Opinion
B295983
05-21-2020
THE PEOPLE, Plaintiff and Respondent, v. OSCAR RUBIO, Defendant and Appellant.
Lori Nakaoka, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Wyatt E. Bloomfield and Charles J. Sarosy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. Nos. TA146863 TA146861) APPEAL from a judgment of the Superior Court of Los Angeles County, Carol J. Najera, Judge. Affirmed as modified. Lori Nakaoka, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Wyatt E. Bloomfield and Charles J. Sarosy, Deputy Attorneys General, for Plaintiff and Respondent.
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Oscar Rubio pleaded no contest to various crimes and was sentenced to 30 years in state prison. Thereafter, Rubio moved to withdraw his plea, arguing that he was sleep deprived and under the influence of drugs at the time it was entered. In his statement in support of his motion to withdraw, Rubio stated that his counsel informed him that he could not have additional time to consider the People's offer. Rubio contends we must vacate the judgment and reverse the convictions because the trial court improperly denied his motion to withdraw and failed to conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118. Rubio also argues that a portion of his sentence is unauthorized under Senate Bill No. 136 (2019-2020 Reg. Sess.), effective January 1, 2020. For the reasons set forth below, we modify the judgment to correct the sentencing error and affirm.
BACKGROUND
Rubio was charged in two felony complaints. In the first case, Rubio was charged with assault with the intent to commit rape, sodomy, or oral copulation during the commission of first degree burglary (Pen. Code, § 220, subd. (b); count 1), forcible oral copulation (§ 288a, subd. (c)(2)(A); count 2), and first degree burglary while a person is present (§ 459; count 3). It was further alleged that the victim was at least 65 years old (§ 667.9, subd. (a)). Rubio had three prior serious felony convictions (§ 667, subd. (a)(1)) that also qualified as prior strikes under the Three Strikes law (§§ 667, subds. (b)-(j); 1170.12) and had four prior prison terms (§ 667.5, subd. (b)). In the second felony complaint, Rubio was charged with one count of resisting an executive officer (§ 69).
All further statutory references are to the Penal Code.
On the day of the preliminary hearing, Rubio agreed to plead no contest to counts two and three in the first felony complaint and to count one in the second and to admit his prior convictions. The trial court explained that Rubio's total sentence would be 30 years.
Rubio indicated that he understood the terms of his plea and wanted to take advantage of the offer. The prosecutor advised Rubio of his constitutional rights and the consequences of his plea. Rubio stated he was pleading freely and voluntarily and confirmed that he had not been induced to enter into the plea agreement as a result of threats or other promises. The trial court did not inquire further.
Rubio pleaded no contest to forcible oral copulation, first degree burglary, and resisting an executive officer. He admitted the three prior convictions as prior serious or violent felonies and that one was a prior strike. He also admitted the four prior prison terms. Defense counsel joined in the waivers, concurred in the plea, and stipulated to a factual basis. The trial court accepted the plea, finding Rubio's waivers to be knowingly, understandingly, and intelligently made. The trial court sentenced Rubio to the agreed upon term of 30 years in state prison.
Approximately two weeks later, Rubio moved to withdraw his plea pursuant to section 1018. Rubio addressed the trial court stating, "I want to ask if you could grant me this motion because I was under duress. I was asking for time to come back and consider the offer to talk to my family about it. I was denied. They told me if I didn't take the offer I was going to lose, you know. And the whole week, I am not even going to lie to you. I hadn't slept. I was under drugs, under the influence of drugs. So when I came to my senses I realized what I had done. I think 30 years is still a long time, you know. I would appreciate it if you please grant me this motion. I know you judging me [because] of the way I look or like my past, but I just want another chance. If I lose in trial, then that is my destiny, you know. Please grant me this—30 is like, I got a kid. . . . I want to see him soon, you know. But if I lose, and, I guess, that is what it is going to have to be. I just want a chance to fight it, to at least get a better deal or something, you know, like. Yeah. Thirty years is a long time, ma'am. And I thought I was going to do less than that. I didn't, like I told you, I didn't understand what was going on that day. I was under duress pretty much. When I told her if I could have more time, she had told me no."
Section 1018 requires that the motion to withdraw the plea be made before judgment. Here, the motion came after judgment was entered. There are limited circumstances that would allow a trial court to entertain the motion made after judgment. (People v. Castaneda (1995) 37 Cal.App.4th 1612, 617.) The trial court did not address the issue, nor did Rubio's opening brief. We infer that the trial court found the necessary circumstances to hear the motion and we accept the People's concession.
After Rubio addressed the trial court, his counsel stated there could "maybe" be a Marsden issue based on Rubio's statement that counsel informed him additional time to consider the plea was not available. At no point during the hearing did Rubio indicate that he was dissatisfied with his appointed attorney's performance or that he wanted his lawyer to be removed as counsel of record. The trial court denied the motion, explaining that Rubio wanted to avoid a life sentence and was given the entire afternoon to consider the plea. The trial court also noted that the prosecutor and Rubio's attorney behaved ethically, and that his family was present during the plea.
After the trial court denied the motion to withdraw, Rubio's counsel raised the Marsden issue again. The trial court reasoned, however, that no Marsden motion was ever expressly made and that the issue was now moot because Rubio's counsel no longer represented him once the motion to withdraw was denied.
DISCUSSION
Rubio raises several issues on appeal. First, Rubio argues that his plea was not knowing, intelligent, or voluntary and that the trial court violated his right to due process when it denied his motion to withdraw. Second, Rubio argues that the trial court abused its discretion when it refused to hold a Marsden hearing. Third, Rubio contends the 4 one-year sentence enhancements were unauthorized after the passage of Senate Bill No. 136. Lastly, Rubio argues the trial court improperly relied on the same prior conviction to impose both a one-year and five-year enhancement. I. The validity of Rubio's pleas
Rubio asserts his plea was not knowing, intelligent, or voluntary and therefore the trial court's denial of his motion to withdraw must be reversed. The People raise a preliminary issue in response, arguing Rubio's failure to obtain a certificate of probable cause precludes us from reviewing the validity of his plea. We agree with the People.
Generally speaking, under section 1237.5, a defendant may not bring an appeal from a judgment of conviction entered after a guilty or no contest plea, including an appeal challenging the validity of the plea, unless he or she has first obtained a certificate of probable cause. (People v. Mendez (1999) 19 Cal.4th 1084, 1095.) Rubio did not obtain a certificate of probable cause, thus, his claim that his plea was not knowing, intelligent, or voluntary is not cognizable on appeal. (See ibid.)
Nevertheless, Rubio contends we should still consider the merits of his appeal because his trial counsel's failure to obtain a certificate rendered her assistance ineffective. However, such a claim is not exempt from the certificate of probable cause requirement. (§ 1237.5; People v. Johnson (2009) 47 Cal.4th 668, 673.) "If all appeals alleging that the defendant was deprived of effective representation on a motion to withdraw his or her plea were permitted to go forward without a certificate, many frivolous appeals likely would result. Requiring the trial court, which is familiar with the record, to determine in the first instance whether a nonfrivolous claim exists serves the purposes of section 1237.5 without interfering with a defendant's right to pursue a nonfrivolous appeal." (Johnson, at p. 685.) When a defendant cannot obtain a certificate of probable cause from the trial court because of factual issues outside the record requiring an evidentiary hearing, any ineffective assistance claim " 'is more appropriately decided in a habeas corpus proceeding.' " (Id. at p. 684.)
However, even if we were to allow Rubio's claim that his trial counsel was ineffective, Rubio cannot show prejudice by his counsel's failure to obtain a certificate of probable cause. To establish an ineffective assistance claim, a defendant must show, but for counsel's unprofessional errors, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 694.) Here, there is no reasonable probability the court would have granted the certificate even if counsel had requested one. The plea colloquy makes clear that Rubio was appropriately advised as to the charges and allegations against him, his constitutional rights, and the consequences of his plea. There is no indication that Rubio was under duress or had the slightest hint of equivocation. When the trial court denied Rubio's motion to withdraw, it noted that, at the time of the plea, Rubio was facing a life sentence and sought a determinate sentence. "[B]uyer's remorse" is not sufficient to compel the trial court to withdraw the plea. (People v. Knight (1987) 194 Cal.App.3d 337, 344.) Accordingly, his ineffective assistance of counsel claim fails. II. Marsden hearing
Rubio next claims the trial court should have conducted a Marsden hearing when Rubio intimated that his counsel pressured him into entering the plea and refused to give him more time to consider it.
Criminal defendants are entitled to the assistance of court-appointed counsel if they are unable to employ private counsel. (People v. Marsden, supra, 2 Cal.3d at p. 123.) While the decision to permit a defendant to discharge appointed counsel and substitute another attorney is within the trial court's discretion, it is error to deny the defendant the opportunity to explain the basis for his request. (People v. Sanchez (2011) 53 Cal.4th 80, 92.) Although a formal motion is not required, the request must be clear and unequivocal. (People v. Rivers (1993) 20 Cal.App.4th 1040, 1051, fn. 7.) The law does not require that defendant use the word "Marsden" to request substitute counsel, however, there must be at least some indication that defendant wants to substitute his attorney. (People v. Richardson (2009) 171 Cal.App.4th 479, 484.) The trial court does not err by failing to conduct a Marsden hearing in the absence of evidence that defendant made his desire for new counsel known to the court. (Ibid.) The trial court has no obligation to initiate a Marsden inquiry sua sponte. (People v. Dickey (2005) 35 Cal.4th 884, 920-921.)
Here, Rubio did not make a Marsden motion and the record is devoid of requests, implied or otherwise, that he wanted new counsel. His statement that he asked his counsel if he could have more time to consider the prosecution's offer and that she informed him that he could not is not an unequivocal expression of dissatisfaction with his attorney. The trial court did not err in failing to conduct a Marsden hearing because no request for new counsel was ever made and Rubio did not intimate that his counsel's performance was deficient. III. One-year priors
Finally, Rubio contends that his 4 one-year sentence enhancements were unauthorized pursuant to Senate Bill No. 136, and the trial court improperly relied on a single prior conviction to impose a five-year and a one-year enhancement. We agree with the first contention, which makes the latter issue moot.
The trial court imposed 4 one-year enhancements under a prior version of section 667.5, which required a one-year enhancement for each prior separate prison term served for "any felony," with limited exceptions not applicable here. However, in 2019, Senate Bill No. 136 was passed. (People v. Matthews (2020) 47 Cal.App.5th 857, 862.) It revised the law to limit the enhancement to a prior prison term served "for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." (Ibid.; § 667.5, subd. (b).) In other words, the new law constrained the application of the enhancement under section 667.5, subdivision (b) to prior prison terms resulting from convictions for sexually violent offenses. (Matthews, at p. 861.)
Rubio's prior prison terms were not for sexually violent offenses, therefore the one-year enhancements must be stricken. The People agree. Nevertheless, the People assert that the proper remedy should be to remand the matter to the trial court for resentencing with instructions to strike the enhancements and to resentence Rubio to as close a term as possible to the original 30-year sentence. The People's position is not well taken. Allowing the trial court to unilaterally alter agreed-to terms of a plea agreement after striking sentencing enhancements would frustrate the purpose of Senate Bill No. 136, which was to save tens of millions of dollars each year by avoiding overly punitive sentences. (People v. Matthews, supra, 47 Cal.App.5th at pp. 868-869.) California's goal of achieving these savings by reducing prison sentences for defendants like Rubio would be frustrated if trial courts and the People are permitted to modify plea agreements whenever a defendant seeks to dismiss an enhancement invalidated by Senate Bill No. 136. (Matthews, at p. 869.) Accordingly, other than striking the 4 one-year enhancements, the trial court cannot reconsider other aspects of the sentence Rubio and the People specifically agreed to under the plea agreement.
Because we conclude that the one-year enhancements were unauthorized and must be stricken, Rubio's other contention that the trial court improperly relied on the same prior conviction to impose both a one-year and five-year enhancement is now moot. --------
DISPOSITION
The judgment is modified to strike the 4 one-year enhancements imposed under Penal Code section 667.5, subdivision (b). As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
DHANIDINA, J. We concur:
EDMON, P. J.
LAVIN, J.