Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1237863, Thomas D. Zeff, Judge.
Mark Shenfield, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Wiseman, A.P.J., Gomes, J., and Dawson, J.
FACTS AND PROCEEDINGS
On December 6, 2007, appellant, Dana Richard Ahart, was charged in a felony complaint with automobile theft (Veh. Code, § 10851, subd. (a), count one) and receiving stolen property (Pen. Code, § 496d, subd. (a), count two). The complaint alleged two prior prison term enhancements within the meaning of section 667.5, subdivision (b).
Guilty Plea
On December 13, 2007, appellant entered into a plea agreement in which he would admit count one and one prison term enhancement. Appellant would receive the middle prison term of three years plus one year for the enhancement. Appellant’s total prison term would be four years. The parties stipulated to a factual basis for the plea from the report of the arresting officer. The court advised appellant of the consequences of his plea.
During the hearing, counsel asked appellant if he could hear what the court was saying. Appellant said he could barely hear. The court told appellant to let the court know if he did not hearing something. Appellant did not again complain of having difficulty hearing and responded to all of the court’s questions and statements without asking the court to repeat anything.
The court advised appellant, and appellant waived, his constitutional rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122. Appellant pled guilty to count one and admitted one prior prison term enhancement. The court granted the prosecutor’s motion to strike the remaining allegations in the interest of justice.
On January 24, 2008, the court appointed conflict counsel to replace appellant’s attorney, Mr. Westbrook, to investigate whether there were grounds for appellant to withdraw his plea. On April 18, 2008, appellant filed a motion to withdraw his plea. Appellant executed a declaration stating that he had difficulty hearing and that this condition affected him on the date he pled guilty. Appellant complained of bleeding and noted that on the day he changed his plea, he was recovering from blood loss. Appellant asserted that he did not fully understand what happened at the change of plea hearing and did not knowingly and intelligently waive his constitutional rights.
Potential Conflicts with Counsel
Before the trial court could rule on appellant’s motion to withdraw his plea, appellant brought a motion on April 18, 2008, to withdraw representation by his new attorney, Mr. Yeoman pursuant to People v. Marsden (1970)2 Cal.3d 118 (Marsden). The first question the court asked appellant was whether he was having any difficulty hearing. Appellant replied, “No. I hear you well.” Appellant and Yeoman indicated that appellant wanted new counsel.
Appellant explained to the court that he and Yeoman had irreconcilable differences. They had many arguments over a variety of legal issues and appellant’s research into legal authorities supported appellant’s arguments. According to appellant, Yeoman apologized to him. Appellant stated that one ground for withdrawing his plea was his hearing loss. The court explained that Yeoman had not yet filed the motion because he was waiting for the change of plea hearing transcript. Appellant indicated he understood this delay.
Appellant said that he argued constantly with Yeoman, and, inconsistently, that they had “no communication whatsoever.” Appellant wanted counsel to file a suppression motion, but counsel told him that when he was arrested, he was on parole subject to a parole search. Yeoman told the court that one of appellant’s complaints was that he should have admitted count two instead of count one. Yeoman explained to appellant that the penalties were the same for both offenses. Yeoman confirmed that appellant was on parole and was searched pursuant to a search condition of his parole. Yeoman further confirmed that the investigator knew appellant was on parole prior to conducting the search.
Yeoman said he was taken aback by appellant’s assertion that he suffered a hearing loss. During a conversation with appellant in a small interview room, appellant seemed able to understand Yeoman’s conversation very well. Yeoman noted that Westbrook indicated appellant had difficulty hearing but the court advised appellant to advise it if appellant could not hear something. The court noted that nothing in the change of plea hearing transcript indicated appellant that again suffered any difficulty hearing.
Based on appellant’s assertion that he suffered a loss of blood and was not thinking clearly when he entered his plea, Yeoman subpoenaed records but had not yet received anything back. Yeoman rejected appellant’s request that he subpoena the officer’s handwritten notes because they are usually destroyed after their reports are dictated and Yeoman thought it highly unlikely the handwritten reports would still exist. He also did not believe they would be relevant to a motion to withdraw appellant’s plea.
The court noted that appellant’s problems appeared to be less with Yeoman and more with Westbrook. Appellant said he did not understand that Yeoman was only stepping in to represent him in his motion to withdraw his plea. The court explained that Yeoman was appointed for the limited purpose to investigate whether there is a basis for appellant to withdraw his plea. If the motion to withdraw his plea is granted, the case would start again.
Appellant said he brought the Marsden motion because he thought Yeoman would remain as his counsel. Appellant wanted to bring certain legal authorities to Yeoman’s attention. Yeoman explained that he reviewed the authorities provided by appellant and they turned out to be “next to worthless.” Appellant stated that he did not wish to pursue the Marsden motion. The court found appellant was abandoning his Marsden request and further noted that it would have denied a Marsden motion if appellant had pursued it. The court found Yeoman had not done anything improperly.
On July 22, 2008, the court conducted a hearing with Westbrook and Yeoman present. The court stated that it was under the mistaken assumption that appellant’s request to withdraw his plea required the automatic appointment of separate counsel for purposes of filing such a motion. The court noted the proper procedure to follow was to first conduct a Marsden hearing to determine if an actual conflict existed with Westbrook prior to appointing Yeoman. The court proceeded to conduct a Marsden hearing focused on whether appellant had a conflict with Westbrook.
The court explained to appellant that the purpose of the hearing was to determine whether Westbrook should continue to represent him. If Westbrook could continue representation of appellant, he would be the attorney to pursue a motion to withdraw the plea. If Westbrook could not do so, Yeoman would step back into the case. When asked by the court if there was anything Westbrook did or did not do related to appellant’s plea, appellant replied, “No, your Honor.” Appellant further indicated there was nothing Westbrook did or failed to do prior to appellant entering his plea. Appellant said he felt comfortable with Westbrook continuing to represent him, including on the motion to withdraw his plea.
Westbrook stated he had better not make comments he was about to make. Westbrook told the court “there may yet still be an issue there as to whether Mr. Ahart was adequately protected and represented at his plea.”
Westbrook then informed the court that the reason conflict counsel was appointed was because Westbrook would be in the position of arguing his own ineffective representation of appellant. Based on this representation, the court noted it would confirm the appointment of Yeoman as counsel for the motion for appellant to withdraw his plea. Back in open session, the court confirmed that Yeoman would continue to represent appellant on the motion for appellant to withdraw his plea.
Motion to Withdraw Plea
On September 23, 2008, the court conducted a hearing on appellant’s motion to withdraw his plea. Appellant was represented by Yeoman. Larry Kilgore, a family nurse practioner, testified that he saw appellant on December 9, 2007, at Doctor’s Medical Center in Modesto. Appellant’s hemoglobin was 11, which is low. Hemoglobin carries oxygen in the blood to the brain. Appellant complained of blood in his stool. Kilgore conducted a digital finger examination and found it positive for the presence of blood.
Appellant was brought to the hospital at 5:30 p.m. on December 8, 2007.
Kilgore thought it was obvious appellant had a gastrointestinal bleed. Appellant showed symptoms of fatigue and appeared “dull-witted.” By December 17, 2007, appellant’s hemoglobin had risen to 7.5 after Kilgore gave him iron and Tagamet. Since being treated, appellant was more active and alert. Normal hemoglobin is 14. By March 2008, appellant’s hemoglobin had risen to 15. Low hemoglobin would cause one to have difficulty concentrating. It would cause headaches and fatigue.
Kilgore testified that appellant’s hemoglobin was 6.5 or 6.8 “on the 14th.” It is unclear what month corresponds to the date of the 14th. Kilgore further testified that there was no measure of appellant’s hemoglobin count between the 9th and the 17th. These dates clearly correspond to December 2007.
When appellant was brought to the hospital, his drug screen was positive for amphetamine. Although appellant’s hemoglobin level was low, he understood fully what Kilgore was saying to him. Appellant was hard of hearing in his left ear. None of appellant’s responses to Kilgore were inappropriate or out of context.
Appellant testified that on the day he entered his plea, he felt groggy, tired, and not real coherent. Appellant did not feel any better when he entered his plea than when he had been in the hospital. Appellant’s symptoms did not improve until later. When they did, appellant decided to withdraw his plea. Appellant denied being guilty of automobile theft. Appellant said he entered his plea because he “wasn’t all there.”
Appellant remembered meeting with Westbrook. Appellant said Westbrook did not show him copies of the arrest reports. Westbrook told appellant he was being arrested for grand theft auto and receiving a stolen vehicle. Westbrook showed appellant a copy of the complaint. According to appellant, he was not thinking when the court asked him all the questions concerning his guilty plea. Appellant looked at Westbrook, who would shake his head affirmatively, and appellant would say “yes.” Appellant acknowledged that no one was making him plead when he said during the change of plea that he was doing so voluntarily.
Westbrook testified he had been a criminal defense attorney for almost nine years and had worked on thousands of criminal defense cases. He had worked on hundreds of stolen property cases. Westbrook remembered talking to appellant the day before he changed his plea. Westbrook’s custom and habit when he first meets a client is to introduce himself as the defendant’s attorney and to go over the allegations if he has a police report. Because there is seldom privacy, Westbrook keeps his conversation to the basics of the allegations against the defendant.
Sometimes, the defendant will want to tell Westbrook his or her side of the story. At that point, Westbrook will determine whether to do an investigation. Westbrook did not have specific recollection of reviewing the reports in appellant’s case but would never have permitted a defendant to enter a plea without having first gone over the police reports.
It was Westbrook’s custom and habit to explain the case to the defendant as well as the defendant’s options. It was absolutely Westbrook’s custom and habit to explain to a defendant his or her right to fight a case. This includes an explanation that a defendant has a right to a preliminary hearing. When a defendant indicates an interest in settling a case, Westbrook reviews their constitutional rights. Westbrook had no specific recollection of doing so with appellant. If a defendant had difficulty hearing or understanding, Westbrook would not proceed until he felt comfortable the defendant understood their rights. Westbrook was aware appellant had difficulty hearing, but was not aware that any other medical problems were at issue. Appellant was wearing listening devices and frequently leans forward saying, “What?” or “Huh?”
Westbrook remembered meeting appellant a few times. Westbrook did not find appellant to be a difficult client. Westbrook had a good working relationship with appellant and had no problems with him. Westbrook did not remember appellant wearing a listening device on the date he entered his plea or prior to that date. If it appeared to Westbrook that his client could not hear him, he would do something to correct it. Westbrook would not permit a client to plead if he knew the client was under the influence.
The court noted there were two grounds in the motion, appellant’s ability to hear and the medical condition that left appellant confused or weakened. The court noted that although appellant may have some difficulty hearing, there is nothing to indicate that appellant was unable to hear. Appellant answered questions placed to him by the court.
Concerning appellant’s possible medical condition making him confused or weakened, he court found the only evidence of being in such a state came from appellant’s testimony. Kilgore’s testimony seemed to suggest that, although weakened from anemia, appellant was able to understand or comprehend what was happening. Even in a weakened state, Kilgore found appellant capable of responding appropriately and knowingly to questions. The court found appellant failed to meet his burden of proof by clear and convincing evidence and denied his motion to withdraw his plea.
Sentencing
On September 26, 2008, represented by Westbrook, appellant was sentenced to the midterm of three years on count one plus one year for the prior prison term enhancement for a total prison term of four years. Appellant was ordered to pay a restitution fine of $800. When the court asked appellant if he could hear the sentencing proceeding, the appellant replied, “Yes, your honor.” On October 3, 2008, the trial court awarded 333 days of custody credits. Appellant filed a timely notice of appeal and obtained a certificate of probable cause.
According to the trial court, appellant was wearing a hearing aid at the custody credit hearing.
DISCUSSION
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on January 21, 2009, we invited appellant to submit additional briefing. To date, he has not done so.
The use of simultaneous representation has been criticized by our Supreme Court in People v. Smith (1993) 6 Cal.4th 684, 694 and by this court in People v. Eastman (2007) 146 Cal.App.4th 688, 697-698. At the conclusion of the July 22, 2008 Marsden hearing, the trial court implicitly found a potential conflict between appellant and Westbrook. Yeoman represented appellant during the appellant’s motion to withdraw his plea. After the court denied that motion, Westbrook represented appellant at the sentencing hearing.
We note that Westbrook’s comments concerning a potential conflict with his client in a motion to withdraw the plea were so vague as to not constitute a basis for the trial court to continue simultaneous representation by Yeoman. Appellant was satisfied with Westbrook’s representation, even for a motion for him to withdraw his plea. Appellant did not instigate the July 22, 2008 Marsden hearing. The court kept Yeoman as counsel out of an abundance of caution. Any error, however, in maintaining dual representation was harmless in this case because neither attorney was shown to be ineffective and appellant received a full hearing on his motion to withdraw his plea.
Appellant brought the initial Marsden motion on April 18, 2008 against Yeoman, but abandoned his assertions of a conflict at the end of that hearing.
A decision to deny a motion to withdraw a guilty plea rests in the sound discretion of the trial court. It is final unless the defendant can show a clear abuse of that discretion. Moreover, a reviewing court must adopt the trial court's factual findings if substantial evidence supports them. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) Here, substantial evidence, including the trial court's own observations of defendant, supports the court's factual determination that defendant was not incapacitated from anemia or so hearing impaired at the time he entered his guilty plea that he did not understand the nature of the proceedings or what he was doing. Appellant failed to show the trial court abused its discretion in finding that his plea was knowing, intelligent, and voluntary.
After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.
Westbrook’s testimony at the motion for appellant to withdraw his plea was not very illuminating. Westbrook did not remember many of the details surrounding the appellant’s change of plea hearing.