Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 07CM7675 Peter M. Schultz, Judge.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Hill, J. and Kane, J.
Defendant Juvenile Acevedo Lemos pled guilty to one count of continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a); count 1) and one count of rape (§ 261, subd. (a)(2); count 2). At a postplea hearing, defendant made ambiguous statements that he contends amount to a Marsden motion. Defendant contends that the trial court erred by failing to recognize his Marsden motion and subsequently failing to hold a hearing. We will affirm.
All references are to the Penal Code unless otherwise stated.
People v. Marsden (1970) 2 Cal.3d 118.
PROCEDURAL AND FACTUAL SUMMARY
On July 1, 2008, the Kings County District Attorney charged defendant with 23 counts related to child molestation and rape.
All date references occurred in the calendar year 2008 unless otherwise stated.
Defendant was assisted by a translator at all hearings.
At the change of plea hearing on August 8, defendant pled guilty to one count of child molestation and one count of rape. Defendant accepted a stipulated sentence on both charges, totaling 18 years, and pled guilty. At that time, the trial court accepted defendant’s waiver of various rights.
The following discussion then occurred:
“THE COURT: Do you understand what you’re accused of doing in this Information, [defendant]?
“THE DEFENDANT: Yes.
“THE COURT: Have you had sufficient time to think about this, [has] your attorney answer[ed] any questions that you might have concerning this procedure?
“THE DEFENDANT: Yes.
“THE COURT: Any additional questions you want to ask her?
“THE DEFENDANT: No.
“THE COURT: You’re satisfied with her services?
“THE DEFENDANT: Yes.
“THE COURT: All right. Other than what’s been stated here in court, anybody make any promises to you or extend any benefit to you to get you to change your plea?
“THE DEFENDANT: No.
“THE COURT: Anyone threaten you in any way?
“THE DEFENDANT: No.
“THE COURT: Are you doing this freely and voluntarily, of your own choice?
“THE DEFENDANT: Yes.”
At an August 18 hearing, the trial court announced that it was prepared to hold the sentencing hearing, which was scheduled for the following day, if defendant was prepared to waive his right to be sentenced at the later time.
The following colloquy ensued:
“[DEFENSE COUNSEL]: He says today is fine, your Honor.
“THE COURT: Okay. [¶] [Defendant], you’d like to go ahead with the sentencing today?
“THE DEFENDANT: No.
“THE COURT: I don’t know whether you understood my question. You seem to have just answered contrary to what your lawyer told me. [¶] Do you want to proceed with the sentencing hearing today or do you want to come back tomorrow?
“THE DEFENDANT: If you want to sentence me today or tomorrow, that’s fine. But I’m not going to sign because I feel betrayed.
“THE COURT: I don’t know whether that’s a waiver or not. If [defendant] doesn’t want to be sentenced today we’ll bring him back tomorrow.
“THE DEFENDANT: Okay. [¶] I’m not going to sign. If you want to take care of it today that’s fine because she told me that she was going to appeal my case.
“THE COURT: Okay. [Defendant] seems
“THE DEFENDANT: And I have understood that if I sign I cannot appeal my case.
“THE COURT: Nobody’s asking you to sign anything at this point, [defendant]. We’re just trying to find out whether you’re agreeing to be sentenced today. It sounds to me like you are agreeing to that so I’m taking that as apparently a waiver of your right
“THE DEFENDANT: Yes.
“THE COURT: -- to be sentenced tomorrow.”
The trial court then entered judgment on the stipulated sentence.
DISCUSSION
Defendant contends that the trial court erred by failing to inquire after his Marsden motion for substitution of counsel. We disagree.
An indigent defendant has a constitutional right to the assistance of appointed counsel for his defense. (U.S. Const., 6th Amend.; Marsden, supra, 2 Cal.3d at p. 123.) If a defendant can show that representation by his appointed counsel “‘“would substantially impair or deny the right [to have the assistance of counsel],”’” the court must appoint substitute counsel. (Marsden, supra, at p. 123.)
To raise a Marsden motion, however, the defendant has a duty to communicate to the court that he desires substitute counsel. (People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8.) Defendant need not make “a proper and formal legal motion, but at least some clear indication … that he wants a substitute attorney.” (Ibid.) Defendant’s written or spoken statements must be sufficient to put the trial court on notice that he is making a Marsden motion. (See People v. Lucky, supra, at p. 281; see People v. Eastman (2007) 146 Cal.App.4th 688, 695 (Eastman).)
For example, in Eastman, upon which defendant relies, we reversed the trial court’s ruling and found Marsden error. (Eastman, supra, 45 Cal.3d 688 at p. 695.) There, Eastman submitted a letter asserting that his counsel had failed to adequately represent his interest. (Ibid.) “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.” (Ibid., italics added.)
When the defendant raises a Marsden motion, the trial court is required to inquire as to the basis of the motion. (People v. Molina (1977) 74 Cal.App.3d 544, 549 (Molina).) “[T]he duty of trial court inquiry into the reasons why a defendant seeks to discharge counsel applies only when the defendant asserts directly or by implication that his counsel’s performance has been so inadequate as to deny him his constitutional right to effective counsel.” (Ibid.) Defendant’s statements “must be clear and unequivocal.” (People v. Rivers (1993) 20 Cal.App.4th 1040, 1051, fn. 7.)
When a defendant contends on appeal that his ambiguous statements of dissatisfaction constituted a Marsden motion, the question is “one of the nature and degree of expression of dissatisfaction which triggers the duty of the trial court to inquire into the defendant’s reasons for desiring new counsel.” (Molina, supra, 74 Cal.3d at p. 549.)
Here, defendant asserts that his remarks at the August 18 hearing should have been understood as a clear statement that appointed counsel “betrayed” him by misrepresenting his ability to appeal following his change of plea. When the court attempted to clarify defendant’s statements, which contradicted statements by his counsel, defendant said, “I’m not going to sign because I feel betrayed.” After the court attempted to clarify once more, defendant went on to say, “[S]he told me that she was going to appeal my case. [¶] … [¶] And I have understood that if I sign I cannot appeal my case.”
No part of defendant’s statements here rose to the level of those made by the defendant in Eastman. Defendant’s statements failed to set forth any factual complaints about the adequacy of his counsel. Moreover, we cannot say whether defendant’s dissatisfaction was even directed at his counsel. In our opinion, these statements informed the trial court only that defendant was dissatisfied with something, and that was not enough. If indeed defendant had been coerced into his change of plea, “betrayed” in some grievous way, or otherwise prejudiced by the inadequacies of his counsel prior to pleading guilty, he could have raised such concerns when they were directly addressed by the court at his August 8 change of plea hearing. Additionally, defendant retained the ability to assert a Marsden motion even after the change of plea hearing, and he did not.During its August 18 dialogue with defendant, the court gave him ample opportunity to convey his thoughts, and he failed to do so. The statements that defendant did make failed to rise to the level of the implication required under Molina.
We conclude that the trial court did not commit error by failing to treat defendant’s vague statements as a Marsden motion.
DISPOSITION
The judgment is affirmed.