People v. Freeman

Filed 10/15/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B237613 (Super. Ct. No. 2008013384) Plaintiff and Respondent, (Ventura County)

v. OPINION AND ORDER JEFFREY TROY FREEMAN,

Defendant and Appellant.

THE COURT: The Attorney General moved to strike the fourth opening brief filed by appellant‟s retained counsel, Steve Pell (hereafter “counsel”). Alternatively, the Attorney General prays for an order that the appeal be deemed abandoned on the ground that the opening brief does not comply with the California Rules of Court (Rules). We allowed counsel four opportunities to file a brief that complies with the Rules. We grant the Attorney General‟s motion to strike the fourth opening brief and take the rare step of removing counsel. Counsel represents appellant Jeffrey Troy Freeman, presently incarcerated and serving a determinate l8-year term plus a consecutive indeterminate term of 15 years to life. We received the record on appeal in February of 2012. On May 3 and July 10,

*Gilbert, P.J., Yegan, J., Perren J. 1

2012, we granted the Attorney General‟s motions to strike the opening briefs filed by appellant‟s counsel. The briefs failed to comply with the Rules because they did not set forth comprehensible statements of the facts, issues presented, and the applicable law. (Cal. Rules of Court, rules 8.360(a), 8.204.) We allowed counsel a third opportunity to file an opening brief that complied with the Rules. On August 30, 2012, counsel filed an opening brief to which the Attorney General did not object. Following the completion of briefing, on May 9, 2013, this appeal was orally argued and submitted for decision. On May 15, 2013, we vacated submission on our own motion. We determined counsel‟s brief was inadequate and reflected ineffective assistance of appellate counsel. We struck the opening brief and allowed appellant‟s counsel another 60 days within which to file a new opening brief that complied with the Rules. To assist counsel in this task, we instructed the clerk of this court to send counsel an exemplar brief. We also advised counsel that failure to follow the Rules concerning briefing could result in a variety of sanctions against him, including removal as attorney of record. Our admonition went unheeded. On July 9, 2013, counsel filed an opening brief which, for the fourth time, violates the Rules. The only improvement is the statement of facts, which was taken almost verbatim from the respondent‟s brief previously filed by the Attorney General. On August 28, 2013, the Attorney General moved to strike the opening brief or to deem the appeal abandoned because of the unintelligible and unsupported claims in the brief. We deny the latter request. We do not punish appellant for the ineptitude of his counsel. We agree with the Attorney General‟s contention that substantial portions of the opening brief are “unintelligible” and that it is difficult, if not impossible, “to discern, and meaningfully respond to, appellant‟s contentions on appeal.” The right to effective assistance of counsel applies to both appointed and retained counsel. (People v. Frierson (1979) 25 Cal.3d 142, 161-162; 5 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Trial, § 232, p. 389.) This court has the obligation to ensure adequate representation of counsel, even to the extent of removing retained counsel, but “only in the most flagrant circumstances of attorney