Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. CC644313, CC775275.
ELIA, J.
Pursuant to the negotiated disposition of charges in two informations, appellant pleaded no contest to 14 counts of robbery and one count of being a felon in possession of a firearm and admitted various enhancing allegations. (Pen. Code, §§ 211, 212.5, subd. (c), 12021, subd. (a)(1), 12022.5, subd. (a), 12022.53, subd. (b).) Appellant contends that the trial court erred in failing to conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118, and in imposing a restitution fine. We reverse for the trial court to conduct a Marsden hearing. Should the trial court then reinstate the judgment, we direct the trial court to modify the judgment.
Background
Appellant was charged in Santa Clara County Superior Court case no. CC644313 with committing a series of robberies of Kragen Auto Parts stores while armed with a revolver. The information filed charged appellant with numerous counts of second degree robbery, felony false imprisonment, kidnapping, burglary, and possession of a firearm. In Santa Clara County Superior Court case no. CC775275, appellant was charged with one count of kidnapping to commit robbery and one count of second degree robbery with an allegation of the personal use of a handgun.
In case no. CC644313, appellant had a lengthy preliminary hearing and was represented by Rod O'Connor of the Santa Clara County Public Defender's Office. In case no. CC775275, appellant waived preliminary examination and was represented by Andres Del Alcazar of the Santa Clara County Public Defender's Office. On October 19, 2007, appellant, represented by Del Alcazar in both matters, pleaded no contest to 14 counts of robbery with personal use of a firearm allegations and one allegation of inflicting great bodily injury, and one count of being a felon in possession of a firearm. The understanding was that the trial court would sentence him to 34 years in state prison. Appellant waived referral for a full probation report and the matter was set for sentencing on February 12, 2008.
Appellant's sentencing date was continued twice and the trial court ordered a transcript of the hearing at which appellant had entered his no contest pleas. The trial court set the matter for April 10, 2008, for a motion to withdraw appellant's plea and for sentencing.
On April 10, 2008, appellant, represented by Del Alcazar, appeared before the judge who had taken his plea. The trial court said that appellant "had indicated that he wanted to explore a motion to withdraw the plea." Defense counsel said that appellant did want to withdraw his plea. Defense counsel and appellant told the court that neither had seen the transcript of the plea proceedings. Defense counsel told the court that he had spoken to appellant "about his reasons why he believes he should be allowed to withdraw his plea. And I did not see any legal basis for withdrawing the plea." Appellant told the court that he "need[ed] an interpreter to help me out" and that "a lot of thing between you and my lawyer said in court. I thought I understand them. But actually, I don't." Appellant acknowledged that he had understood that he was pleading to the robbery counts and the gun possession charge in exchange for the 34-year sentence. He said, "A lot of things on my preliminary hearing that they said, a lot of things in there that I do not understand on it. And plus, I was pushed and rushed into the deals. So I feel like I was pushed into the deal." Appellant repeated his complaint that he needed an interpreter, but admitted that he had not requested one and, when the trial court observed "it sounds to me like you speak and understand English," appellant said, "I speak normally, ye[s]."
According to the reporter's transcript, appellant entered his pleas before the Honorable David Cena and these proceedings were before the Honorable Edward Lee. However, the clerk's transcript reflects that both appearances were before Judge Cena. The text of the transcript is consistent with the proceedings being before Judge Cena.
The court told appellant that "your attorney says he does not see a legal basis to withdraw the plea." Appellant told the court that "from day one, all he wanted me to do was take the plea; that's all he wanted me to do. Never wanted to help me out. . . . We have argument many times . . . in the interview room." The court asked appellant, "did you feel like you had a defense to these charges?" and appellant answered "I don't feel like I have a defense at all, sir."
At this point, the trial court said, "I don't want to have a Marsden motion here because the district attorney's present. But without going into what you think that your attorney did or didn't do, do you believe that – that somehow or another, you were tricked into entering this plea. I don't -- I read through the discussion that you and I had at the time your plea was entered. I told you if you don't understand something that I say to you, or if you have a question about anything, to let me know, and I would let you talk more to your attorney." The trial court continued to ask appellant about the plea proceedings, and appellant said, "I believe I was pushed into those cases, sir. I have never have a chance – first of all, I don't have a police report. I don't have the arrest report, any of those."
When the court told appellant that he had indicated that he had been satisfied with his counsel's advice, appellant said, "Not – no sir. You can ask him. Me and him argue all the time." Appellant said, "I tried to contact him, asked him to come out. He never came out. We can't sit down and talk." The trial court continued to obtain verification from appellant that he had responded appropriately to the questions asked of him during the plea colloquy. Appellant complained that "it's my first time being locked up. I don't understand what I was put into. And I was pushed into this deal, and I never did get an opportunity to get any help. All I do is just take the deal, take the deal." He said, "He never want to help me, just take the deal and get it over with. I need somebody to help me."
At this point, Del Alcazar told the court that O'Connor had spent time with appellant and that Del Alcazar had received the case after the preliminary examination. He said that he had "spent a lot of time" with appellant discussing the case and that appellant "has [the] discovery." He said that he had spoken to appellant "numerous times" and had spent a great deal of time trying to obtain a more favorable offer for appellant. He said, "Given all the evidence, . . . this was not a trial case." He said that the matter had been set for trial on the Monday following the plea, at which time the offer would have been withdrawn, so "it was kind of running the timing issue that I spent a lot of time with [appellant]."
The trial court said that it would take appellant's comments "as a motion to withdraw the plea on the basis of the grounds that you've stated here today, that you didn't understand what you were doing or you didn't understand certain things that were said or you felt like you were being pressured – I think that all of those issues that you're talking to or talking about – that you . . . should have had more discussions with your attorney – they're all addressed in the voir dire that I – the conversation that you and I had at the time the plea was taken." The court said that appellant had understood what he was doing when he entered his plea and denied the motion to withdraw the plea.
The court sentenced appellant to 34 years in state prison. Pursuant to Penal Code sections 1202.4, subdivision (b) and 1202.45, the court imposed a restitution fine of $10,000 with an equal amount suspended in case no. CC644313. In case no. CC775275, pursuant to the same sections, the court imposed a $220 restitution fine with an equal amount imposed but suspended.
Failure to Conduct a Marsden Hearing
Appellant contends, "Reversal is required because the court failed to hold a hearing to substitute counsel upon appellant's complaint of trial counsel's performance." Respondent argues that "appellant's comments are more aptly construed as supportive of his desire to withdraw his plea on the ground his attorney talked him into it and now he was having second thoughts."
Respondent argues that "appellant's statements were in service of a motion to withdraw his plea, not a motion to substitute counsel. To the extent that appellant challenges the validity of his pleas and admissions in this regard, a certificate of probable cause is required." However, appellant contends here that the trial court committed reversible error by not holding a hearing on his postplea Marsden motion prior to sentencing him. As this court has held, "A determination that defendant is entitled to substitute counsel has no necessary implication for his no contest plea, which plea stands until a motion to withdraw it is made and granted." (People v. Vera (2004) 122 Cal.App.4th 970, 978.) A defendant is not required to obtain a certificate of probable cause to challenge a trial court's denial of a postplea Marsden motion, even if some of the complaints relate to trial counsel's preplea conduct. (Ibid.)
When a defendant complains about the adequacy of appointed counsel, the trial court must permit the defendant to articulate the basis for his concerns so that the court can determine if they have merit and, if necessary, appoint new counsel. (Marsden, supra, 2 Cal.3d at pp. 123-124; accord, People v. Smith (1993) 6 Cal.4th 684, 691.) "The semantics employed by a lay person in asserting a constitutional right should not be given undue weight in determining the protection to be accorded that right." (Marsden, supra, 2 Cal.3d at p. 124.)
The rule requiring a Marsden hearing applies equally posttrial. "[T]he trial court should appoint substitute counsel when a proper showing [pursuant to Marsden ] has been made at any stage [of the proceedings]. A defendant is entitled to competent representation at all times . . . ." (People v. Smith, supra, 6 Cal.4th at p. 695.)
"The trial court is not obliged to initiate a Marsden inquiry sua sponte. [Citation.] The court's duty to conduct the inquiry arises '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.' [Citations.]" (People v. Lara (2001) 86 Cal.App.4th 139, 150-151) "[A] proper and formal legal motion" is not required, but the defendant must provide "at least some clear indication . . . that he wants a substitute attorney." (People v. Lucky (1988) 45 Cal.3d 250, 281, fn. 8.)
Although appellant did not make a specific request to have his counsel replaced, his complaints about counsel, including that he had not been provided with a defense and that he and his lawyer argued all the time, and his clearly expressed wish to withdraw his plea based on those complaints, constituted an assertion by implication that his lawyer's performance has been so inadequate as to deny him his constitutional right to effective counsel. This triggered a duty of further inquiry by the court. The court's statement that, "I don't want to have a Marsden motion here because the district attorney's present" certainly indicates that the court was aware of this implication. Even respondent acknowledges that "some of appellant's isolated comments could be charitably construed as Marsden-like" but argues that "when viewed in context, they do not evince a direct or implied assertion by appellant that he wanted counsel to be replaced and that counsel's performance was so inadequate as to deny him his constitutional right to effective counsel." We disagree. Appellant specifically told the court, "I don't feel like I have a defense at all, sir." Although the court did ask appellant some questions, the court's questions were prefaced by the statement that the court did not "want to have a Marsden motion" and telling appellant that he should respond "without going into what you think that your attorney did or didn't do." These limitations, and appellant's assertion that he needed an interpreter, necessarily placed appellant at a disadvantage in describing his complaints. Nevertheless, appellant's comments indicated that he and counsel may have become embroiled in such an irreconcilable conflict that ineffective representation was likely to result.
One might consider this an admission by appellant that his case was indefensible, but in the context in which it was made we consider appellant to have meant that his counsel had done nothing to explore or explain potential defenses.
Respondent argues that "if the trial court erred by not conducting a more robust Marsden hearing, such error would be harmless beyond a reasonable doubt. . . . The trial court gave appellant the opportunity to articulate his concerns about counsel's representation of him." Because of the limitations that the court placed on what appellant could tell the court, we cannot say that appellant was given a full opportunity to express his dissatisfaction with counsel. We remand the matter to the trial court for the limited purpose of allowing the trial court to conduct a Marsden hearing.
Fines
When appellant entered his no contest plea, the court stated the plea agreement this way, "In exchange for these pleas and admissions, the agreement is that when you are sentenced you will receive 34 years in the State Prison." In advising appellant of the consequences of his plea, the court said, "At sentencing there will be a fine to the State restitution fund of a minimum of 200 dollars to a maximum of 10,000 dollars, a Court security fee of 20 dollars per count, a criminal justice fee up to 259 dollars and 50 cents, and some other miscellaneous fines and fees. [¶] These penalties, these fines and fees apply separately in each case." At sentencing, pursuant to Penal Code sections 1202.4, subdivision (b) and 1202.45, the court imposed a restitution fine of $10,000 with an equal amount suspended in case no. CC644313. In case no. CC775275, pursuant to the same sections, the court imposed a $220 restitution fine with an equal amount imposed but suspended.
Appellant contends, "The court cannot order restitution fines in excess of $10,000 in two cases considered together." Appellant relies on People v. McNeely (1994) 28 Cal.App.4th 739, and People v. Ferris (2000) 82 Cal.App.4th 1272.
Respondent argues that appellant's claim is forfeited, that appellant's agreement to the plea bargain precludes a challenge to the fines. Although appellant did not object to the imposition of the fines in excess of $10,000, he did not forfeit his right to challenge them as unauthorized. Although one need not object to an unauthorized sentence to challenge it on appeal, it is settled that when a defendant has pleaded guilty in return for a specified sentence, he or she may not challenge that sentence on appeal, even if it might otherwise be statutorily unauthorized, as long as the trial court had fundamental jurisdiction. (People v. Hester (2000) 22 Cal.4th 290, 295.) Here, the amount of the restitution fine was not part of the specified plea bargain but was part of the court's advisement. Appellant only agreed to what was in the plea bargain and left it to the court's discretion to set the restitution fine. Appellant did not waive his right to receive a restitution fine beyond the limit set by the Legislature.
Appellant acknowledges that "The supreme court recently granted review on whether a restitution fine of more than $10,000 can be imposed in non-consolidated cases resolved by a packaged plea agreement. (People v. Soria (2008) 163 Cal.App.4th 247, review granted Aug. 27, 2008, S164796.)"
In People v. McNeely, supra, 28 Cal.App.4th 739 (McNeely), the court addressed a claim similar to appellant's claim here. There, at separate hearings, the defendant pleaded guilty to eight burglaries charged in one information and two burglaries charged in another. At the next hearing, the court imposed sentence on all charges and also ordered the defendant to pay $93,000 in restitution to the various victims under former Government Code section 13967, subdivision (c), which applied at that time. On appeal, the defendant claimed that restitution was limited to $10,000. (Id. at pp. 742-744.) The reviewing court agreed. It explained that the statute "did not give the court authority to order restitution up to $10,000 for each victim or on each count. Nor did it allow a restitution order exceeding $10,000 where, as here, a defendant is sentenced in one hearing on two or more cases." (Id. at p. 743, italics added.) Noting cases limiting restitution fines to $10,000 limit regardless of the number of victims or counts, the court observed that "[w]hile a trial court can separately sentence a defendant on different cases at a single hearing [citation], here the court combined the charges in both cases in imposing the prison term and ordering restitution. We do not believe this creates separate sentencing proceedings on the two cases. When a penal statute is ambiguous, it must be construed in the light most favorable to the defendant. [Citation.] When section 13967 is construed in this light, a restitution order on a crime committed in 1989 is limited to $10,000." (Id. at pp. 743-744.)
In People v. Ferris, supra, 82 Cal.App.4th 1272 (Ferris), the court addressed a similar claim concerning restitution fines under sections 1202.4 and 1202.45. As in McNeely, the defendant was charged in two cases with crimes committed on different occasions. After the defendant pleaded not guilty, the prosecutor moved to join the cases for trial under section 954. The court granted the motion but did not formally consolidate the two cases under a single information and case number. Thereafter, the jury returned separate verdicts of guilt in each case, and separate probation reports were prepared. At sentencing, the court imposed $10,000 restitution and matching parole revocation fines in each case. On appeal, the defendant claimed that the imposition of separate fines totaling more than $10,000 was unauthorized because the two cases had been consolidated, and sections 1202.4 and 1202.45 limited fines to $10,000 "[i]n every case" where a person is convicted of a felony and the sentence includes a period of parole. (Id. at pp. 1274-1276, see fn. 1, ante.) To resolve the defendant's claim, the court construed the meaning of the phrase "in every case."
Observing that "joinder" and "consolidation" are terms often used interchangeably, the court first opined that under the facts of the case, any linguistic distinction was irrelevant because clearly, the defendant was "substantively tried and sentenced in one joint case." (Ferris, supra, 82 Cal.App.4th at p. 1277.) Finding the case similar to McNeely, the court noted that sections 1202.4 and 1202.45 "do not specify whether the phrase 'every case' means every separately charged and numbered case or every jointly tried case." (Ibid.) Given this ambiguity, the court adopted the construction more favorable to the defendant and concluded that the phrase in " 'every case' " "includes a jointly tried case although it involves charges in separately filed informations." (Ibid.) The court noted that the charges had been joined for trial, which "effectively" joined the two cases despite the fact that they retained separate case numbers. Accordingly, the court held that it was error to impose restitution exceeding the statutory maximum of $10,000. (Ibid.) The court further observed that allowing separate restitution fines in a case involving separate informations but joint trials and sentencing could lead prosecutors to seek numerous fines by filing multiple informations that allege a single offense. The court declined to condone such an exercise of form over substance. (Id. at p. 1278 & fn. 10.)
In People v. Enos (2005) 128 Cal.App.4th 1046 (Enos), at a single hearing, the defendant entered into a negotiated disposition and pleaded guilty to charges alleged in three separate cases. The trial court imposed separate restitution and parole revocation fines in each case, totaling $1,800. Citing Ferris, the defendant claimed that the imposition of three separate restitution fines was unauthorized because the three separate cases were resolved in a comprehensive plea agreement at a single sentencing hearing. The court disagreed, finding Ferris inapplicable for two reasons. (Id. at pp. 1048-1049.)
"First, the facts are different. Here, there was never a motion to join or consolidate the three cases, and, even though there was a combined sentencing hearing, the cases were not tried together, as they were in Ferris. Here, throughout the proceedings, the trial court and the parties treated the cases as separate. In addition, three separate appellate records were prepared, each corresponding to its own number. Separate minute orders and separate notices of appeal were filed in each case." (Enos, supra, 128 Cal.App.4th at p. 1049.)
"Second, we think the Ferris court's primary concern was not with the trial court's imposition of more than one section 1202.4, subdivision (b) restitution fine and more than one suspended section 1202.45 parole revocation fine but rather with the resulting total of the fines that exceeded the $10,000 statutory limit. [Citation.] The court cited its earlier decision in [McNeely] where it held that a restitution order cannot exceed $10,000 if the defendant is sentenced in multiple cases at a single hearing. [Citation.] Thus, in our view Ferris stands for the proposition that a trial court cannot impose multiple section 1202.4, subdivision (b) restitution fines and multiple section 1202.45 parole revocation fines in nonconsolidated cases where the total fines exceed the statutory maximum; the opinion does not address the question whether separate fines are proper where the total does not exceed the statutory maximum. [Citation.]" (Enos, supra, 128 Cal.App.4th at p. 1049.)
Last, the court opined that nothing in the statutes prohibits multiple fines "in consolidated cases disposed of at a single sentencing hearing. To read these statutes as precluding separate fines that do not exceed the statutory maximum would result in a rule of law with no practical effect, because a defendant could never show prejudice. A trial court sentencing a defendant in consolidated cases would simply calculate the amount of the restitution fines as a whole instead of breaking them down separately for each case. This is in essence exactly what the trial court did here; it expressed an intention to impose a total fine of $1,000, and then allocated that fine among the three cases so that the statutory minimum fine was imposed in each. Because the total fine would be the same, whether imposed in the aggregate or portioned and separately imposed in each case, there cannot be any prejudice to appellant." (Enos, supra, 128 Cal.App.4th at pp. 1049-1050, fn. omitted, italics added.)
In People v. Schoeb (2005) 132 Cal.App.4th 861 (Schoeb), the defendant entered a negotiated settlement to five separate cases, pleading guilty to nine charges in exchange for dismissal of the others. At a single sentencing hearing, the court imposed five separate restitution fines, totaling $2,600. (Id. at p. 863.) On appeal, the court upheld the separate fines. It distinguished Ferris, noting that the defendant's cases were never consolidated for trial and that there were separate abstracts and minute orders in each case. Moreover, applying Enos, the court found no error because the total amount of restitution did not exceed $10,000. (Id. at p. 865.)
This case, like Enos and Schoeb, is distinguishable from Ferris because appellant's two cases were not jointly tried. However, this distinction does not necessarily mean that appellant's fines were authorized. The phrase "in every case" is no less ambiguous here than it was under the circumstances in Ferris. In Ferris, the court's interpretation of the phrase "in every case" was not controlled by the fact that the cases were not formally consolidated, they retained separate numbers, and various administrative procedural details reflected the separate status of the cases—e.g., separate jury verdicts and probation reports in each case. Rather, focusing on substance rather than form, the court viewed the phrase in a practical rather than technical way and considered it reasonably susceptible of an interpretation based on how the numerous charges in multiple cases were resolved. Implicitly, the court reasoned that a single trial on all the charges would be the same regardless of whether the charges were alleged in one case or multiple cases. In effect, therefore, the unified resolution of the charges consolidated the three technically separate cases into one for the purpose of restitution under sections 1202.4 and 1202.45.
Here, we do not consider the fact that appellant's two cases were not formally consolidated under a single information or jointly tried controlling on the meaning of the phrase "in every case." Moreover, the resolution of the two cases through a no contest plea for a specified sentence at a single hearing is functionally identical to the resolution of multiple cases in a joint trial, and in each instance the resolution would have been the same regardless of whether the charges had been alleged in one case or multiple cases. Thus, we find no material basis to distinguish this case from Ferris. Moreover, we cannot conceive a policy reason why a defendant who foregoes trial and resolves two cases at once should be subject to restitution fines exceeding $10,000 when a defendant whose multiple cases are joined for trial is not. In our view, the unified resolution of all charges through a no contest plea to both informations at a single hearing effectively consolidated appellant's cases into one case for purposes of restitution just as a joint trial does.
Under the circumstances, we hold that the phrase "in every case" may reasonably be construed to include two cases that are fully and completely resolved at the same time through a no contest plea for a specified sentence.
As noted, in construing ambiguous restitution statutes, the courts in McNeely and Ferris adopted the construction more favorable to the defendant. Here, even if we assume that the phrase "in every case" reasonably may be interpreted to limit restitution fines to $10,000 only where there is one accusatory pleading and case number or where multiple cases are jointly tried, we shall adopt the interpretation more favorable to appellant. Thus, we hold that sections 1202.4 and 1202.45 limit fines to $10,000 not only where there is one case number or where multiple cases jointly tried but also where the charges in two cases are fully and completely resolved at the same time through a no contest plea.
Finally, we note that in Enos, the court read Ferris to mean that "a trial court cannot impose multiple section 1202.4, subdivision (b) restitution fines and multiple section 1202.45 parole revocation fines in nonconsolidated cases where the total fines exceed the statutory maximum . . . ." (Enos, supra, 128 Cal.App.4th at p. 1049, italics added.) Thus, even under the Enos court's view of Ferris, the imposition here of two fines totaling $10,200 would be unauthorized.
We conclude that at sentencing, sections 1202.4 and 1202.45 permitted the imposition of restitution and parole revocation fines up to $10,000. Thus, the imposition of restitution fines and parole revocation fines totaling $10,200 was unauthorized.
Disposition
The judgment is reversed and remanded with directions to the trial court to conduct a Marsden hearing and exercise judicial discretion to order a new trial, to reinstate the judgment, or to proceed otherwise as authorized by law. Appellant has the right to be present at those proceedings.
Should the trial court reinstate judgment, the trial court is directed to modify the judgments to reflect a total restitution fine of $10,000 and total suspended parole revocation fine of $10,000. The superior court shall forward the amended abstracts of judgment to the Department of Corrections and Rehabilitation. As modified, the judgments are affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.