Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF113663A, Michael B. Lewis, Judge.
William A. Malloy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.
Before Cornell, Acting P.J., Dawson, J., and Kane, J.
OPINION
PROCEDURAL AND FACTUAL SUMMARY
On June 24, 1997, a woman left her residence in Bakersfield after getting in an argument with her husband. As she walked down the street, the woman heard appellant, Jason Eugene Ellis, walking behind her. The woman continued walking to a mailbox and then turned and began walking back to her residence as Ellis passed her. After hearing someone running behind her, the woman was grabbed by Ellis, who walked her at knife point to a nearby field where he sexually assaulted her. During the attack, Ellis kept threatening to stab the woman with the knife if she did not cooperate. He also took wedding bands and a ring from her before leaving.
In 2005, the Bakersfield Police Department was notified by the California Department of Justice Bureau of Forensic Services of a match between DNA collected after the 1997 assault and Ellis’s DNA.
On September 28, 2005, several detectives interviewed Ellis at Wasco State Prison where he was incarcerated. Ellis denied raping or robbing the victim.
On February 16, 2006, the district attorney filed a complaint charging Ellis with one count each of forcible rape (count 1/Pen. Code, § 261, subd. (a)(2)), penetration with a foreign object (count 2/§ 289, subd. (a)), sodomy (count 3/§ 286, subd. (c)(2)), and robbery (count 4/§ 212.5, subd. (c)). Counts 1 through 3 also alleged that Ellis: 1) moved the victim within the meaning of section 667.61, subdivision (d)(2); 2) kidnapped the victim within the meaning of section 667.61, subdivision (e)(1); 3) used a deadly weapon within the meaning of section 667.61, subdivision (e)(4); 4) used a deadly weapon within the meaning of section 12022.3, subdivision (a); and 5) used a knife within the meaning of section 12022, subdivision (b)(1). Count 4 also alleged that in committing the robbery charged in that count, Ellis personally used a deadly weapon within the meaning of section 12022, subdivision (b)(1).
Unless otherwise indicated, all further statutory references are to the Penal Code.
On April 17, 2006, Ellis pled no contest to the rape charge in count 1 and admitted the allegations that he moved the victim within the meaning of section 667.61, subdivision (d)(2) in exchange for the dismissal of the remaining counts and allegations.
On May 15, 2006, when the court asked whether there was any reason why sentence should not be imposed, the following colloquy occurred:
“MR. TERRY [DEFENSE COUNSEL]: Yes, your Honor. My client has indicated that at this time he is wishing to withdraw his plea. I believe it would require [] appointment of someone from the IDP program in order to review the matter to determine if there is a basis for a withdrawal of plea.
“THE COURT: Mr. Terry, can you give the court an idea why you think IDP would be appropriate on this matter?
“MR. TERRY: Your Honor, it appears that my client -- at least the allegations, I would assume, would be based on ineffective assistance of counsel. So I believe it would require an attorney to review it for that purpose.
“THE COURT: Mr. Terry, I reviewed the change of plea transcript prior to sentencing today, and I believe that you made it extremely clear that the plea was being entered over your recommendation.
“So are you recommending to the court that somehow you should have recommended this plea or -- I don’t understand how IDP would factor into this?
“MR. TERRY: I’m assuming that my client feels that I did not adequately represent him, one; and two, that I did not adequately explain to him the evidence against him and also with regards to his rights and defenses is what I’m assuming.” (Italics added.)
After the prosecutor submitted on the issue, the court appointed substitute counsel for the limited purpose of reviewing the matter and conferring with Ellis on the possibility of filing a motion to withdraw plea. The court also retained Terry as Ellis’s counsel of record.
On June 16, 2006, substitute counsel advised the court that there was no legal cause why sentence should not be imposed. The court then stated that it would show that the motion to withdraw plea had been dropped. After hearing a statement from the victim, the court sentenced Ellis to a term of 25 years to life on his rape conviction to be served consecutive to the term he was serving when he was arrested.
Ellis’s appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Ellis has not responded to this court’s invitation to submit additional briefing. However, in a letter dated June 28, 2007, this court asked the parties to brief the following issues: 1. Whether the court erred by its failure to hold a Marsden hearing; 2) Whether the court erred by appointing substitute counsel to investigate whether appellant had a basis for filing a motion to withdraw plea; and 3) Whether a certificate of probable cause was required for this court to consider these issues.
Preliminarily, we note that the parties concede that no certificate of probable cause was required for these issues to be raised on appeal and we agree. (See, e.g., People v. Vera (2004) 122 Cal.App.4th 970, 977-978.)
THE MARSDEN AND APPOINTMENT OF SUBSTITUTE COUNSEL ISSUES
Introduction
Ellis cites this court’s decision in People v. Eastman (2007) 146 Cal.App.4th 688 to contend that the court erred in appointing substitute counsel to represent him and by failing to conduct a Marsden hearing and that these errors require reversal of the judgment. Respondent contends that even if the court erred in appointing second counsel, he cannot now complain of this procedure because counsel was appointed at the request of his initial trial counsel. Additionally respondent cites People v. Dickey (2005) 35 Cal.4th 884 to contend that the court did not commit Marsden error because Ellis never personally requested the appointment of substitute counsel based on the ineffectiveness of his original counsel. We agree with respondent.
The Marsden Issue
“‘“When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.”’ [Citation.] The decision whether to grant a requested substitution is within the discretion of the trial court; appellate courts will not find an abuse of that discretion unless the failure to remove appointed counsel and appoint replacement counsel would ‘substantially impair’ the defendant's right to effective assistance of counsel. [Citation.]” (People v. Roldan (2005) 35 Cal.4th 646, 681.)
In People v. Smith (1993) 6 Cal.4th 684, the Supreme Court held that substitute counsel “should be appointed when, and only when, necessary under the Marsden standard, that is whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation] or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation]. This is true whenever the motion for substitute counsel is made. . . .” (Id. at p. 696.)
In Smith, the Supreme Court also criticized the practice of appointing substitute counsel to represent the defendant in one matter while retaining original counsel to represent the defendant for all other purposes. In so holding, the court stated, “We are unaware of any authority supporting the appointment of simultaneous and independent, but potentially rival, attorneys to represent defendant. When a Marsden motion is granted, new counsel is substituted for all purposes in place of the original attorney, who is then relieved of further representation. If the Marsden motion is denied, at whatever stage of the proceeding, the defendant is not entitled to another attorney who would act in effect as a watchdog over the first.” (People v. Smith, supra, 6 Cal.4th at p. 695.)
In People v. Dickey, supra, 35 Cal.4th 884, after the defendant was convicted of first degree murder, the defendant’s counsel requested the appointment of substitute counsel to represent the defendant in a motion for a new trial based on several grounds including the incompetence of counsel during the guilt phase portion of the trial. In responding to the motion, the court incorrectly stated that Marsden hearings are not to be conducted in the middle of a trial. Thereafter, when the court questioned the defendant, he indicated that in addition to the competency of his counsel, there were other issues he wished addressed in the motion for a new trial. (Id. at pp. 918-920.) Nevertheless, even though the court did not conduct a Marsden hearing, it appointed substitute counsel to assist the defendant prepare a motion for a new trial which the court ultimately denied. (Id. at p. 920.) In addressing the potential Marsden issue the trial court stated,
“‘I think at the time you were arguing this, that in my view there was a poor choice of words on the Court’s part. I know Mr. Schultz [defense counsel] let me know that it was not strictly a Marsden motion, and then I started to talking about a Marsden motion. And I do, of course, know the law, that you can have a Marsden motion at any stage of the proceedings. [¶] Mr. Dickey was not asking that the Court have that Marsden hearing. He, of course, was dissatisfied with the results after the jury returned the verdict of guilty and found the special circumstances to be true. [¶] So I do find that [the prosecutor] is absolutely correct, it was a poor choice of words on the Court’s part, and there was no reason to have a Marsden hearing at the time. It was not asked for.’” (People v. Dickey, supra, 35 Cal.4th p. 920, italics added.)
On appeal, the defendant, in pertinent part, claimed that the trial court committed Marsden error. In rejecting this contention, the Supreme Court stated,
“We conclude the court did not commit Marsden error. ‘ “Although no formal motion is necessary, there must be ‘at least some clear indication by defendant that he wants a substitute attorney.’ ” [Citations.] Defendant did not clearly indicate he wanted substitute counsel appointed for the penalty phase. To the extent he made his wishes known, he wanted to use counsel’s assertedly incompetent performance in the guilt phase as one of the bases of a motion for new trial, and he wanted to have separate counsel appointed to represent him in the preparation of such a motion. As his expressed wishes were honored, he has no grounds for complaint now.’ ” (People v. Dickey, supra, 35 Cal.4th at pp. 920-921.)
Here, as in Dickey, original defense counsel requested the appointment of substitute counsel only for a specific reason, i.e., to assist Ellis in determining whether to file a motion to withdraw plea. Additionally, like the defendant in Dickey, Ellis never communicated to the court a desire to have substitute counsel appointed to represent him in all matters. Accordingly, we conclude that the representations made by Ellis’s original counsel to the trial court did not trigger the trial court’s obligations under Marsden.
Nor does People v. Eastman, supra, 146 Cal.App.4th 688 help Ellis. In Eastman, the defendant pled guilty to two counts of child molestation in exchange for a stipulated term of 10 years. At the sentencing hearing, defense counsel, Marc Garcia, advised the court that the defendant wanted to withdraw his plea and that he believed the matter should be referred to conflict counsel. Additionally, the defendant presented the court with a letter written by his mother alleging that defense counsel had not offered any defense, the district attorney threatened to jail his mother if she refused to testify against the defendant, and the defense counsel and the district attorney conspired to pressure the defendant to accept the plea bargain by telling him that his mother was going to testify against him. The letter concluded by stating that “we” hoped that there would be a response to it so that the defendant would receive an “adequate defense.” Thereafter, the court appointed substitute counsel to investigate whether there was a factual or legal basis for the defendant to withdraw his plea.
At the defendant’s continued sentencing hearing, substitute counsel informed the court that he would not be filing a motion to withdraw and explained his reasons. Prior to being sentenced, the defendant gave the court a letter asking to be allowed to withdraw his plea alleging, in pertinent part, that the district attorney and defense counsel Garcia had falsely told the defendant that his mother agreed to testify against him and that during the two years the case was pending, Mr. Garcia did not make any attempt to pursue evidence, or investigate witnesses or information the defendant had provided to him. After further discussion the court sentenced the defendant to the stipulated 10-year term. People v. Eastman, supra, 146 Cal.App.4th at pp. 691-693.)
On appeal, the defendant contended the court erred in failing to conduct a Marsden hearing. In finding the court committed Marsden error, this court stated:
“Here Eastman submitted a letter to the court which asserted Mr. Garcia had failed to adequately represent his interests. That letter required the court to give Eastman an opportunity to articulate his complaints. The letter on its face stated at least one specific factual complaint about Eastman's appointed attorney: that he was acting in cahoots with the district attorney when they persuaded him to accept the plea bargain by falsely telling him his mother was going to testify against him. Although Eastman did not expressly ask to have his attorney replaced, the letter did request that Eastman receive an ‘adequate defense’ and his complaints set forth an arguable case that a fundamental breakdown had occurred in the attorney-client relationship that required replacement of counsel. The court was obliged to make a record that this complaint had been adequately aired and considered. [Citation.] Its failure to do so is error.” (People v. Eastman, supra, 146 Cal.App.4th at pp. 695-696.)
Eastman is inapposite because unlike the defendant there who provided the court with two letters complaining about his representation by defense counsel, Ellis never asserted to the court that his defense counsel had provided ineffective representation. Further, the only suggestion in the record that Ellis might be dissatisfied with his representation by defense counsel was counsel’s statement that he assumed a motion to withdraw his plea would be based on ineffective assistance of counsel. Thus, Eastman is not controlling.
Ellis cites Aceves v. Superior Court (1996) 51 Cal.App.4th 584 and Holloway v. Arkansas (1978) 435 U.S. 475, to argue that the trial court was justified in deferring to defense counsel’s “declaration of a conflict” between him and Ellis and that this triggered the court’s Marsden obligations because “ ‘[m]ost courts have held that an attorney’s request for the appointment of separate counsel, based on his representations as an officer of the court regarding a conflict of interest, should be granted.’ ” (Aceves v. Superior Court, supra, 51 Cal.App.4th at pp. 593-594.) We disagree.
In Aceves, the defendant’s counsel, a public defender, represented to the court that there was a conflict between the defendant and public defender’s office and asked to be allowed to withdraw from representing the defendant. Defense counsel, however, would not provide the court with any facts regarding the underlying conflict claiming it would infringe on the attorney/client privilege. The matter was presented twice to the court of appeal by writ petition because the trial court refused to grant the motion without some explanation of the basis for the conflict. (People v. Aceves, supra, 51 Cal.App.4th at pp. 587-589.) The second time, in reversing the trial court’s order denying the public defender’s motion to withdraw from representing the defendant, the appellate court stated,
“The trial court maintains the authority to (1) inquire into counsel’s representations as long as it does not improperly require the disclosure of confidential client communications and (2) punish attorneys who abuse the process for purposes of obstruction or delay. However, where as here counsel maintains he must step down because of a disabling conflict, the conflict concededly involves privileged communications and the trial court admittedly accepts counsel’s representations, the court may not deny the motion to withdraw.” (People v. Aceves, supra, 51 Cal.App.4th at p. 596, italics added.)
In Holloway v. Arkansas, supra, 435 U.S. 475, defense counsel simultaneously represented three defendants and asked the court at least twice to appoint separate counsel for each of them, which request was denied each time. (Id. at pp. 478-481.) In reversing the judgment, the Supreme Court noted that most courts have held that an attorney’s request for appointment of separate counsel, based on his representation to the court regarding a conflict of interest, should be granted. (Id. at p. 485.) The court stated,
“In so holding, the courts have acknowledged and given effect to several interrelated considerations. An ‘attorney representing two defendants in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial.’ [Citation.] Second, defense attorneys have the obligation, upon discovering a conflict of interests, to advise the court at once of the problem. [Citation.] Finally, attorneys are officers of the court, and ‘“when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath.”’ [Citation.]” (Holloway v. Arkansas, supra, 435 U.S. at pp. 485-486, fn. omitted.)
However, the court also clarified that its “holding [did not] preclude a trial court from exploring the adequacy of the basis of defense counsel’s representations regarding a conflict of interest without improperly requiring disclosure of the confidential communications of the client.” (Id. at p. 487.)
Aceves and Holloway are easily distinguishable from the instant case because in each of those cases, defense counsel asserted as a fact that a conflict existed, whereas here, defense counsel merely advised the court of his assumption that a motion to withdraw plea would be based on ineffective assistance of counsel grounds. Moreover, Aceves and Holloway did not hold, as Ellis suggests, that the court must blindly accept the factual representations of counsel simply because counsel is an officer of the court. Instead, in Aceves the court held only that once the court accepts the counsel’s representations regarding a conflict in representing the defendant, the court must grant the motion. And, as noted earlier in Holloway, the Supreme Court explicitly stated that its decision in that case did not “preclude a trial court from exploring the adequacy of the basis of defense counsel’s representations regarding a conflict of interests without improperly requiring disclosure of the confidential communications of the client.” Thus, we conclude that the court did not commit Marsden error.
Nevertheless, although there was an insufficient showing here by the defendant or his counsel to require the trial court to conduct a Marsden hearing, the court followed the wrong procedure. In a similar situation as occurred here, the trial court should take a proactive role in inquiring of counsel whether he is stating the need for a Marsden hearing or declaring a conflict. If the court determines there is a conflict with or without conducting a Marsden hearing, it should then relieve the first attorney and appoint new counsel to represent the defendant for all purposes. If it determines the defendant is seeking substitution of counsel based on ineffective representation of counsel, it should conduct a Marsden hearing. If the court determines the defendant was denied adequate representation, it should relieve the first attorney and appoint substitute counsel. It should not, however, appoint substitute counsel if it finds the defendant was provided adequate representation. (People v. Smith, supra, 6 Cal.4th at p. 695.)
The Appointment of Substitute Counsel
Once the court appointed substitute counsel for Ellis, it should have relieved his original counsel of further representation. Thus, the court erred when it allowed Ellis’s original counsel to represent him at sentencing. However, the court’s error was harmless beyond a reasonable doubt because a sentence of 25 years to life was mandated by Ellis’s offense. (Pen. Code, § 667.61, subd. (a), (d)(2), & (g).)
Further, following independent review of the record, we find that, with the exception of the issues discussed above, no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.