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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Leroy HARDEN, Defendant and Appellant.

Cr. 13403.

Decided: May 21, 1982

Quin Denvir, State Public Defender, under appointment by Court of Appeal, Jeffrey J. Stuetz, Deputy State Public Defender, and Pamela A. Slick, Panel Atty., San Diego, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Steven H. Zeigen and Lilia E. Garcia, Deputy Attys. Gen., for plaintiff and respondent.

Leroy Harden was charged with and pled not guilty to 15 counts of sex-related crimes.   Harden's court-appointed counsel moved to be relieved as attorney of record because of scheduling difficulty and disagreement with Harden as to defense strategy.   The court denied this motion.   Harden then moved to dismiss the information pursuant to Penal Code 1 section 995.   This motion was granted as to 3 counts of false imprisonment but denied as to the remaining 12 sex counts.   Harden then negotiated a plea bargain with the district attorney.   In exchange for dismissing 10 counts, Harden withdrew his plea of not guilty and pled guilty to count 1 (oral copulation, § 288a, subd. (c)) and count 3 (rape, § 261, subd. (2)).

Harden later moved to withdraw his bargained for guilty plea because he claimed to be under narcotic influence when he pled guilty.   The court denied this motion, and sentenced Harden to the middle terms of six years on each count, to run consecutively.   He appeals.

Harden first met the victim, Ms. Schirm, when he was having car trouble in National City.   Schirm, a 20-year-old Christian, noticed a Christian bumper sticker on Harden's car and asked if he needed help.   After she helped get gas for his car, she discussed the Bible with him for about two hours.   They decided to go to a “nearby” park to pray together, and he drove for about two hours to a park in the Los Angeles area.

At the park, he forced Schirm up against a picnic table, forcibly removed her shorts, and orally copulated her.   Immediately afterward, he exposed himself and forced her to orally copulate him.2  Then they returned to the car.   While they were seated in the car, the park manager approached and spoke with them for about 30 minutes.

After the park officer left, Harden began kissing Schirm.   She protested and tried to push him away, but he removed her shorts and raped her.

Harden first contends the court erred in sentencing him to full, separate and consecutive mandatory terms under section 667.6, subdivision (d), when he committed sex acts on the same victim on the same occasion.   Section 667.6, subdivision (d), states in relevant part:

“A full, separate, and consecutive term shall be served for each violation of subdivision (2) or (3) of Section 261 ․ or 288a by force, violence, duress, menace or threat of great bodily harm if such crimes involve separate victims or involve the same victim on separate occasions.”

Harden correctly frames the issue as “what constitutes ‘separate occasions' such that this statute comes into play?”

In People v. Perez (1979) 23 Cal.3d 545, 153 Cal.Rptr. 40, 591 P.2d 63, the California Supreme Court stated:  “A defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act” (id. at p. 553, 153 Cal.Rptr. 40, 591 P.2d 63).   Because “[n]one of the [Perez'] sex offenses was committed as a means of committing any other, none facilitated commission of any other, and none was incidental to the commission of any other,” it was proper for the court to punish Perez for each of the independent sex crimes (id. at pp. 553–554, 153 Cal.Rptr. 40, 591 P.2d 63).3

 The sentencing court's finding that Harden committed sex crimes on the same victim on separate occasions is supported by the facts.   Harden orally copulated Schirm on the park table.   Then they returned to the car and were approached by a park officer who spoke with them for about 30 minutes.   After the officer left, Harden again removed Schirm's shorts and then raped her.   We believe these two acts are independent and distinct, separated by a 30-minute conversation with an intervening park officer.   Therefore, we hold the court's sentence of Harden to two consecutive six-year terms complied with section 667.6, subdivision (d).

Assuming the court erred in applying section 667.6, subdivision (d), we still would not reverse because no prejudice occurred.  (See People v. Dozier (1979) 90 Cal.App.3d 174, 178–179, 153 Cal.Rptr. 53.)   The sentencing judge identified the sentencing options under section 667.6, subdivision (c), and stated:

“Even if they [the sex acts] were one occasion, I would have the discretion to deal with this matter on the basis of 667.7(c) and appropriately sentence this man to a full consecutive term, ․ even if the Court has the discretion to give concurrent terms, I would not give concurrent sentences.   I would give consecutive sentences.   I would run these two full-term consecutive terms for a total of 12 years in State Prison.”

Therefore, even if Harden's contention is correct that he should have been sentenced under subdivision (c) rather than (d), his sentence would be identical—12 years in prison.

Harden next contends the court erroneously denied his motion to withdraw his guilty plea because he was not advised he could be sentenced to mandatory full, consecutive and separate terms for the two counts at the time he pled guilty.   Stated differently, Harden contends his guilty plea was entered under Boykin-Tahl error since he was not advised his minimum sentence would be at least six years.

In Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, the Supreme Court held an affirmative showing rather than a silent record was necessary to establish that a guilty plea had been voluntarily made and the constitutional rights necessarily forfeited by such a plea had been freely and intelligently waived.

Elaborating on Boykin v. Alabama, supra, the California Supreme Court stated:

“This does not require the recitation of a formula by rote or the spelling out of every detail by the trial court.   It does mean that the record must contain on its face direct evidence that the accused was aware, or made aware, of his right to confrontation, to a jury trial, and against self-incrimination, as well as the nature of the charge and the consequences of his plea.”  (In re Tahl (1969) 1 Cal.3d 122, 132, 81 Cal.Rptr. 577, 460 P.2d 449.)

Later, the California Supreme Court held a defendant who pleads guilty must be “advised of the direct consequences of conviction such as the permissible range of punishment provided by statute, ․”  (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605, 119 Cal.Rptr. 302, 531 P.2d 1086.)

In a similar case to the present one, where the defendant claimed he was not made aware of the possible range of sentences which could result from his guilty plea, the court concluded a trial judge “need only apprise defendant of the sentence possibilities in a general fashion.”  (Scoggins v. Superior Court (1977) 65 Cal.App.3d 873, 877, 135 Cal.Rptr. 619.)   The more recent cases, however, have expanded the rule requiring the court to satisfy itself the defendant knows about the permissible range of punishment provided by the statute.   This includes “statutorily required minimum term” (People v. Tabucchi (1976) 64 Cal.App.3d 133, 142–143, 134 Cal.Rptr. 245;  People v. Wagoner (1979) 89 Cal.App.3d 605, 610–611, 152 Cal.Rptr. 639;  People v. Johnson (1977) 66 Cal.App.3d 197, 199–200, 135 Cal.Rptr. 756).   There is no requirement the record explicitly show what the advice of the consequences actually was (In re Ronald E. (1977) 19 Cal.3d 315, 321, 137 Cal.Rptr. 781, 562 P.2d 684;  Worsley v. Municipal Court (1981) 122 Cal.App.3d 409, 417, 176 Cal.Rptr. 324).

 Examining the record, we find Harden was fully advised of the consequences of his guilty plea.   Paragraph 10 of the written change of plea form shows Harden's initials next to the statement:  “That his attorney has explained the possible sentence and understands the maximum possible punishment to be 16 years in state prison and further that in the event he is sentenced to State Prison, he will be placed on parole for a period of 48” months.   Paragraph 11 shows probation is not applicable.   At the April 15 hearing when the guilty plea was entered, Harden was advised the maximum sentence was 16 years and a $5,000 fine and the court was without authority to grant probation.   Harden's trial counsel stated he had advised Harden of the consequences of his plea of guilty.   Finally, the court made findings of fact that Harden understands the consequences of his plea and he was competently represented by counsel.   Therefore, we hold the record shows the court did satisfy itself Harden was aware of the permissible range of punishment as required by Boykin-Tahl (see In re Ronald E., supra, 19 Cal.3d 315, 324, 137 Cal.Rptr. 781, 562 P.2d 684;  Worsley v. Municipal Court, supra, 122 Cal.App.3d 409, 417, 176 Cal.Rptr. 324).

 Even if the record was insufficient to show Harden was aware of the consequences of his guilty plea, we would not reverse because no prejudice has been shown (In re Ronald E., supra, 19 Cal.3d 315, 325–326, 137 Cal.Rptr. 781, 562 P.2d 684, citing People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243).   Prejudice is demonstrated if this court can conclude it was reasonably probable a different result would have occurred if an enhanced admonishment had been given to Harden (see People v. Wagoner, supra, 89 Cal.App.3d 605, 611–612, 152 Cal.Rptr. 639).   We could reach this conclusion of prejudice only if Harden claimed he was unaware of the consequences of his guilty plea and he would not have entered the guilty plea had he been properly advised (ibid., citing In re Ronald E., supra, 19 Cal.3d at pp. 325–326, 137 Cal.Rptr. 781, 562 P.2d 684).   He makes no such assertion.   He entered a plea on the assumption he might receive a sentence of as long as 16 years.   He thus had knowledge the court might make the term for the offenses run consecutively since the enhanced term for each would only be 8 years.   He was aware of the contingency of consecutive sentences in entering the guilty plea so we can find no prejudice by a sentence of only 12 years.   It is not probable he would have reached a different decision but for the lack of the more detailed admonishment.

Harden finally contends the court erroneously denied his motion, made jointly with defense counsel, to relieve his appointed counsel and have another appointed.   Harden contends this claimed error resulted in ineffective assistance of counsel.

 The facts show Tafolla, Harden's trial counsel, asked to be relieved because (1) there existed considerable attorney-client conflict as to the defense theories;  and (2) he had scheduling conflicts with other felony trial dates.   When questioned by the court, Tafolla answered the reason for the attorney-client conflict was Harden's refusal to cooperate.4

Regarding the scheduling problem, Harden's trial date was scheduled for April 15.   On March 16, 1981, the day Tafolla asked to be relieved as Harden's counsel, Tafolla obtained a continuance on a murder trial to April 16.   Clearly no real conflict with the murder trial existed on March 16, the date this motion was denied.

As to Tafolla's preparation for Harden's defense, other facts show:  Tafolla made several visits to Harden in jail;  he accepted every call Harden made, including 40 calls in one day;  he claimed to have been diligent;  he had spent much time discussing the case with the prosecutor and had obtained an “exhaustive amount of discovery”;  he had arranged for investigative services;  and he had spent a lot of time preparing Harden's case, including section 995 motions.

 As Harden states on appeal, “whether to relive [sic] counsel is a matter within the sound discretion of the court.”   We hold the court's denial of the motion to relieve Tafolla as Harden's counsel was a proper exercise of discretion, one supported by substantial evidence and which would not substantially impair or deny Harden's rights.   As the court's March 16, 1981, ruling was not erroneous, it cannot form the basis of claimed ineffective assistance of counsel.   Notwithstanding the Attorney General's procedural arguments, we find Harden's substantive contention lacks merit.

Judgment affirmed.


FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   This act was charged as count 2 and dismissed as part of the plea bargain.   This act is factually relevant only because of the time sequence involved.

3.   Harden cites several cases which merely support the Perez decision.   For example, People v. Clem (1980) 104 Cal.App.3d 337, at page 346, 163 Cal.Rptr. 553, states:  “It can no longer be argued that where there are multiple sexual acts performed upon a single victim, albeit within a short space of time, that each act does not comprise a distinct and separate violation and punishment.  (People v. Perez ․).”  See also, People v. Singleton (1980) 112 Cal.App.3d 418, 424, 169 Cal.Rptr. 333;  People v. Van De Water (1980) 108 Cal.App.3d 166, 169, 166 Cal.Rptr. 321;  People v. Kilpatrick (1980) 105 Cal.App.3d 401, 414–416, 164 Cal.Rptr. 349 (disapproved on other grounds in People v. Bustamante (1981) 30 Cal.3d 88, 177 Cal.Rptr. 576, 634 P.2d 927).

4.   “A disagreement between a defendant and appointed counsel concerning trial tactics [does not] necessarily compel the appointment of another attorney,” especially where defendant is the one obstructing his effective assistance of counsel (People v. Williams (1970) 2 Cal.3d 894, 905, 88 Cal.Rptr. 208, 471 P.2d 1008).

COLOGNE, Acting Presiding Justice.

STANIFORTH and WORK, JJ., concur.

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