Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. C9676028
McAdams, J.
In defendant’s prior appeal, H030246, this court reversed the judgment and remanded the matter to the trial court with directions “to conduct an inquiry into defendant’s reasons for requesting substitute counsel. If defendant fails to establish that he is entitled to substitute counsel, the trial court should reinstate the judgment. If defendant carries his burden, the court should appoint substitute counsel.” Following issuance of the remittitur, the court held a Marsden hearing and denied defendant’s motion to substitute counsel. (People v. Marsden (1970) 2 Cal.3d 118.) Accordingly, the court reinstated the judgment and defendant appeals the “[d]enial of Marsden hearing on December 20, 2007.”
We take judicial notice of the appellate record, including the briefs and unpublished opinion, filed in People v. Ralph Willis Aceves, H030246. (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).)
We appointed counsel to represent defendant in this court. Appointed counsel has filed an opening brief which states the case but raises no specific issues. We notified defendant of his right to submit written argument in his own behalf within 30 days and he submitted a letter to this court dated June 22, 2008.
In his letter, defendant states that he is “innocent of this crime.” Further, he claims the court gave him a life sentence because it was prejudiced against him: after listening to defendant’s accuser, and without hearing his side, the judge made up his mind and raised defendant’s bail.
In addition, defendant alleges that his attorney told him three times that he would receive half-time credit because the 85 percent limitation on credits went into effect after his crimes were committed, and the judge broke the law by giving him “85 time instead of half time.” Defendant asks for a retrial or, at least, the half time he was promised. He is 80 years old, and with half-time, he may make it out of prison in time to be with his wife and family for a short while before he dies.
Finally, defendant states that, at the end of the trial, the court told him to say if he was guilty or innocent. After each count, he would hesitate, and his attorney would prompt him to say he was guilty. This hurt him, inasmuch as he is innocent of all six counts. His son has come up with some longtime friends who are willing to go to trial on his behalf, and is looking for a good attorney for him.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), we have reviewed the entire record and defendant’s letter, and we have concluded that there is no arguable issue on appeal. (See also People v. Kelly (2006) 40 Cal.4th 106, 124.) Therefore, we will affirm.
The facts referenced in the factual and procedural summaries that follow are drawn from the clerk’s and reporter’s transcripts of the prior appeal in H030246, including the probation report, unless otherwise indicated.
In 1995, it came to light that defendant had been molesting his two granddaughters. The younger granddaughter reported that she had been molested by defendant from the time she was nine years old until 1993, when she was 13. The molestations occurred once a week, when the younger girl went to her paternal grandparents’ home after school and before her mother picked her up. The molestation included kissing, cunnilingus, and at least two instances of digital penetration.
The older granddaughter disclosed during counseling that she had been molested by defendant. Defendant made admissions during a pretext phone call by the girls’ mother.
Defendant’s prior convictions involved sex related offenses against his daughters.
PROCEDURAL BACKGROUND
Defendant was charged with seven counts of forcible lewd acts on a child under the age of 14. Each count was alleged to have occurred between March 23, 1989, and December 31, 1993. (Pen. Code, § 288, subd. (b)(1).) The information also alleged that defendant had suffered a prior serious felony conviction for rape, in Santa Clara County action number 81373. (Pen. Code, §§ 261.1, 667, subd. (a), 1192.7.) Count 7 was dismissed before trial. A jury was sworn, but before the witnesses testified defendant agreed to plead guilty in exchange for a state prison sentence of 13 years. The record shows that the court declined to accept no contest pleas. The record does not reflect that defendant paused before stating “guilty” to each count or that his attorney prompted him to say “guilty.”
The probation report shows that defendant was convicted of this offense in 1983.
The record does reflect that defendant was told his maximum exposure was 23 years in prison. It also reflects that trial counsel advised him that “because the offense allegedly occurred on or about and between March 23, ’89 and December 31, ’93 … you’re entitled to half credits and you would not come within the provisions that would require that you serve [85] percent,” but that the Department of Corrections would make the actual determination whether he received half-time credits, not the court.
On April 21, 2006, defendant was sentenced to 13 years in state prison, as follows: the aggravated term of 8 years for count 1, aggravated terms of 8 years for counts 2 through 6, to run concurrent to each other and with count 1, and five years consecutive for the prior serious felony conviction.
Following this court’s reversal of the judgment, on December 20, 2007, the trial court held a Marsden hearing as directed. At that hearing, the court asked defendant to explain his reasons for requesting substitute counsel at his prior sentencing date. Defendant explained that he “wasn’t being helped by her,” and was very upset. He also said he still wanted another attorney, believed counsel was prejudiced against him and “pushed” him into pleading guilty.
According to defendant, defense counsel told him he couldn’t win at trial and would get “maybe 24 years.” He believed she told him that because “the D.A. or whoever … talked her into thinking the way she thought” and that she was “against him.” In addition, she “promised” he would get “half off” because “that was the law.” When he arrived at Tracy, however, the counselor told him that he didn’t get half off, that he would have to do 85 percent of his sentence, and would get out, if he were still alive, in 2016 when he was around 90 years old.
Defense counsel was asked by the court to respond. She indicated that she had visited defendant in the jail several times and had even brought a second attorney with her to give defendant a “second opinion” about his case. She also indicated that she did not feel she “was ever against him. I think I was trying to be counsel to him and advise him of his obstacles he had with the case and the issues that were going to be presented in the case, to educate him.” For example, she explained to him that the district attorney would be presenting Evidence Code section 1108 witnesses, a development in the law that post-dated defendant’s last offense.
With respect to “pushing” defendant into a plea, defense counsel noted that she was ready to go to trial and that the plea occurred after the jury was selected. She said: “I clearly was advising him I thought it was best for him to try to settle this case because of the exposure on it that he had. And we did, obviously, have several conversations about that, but at no time did I feel I was cohercing [sic] him in any way to do that.”
As for the credits, defense counsel maintained that “it appears to me he would be entitled to half time on the case because it predates the strike law. [¶] . . . [¶] All the people I discussed it with in my office are in agreement with that. [¶] . . . [¶] I believe I told him he would be entitled to half time on the case, of course he has to be eligible for it in the prison, which means he has to be able to work or be in a program there. And I don’t know if there’s an issue with that regarding his health.”
At the conclusion of the hearing, the court denied the motion to substitute counsel, stating: “[T]he issue that’s before the court then is a very narrow issue, as to whether nor not your right to counsel is being substantially impaired or was substantially impaired at the time the plea was entered or whether there are grounds for a substitution of counsel. [¶] And I think it’s pretty clear from our discussion that your right to counsel was not being substantially impaired. [¶] So, therefore, based on the totality of the comments and the statements that are before the court, the court is going to deny your request for substitution of counsel.” In subsequent proceedings that included the prosecutor, the court then reinstated the prior judgment per this court’s directions.
DISCUSSION
On May 27, 2008, appointed counsel filed a Wende brief in this court. This court sent a letter notifying defendant of his right to submit a written argument in his own behalf within 30 days. As noted earlier, the court subsequently received a letter from defendant which has been summarized above.
Pursuant to People v. Wende, supra, 25 Cal.3d 436, we have reviewed the entire record on appeal. In our view, the court conducted a proper Marsden hearing and did not err in denying the motion to substitute counsel. Counsel did not misadvise defendant about the state of the law on credits: Penal Code section 2933.1, which limits prison credits for certain offenders, does not apply to offenses occurring before the operative date of the statute, such as defendant’s offenses. (People v. Grant (1999) 20 Cal.4th 150, 159.) If defendant believes his credits have been erroneously denied by the Department of Corrections, his remedy is by way of habeas corpus petition, not this appeal. Also, this appeal is not the proper vehicle for bringing or addressing belated claims of innocence. Defendant received an advantageous plea bargain, given his maximum exposure, and the appellate record does not reflect any ineffective assistance of counsel. We conclude that there is no arguable issue on appeal. (People v. Kelly, supra, 40 Cal.4th at p. 124.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Mihara, Acting P.J., Duffy, J.