Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. JJD060946. Valeriano Saucedo, Judge.
Gregory M. Chappel, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Joseph M. Cook, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Ardaiz, P.J., Levy, J. and Poochigian, J.
Appellant is a juvenile who admitted the allegations of a Notice of Violation of Probation filed in the juvenile court. After a disposition hearing at which he was ordered to comply with the terms and conditions of his probation, he filed this appeal.
APPELLANT’S CONTENTION
Appellant contends that the court erred in denying a Marsden motion he made prior to his admitting the allegations of the Notice of Violation of Probation. As we shall explain, when appellant made a knowing and voluntary admission of the allegations, he waived any Marsden error which might have occurred prior to that admission.
People v. Marsden (1970) 2 Cal.3d 118.
FACTS
On August 25, 2006, the Juvenile division of the Tulare County Superior Court adjudged appellate, A. G., a ward of the court within the meaning of Welfare and Institutions Code, section 602, finding that he committed a battery (Pen. Code, § 242.) On February 9, 2009, the court re-adjudged appellant a ward of the court and committed him to the Tulare County Probation Youth Facility.
In the intervening period between the 2006 petition and the instant case, the court sustained a petition against appellant for committing first degree burglary, a felony (Pen. Code, §459, subd. (a)), battery (Pen. Code, § 242), vandalism (Pen. Code, § 594, subd. (a)) and escape from custody (Welf. & Inst. Code, § 871, subd. (a)).
On February 19 and 20, 2009, appellant refused to be transferred from the Tulare County Juvenile Detention Center to the Tulare County Youth Facility.
On February 24, 2009, the probation department filed the Notice of Violation of Probation in the juvenile division alleging that appellant failed to comply with the terms of the February 9, 2009 disposition. On February 25, 2009, appellant appeared before the court on the violation of probation petition and denied the allegations. At this appearance, the following occurred:
“THE BAILIFF: [A. G.], 60946.
“THE COURT: In the matter of [A. G.]. Minor’s present [sic] in custody on a violation of probation petition. Public defender is appointed.
“MR. McLAIN: Your Honor, actually, I think his complaint is that in the last matter he was represented by public defender and he didn’t think they did a competent job.
“THE COURT: Well, then he needs to hire his own lawyer. There’s no other alternative. We’ll appoint the public defender. If you want to hire your own lawyer, you have a right to do that.
“Do you acknowledge receipt of the petition?
“MR. McLAIN: I do, your Honor. Waive further reading and advisement of rights. Enter a denial. Set it for pretrial.”
On February 27, 2009, appellant admitted the violation. The reporter’s transcript of appellant’s admission shows the following:
“THE COURT: Before you may admit the violation of probation and the citations, or the citation, you must waive, that is, give up, certain statutory and constitutional rights.
“You have the right to a hearing.
“You have the right to see and hear the witnesses who testify against you under oath and, through your attorney, to question those witnesses.
“You have a right to present evidence and to call witnesses to testify in your defense, and to testify in your own defense, if you wish.
“You have the right to have the Court issue subpoenas at no charge to you to bring evidence and witnesses before the Court for your defense.
“You have the right to remain silent and not incriminate yourself.
“Do you understand each and every one of these rights?
“THE MINOR: Yes, sir.
“THE COURT: Do you give up each and every one of these rights?
“THE MINOR: Yes, sir.
“THE COURT: Mr. McLain, have you had sufficient time to discuss this case and all its ramifications with your client?
“MR. McLAIN: Yes, your Honor.
“THE COURT: Have you discussed with him his rights, defenses, and the possible consequences of his admission?
“MR. McLAIN: Yes.
“THE COURT: Do you represent that in your judgment, your client understands his rights?
“MR. McLAIN I do.
“THE COURT: Do you consent in the admission and in all representations made here in court by your client?
“MR. McLAIN: Yes.
“THE COURT: Do you join in your client’s waiver of his statutory and constitutional rights?
“MR. McLAIN: Yes.
“THE COURT: The Court has read the chrono. Based on the chrono, the Court finds there’s a factual basis for the violation of probation.
“[A.], do you admit the violation of probation as follows: That you failed to participate in the Youth Facility Program by refusing to be transferred from the Juvenile Detention Facility?
“THE MINOR: Yes, your Honor.”
APPELLANT WAIVED ANY MARSDEN ERROR
In the context of a criminal case, “defendants are entitled under the Constitution to the assistance of court-appointed counsel if they are unable to employ private counsel.” (People v. Marsden, supra, 2 Cal.3d at p. 123.) “‘The right of a defendant in a criminal case to have the assistance of counsel for his defense... may include the right to have counsel appointed by the court... discharged or other counsel substituted, if it is shown... that failure to do so would substantially impair or deny the right..., but the right to such discharge or substitution is not absolute, in the sense that the court is bound to accede to its assertion without a sufficient showing... that the right to the assistance of counsel would be substantially impaired... in case the request is not granted, and within these limits there is a field of discretion for the court.’ [Citations.]” (Id. at p. 123.) “[A] judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant’s offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney. A judicial decision made without giving a party an opportunity to present argument or evidence in support of his contention ‘is lacking in all the attributes of a judicial determination.’ [Citation.] ” (Id. at p. 124.)
The Sixth Amendment to the U.S. Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right... to have the assistance of counsel for his defense.” (U.S. Const., 6th Amend.) This right to counsel has been held to be applicable to state prosecutions as “fundamental and essential to a fair trial” and thus “made obligatory upon the states by the Fourteenth Amendment, ” (Gideon v. Wainwright (1963) 372 U.S. 335, 340), and has further been held to be a requirement of Fourteenth Amendment due process of law “in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile’s freedom is curtailed.…” (In re Gault (1967) 387 U.S. 1, 41.) Thus, as respondent concedes, appellant’s right to counsel applied here to the proceedings initiated by the Notice of Violation of Probation.
In In re John B. (1989) 215 Cal.App.3d 477 this court, citing People v. DeVaughn (1977) 18 Cal.3d 889, observed that “a guilty plea by an adult is an admission of all matters essential to the conviction” and that “[a] minor’s admission of a juvenile court proceeding is analogous.…” (In re John B., supra, 215 Cal.App.3d at p. 484.) In John B. the juvenile court denied a minor’s motion to suppress a confession the minor had made. The minor then admitted that he committed voluntary manslaughter, and was committed to the California Youth Authority. On appeal, the minor contended the court had erred in denying his motion to suppress the confession. We stated “[w]e perceive no good reason why the rule of DeVaughn ought not apply to juvenile matters” and held that “the issue of the voluntariness of a minor’s confession is not cognizable on an appeal following an admission in whole or in part of the juvenile court petition.” (In re John B., supra, 215 Cal.App.3d at p. 484.) In People v. Lobaugh (1987) 188 Cal.App.3d 780, an adult defendant made an unsuccessful Marsden motion, pled guilty, and then sought to raise purported Marsden error on appeal. The court held that the purported Marsden error was waived by the defendant’s subsequent guilty plea, at least where, as there, the defendant “makes no contention... that his guilty plea was not intelligently and voluntarily made” and “[t]he claimed Marsden error does not go to the legality of the proceedings resulting in the plea.” (People v. Lobaugh, supra, 188 Cal.App.3d at p. 786.) The same rule was applied in People v. Lovings (2004) 118 Cal.App.4th 1305, where the defendant made two unsuccessful Marsden motions, then pled no contest to first degree murder, and then on appeal attempted to argue that his Marsden motions had been wrongfully denied. The court held that “any error in connection with the Marsden motions was waived by the plea” and affirmed the judgment. (People v. Lovings, supra, 118 Cal.App.4th at p. 1307.) Again, just as in John B., supra, we perceive no reason why the rule of DeVaughn ought not to apply here, just as it does in an adult criminal prosecution where a defendant’s contention of Marsden error is waived by the defendant’s admission of the crime. We thus hold that appellant’s contention of Marsden error was waived when he admitted the violation of probation.
Appellant makes a conclusory argument that his claimed Marsden error did go to the legality of the proceedings resulting in the plea, but points to nothing in the record which would support this argument. In essence the argument is that because we do not know the nature of appellant’s dissatisfaction with the public defender, we must presume that his dissatisfaction somehow pertains to the proceedings resulting in the plea. Nothing is Lobaugh or Lovings, however, supports that argument. Furthermore, the record on appeal shows that the expressed dissatisfaction with the public defender took place just as counsel was being appointed, and before there had even been any opportunity to discuss with appointed counsel the issue of whether or not to admit the alleged violation of probation. We acknowledge that a different rule applies to the denial of a motion for self-representation (see People v. Robinson (1997) 56 Cal.App.4th 363), but we are dealing here with alleged Marsden error and not with alleged Faretta error. No court, including the Lovings court, has applied Robinson to purported Marsden error.
Faretta v. California (1975) 422 U.S. 806.
DISPOSITION
The order appealed from is affirmed.