Filed 3/15/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

EDGAR RUIZ,

Defendant and Appellant.

B312062

(Los Angeles County

Super. Ct. No. MA046882)

In re

EDGAR RUIZ

on

Habeas Corpus.

B317270

Petition for writ of habeas corpus and appeal from an order 

of the Superior Court of Los Angeles County, Shannon Knight, 

Judge. Relief on habeas corpus granted; appeal denied as moot.

Miriam K. Billington, under appointment by the Court of 

Appeal, for Defendant and Appellant and for Petitioner.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Scott A. Taryle and David A. Voet, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

In 2010, Edgar Ruiz was convicted of carjacking, attempted 

robbery and arson, all committed shortly after he turned 19 years 

old. Gang allegations connected to each of the three counts were 

found true as were allegations that a principal personally used a 

firearm in committing the carjacking and attempted second 

degree robbery. Ruiz was sentenced to a total term of 26 years 

four months in state prison; the sentence included consecutive 

terms for several of the gun and gang allegations. In 2018, the 

California Department of Corrections and Rehabilitation (CDCR) 

sent a recall letter to the trial court, seeking to have the court 

correct an error it made in sentencing Ruiz in 2010 to one-third 

the mid-term for his conviction for attempted robbery. When 

CDCR notifies a trial court that one part of a sentence is 

unauthorized, the resentencing court is entitled to reconsider all 

sentencing choices. (People v. Hill (1986) 185 Cal.App.3d 

831, 834.)

The resentencing judge was not the judge who presided 

over Ruiz’s trial. At the April 2018 resentencing, Ruiz was 

represented by Larry Baker, the same attorney who had 

represented him at trial. Baker did not remember Ruiz or the 

trial, did not file any documents in connection with the 

resentencing hearing, and spoke less than 50 words during the 

entire proceeding. The resentencing judge stated she had 

reviewed the case file, including the probation report and the 

transcript of the original sentencing. She stated her indicated 

sentence, which reflected her intention to keep the new sentence 

as close to the original sentence as possible, merely correcting the 

error in the attempted robbery conviction and striking a 

previously stayed gang enhancement for the arson conviction.

She did not otherwise modify the sentence. The error correction 
3

increased Ruiz’s sentence from 26 years four months to life to 27 

years eight months to life. Although eight years had passed since 

Ruiz had been sentenced, Baker, when asked, declined to speak 

on Ruiz’s behalf. The court asked Ruiz if he wished to be heard 

and Ruiz expressed his remorse and indicated that he had 

graduated high school in prison and was enrolled in college 

classes. The judge commended Ruiz, pointed out she had not 

heard the evidence at trial and orally reviewed the facts of the 

offenses she had gleaned from the probation report. She stated 

she would have given Ruiz a harsher sentence had she been the 

original sentencing judge. Baker again said nothing.

At the conclusion of the hearing, Baker said that he would 

prepare a notice of appeal. He never did so. As it turns out, 

Baker had a brain tumor which was diagnosed five months after 

the hearing. He died in the hospital later that same year.

In May 2021, we granted Ruiz relief from default and 

permitted him to file the current appeal claiming ineffective 

assistance of counsel at the resentencing hearing. On appeal, 

Ruiz contends Baker did nothing to assist him at the 

resentencing hearing and had no tactical reason for his inaction.

Ruiz also filed this related habeas corpus petition claiming 

ineffective assistance of counsel. Baker’s inaction is clear from 

the appellate record, specifically the reporter’s transcript of the 

resentencing hearing. Ruiz also provided his own declaration

and the Declaration of Marion Wickerd, Baker’s secretary, to 

establish Baker had no tactical reason for his inaction and was 

suffering from significant memory difficulties impairing his 

personal and professional functioning.
4

We indicated we would consider the appeal and habeas 

petition together. We then took judicial notice of the appellate 

record in this habeas proceeding and issued an order to show 

cause why the relief sought by Ruiz in his petition should not be 

granted. We directed counsel to address whether Baker’s

performance at the April 2, 2018 resentencing hearing amounted 

to a complete denial of counsel within the meaning of United 

States v. Cronic (1984) 466 U.S. 648, 659 (Cronic) and Bell v. 

Cone (2002) 535 U.S. 685, 687 (Cone). We now conclude it does.

DISCUSSION

In issuing the order to show cause, we made an implicit 

preliminary determination that Ruiz had carried his burden of 

allegation, that is, he made a “ ‘prima facie statement of specific 

facts which, if established, entitle [petitioner] to habeas corpus 

relief under existing law.’ ” (In re Serrano (1995) 10 Cal.4th 

447, 455.) As a practical matter, the issuance of the order to 

show cause creates a “cause” giving the People a right to reply to 

the petition by a return and to otherwise participate in the 

court's decision-making process. (Ibid.) When the respondent 

elects to file a return, it must allege facts establishing the legality 

of the petitioner’s confinement. (People v. Duvall (1995) 9 Cal.4th 

464, 476.) “The factual allegations of a return must also respond 

to the allegations of the petition that form the basis of the 

petitioner’s claim that the confinement is unlawful. [Citations.] 

In addition to stating facts, the return should also, ‘where 

appropriate, . . . provide such documentary evidence, affidavits, 

or other materials as will enable the court to determine which 

issues are truly disputed.’ ” (Ibid.) Here, respondent has not 

alleged any additional facts responding to Ruiz’s allegations, 

although respondent does propose a different reading of the 
5

Declaration of Marion Wickerd than does Ruiz. (Ibid.) Thus, no 

evidentiary hearing is necessary to decide this petition. In sum, 

the order to show cause represents our preliminary 

determination that Ruiz has stated facts, which, if established, 

show a complete denial of counsel within the meaning of Cronic

and Cone.

A. Complete Denial of Counsel Requires No Showing of 

Prejudice

Generally, to prevail on a claim of ineffective assistance of 

counsel, a defendant must show both that his counsel’s 

performance fell below an objective standard of reasonableness 

and there is a reasonable probability of a more favorable outcome 

in the absence of the deficient performance. (Strickland v. 

Washington (1984) 466 U.S. 668, 688 (Strickland).) We always 

start with a presumption that counsel’s conduct falls within the 

wide range of reasonable professional assistance. (Id. at p. 689.)

However, there are three situations in which a defendant

need not show prejudice to prevail on a claim of ineffective 

assistance of counsel. (Cronic, supra, 466 U.S. at pp. 658–659.) 

The United States Supreme Court later summarized these 

exceptions in Cone: “First and ‘[m]ost obvious’ was the ‘complete 

denial of counsel.’ [(Cronic, at p. 659.)] A trial would be 

presumptively unfair, we said, where the accused is denied the 

presence of counsel at ‘a critical stage,’ [(ibid.)], a phrase we used

in Hamilton v. Alabama, 368 U.S. 52, 54, 82 S.Ct. 157, 7 L.Ed. 2d 

114 (1961), and White v. Maryland, 373 U.S. 59, 60, 83 S.Ct. 

1050, 10 L.Ed. 2d 193(1963) (per curiam), to denote a step of a 

criminal proceeding, such as arraignment, that held significant 

consequences for the accused.” (Cone, supra, 535 U.S. at 

pp. 695-696.)
6

Second, the Court “posited that a similar presumption was 

warranted if ‘counsel entirely fails to subject the prosecution’s 

case to meaningful adversarial testing.’ [(Cronic, supra, 466 U.S. 

at p. 659.)] Finally, . . . where counsel is called upon to render 

assistance under circumstances where competent counsel very 

likely could not, the defendant need not show that the 

proceedings were affected. [(Cronic, at pp. 659–662.)]” (Cone, 

supra, 535 U.S. at p. 696.)

As is relevant here, the Court elaborated on the second 

circumstance: “When we spoke in Cronic of the possibility of 

presuming prejudice based on an attorney’s failure to test the 

prosecutor’s case, we indicated that the attorney’s failure must be 

complete. We said ‘if counsel entirely fails to subject the 

prosecution’s case to meaningful adversarial testing.’ [(Cronic, at 

p. 659, italics added.)] Here, respondent's argument is not that 

his counsel failed to oppose the prosecution throughout the 

sentencing proceeding as a whole, but that his counsel failed to 

do so at specific points. For purposes of distinguishing between 

the rule of Strickland and that of Cronic, this difference is not of 

degree but of kind.” (Cone, supra, 535 U.S. at pp. 696–697.)1

1 At oral argument, respondent suggested that this exception 

requires a complete failure of counsel throughout the entire trial, 

and not merely at the (re)sentencing hearing. As the quote above 

indicates, the claim in Cone involved counsel’s failure only at the 

sentencing hearing. Respondent did not address Cone or provide 

any rationale for this court to disallow what the United States 

Supreme Court has permitted.
7

Cronic and Cone provide a narrow exception to Strickland’s

prejudice requirement. As the California Supreme Court 

recognized long ago, “notwithstanding the broad language in the 

Cronic opinion [(Cronic, supra, 466 U.S. at p. 659)] to the effect 

that when ‘counsel entirely fails to subject the prosecution’s case 

to meaningful adversarial testing,’ the right to competent counsel 

has been denied and the result of the trial is presumptively 

unreliable, the actual application of Cronic has been much more 

limited. Defendants have been relieved of the obligation to show 

prejudice only where counsel was either totally absent or was 

prevented from assisting the defendant at a critical stage.” (In re

Visciotti (1996) 14 Cal.4th 325, 353.) Almost all instances in 

which a defendant claims that his counsel completely failed to 

subject the prosecution’s case to meaningful adversarial testing 

turn out not to involve a complete failure, but rather a failure 

consisting of specific errors and omissions, that is, the 

defendant’s “ ‘argument [was] not that his counsel failed to 

oppose the prosecution throughout the . . . proceeding as a whole, 

but that his counsel failed to do so at specific points.’ ” (People v.

Banks (2014) 59 Cal.4th 1113, 1170 (Banks) abrogated by People

v. Scott (2015) 61 Cal.4th 363, 391 & fn. 3.)

B. Cronic Is Still Good Law

Respondent first argues that Banks and People v. Brown

(2014) 59 Cal.4th 86, decided two months before Banks,

eliminated the second exception in Cronic, that is, the complete

failure to subject the prosecution’s case to meaningful adversarial

testing. The Court in Banks did not reject defendant’s claim

because defendant relied on the second ground in Cronic. Rather

the Court analyzed the substance of the claim and found that

“defendant’s ineffective assistance of counsel claim must be 
8

analyzed under Strickland because his ‘argument is not that his 

counsel failed to oppose the prosecution throughout the . . . 

proceeding as a whole, but that his counsel failed to do so at 

specific points.’ (Bell v. Cone, supra, 535 U.S. at p. 697; see In re

Avena (1996) 12 Cal.4th 694, 727–728 [49 Cal.Rptr.2d 413, 909 

P.2d 1017].)” (Banks, supra, 59 Cal.4th at p. 1170.) As for 

Brown, which quoted Visciotti, we think a more reasonable 

reading of Brown is that it simply acknowledged that the second 

exception in Cronic occurs so rarely as to be almost non-existent. 

We therefore do not agree that Cronic has in any way been 

overruled.

C. Ruiz Suffered a Complete Absence of the Assistance of 

Counsel.

Respondent next denies that the performance of Ruiz’s 

attorney amounted to a complete absence of the assistance of 

counsel. Respondent contends Cronic does not apply to situations 

where counsel has an illness because a lawyer is presumed 

competent and the burden is on the accused to overcome this 

presumption. (Cronic, supra, 466 U.S. at p. 658.) Respondent 

claims Ruiz has not offered any evidence that Baker’s 

performance was affected by his medical condition at the time of 

the resentencing hearing, and that “[t]he mere fact that counsel 

may have suffered from some mental illness at the time of [the 

relevant proceedings] has never been recognized by the Supreme 

Court as grounds to automatically presume prejudice.” (See, e.g.

Dows v. Wood (9th Cir. 2000) 211 F.3d 480, 485.) Respondent 

notes state and federal courts have also refused to presume 

prejudice from mental illness (Smith v. Ylst (9th Cir. 1987) 

826 F.2d 872, 876 [“mental illness is too varied in its symptoms 

and effects to justify a per se reversal rule”]) or incompetency 
9

from alcoholism (People v. Garrison (1989) 47 Cal.3d 746, 786 [“a 

per se rule of deficiency for alcoholic attorneys is contrary to 

settled law”]). Rather, according to respondent, courts have 

consistently applied the Strickland standard “where counsel’s 

illness may have affected his or her performance.”

Ruiz is not asking us to presume Baker was incompetent at 

the resentencing hearing due to his subsequently diagnosed brain 

tumor, or to presume prejudice based solely on Baker’s illness. 

Rather, Ruiz has provided facts about his own pre-hearing 

interaction with Baker and Baker’s performance at the hearing to 

show that in addition to suffering from significant memory issues 

at the time of the hearing, Baker did nothing before, during, or 

after the hearing to assist Ruiz. Ruiz’s account of Baker’s 

behavior is illuminated and corroborated by Marion Wickerd’s 

account of her employer’s mental deterioration beginning in the 

spring of 2018, about six months before he entered the hospital in 

September 2018. It is Baker’s complete inaction in April 2018, 

reasonably attributable to his brain tumor, from which Ruiz 

seeks to have prejudice presumed.

These facts are compelling. Ruiz filed a declaration stating 

that when he met with Baker right before the resentencing, 

Baker was slouched in his chair with his eyes almost closed. He 

acted “slow, tired and sluggish.” Baker did not recognize Ruiz or 

remember his name. Baker told Ruiz he did not remember him

and said to Ruiz “ ‘that’s crazy that I can’t remember 

representing you.’ ” According to Ruiz, Baker did not ask him 

any questions about his case. Ruiz asked if he could say 

something to the judge or show proof that he was going to school 

and “doing good things” with his life. Baker said no. In the 

declaration Ruiz explained that he did, in fact, end up speaking 
10

to the judge when the judge asked him if he wanted to speak to 

the court, but Baker did not advise Ruiz what to say or back him 

up in court. In other words, Baker did not “provide the guiding 

hand that [every] defendant needs.” (Cronic, supra, 466 U.S. at 

p. 658.)

There is nothing in the record before us or in the transcript 

of the resentencing hearing to indicate that Baker filed any 

documents with the court. The transcript of the hearing shows 

Baker made no argument at all in support of reducing Ruiz’s 

sentence. He made only nine brief statements, few of them full 

sentences and most in response to questions from the court: (1) “I 

would.”; (2) “Therefore, not 654.”; (3) “That is, I’m informed and 

believe.”; (4) “No, ma’am.”; (5) “That’s it. And I will prepare the 

appeal.”; (6) “I have no recollection of that.”; (7) “With the proviso 

he becomes eligible—.”; (8) “Under 3051.”; and (9) “If I may be 

excused, they want me downstairs.” When the judge announced

her indicated sentence and expressed her intention to adhere as 

closely as possible to the sentence imposed by the original trial 

judge, Baker said nothing on behalf of his client. He remained 

silent. The court specifically asked him if he wished to be heard; 

Baker replied “No, ma’am.”

Although Ruiz spoke to the court when invited to do so, he 

did not testify under oath, and it does not appear he provided the 

court with any of the documentary proof of his rehabilitative 

efforts that Baker told him he could not show the court. Thus, 

even viewing events at the resentencing hearing as broadly as 

possible, Baker did not identify or provide any evidence to the 

trial court for the resentencing. Nor did he argue against the 

trial court’s intention to rely solely on the circumstances of the 

offense as the prosecutor advocated. And although Baker told the 
11

court that he would file an appeal, he did not do even that. In 

other words, Baker failed to “ ‘act[] in the role of an advocate’ ” as 

the Sixth Amendment requires. (Cronic, supra, 466 U.S. at 

p. 656.)

Additional evidence provided by Marion Wickerd, Baker’s 

secretary, corroborated Ruiz’s recollection of his interaction with 

Baker. She described Baker’s cognitive issues, which she stated 

began in March 2018 (about six months before his brain surgery 

in September 2018). In spring 2018, she noticed Baker stopped 

giving her the weekly reports she used for billing, and when she 

asked for them he would reply that he forgot. By the middle of 

2018, Baker was confiding in Wickerd that he was worried about 

his memory. He told her he was having trouble remembering 

information about his cases and his clients, and even details in 

his personal daily life. He told Wickerd he would leave a room 

and immediately forget where he was going or what he was going 

to do next, and the problem was getting worse. At some point in 

2018, Baker started calling Wickerd to ask her if she knew the 

name of a case or what courtroom it was in or what calendar days 

the cases were to be heard. He stopped looking at his files to get 

information. Wickerd’s declaration strongly indicates there was 

no tactical reason for Baker’s non-existent advocacy on behalf of 

the client he could not remember other than his cognitive decline.

Respondent characterizes Baker’s performance as a simple 

waiver of argument at resentencing. Relying on People v. Snow 

(2003) 30 Cal.4th 43, respondent argues this waiver does not 

amount to a complete denial of counsel or a complete failure to 

subject the prosecution’s case to meaningful adversarial testing.
12

We find Snow inapposite. Snow was a direct appeal in a 

capital case where counsel waived argument at the sentencing 

hearing. However, as our Supreme Court pointed out, “by the 

time of the capital sentencing hearing in that case, counsel had 

already put considerable mitigating evidence before the jury in 

connection with the guilt and sanity phases of trial, and in his 

opening penalty phase statement had brought that evidence to 

the jury’s attention, urging them to consider it in determining the 

appropriate penalty.” (People v. Snow, supra, 30 Cal.4th at 

p. 117.) The Court had no evidence before it to explain counsel’s 

decision to waive argument at sentencing and simply concluded 

that it would be more appropriate to consider the issue of

ineffective assistance of counsel in the context of a habeas 

proceeding. Significantly, relevant to analysis under Cronic and 

Cone, the Court discussed in detail what counsel in Snow did do 

on behalf of the defendant, pointing out that the waived closing

argument was a small part of the overall trial. (Snow, at p. 117.) 

The Court’s approach indicated it did not apply the Cronic

standard because there was not a total breakdown of advocacy on 

behalf of the defendant.

Here, unlike Snow, counsel’s failure went to the entirety of 

the proceedings. The prosecutor had filed a sentencing 

memorandum for the original sentencing, and the resentencing 

court read the file from that trial, including the probation report. 

Baker did not challenge the earlier arguments supporting the 

sentence, did not present mitigating evidence on behalf of Ruiz 

such as his documented prison programming, and did not make 

any argument at all on behalf of Ruiz concerning his youth or his 

self-improvement while in prison. Baker did nothing.
13

The trial court had imposed, but stayed, the gang 

enhancement for the arson conviction and referred to the 15-year 

to life term for the carjacking conviction which resulted from the 

gang enhancement as “prescribed by law.” The resentencing 

court indicated it wished to stay as close to the trial court’s 

sentence as possible. Still Baker did not argue. He failed to 

point out that the law on gang enhancements had been clarified 

since the time of the original sentencing. (People v. Fuentes

(2016) 1 Cal.5th 218, 231 (Fuentes) [“We therefore conclude that 

trial courts possess the section 1385 discretion to strike a gangrelated enhancement alleged under section 186.22(b).”].)2 Baker 

simply did not act in any way as Ruiz’s advocate. When Ruiz had 

asked if he could speak for himself, Baker told him he could not 

and completely failed to provide a guiding hand.

Here, the available evidence from Ruiz and Wickerd 

supports Ruiz’s claim of ineffective assistance of counsel. This is 

not a case where counsel was silent because there was nothing to 

say. There was no tactical reason to say or do nothing. In 

addition to the declarations described above, Ruiz possessed

documentation of his programming in prison, demonstrating that 

2 Before Fuentes, at least one appellate court had held that 

trial courts could not strike gang enhancements or refuse to 

impose gang alternate penalties such as the 15 years to life 

imposed on Ruiz for carjacking. (People v. Campos (2011) 

196 Cal.App.4th 438, 451–452, overruled by Fuentes, supra, 

1 Cal.5th at p. 229, fn. 8.) At most, according to the Campos

court, a trial court could stay the punishment for the gang 

enhancement attached to an offense with a determinate term; it 

could not do so for enhancements which resulted in “an alternate 

sentence” such as the one imposed in this case. Fuentes opened 

up resentencing possibilities for Ruiz. Baker still did nothing.
14

Baker would have had a basis to argue that Ruiz had in fact been 

rehabilitating himself. And, as we have explained, Baker had a 

legal argument to make to strike the gang enhancement. Ruiz 

had a right to the effective assistance of counsel at his 

resentencing hearing. As a result of Baker’s total inaction on 

every front, Ruiz was on his own.

DISPOSITION

Relief on habeas corpus is granted. The matter is 

remanded to the trial court for a new resentencing hearing. In 

light of our ruling on the petition for writ of habeas corpus, the 

appeal is dismissed as moot.

CERTIFIED FOR PUBLICATION

STRATTON, P. J.

We concur:

GRIMES, J.

VIRAMONTES, J.