People v. Ross

86 Cal.App.5th 1346

302 Cal.Rptr.3d 908

The PEOPLE, Plaintiff and Respondent,

v.Anthony Kevin ROSS, Defendant and Appellant.

A163242

Court of Appeal, First District, Division 3, California.

Filed December 28, 2022

Certified for Partial Publication.^*

Law Offices of Lillian Hamrick, Lillian Hamrick, under appointment by the First District Appellate Project, for Defendant and Appellant

Rob Bonta, Attorney General of California, Lance E. Winter, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, and Viktoriya Chebotarev, Deputy Attorney General for Plaintiff and Respondent

FUJISAKI, ACTING P.J.

Defendant Anthony Kevin Ross appeals after a jury convicted him of battery on a non-confined person by a prisoner ( Pen. Code, § 4501.5 )¹ and found true two prior "strike" convictions (§ 667, subds. (b)–(i)). On appeal, he argues: (1) his attorney violated his Sixth Amendment rights by conceding his guilt; and (2) the matter should be remanded for resentencing due to Senate Bill No. 567. In the unpublished portion of this opinion, we reject defendant's Sixth Amendment challenge. But in the published portion, we agree that a remand for resentencing is required due to postsentencing statutory amendments made by Senate Bill No. 567.

FACTUAL AND PROCEDURAL BACKGROUND

The People charged defendant with one count of battery on a non-confined person (here, a correctional counselor) by a prisoner ( § 4501.5 ). The People also alleged defendant had two prior strike convictions. ( § 667, subds. (b)–(i).)

Initially, attorney George Mavris represented defendant. In November 2020, weeks before the initial date set for trial, Mavris filed a motion to withdraw as counsel, citing " ‘irreconcilable conflict.’ " The court held a Marsden² hearing, relieved Mavris as counsel, then appointed James Fallman. Trial was continued and eventually took place in July 2021. The jury ultimately found defendant guilty of the section 4501.5 count and found the two prior strike allegations true. The following summarizes some of the relevant trial evidence.

Correctional counselor B.B. testified as follows. B.B. works at Pelican Bay State Prison, which is a "level four" prison, meaning generally that it has more security and houses prisoners with higher "classification points." Classification points are based on various factors, such as sentence length, age, and behavior. In July 2018, B.B. met with defendant, a level four prisoner, in his office. Defendant did not have the classification points necessary to be placed in a level three facility, and B.B. refused defendant's request to recommend an "override" to the committee responsible for placement decisions. When B.B. told defendant he could ask the committee himself, defendant cursed and yelled at B.B. and demanded a new counselor.

B.B. told defendant he was "acting childish" and to calm down, and defendant cursed and continued yelling. B.B.—who remained calm and seated behind his desk—then told defendant, "why don't you act like a man and show some respect?" In response, defendant stood and charged B.B. saying, "I am a man." Defendant punched B.B. in the eye while he was still seated. B.B. yelled at him to "get down"—a phrase correctional officers use when there is an issue with an inmate. Defendant repeatedly struck B.B.’s face and body and scratched his head and arms. B.B. put up an arm to block defendant, then started punching back. B.B. could not escape the office they were in.

About 30 seconds later, other correctional officers arrived and used pepper spray, but defendant did not stop striking B.B. Defendant resisted being handcuffed and struck at the correctional officers around him. B.B. suffered multiple scratches and bruises.

Two of the responding correctional officers corroborated B.B.’s account of the attack. One of the officers described defendant's punches as being like "windmills." The hearing officer at defendant's rule violation report (RVR) hearing testified that defendant pleaded guilty to the administrative charge of battering B.B. Evidence was introduced that defendant wrote in an intercepted outgoing letter³ that "I got stuck in the hole again for taking off on my CC I [(correctional counselor I)] because he called me a [sic ] lame."

After the People rested, the defense presented no evidence. The parties and the trial court then discussed jury instructions. Upon receiving some of the instructions, the court said: "I'm in receipt of simple battery 960, Element 2, is typically not given unless there is evidence of self-defense." Defense counsel Fallman responded, "That's fine. I just brought the form." The prosecutor said she saw no evidence of self-defense, and the court agreed. Defendant interjected, saying, "Man, you are fired" and "I will represent myself." The court initially continued to talk about the instructions, asking if it was acceptable to the parties to "just remove Element 2," and both attorneys affirmed it was. Defendant then cursed, saying: "Hey, why don't you f[***] up your son, so what?" When the court tried to interrupt him, defendant continued to curse at the court and the prosecutor, and made other incoherent statements. The court had him removed from the courtroom, indicating he could return when he could behave appropriately.

The court took a short recess so that Fallman could speak with defendant. Upon returning, Fallman told the court that he tried to talk with defendant, but that defendant refused and simply repeated his desire to fire Fallman. The court asked Fallman to speak with defendant again and see if he wanted to come back for a Marsden hearing. Fallman did as instructed, but defendant only said he wanted to go back to his cell. The court stated for the record that it had "nothing to hang [its] hat on why or what [defendant] purports Marsden to be," and it asked Fallman if he had anything to add. (Italics added.)

Fallman said: "No. I just think there comes a point where he tries to get rid of his attorney. He already got rid of Mr. Mavris, who I note to be an excellent attorney before me on this same case. So I don't know. I think it's probably provocation. There is no reason for it." The court then denied Marsden relief, finding no basis for it and confirming again that Fallman also saw no basis for it.

The trial continued with defendant in absentia. The court instructed the jury on the section 4501.5 count and the lesser included offense of simple battery. During closing argument, Fallman admitted defendant touched B.B. willingly, in a harmful or offensive manner, but argued there was no pre-planning or weapon involved. Fallman asked the jury to find defendant guilty of the lesser included offense of misdemeanor battery, arguing such result was fair because defendant already suffered consequences as a result of the RVR and, had this incident happened on the streets, it would have been a misdemeanor. Fallman suggested that defendant overreacted because of the things B.B. said to him, and because he is an inmate on a level four yard who did not want to be perceived as a "wimp."

The jury found defendant guilty of the section 4501.5 count. In a bifurcated trial, the jury found both prior strike allegations true.

During sentencing, defendant was invited to make a statement but declined to do so. Upon finding six aggravating factors true and no mitigating factors, the trial court sentenced defendant to the upper term of four years for the section 4501.5 count, doubled to eight years under the Three Strike Law. Defendant appealed.

DISCUSSION

A. Defense counsel's concession during closing argument^**

B. Senate Bill No. 567

In sentencing defendant, the trial court selected the upper term for the section 4501.5 conviction. The court found true the two crime-based aggravating factors set out in California Rules of Court, rule 4.421(a)(1) and (a)(3),⁵ namely, that "(1) [t]he crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness" and "(3) [t]he victim was particularly vulnerable." With regard to the rule 4.421(a)(3) factor, the court indicated that B.B. was particularly vulnerable because he was alone in his office with defendant, without being behind glass or any type of protection. The court also found true the following four aggravating factors set forth in rule 4.421(b) : "(1) The defendant has engaged in violent conduct that indicates a serious danger to society; [¶] (2) The defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness; [¶] (3) The defendant has served a prior term in prison or county jail under section 1170(h) ; [¶] ...; and [¶] (5) The defendant's prior performance on probation, mandatory supervision, postrelease community supervision, or parole was unsatisfactory." ( Rule 4.421(b)(1)–(3), (5).) The court found no factors in mitigation and concluded the aggravating factors "far outweigh[ed]" those in mitigation, justifying the upper term.

While this appeal was pending, the Legislature enacted Senate Bill No. 567 (Senate Bill 567), which amended section 1170, subdivision (b), to require that when a statute specifies three potential terms of imprisonment, a court must presumptively impose the middle term. ( § 1170, subd. (b)(1), as amended by Stats. 2021, ch. 731, § 1.3.) Moreover, a court may not impose the upper term unless aggravating circumstances "justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial." ( § 1170, subd. (b)(2), as amended by Stats. 2021, ch. 731, § 1.3.) Under section 1170, subdivision (b)(3), however, "the court may consider the defendant's prior...