Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. S04CRF0358, S05CRF0263
ROBIE, J.
Defendant Eric Lee Johnson admitted violating the terms of his probation in two criminal cases based on a positive drug test. Based on a Johnson waiver, the trial court ordered defendant to serve six months in jail in one case (case No. S04CRF0358) with no credit for time already spent in custody and no conduct credits for the incarceration to come, and with his probation in that case to terminate upon completion of the jail term. In the other case (case No. S05CRF0263), the court imposed a two-year prison term, but stayed execution of that sentence and reinstated defendant on probation subject to various conditions.
A Johnson waiver is a waiver of custody credits. (People v. Johnson (1978) 82 Cal.App.3d 183.)
After the sentencing hearing, on the same day he filed a notice of appeal in both cases, defendant filed a Marsden motion for a new attorney. The trial court summarily denied the motion without a hearing, concluding the motion was untimely because there were no hearings scheduled and defendant could have raised the issue earlier.
People v. Marsden (1970) 2 Cal.3d 118.
On appeal, defendant asserts the trial court erred in denying his Marsden motion without a hearing. Defendant also contends the trial court erred in not construing an earlier letter to the court as a Marsden motion. We disagree on both counts. Accordingly, we will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2004, defendant was charged by complaint with four counts of second degree commercial burglary (case No. S04CRF0358). Defendant pled no contest to one of the burglary charges in exchange for dismissal of the other three charges and another misdemeanor case and a promise of no immediate state prison time. He was placed on three years’ probation.
In February 2005, defendant was charged with violating the terms of his probation in various regards. He admitted the violations, and the court reinstated him on probation.
In May 2005, defendant was again charged with violating his probation. Defendant again admitted the violation and was again reinstated on probation.
In July 2005, defendant was charged once more with violating his probation and was later charged with one count of petty theft with a prior for the same conduct (case No. S05CRF0263). In December 2005, defendant pled no contest to the petty theft charge and admitted the probation violation in exchange for a promise of no immediate state prison time. Ultimately, in June 2006, the court granted defendant three years’ probation in the petty theft case and reinstated him on probation in the burglary case.
In July 2006, defendant was charged with violating his probation in both cases based on a failed drug test. A second allegation of another failed drug test was later added. In October 2006, defendant admitted the first allegation in exchange for dismissal of the second with no promise regarding sentencing.
The sentencing hearing was held on December 4, 2006. In advance of that hearing, the probation officer recommended that defendant be reinstated on probation in both cases, but committed to jail “for a ‘Johnson year’” in the burglary case “with credit for 94 days served, with no conduct credits,” and with probation to terminate on completion of the jail term.
As we have noted, a Johnson waiver is a waiver of custody credits. “A ‘Johnson-waiver’ is commonly employed where the court is hesitant to impose a prison sentence, but a defendant has already served most of the one year maximum permitted in county jail. In such a case, the court may wish to impose enough additional jail time to compel the defendant to recognize the seriousness of his actions, while the defendant wishes to avoid a prison term; by waiving his credits, the defendant submits to additional jail time, but avoids prison.” (People v. Eastman (1993) 13 Cal.App.4th 668, 678.) “The waiver is particularly useful in revocation of probation, where the court wishes to punish the probation violation but does not feel that a prison term is appropriate. If the defendant has already served nearly a year in jail, the Johnson waiver permits a substantial custodial term to be imposed for the violation without requiring the court to send the defendant to prison.” (Eastman, at p. 678, fn. 13.)
At the sentencing hearing, defense counsel asked the court to “consider, perhaps, putting off sentencing, require him to go to Sierra Recovery Center and see if he can do intensive outpatient program or some program that really addresses these issues.” Noting that defendant had had “four violations of probation,” the court said, “His choices are, in the Court’s view, he can serve a Johnson year, he can go to state prison, or he can request to be committed as a CRC commitment.” Defendant then addressed the court himself and reiterated his attorney’s request for “a chance to go through a substance-abuse program.” The court asked if defendant was “prepared to give the Court a Johnson waiver,” and defense counsel responded, “He would.” The court then sentenced defendant to “six actual months, 180 days [in jail], without the benefit of good time work time credits” in the burglary case, with probation to terminate on completion of the sentence. In the petty theft case, the court imposed a two-year prison term, but stayed execution of that sentence and reinstated defendant on probation. At the very end of the hearing, defense counsel stated, “I believe probation indicates credits are 94 days. He gets those actual time credits.” The court responded, “No. I’m imposing six actual months, 180 days with zero time credit. He is to do six actual months in County Jail.”
On December 22, defendant sent a letter to the court complaining that he “did not understand fully the choices [the court] gave [him at the sentencing hearing and] with no help from [his] public defender [he] was left to just go with the flow.” Defendant complained that upon having the choices explained to him by his probation officer, he contacted his attorney to seek a modification of his sentence “to one of the[] other choices . . . which was 1-year in state prison.” He complained that his attorney told him he could not. He also complained that on the day of the sentencing hearing he was “under the influence of prescription narcotics” and “everything was a little hazy.”
In fact, the court never offered defendant a year in prison. As noted above, the court said that defendant’s choices were “a Johnson year, . . . state prison, or [a] request to be committed as a CRC commitment.” The probation report had noted that if defendant were sent to prison, “the appropriate term would be two years, eight months” -- the middle term of two years for the burglary with a consecutive eight-month term (one-third of the middle term) for the petty theft.
The court took no action on defendant’s letter. A month later, the court received a notice of appeal from defendant on his own behalf. He checked the box on the form noting that his appeal was “based on the sentence or other matters occurring after the plea.” Nevertheless, he also filled out the “Request For Certificate Of Probable Cause” on the back of the form. On that form, he complained about what had happened to him during his first 30 days in jail and complained about what he would have to do upon his release from jail. He noted that he had “spent (94) days in custody prior to this term” and complained that the trial court had taken “away [his] time served,” which he “fe[lt] [wa]s unfair.” He also complained that he had not made a knowing and intelligent Johnson waiver because he “didn’t even know what a Johnson waiver was.”
On the same day the notice of appeal was filed, the court received a written motion for substitution of counsel from defendant. Defendant offered various complaints about his attorney, including that he “failed to let [defendant] know about [his] options at sentencing” and “failed to explain to [him] what a Johnson waiver was.” Defendant also noted that “these are just a few examples, I have more.”
On February 1, 2007, just over a week after receiving defendant’s Marsden motion, the court issued an ex-parte minute order denying that motion as untimely. The court noted that the matter was on appeal, there were no hearings scheduled, and defendant “had opportunities to raise this issue at an earlier stage of the proceedings and failed to do so.” In support of its order, the trial court cited People v. Whitt (1990) 51 Cal.3d 620, 658.
DISCUSSION
I
Failure To Treat Defendant’s Letter As A Marsden Motion
Defendant first contends the trial court erred in failing to treat his December 22 letter as a Marsden motion. We disagree.
“[A] trial court’s duty to permit a defendant to state his reasons for dissatisfaction with his attorney [under Marsden] arises when the defendant in some manner moves to discharge his current counsel.” (People v. Lucky (1988) 45 Cal.3d 259, 281.) “[A] proper and formal legal motion” is not necessary, but there must be “at least some clear indication by defendant that he wants a substitute attorney.” (Id. at p. 281, fn. 8.) “The mere fact that there appears to be a difference of opinion between a defendant and his attorney . . . does not place a court under a duty to hold a Marsden hearing.” (Lucky, at p. 281.)
Because nothing in defendant’s letter to the court gave a “clear indication . . . that [defendant] want[ed] a substitute attorney” (People v. Lucky, supra, 45 Cal.3d at p. 281, fn. 8), the trial court did not err in failing to treat that letter as a Marsden motion.
II
Failure To Hold A Hearing On Defendant’s Marsden Motion
Defendant next argues that the trial court erred in failing to hold a hearing on the formal Marsden motion he filed on January 24. We again disagree.
As a preliminary matter, we note a problem with this argument that neither party has addressed. This argument challenges the trial court’s denial of defendant’s Marsden motion without a hearing (on the ground it was untimely), which is embodied in a minute order in each case dated February 1, 2007. Defendant’s notice of appeal, however, was filed a week earlier, on January 24, and that notice specifically states that defendant “appeals from the order or judgment entered on . . . 12/4/06” -- i.e., the orders from the sentencing hearing. Thus, this argument addresses an order from which defendant has not appealed.
Ordinarily, an appellate court will not review “[m]atters occurring after entry of the judgment or order from which the appeal is taken.” (6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal, § 146, p. 393.) The order denying defendant’s Marsden motion likely could have been separately appealed as an “order made after judgment, affecting the substantial rights of the party.” (Pen. Code, § 1237, subd. (b).) It does not appear, however, that defendant made any effort to do that.
Even if we liberally construe defendant’s notice of appeal (see Cal. Rules of Court, rule 8.304(a)(4)), however, and treat it as an appeal from the subsequent order denying his Marsden motion, it is of no avail to defendant because we conclude the trial court did not err in finding that his motion was untimely.
It is true that “a defendant is entitled to appointment of substitute counsel upon a proper showing posttrial or postconviction as well as pretrial.” (People v. Smith (1993) 6 Cal.4th 684, 692.) However, “Whenever the motion is made, the [Marsden] inquiry is forward-looking in the sense that counsel would be substituted in order to provide effective assistance in the future.” (Smith, at p. 695.) Where, as here, the defendant files his Marsden motion at the same time as (or after) he files his notice of appeal, the trial court may reasonably conclude that there is nothing left for defense counsel to do in the case and therefore no basis for granting the defendant a new attorney.
Defendant suggests there were several things a new attorney could have done for him, namely, assist him in: (1) “perfecting his appeal”; (2) “moving to withdraw [his] plea”; and (3) seeking “recall of the judgment” under Penal Code section 1170, subdivision (d).
As to the first option, defendant had already filed his notice of appeal.
As to the second option, defendant does not specify the plea he is referring to, but it appears in any event that such a motion would have been too late in either case. Penal Code section 1018 provides that a motion to withdraw a plea can be made “at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended.” In the burglary case, the order granting probation was entered on December 16, 2004. Thus, in January 2007, a motion to withdraw the plea in the burglary case would have been more than a year and one-half too late. In the petty theft case, the order granting probation was entered on June 30, 2006. Therefore, just as in the burglary case, a motion to withdraw the plea in the petty theft case would have been too late in January 2007 (albeit only by a month).
Finally, as to the third option, recall of a sentence under subdivision (d) of Penal Code section 1170 is available only to a defendant who “has been sentenced to be imprisoned in the state prison and has been committed to the custody of the Director of Corrections.” (Pen. Code, § 1170, subd. (d).) While defendant was sentenced to prison in the petty theft case, the trial court suspended execution of that sentence; accordingly, defendant was not “committed to the custody of the Director of Corrections,” and recall of the sentence under Penal Code section 1170 was not available to him.
Because defendant has failed to identify anything that a new trial attorney could have assisted him with after he had filed his notice of appeal in both of the criminal cases against him, we conclude that the trial court did not err in denying defendant’s Marsden motion as untimely without holding a hearing on that motion.
DISPOSITION
The judgments (probation orders) -- and, to the extent defendant can be deemed to have appealed from it, the postjudgment order denying defendant’s Marsden motion -- are affirmed.
We concur: DAVIS, Acting P.J., BUTZ, J.
Here, the probation officer’s reference to “a ‘Johnson year’ with . . . no conduct credits” appears to have been a reference to a jail term to be served by defendant as a condition of his reinstatement on probation provided that he waive his right to conduct credits under Penal Code section 4019, subdivisions (b) and (c) for that period of confinement.