Two men, including Shareef, got out of the truck and
approached S.C.’s car. The men were both carrying guns.
Shareef told S.C., “Give me your things. I should shoot you.”
Shareef hit S.C. with a gun. Williams, Shareef, and the second
man took the victim’s watch, earrings, wallet, money, credit cards,
birth certificate, and keys to a storage unit and cars. They then
jumped in the truck and drove away. At some point after the
4
robbery, someone broke into S.C.’s storage unit. Someone also
attempted to use his personal information to get a cell phone and
a home mortgage.
C. The August 14, 2017 Robbery of M.S.
On August 14, 2017, M.S. went to a Money Mart on Vermont
Avenue to pick up a money order. After he left the store, he got
into a car. A woman opened the car door and asked why he was
staring at her “homie.” M.S. replied that he was not staring. The
woman and the man that was with her then robbed him, taking
his money and jewelry. M.S. attempted to put the car in reverse,
but the man struck him in the face.
At trial, M.S. identified Shareef as the male who robbed him.
Video of the incident showing the female robber was displayed to
the jury. On appeal, Williams does not dispute the finding that
she was the female robber.
D. Jailhouse Phone Calls
Police arrested Shareef on August 21, 2017. While in
custody, he had numerous telephone conversations with Williams,
which were recorded. Shareef and Williams repeatedly referred
to the Hoovers and used gang terminology, such as “on the dead
homies” and “on the set.” Officer Zamora explained that “on the
dead homies” refers to gang members who were murdered, and “on
the set” refers to the Hoovers.
E. Gang Opinion Testimony
Officer Zamora testified generally about gang culture and
specifically about the Hoovers, explaining gang territory, tattoos,
and symbols. He testified that gang members operate by instilling
fear in the community and that members commit crimes in order
to gain respect within the gang. In response to a hypothetical
5
question mirroring the facts in the case, he opined that the
robberies were committed in association with, and to benefit,
the Hoovers.
F. The Convictions
The jury convicted Shareef of the robbery of S.C. and
acquitted him of the charge of robbery against M.S. The jury
convicted Williams of the robberies against S.C. and M.S.3
The jury found that Shareef and Williams committed their
robberies for the benefit of, at the direction of, or in association
with a criminal street gang and with the specific intent to assist,
further, or promote criminal conduct by gang members. The jury
also convicted Williams of being a felon in possession of a firearm.
(§ 29800, subd. (a)(1)).
DISCUSSION
A. Officer Zamora’s Testimony Regarding the
Meaning of Williams’s Gang Parlance
Prior to his testimony, and over an objection by the
prosecution that Officer Zamora could not express an opinion as
to the ultimate facts at issue, the trial court ruled that the officer
could give his opinion as to the meaning of “phrases that qualify
as gang parlance or gang phrases” based on his “training [and]
experience.” Williams argues that Officer Zamora’s explanation
of certain phrases Williams used during her August 6, 2017
telephone conversation constituted improper expert opinion.
3 In addition to the robberies of S.C. and M.S., the People
charged Shareef and Williams each with two additional robberies
that allegedly took place on August 21, 2017. The jury, however,
could not reach a verdict on these counts and the court declared a
mistrial as to them and ultimately dismissed them.
6
In particular, Officer Zamora was asked about Williams’s
statement during the jailhouse call that she wanted “a cold
nine deuce and a nine four put on.” The officer stated, “I believe
that she’s referring to herself basically putting in work and
representing nine[-]two and nine[-]four Hoover once she’s put
on the gang.” To “put on,” Officer Zamora explained, meant
“[b]asically going out committing street crimes.” The prosecutor
asked the officer if it was “[l]ike an audition,” and he responded,
“Yes. But the crimes are committed usually on behalf of the
gang.” The prosecutor also asked about Williams’s statement,
“ ‘I’m about to show them really how to gang bang. . . . I want
some nine deuce bitches to put me on and I want some nine four
bitches.’ ” Officer Zamora explained that “she wants her spot in
the gang and she basically wants nine[-]two, nine[-]four females
from the Hoover Criminals to put her on the gang.” Williams
did not object to any of the specific questions or answers she
challenges on appeal.
A person with “special knowledge, skill, experience, training,
or education” in a particular field is permitted to qualify as an
expert witness (Evid. Code, § 720, subd. (b)), and to give testimony
in the form of an opinion (Evid. Code, § 801). Courts “have long
permitted a qualified expert to testify about criminal street gangs
when the testimony is relevant to the case” and “ ‘the subject
matter of the testimony is “sufficiently beyond common experience
that the opinion of an expert would assist the trier of fact.” ’ ”
(People v. Gonzalez (2006) 38 Cal.4th 932, 944.) A trial court has
“broad discretion in deciding whether to admit or exclude expert
testimony” and whether the testimony is admissible is reviewed
for abuse of discretion. (People v. McDowell (2012) 54 Cal.4th
395, 426.)
7
The People contend that Williams has forfeited her
arguments because she failed to object to the specific testimony
she challenges on appeal. Even if we assume that Williams had
preserved these arguments for appeal, the court did not abuse its
discretion in allowing the challenged testimony. Officer Zamora’s
testimony constituted his opinion regarding the general meaning
of “put on” in gang culture and its more specific meaning in the
context of Williams’s references to “nine[-]deuce” and “nine[-]four.”
The court could reasonably have determined that Williams’s
phrases were beyond the jurors’ common experience and that
expert opinion on the subject would assist them. (See People v.
Prince (2007) 40 Cal.4th 1179, 1222 [“the pertinent question
is whether, even if jurors have some knowledge of the subject
matter, expert opinion testimony would assist the jury”].)
Contrary to Williams’s arguments, Officer Zamora did not testify
that Williams intended to commit crimes for the benefit of the
Hoovers or otherwise opine as to ultimate issues of fact.
B. Substantial Evidence Supports the Gang
Enhancements
1. Standard of review and relevant law
The elements of a gang enhancement under section 186.22,
subdivision (b) are: (1) The crime was committed for the benefit
of, at the direction of, or in association with a criminal street
gang; and (2) The defendant committed a felony with the specific
intent to promote, further, or assist any criminal conduct by gang
members. (People v. Loeun (1997) 17 Cal.4th 1, 11.) The evidence
must establish both prongs. (People v. Rios (2013) 222 Cal.App.4th
542, 561.) Shareef challenges the sufficiency of the evidence as to
the first prong—that the crime was committed for the benefit of,
at the direction of, or in association with a criminal street gang.
8
Williams challenges the sufficiency of the evidence as to both
prongs.
We review a challenge to the sufficiency of the evidence to
support the gang enhancement finding for substantial evidence.
(People v. Tully (2012) 54 Cal.4th 952, 1006.) Substantial evidence
is “ ‘ “evidence that is reasonable, credible, and of solid value—
such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.” ’ ” (Ibid.) We presume the
existence of every fact supporting the judgment that the jury
could reasonably have deduced from the evidence and make all
reasonable inferences that support the judgment. (People v.
Barnes (1986) 42 Cal.3d 284, 303; People v. Catlin (2001)
26 Cal.4th 81, 139.)
2. The evidence was sufficient to support
the gang enhancement against Shareef
on count 1 (robbery of S.C.)
Shareef does not dispute there was “a good deal of
evidence to prove” the second prong of the enhancement—i.e.,
that he “intended to assist, further, or promote criminal conduct
by gang members.” He contends, however, that the prosecution
failed to prove the first prong, that the robbery of S.C. was
committed for the benefit of, at the direction of, or in association
with a criminal street gang. Specifically, Shareef argues S.C. was
a fellow “Hoovers gang member or at least a close associate” of the
Hoovers and, accordingly, the robbery logically could not have
“benefited” their shared gang. We reject the argument.
The gang enhancement “requires proof that the defendant
commit a gang-related crime in the first prong—i.e., that the
defendant be convicted of a felony committed for the benefit of,
at the direction of, or in association with a criminal street gang.”
(People v. Albillar (2010) 51 Cal.4th 47, 67.) “ ‘Expert opinion
9
that particular criminal conduct benefited a gang’ . . . can be
sufficient to support . . . [a] gang enhancement.” (People v. Vang
(2011) 52 Cal.4th 1038, 1048.)
Here, Officer Zamora opined that gang members, under
hypothetical facts mirroring the facts in this case, would have
committed such crimes for the benefit of the gang. The officer’s
opinion is supported by the evidence of Williams’s jailhouse
call with Shareef on August 6, 2017—a mere five days before
the robbery of S.C. and eight days before the robbery of M.S.
During that call, Williams told Shareef she was “about to show
them really how to gangbang” and “want[ed] some nine deuce
bitches to put me on and I want some 94 bitches.” Officer Zamora
explained that Williams was referring to committing crimes
in order to become part of the Hoovers’s 92 and 94 sets. From
the proximity of the discussion between Shareef and Williams
regarding Williams’s intent to commit crimes to be “put on”
with the Hoovers and the commission of the first robbery, the
jury could have reasonably found Shareef intended the robberies
to benefit the Hoovers by the addition of a new member to its
ranks.
Shareef asserts there is insufficient evidence that the
crime benefited the Hoovers because S.C. was either a member
or an associate of the same gang. Even if we accept Shareef ’s
unsupported premise that a crime committed against a member
or associate of the defendant’s gang precludes a finding that the
crime benefited the gang, the evidence did not establish that S.C.
was a member or associate of Shareef ’s gang. Shareef points to
jailhouse calls from Shareef to Williams where Shareef referred
to S.C. as being “from the 50s”—a Hoovers’s set. Neither this
reference nor other evidence, however, proved that S.C. was a
Hoovers member or associate. Officer Zamora opined that Shareef
10
was referring not to the Hoovers’s 50’s sets, but to someone who
is “from that area”—i.e., certain streets between 50th and 59th
streets—that the Hoovers control. This opinion is supported by
S.C.’s testimony. He stated that he grew up with a friend who
“stays in the fifties.” The prosecutor asked him, “When you say
stay in the fifties, you mean the streets numbered with the fifties?”
S.C. replied, pointing to a map, “Yeah. That area right there.”
There was, therefore, evidence from which the jury could have
reasonably concluded that S.C. lived in the “50’s,” but was not
a member or associate of the Hoovers. Because the jury could
find that S.C. was not a Hoovers member or associate, Shareef ’s
argument that he could not commit a robbery for the benefit of
his gang by robbing his own gang’s member or associate fails.
3. Substantial evidence supports the gang
enhancement finding against Williams on
count 5 (robbery of S.C.) and count 6
(robbery of M.S.)
Williams asserts that the evidence was insufficient to
establish either prong of the gang enhancement. We disagree.
Under the first prong, the prosecution must establish
that Williams committed her robberies for the benefit of, at
the direction of, or in association with a criminal street gang.
(People v. Loeun, supra, 17 Cal.4th at p. 11.) Here, there was
evidence that Williams committed her robberies with Shareef,
an admitted Hoovers gang member. This is sufficient to support
a finding that she committed her crimes in association with a
criminal street gang. (People v. Leon (2008) 161 Cal.App.4th
149, 162 [because it is worded in the disjunctive, the first prong
of the gang enhancement may be satisfied without evidence of
any benefit to the gang so long as the crime was committed in
association with or at the direction of another gang member].)
11
Williams challenges the jury’s finding, asserting there was
no “independent evidence” to support Officer Zamora’s opinion
that she was acting for the benefit of the gang, particularly
where “there was no Hoover[s] gang paraphernalia left at the
scene, no tagging of gang signs or other indications that this
was a gang related incident. . . . No one was wearing gang colors
or gang symbols, no gang signs were shown, and neither [S.C.]
nor [M.S.] were members of a rival gang.” Although such indicia
will support a gang enhancement (see, e.g., People v. Ramirez
(2016) 244 Cal.App.4th 800, 819), they are not required. Thus,
even absent that Williams committed the robberies with a known
gang member, Officer Zamora’s opinion, which was supported by
Williams’s jailhouse call statements, is sufficient to support the
first prong of the enhancement.
People v. Ochoa (2009) 179 Cal.App.4th 650 (Ochoa) does
not compel a different result. In Ochoa, a single defendant acted
alone in committing a carjacking. The gang enhancement was
based solely upon a gang expert’s opinion that the carjacking
was of “ ‘obvious benefit . . . to the gang’ ” because it was a popular
gang crime. (Id. at p. 656.) The Court of Appeal reversed the
enhancement, holding that the gang finding was unsupported
because the “[d]efendant did not call out a gang name, display
gang signs, wear gang clothing, or engage in gang graffiti while
committing” the offense. (Ibid.) Unlike Ochoa, Williams
associated with Shareef, a known gang member, in robbing S.C.
The second prong requires proof Williams had the specific
intent to promote, further, or assist in any criminal conduct by
gang members. (People v. Albillar, supra, 51 Cal.4th at p. 60.)
“[I]f substantial evidence establishes that the defendant intended
to and did commit the charged felony with [a] known member[ ]
of a gang, the jury may fairly infer that the defendant had the
12
specific intent to promote, further, or assist criminal conduct
by th[at] gang member[ ].” (Id. at p. 68.) Here, there was ample
evidence that Williams intended to rob S.C. and M.S., that she
assisted Shareef in committing the robberies, and that Shareef
was an established member of the Hoovers criminal street gang.4
Accordingly, there was substantial evidence that Williams
acted with the specific intent to promote, further, or assist gang
members in that criminal conduct.
C. Shareef ’s Sentence Does Not Violate Section 654
In accord with the gang enhancement finding, the court
imposed on Shareef a 10-year sentence under section 186.22,
subdivision (b)(1)(C). That subdivision authorizes the
enhancement if the underlying felony “is a violent felony, as
defined in subdivision (c) of Section 667.5.” Here, the underlying
felony of which Shareef was convicted is robbery, which is
included within the pertinent definition of a violent felony.
(§ 667.5, subd. (c)(9).) Shareef argues the trial court erred
in failing to stay the 10-year enhancement under section 654.
We reject the argument.
4 There is some ambiguity in the evidence regarding
Williams’s actual status at the time of the robberies. Williams
claimed to be a member of the Hoovers’s 74 set, but was looking
to be initiated into either (or both) the 92 and 94 sets. That
ambiguity does not change the result. Under California law,
the section 186.22, subdivision (b) gang enhancement “does not
require that the defendant be an active or current member of the
criminal street gang that benefits from [the] crime.” (People v.
Bragg (2008) 161 Cal.App.4th 1385, 1402; In re Ramon T. (1997)
57 Cal.App.4th 201, 206–207.)
13
Under section 654, “[a]n act or omission that is punishable
in different ways by different provisions of law shall be punished
under the provision that provides for the longest potential term
of imprisonment, but in no case shall the act or omission be
punished under more than one provision.” (§ 654, subd. (a).)
The purpose underlying section 654 “is to ensure that
a defendant’s punishment will be commensurate with his
culpability.” (People v. Correa (2012) 54 Cal.4th 331, 341.) To
that end, the statute prohibits courts from imposing multiple
punishments for the same act or omission. (People v. Corpening
(2016) 2 Cal.5th 307, 312.)
On appeal, “[a] trial court’s express or implied determination
that two crimes were separate . . . must be upheld . . . if supported
by substantial evidence” (People v. Brents (2012) 53 Cal.4th 599,
618); that is, evidence which is reasonable, credible, and of solid
value (People v. Armstrong (2016) 1 Cal.5th 432, 450).
According to Shareef, both his robbery and the gang
enhancement “depended on the same use of the firearm,” thereby
precluding the imposition of multiple punishments under
section 654. Shareef is incorrect. Although Shareef actually
used a gun in his commission of his robbery of S.C., neither the
robbery nor the gang enhancement required or depended upon
his use of firearm. (§ 667.5, subd. (c)(9) [“violent felony” includes
“[a]ny robbery”]; § 211 [robbery “is the felonious taking of
personal property in the possession of another, from his person or
immediate presence, and against his will, accomplished by means
of force or fear”].) Section 654 has no application here.
Shareef relies on People v. Buchanan (2016) 248 Cal.App.4th
603 (Buchanan), in which the Court of Appeal directed that
an enhancement for being “personally armed with a firearm”
(§ 12022) must be stayed under section 654 when the defendant
14
was also convicted and sentenced for being a felon in possession
of the same firearm. (Buchanan, supra, 248 Cal.App.4th at
pp. 617–618.) There was, the court explained, “only one gun”
and the “criminal act for which defendant was convicted and
the aspect of the enhancements attached to his sentence were
identical.” (Id. at p. 617.)
In reaching its decision, the Buchanan court noted that
“ ‘considerations of whether section 654 requires an enhancement
to be stayed will generally be unnecessary because the sentence
enhancement statutes themselves will more often indicate
whether multiple punishments may be imposed. Thus, “[o]nly
if the specific statutes do not provide the answer should the court
turn to section 654.” ’ ” (Buchanan, supra, 248 Cal.App.4th at
p. 615.)
In Buchanan, the applicable statutes were silent on
the question of multiple punishments. (Buchanan, supra,
248 Cal.App.4th at p. 615.) That is not the case here.
Section 186.22, subdivision (b)(1)(C) expressly provides that,
“any person who is convicted of a felony committed for the
benefit of, at the direction of, or in association with any criminal
street gang, with the specific intent to promote, further, or assist
in any criminal conduct by gang members, shall, upon conviction
of that felony, in addition and consecutive to the punishment
prescribed for the felony or attempted felony of which he or
she has been convicted, be punished as follows: [¶] . . . [¶] . . .
If the felony is a violent felony, as defined in subdivision (c)
of Section 667.5, the person shall be punished by an additional
term of 10 years.” (Italics added.)
Because sections 211, 667.5, subdivision (c)(9), and 186.22,
subdivision (b)(1)(C), when read together, specifically prescribe
multiple punishments for robbery committed for the benefit
15
of, at the direction of, or in association with any criminal street
gang, section 654 does not preclude the additional punishment.
(Buchanan, supra, 248 Cal.App.4th at p. 615.)
D. The Court Did Not Err in Denying Williams’s
Marsden Motion
Under Marsden, supra, 2 Cal.3d 118, if a defendant seeks
to discharge appointed counsel and substitute with another,
“ ‘ “the trial court must permit the defendant to explain the basis
of his contention and to relate specific instances of the attorney’s
inadequate performance.” ’ ” (People v. Memro (1995) 11 Cal.4th
786, 857.) Once a defendant is afforded an opportunity to state
his or her reasons for seeking to discharge an appointed attorney,
the decision whether or not to grant the motion for substitution
of counsel lies within the discretion of the trial judge. (Ibid.)
The court does not abuse its discretion in denying a Marsden
motion “ ‘unless the defendant has shown that a failure to replace
counsel would substantially impair the defendant’s right to
assistance of counsel.’ ” (People v. Taylor (2010) 48 Cal.4th 574,
599.) Substantial impairment of the right to counsel can occur
when the “ ‘ “appointed attorney is not providing adequate
representation . . . or that defendant and counsel have become
embroiled in such an irreconcilable conflict that ineffective
representation is likely to result.” ’ ” (People v. Memro, supra,11 Cal.4th at p. 857.)
Here, after Williams raised a concern to the trial court
about her attorney, the court asked the prosecution to leave the
courtroom and conducted a Marsden hearing. Williams explained
that her mother overheard counsel in another courtroom referring
to Williams as “delusional and crazy.” She told the court she
thought her conversations with her attorney were meant to be
confidential. Counsel was not aware that Williams’s mother
16
was present until another attorney in the courtroom suggested
he should stop discussing the case.
The court asked Williams if she had a specific complaint
about something her attorney did or did not do. She stated she
felt he was not acting in her best interests after she learned he
was “talking bad about [her], calling [her] delusional, crazy to . . .
attorneys in another department.” She also complained counsel
did not communicate with her about her case or talk to her outside
of the courtroom.
In response, Williams’s counsel admitted he had talked
about the case in another department, but stated he did not
share any confidential information. Counsel stated he believed
the avenues of communication with Williams had not broken
down and he could still represent her.
On appeal, Williams asserts she “cannot begin to
demonstrate all the ways her defense could have been different
if she had been able to effectively communicate with counsel
that she trusted.” Although we question the propriety of counsel’s
conduct and acknowledge that Williams was understandably
offended by her attorney’s statements to others that she was
“delusional” and “crazy,” she failed to explain how “her defense
could have been different.” Her complaints indicate a general
lack of trust between her and counsel. A lack of trust in counsel,
however, does not amount to a conflict sufficient to justify granting
a Marsden motion. (People v. Memro, supra, 11 Cal.4th at
pp. 858–859; see also People v. Jackson (2009) 45 Cal.4th 662,
688 [“ ‘ “[I]f a defendant’s claimed lack of trust in, or inability
to get along with, an appointed attorney were sufficient to compel
appointment of substitute counsel, defendants effectively would
have a veto power over any appointment.” ’ ”].) The court did
not abuse its discretion in denying Williams’s Marsden motion.
17
E. Senate Bill No. 136 Requires That Williams’s
Prior Prison Term Enhancement Be Stricken
Williams’s sentence includes a one-year enhancement
under section 667.5, subdivision (b), for having served a prior
prison term for a felony conviction. At the time of Williams’s
sentencing in April 2019, the enhancement was proper. In 2019,
however, the Legislature enacted Senate Bill No. 136, which
amended section 667.5, subdivision (b), such that it applies only
where the prior prison term was served “for a sexually violent
offense as defined in subdivision (b) of Section 6600 of the Welfare
and Institutions Code.” (§ 667.5, subd. (b); Stats. 2019, ch. 590,
§ 1, p. 5235.) The amendment went into effect on January 1, 2020.
(See Cal. Const., art. IV, § 8, subd. (c), par. (1).)
Because the judgment in the current case is not yet final,
Williams is entitled to the benefit of the amendment. (People v.
Winn (2020) 44 Cal.App.5th 859, 872–873 [Senate Bill No. 136
applies to nonfinal judgments on appeal]; People v. Lopez (2019)
42 Cal.App.5th 337, 341 [same]; In re Estrada (1965) 63 Cal.2d
740, 744–746 [absent evidence to the contrary, we presume the
Legislature intended amendments to statutes that reduce the
punishment for a particular crime to apply to all defendants whose
judgments are not yet final on the amendments’ operative date].)
Williams’s prior prison term enhancement was based
on prison terms for convictions for first degree burglary and
attempted first degree burglary. Because those crimes are not
enumerated sexually violent offenses (Welf. & Inst. Code, § 6600,
subd. (b)), section 667.5, subdivision (b), as amended, does not
apply to her.
Remand for a new sentencing hearing is unnecessary
because the trial court has already exercised its discretion to
impose the maximum sentence. (People v. Buycks (2018) 5 Cal.5th
18857, 896, fn. 15; People v. Lopez, supra, 42 Cal.App.5th at p. 342
[“Because the trial court imposed the maximum possible sentence,
there is no need for the court to again exercise its sentencing
discretion.”].) Therefore, we modify the judgment by striking
the one-year enhancement and direct the trial court to prepare
an amended abstract of judgment. (People v. Lopez, supra, at
pp. 342–343.)
DISPOSITION
The one-year prior prison term enhancement imposed under
section 667.5, subdivision (b) in Williams’s case is stricken. As
modified, the judgment against Williams is affirmed. The trial
court is directed to prepare an amended abstract of judgment
in Williams’s case and to send a certified copy of the amended
abstract to the Department of Corrections and Rehabilitation.
The judgment in Shareef ’s case is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
SINANIAN, J.*
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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