People v. Carr

1

THE PEOPLE, Plaintiff and Respondent, v. CHARLES BRUCE CARR, Defendant and Appellant.

D079869

California Court of Appeals, Fourth District, First Division

November 21, 2022

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Bernardino County No. FVI18002544, Debra Harris, Judge. Vacated and remanded.

Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Kristen A. Ramirez and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.

IRION J.

Charles Bruce Carr appeals the judgment sentencing him to prison for 43 years after a jury found him guilty of several felonies arising out of a shooting incident. Carr contends: (1) the trial court erred by refusing to adequately inquire into his request for appointment of new counsel to prepare and file a motion for a new trial on the ground of ineffective assistance of trial counsel; (2) he is entitled to resentencing because the court imposed upper prison terms on one of the convictions and all of the firearm enhancements without jury findings or admissions of aggravating circumstances supporting imposition of upper terms, as are required by legislation that took effect after sentencing; (3) the court erred by imposing an unstayed prison term on a conviction that was based on the same criminal act or course of conduct as other convictions and (4) the court erred by imposing certain fines and fees he cannot pay. We vacate the order denying the request for appointment of new counsel and the sentence and remand the matter for further proceedings.

I. BACKGROUND

A. Shooting Incident

Carr and T. have two children, and T. has two other children, Ki. and Ka., from another relationship. Carr, T., and the four children lived with Carr's mother until July 2018, when T. and the children moved to live with Frank C. Carr began stalking T. and watching Frank's house.

On September 3, 2018, when Carr dropped off his children at Frank's house, he learned T., Ki., and Ka. were out to dinner with T.'s friend. Carr telephoned T. during the dinner; called her racist slurs and obscene names; and said, "I am ex-ing you off the f**king planet. You sorry, f**king c**t." Carr later sent T. a text message that threatened her with a gun.

When T.'s friend dropped her and the children off at Frank's house, Carr drove up, got out of his vehicle, and started yelling. He pulled out a handgun and shot at T.'s friend's car. Carr then shot at T. and the children as she was ringing the doorbell to get into the house. After Frank let them in, he heard five more gunshots, three of which hit the house. Frank called 911 to report the shooting. Carr fled the scene and was later apprehended.

B. Charges, Verdicts, and Findings

The People charged Carr with attempted willful, deliberate, and premeditated murder of T. (count 1; Pen. Code, §§ 187, subd. (a), 664, subd. (a); undesignated section references are to this code); two counts of child endangerment (counts 2 &3; § 273a, subd. (a)); shooting at an inhabited dwelling (count 4; § 246); possession of a firearm by a felon (count 5; § 29800, subd. (a)(1)); and assault with a firearm of T. (count 6; § 245, subd. (a)(2)). The People included firearm enhancement allegations with count 1 (§ 12022.53, subds. (b), (c)) and counts 2, 3, and 6 (§ 12022.5, subd. (a)). They also alleged Carr had a prior conviction that qualified as both a serious felony and a strike under the Three Strikes law (§§ 667, 1170.12).

The jury found Carr guilty of attempted voluntary manslaughter as a lesser included offense of count 1 (§§ 192, subd. (a), 664); guilty of grossly negligent discharge of a firearm as a lesser included offense of count 4 (§ 246.3, subd. (a)); and guilty of the offenses charged in counts 2, 3, 5, and 6. The jury found all firearm enhancement allegations true.

In a separate bench trial, the trial court found Carr had a prior conviction that qualified as a serious felony and a strike.

C. Post-trial Motions

After the jury returned its verdicts and the trial court made its findings, Carr asserted his right to represent himself (Faretta v. California (1975) 422 U.S. 806) and the trial court relieved appointed counsel.

While he was representing himself, Carr filed a motion for new trial in which he complained, among other things, that all six attorneys who had been appointed to represent him "ha[d] been ineffective and disconcerting at best," and not one of them "ha[d] shown or even implied one sign or attempt to be a loyal and zealous advocate[ ] for their client." In written opposition to the motion, the People argued, in part, that Carr had not shown in what manner trial counsel's performance was deficient.

Before his new trial motion was heard, Carr asked the trial court to appoint counsel. The court appointed the public defender's conflict panel to select an attorney to represent Carr, and set another hearing date for the motion and sentencing.

At the next hearing, Stuart O'Melveny, the attorney who had represented Carr during trial, appeared on his behalf. Carr requested new counsel because he did not "feel comfortable" with the reassignment of O'Melveny. The court then held a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) to inquire into the reasons for Carr's request.

During the Marsden hearing, Carr stated he had motions he wanted to file and wanted help from an attorney to make sure they were in proper order. When the trial court asked Carr to explain why O'Melveny could not represent him, he responded, "Well, your Honor, throughout the trial, he's provided ineffective assistance of counsel." The court told Carr that claim would be reviewed on appeal. The court then asked O'Melveny whether Carr wanted to file a motion for new trial based on ineffective assistance of counsel. O'Melveny said he did not know; and Carr said, "That's what I'm saying, your Honor." Carr added that he had "fired" O'Melveny because he (Carr) felt O'Melveny conspired with the district attorney "[b]y not calling any of [Carr's] witnesses." The trial court told Carr that "unless [he] c[a]me up with something else," the court could not find ineffective assistance of counsel, and asked Carr to confer with O'Melveny about the motions Carr wanted to file.

After Carr and O'Melveny conferred, the trial court stated it was going to continue the matter so that O'Melveny could discuss the motions with Carr, and again told Carr the adequacy of O'Melveny's representation would be reviewed on appeal. The court then asked Carr whether he had any questions, and he responded, "I just don't feel comfortable. I don't feel like my best interest is on his mind." The court again offered Carr time to talk to O'Melveny about the motions Carr wanted to file, and again told Carr the adequacy of O'Melveny's representation would be reviewed on appeal. The court asked Carr what he wanted to do, and he answered, "I would think that I need help, your Honor." The court stated that O'Melveny was there to help Carr with the motions; that if he did not want O'Melveny's help he could again represent himself; and that no other attorney could effectively help with the motions because that attorney would not know what happened during trial and would have to read the entire trial transcript. After Carr conferred further with O'Melveny and offered no further grounds for substitution of counsel, the trial court denied the Marsden motion.

The trial court returned to open session and provided O'Melveny with copies of the new trial and other motions Carr had filed. The court advised Carr it would hear further motions about his relationship with O'Melveny if necessary. The court set a hearing for sentencing.

O'Melveny subsequently filed a motion for new trial on grounds of insufficiency of evidence and erroneous admission of evidence, but not ineffective assistance of counsel. At the hearing on the motion, O'Melveny informed the trial court that he had conferred with Carr about the motion and Carr disagreed with the decision not to assert ineffective assistance of counsel as a ground for the motion. The court held a bench conference with O'Melveny and the prosecutor outside Carr's presence to discuss his disagreement with O'Melveny's strategy, and during the conference the court stated its willingness to hold another Marsden hearing if Carr felt O'Melveny was not adequately representing him on the new trial motion. After the conference, O'Melveny discussed it with Carr. Carr did not make another Marsden motion. O'Melveny and the prosecutor then argued the new trial motion, which the court denied.

D. Sentencing

At the sentencing hearing, the trial court considered the probation officer's report, the parties' sentencing memoranda, the oral arguments of counsel, a letter from T., and Carr's statement. Based largely on the probation officer's report, the court identified several aggravating circumstances to support the imposition of upper prison terms, including: (1) the crimes involved great violence; (2) Carr dissuaded a witness; (3) he engaged in violent conduct indicating a serious danger to society; (4) he had numerous prior convictions; (5) he served numerous prior prison terms; (6) he was on probation when he committed the crimes; and (7) his prior performance on probation was unsatisfactory. (Cal. Rules of Court, rule 4.421.) The court found no mitigating circumstances. (Id., rule 4.423.)

The trial court selected count 2 (child endangerment) as the principal count and sentenced Carr to the upper term of six years (§ 273a, subd. (a)), doubled to 12 years based on the prior...