Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB900482 Duke D. Rouse, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P.J.
A jury found defendant and appellant Jeremy Kraft Gsoell guilty of count 1, assault with a deadly weapon, to wit, a pitchfork. (Pen. Code, § 245, subd. (a)(1).) Defendant admitted he had served two prior prison terms. (§ 667.5, subd. (b).) The trial court sentenced him to a total of five years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends: 1) the trial court improperly denied his Marsden motion without affording him a full and adequate hearing; 2) the minute order should be corrected to reflect that the trial court did not impose the enhancement on the second prison prior; and 3) the minute order should be corrected to eliminate the reference to victim restitution, since it was never ordered. The People correctly concede that the minute order from the sentencing hearing should be corrected to reflect that the trial court did not impose the second prior prison enhancement and never imposed victim restitution. Otherwise, we affirm.
People v. Marsden (1970) 2 Cal.3d 118.
Because none of the issues on appeal involve the facts of the case, only a brief review of the facts will be given.
Defendant lived across the street from the victim. Defendant and the victim got into a fight. Defendant pulled out a knife and swung at the victim twice. When defendant noticed a group of neighbors watching the fight, he left. He returned about 30 seconds later, holding a shovel. He put the shovel down and then disappeared again. About 30 seconds later, defendant again returned. This time, defendant was holding a pitchfork and began stabbing the victim’s arm with it. The victim backed up, but defendant kept jabbing him with the pitchfork. The pitchfork went through one of the victim’s fingers, and defendant ran off.
ANALYSIS
I. The Trial Court Properly Heard and Denied Defendant’s Marsden Motion
Defendant contends that the trial court failed to conduct a “full and adequate” Marsden inquiry in order to permit him to express all the reasons he sought to replace defense counsel, Deputy Public Defender Frank Loo (Attorney Loo). We disagree.
A. Procedural Background
On August 5, 2009, the case was on calendar for sentencing. Attorney Loo informed the trial court that defendant “wanted other counsel for the sentencing.” The following discussion ensued:
“MR. LOO:... I guess he wanted a Marsden on the sentencing issue. He says he didn’t know potentially this was—if he was convicted, it would be a strike.
“THE COURT: That’s not a basis for a Marsden.
“MR. LOO: Well, I am just—anyway, I am just telling you what’s going on.
“THE COURT: The law is what it is.
“THE DEFENDANT: May I talk to him? [¶] I asked for a conflict panel. I would like a state-appointed attorney, sir.
“THE COURT: You have a state-appointed attorney.
“THE DEFENDANT: He is a state-appointed attorney?
“THE COURT: He is a public defender and state-appointed attorney.
“THE DEFENDANT: I was under the impression he gave me paperwork saying I was
“THE COURT: You need to talk louder.
“THE DEFENDANT: My maximum exposure carried 50 percent. If I had known that during the plea bargain process, I may have taken that into consideration. I mean, I don’t feel it [sic] I was fairly brought—I was misinformed when I took this to trial.
“[THE PROSECUTOR]: Your Honor, I think at one point the offer was a plea to a non strike and 50 percent....
“THE DEFENDANT: I wasn’t talking about the plea. I was talking about Crime Time paperwork he gave me with my discovery saying maximum exposure was only four years with 50 percent, and didn’t say anything about a strike. I would have taken that into consideration.
“THE COURT: I guess the problem is as far as I know it’s not a ground for a motion for new trial and not a ground for a Marsden. And you have been convicted, and you are subject to whatever the range of penalties is. If you want to—it’s not a matter of a motion to withdraw a plea.”
After that discussion, the prosecution proceeded to discuss defendant’s sentence, and defendant said nothing further about the Marsden claim.
B. Standard of Review
“[S]ubstitute 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].” (People v. Smith (1993) 6 Cal.4th 684, 696 (Smith).) “The court should deny a request for new counsel at any stage unless it is satisfied that the defendant has made the required showing. This lies within the exercise of the trial court’s discretion, which will not be overturned on appeal absent a clear abuse of that discretion.” (Ibid.)
C. Defendant Had Ample Opportunity to Express His Concerns
Defendant specifically claims that the trial court “simply disregarded [his] initial complaint without any inquiry, refused to provide [him] with the opportunity to express all of his grievances, ” and “failed to explore the possibility or likelihood that [he] had other disagreements or concerns with counsel’s representation at trial.” The record shows otherwise.
The record establishes that defendant was afforded ample opportunity to identify and explain the grounds for his dissatisfaction with appointed counsel. At the outset of the sentencing hearing, his counsel, Attorney Loo, asserted that defendant wanted a Marsden hearing because he did not know that if he was convicted, it would be a strike. Then, defendant himself addressed the trial court, stating that he wanted a state-appointed attorney. When the trial court informed him that his counsel was a state-appointed attorney, defendant said that if he had known during the plea bargain process that his “maximum exposure carried 50 percent, ” he “may have taken that into consideration.” Defendant said he felt he was misinformed when he decided to go to trial. When the prosecutor interjected that defendant was offered a plea to a nonstrike and 50 percent, defendant said he was not talking about the plea.
The trial court correctly concluded that defendant had not stated any grounds for a Marsden substitution of counsel, and noted that he had been convicted already and was subject to whatever the range of penalties was. Defendant did not say anything thereafter, and there was no reason to suppose that any further inquiry was necessary. The trial court allowed him to state all of his grounds for the Marsden motion, and there is no indication that it would not have listened to still other grounds, if defendant had any. Moreover, the discussion was sufficient to show that defendant’s apparent unhappiness with Attorney Loo was not based on his competence as an attorney.
Furthermore, the only reasons given in support of the Marsden motion allegedly related to counsel’s performance before trial. Because defendant never indicated dissatisfaction with counsel during the ensuing month-long period, the court would have “had reasonable grounds to question the sincerity of his current criticisms.” (People v. Whitt (1990) 51 Cal.3d 620, 659 (Whitt).) In any event, the proceeding was nearly completed, as defendant was at the sentencing stage. “It is the very nature of a Marsden motion, at whatever stage it is made, that the trial court must determine whether counsel has been providing competent representation. Whenever the motion is made, the inquiry is forward-looking in the sense that counsel would be substituted in order to provide effective assistance in the future....” (Smith, supra, 6 Cal.4th at pp. 694-695.) “The court was not required to stop the nearly completed proceeding in its tracks in order to allow another attorney to completely familiarize himself with the case.” (Whitt, supra, 51 Cal.3d at p. 659.) Furthermore, we cannot see how the appointment of new counsel would have had much effect on the sentence imposed.
Ultimately, we find no basis for concluding that the trial court either failed to conduct a proper Marsden inquiry or abused its discretion in declining to substitute counsel. Defendant’s showing indicated neither constitutionally inadequate assistance nor a fundamental breakdown of attorney-client relations. (See People v. Horton (1995) 11 Cal.4th 1068, 1102.)
II. The Minute Order from the Sentencing Hearing Must Be Corrected
Defendant contends, and the People concede, that the minute order from the sentencing hearing should be corrected to accurately reflect the oral pronouncement of judgment. We agree.
A. The Trial Court Properly Imposed Only One Enhancement Under Section 667.5, Subdivision (b)
The trial court sentenced defendant to four years in state prison on count 1, and then stated: “The defendant having committed the priors under [section] 667.5[, subdivision] (b), the Court will impose a one-year enhancement for each prior; however, those priors were served concurrent so it will actually be consecutive one-year enhancement to his offense for the admission of both priors for a total time in state prison commitment for five years.” (Italics added.) The abstract of judgment also reflects a total term of five years, comprised of four years on count 1 and an additional year on one section 667.5, subdivision (b), enhancement. However, the minute order from the sentencing hearing indicates that the trial court imposed a consecutive term of one year for prison prior No. 1 and a concurrent term of one year for prison prior No. 2.
Section 667.5, subdivision (b), “provides for an enhancement of the prison term for a new offense of one year for each ‘prior separate prison term served for any felony.’” (People v. Langston (2004) 33 Cal.4th 1237, 1241, italics added.) Furthermore, when prior prison terms are proven, “the court must either impose the prior prison enhancements or strike them. [Citation.]” (People v. Campbell (1999) 76 Cal.App.4th 305, 311.) It is error to impose a concurrent one-year term when there are more than one prior prison terms. (People v. Savedra (1993) 15 Cal.App.4th 738, 746-747.) Here, the trial court correctly recognized that, while defendant had served two prior prison terms, the prison terms were served concurrently. Thus, the trial court could only impose an enhancement on one of them. The trial court accordingly imposed one year on the prison priors since the sentences on the prior convictions were served concurrently. Since the minute order incorrectly reflects that the trial court imposed a concurrent one-year term on prior No. 2, it should be corrected to reflect the sentence that was orally pronounced and imposed. (See People v. Mesa (1975) 14 Cal.3d 466, 471-472.)
B. The Trial Court Did Not Order Restitution in the Amount of $999
Defendant next contends that the minute order from the sentencing hearing on August 19, 2009, includes a victim restitution order for $999, but the trial court never imposed such restitution. Defendant is correct. At the sentencing hearing, the trial court noted the recommendation for restitution to the victim in the amount of $999 and then set a restitution hearing for September 30, 2009. The restitution hearing was continued numerous times until December 17, 2009, wherein the trial court “retain[ed] jurisdiction on [the] issue of restitution pursuant to [section] 1202.46” and took the matter “off calendar.” The minute order should be corrected to accurately reflect that no victim restitution was ordered.
DISPOSITION
The superior court clerk is directed to correct the minute order from the sentencing hearing held on August 19, 2009, to accurately reflect the oral pronouncement of judgment; specifically, that the trial court only imposed a consecutive term of one year for one of the prior prison enhancements under section 667.5, subdivision (b), and struck the second prior prison enhancement. The minute order should also be corrected to eliminate the statement that the superior court ordered victim restitution in the amount of $999. The superior court clerk is directed to forward a certified copy of the amended sentencing minute order to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: McKINSTER, J., RICHLI, J.