Opinion
H031762
8-7-2008
THE PEOPLE, Plaintiff and Respondent, v. DARRYL WILLIAM BROWN, Defendant and Appellant.
Not to be Published
Defendant Darryl William Brown pleaded guilty to assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and making a criminal threat (Pen. Code, § 422). Defendant also admitted the following enhancement allegations: (1) he suffered two strike convictions (Pen. Code, §§ 667, subds. (b)-(i), 1170.12); (2) he suffered a prior serious felony conviction (Pen. Code, § 667, subd. (a)(1)); and (3) he served three prior prison terms (Pen. Code, 667.5, subd. (b)). The trial court sentenced defendant to two concurrent prison terms of 25 years to life for each conviction, and a consecutive five-year term for the prior serious felony enhancement. The trial court dismissed the three prior prison term enhancements. On appeal, defendant contends that the trial court committed reversible error by failing to hold a Marsden hearing. We find no error and affirm.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
I. Statement of Facts
Defendant and Norton Buff were housemates. On October 14, 2005, defendant became upset when he could not find his sponge. After defendant began yelling at Buffs friend, Buff told him to "`back off." Defendant then grabbed Buff, pushed him against a wall, and punched him in the face. He also told Buff that he was going to kill him. Other individuals eventually separated defendant and Buff. Buff suffered a broken nose.
II. Discussion
A. Background
On June 26, 2006, defendant wrote a letter to the trial court in which he stated that he was "having problems with [his] public defender." He also stated that another attorney from the public defenders office had suggested that he request a Marsden hearing. Defendant concluded, "[And] that is w[h]y I am addressing this letter to you personally, from what was told me by the public defender. Only a judge can grant Mars[d]en hearing, & that is what I am asking for. Thank you. Please respond ASAP."
On July 10, 2006, defendant pleaded guilty. There is nothing in the clerks minutes or the reporters transcript from this date that indicates that the trial court was aware of defendants letter. Defendant did not mention any concerns regarding trial counsel. Instead, he indicated that he had received sufficient time to discuss the case with counsel and he was entering his plea freely and voluntarily.
On July 18, 2006, the probation officer interviewed defendant. The probation officers report states that "[t]he defendant explained no one likes Santa Clara county, as it has a 90% conviction rate and he believes the Court will `do what they want. Additionally, the defendant indicated he was upset with his Public Defender and that he had previously wanted a Marsden Hearing. He explained he did not know his Strike Priors were being alleged until last week, as his attorney never informed him of this. He believes that his Public Defender is working with the District Attorney and the Judge against him."
On August 17, 2006, defendants letter in which he requested a Marsden hearing was filed. The record indicates that a Romero hearing had been set for August 17, 2006. Defendant did not appear on this date, and the trial court continued the Romero hearing.
People v. Superior Court (Romero) (1996) 13 Cal.4th 487.
On October 19, 2006, the trial court held the Romero hearing and denied defendants motion. The trial court then sentenced defendant to two concurrent prison terms of 25 years to life for each conviction and a five-year term for the prior serious felony enhancement. The trial court dismissed the three prior prison term enhancements due to defendants mental health issues. After the trial court imposed sentence, defendant stated that he wanted "a fair hearing about the restitution fund fine." After the trial court indicated that he would be given a hearing, defendant asked a few questions about this hearing. The trial court answered defendants questions, and then asked whether there was "anything further in this matter?" Defendant did not mention any difficulties with his trial counsel or his request for a Marsden hearing.
B. Analysis
Defendant argues that the trial court erred by failing to hold a hearing on his Marsden motion. We agree with the Peoples position that defendant abandoned this motion.
When a defendant requests substitution of counsel, the trial court has a duty to listen to his or her specific reasons for this request. (Marsden, supra, 2 Cal.3d at pp. 123-124.) "Although no formal motion is necessary, there must be `at least some clear indication by defendant that he wants a substitute attorney." (People v. Mendoza (2000) 24 Cal.4th 130, 157, quoting People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8.)
The case of People v. Vera (2004) 122 Cal.App.4th 970 (Vera) is instructive on the issue of abandonment. In Vera, the defendant brought a Marsden motion. (Vera, at p. 975.) Before the defendant had the opportunity to present all his reasons for substitution of counsel, the trial court denied his motion. (Vera, at p. 976.) Though the trial court told the defendant that he could renew his motion at a later date, the defendant did not do so. (Ibid.) On appeal, the defendant argued that the trial court failed to consider all of the grounds on which he based his Marsden motion. (Vera, at p. 980.) This court held that the defendant had abandoned his unstated complaints. "While we are aware of no precedent finding abandonment of a Marsden motion, it is established that a defendants conduct may amount to abandonment of a request to represent himself under Faretta v. California (1975) 422 U.S. 806. [Citations.] If a defendant can abandon his request to substitute himself for counsel, a defendant can abandon his request to substitute another counsel. We conclude that defendant abandoned his unstated complaints about counsel by not accepting the courts invitation to present them at a later hearing." (Vera, at pp. 981-982.)
In the present case, defendant also abandoned his request for substitute counsel. After writing his letter, defendant indicated at the change of plea hearing that he had received adequate time to discuss his case with his counsel and that he was entering his plea freely and voluntarily. He did not mention any concerns regarding his trial counsel at that time. Defendant also told his probation officer that he had "previously" wanted a Marsden hearing. Defendants Marsden letter was then filed prior to his sentencing hearing. At this hearing, defendant was quite clear in expressing his concerns about his right to a hearing regarding any restitution fund fine. After the trial court answered defendants questions, it then asked whether there was "anything further in this matter." Defendant did not refer to his Marsden request or any issue regarding trial counsel. Since defendant abandoned his request for substitute counsel, the trial court did not err by failing to hold a Marsden hearing.
Defendants reliance on People v. Olivencia (1988) 204 Cal.App.3d 1391 is misplaced. In Olivencia, the defendant filed a Marsden motion, but the trial court "apparently overlooked this notice and a Marsden hearing was never held." (Id. at p. 1400.) The People conceded Marsden error. (Ibid.) Contrary to defendants claim, the facts in Olivencia are not identical to those in the present case. Here, defendant indicated no problems with trial counsel at the change of plea hearing and told his probation officer that he had previously wanted a Marsden hearing. Though he articulated his concerns about his right to a restitution fund fine hearing and was specifically asked whether there were any other issues, defendant did not mention his Marsden request.
III. Disposition
The judgment is affirmed.
WE CONCUR:
Bamattre-Manoukian, Acting P.J.
Duffy, J.