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People v. Almeida

California Court of Appeals, Fifth District
Apr 21, 2009
No. F056079 (Cal. Ct. App. Apr. 21, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Tulare County No. VCF199028, Darryl B. Ferguson, Judge.

Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Stephen G. Herndon and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

THE COURT

Before Levy, Acting P.J.; Hill, J.; and Kane, J.

INTRODUCTION AND GENERAL FACTS

On February 22, 2008, the victim and four friends walked away from a high school. Appellant Carlos Almeida and some other people approached them and they fled back toward the school. Appellant caught up with the victim and they fought. Appellant pulled out a knife and stabbed the victim.

The factual circumstances of the offenses were obtained from the probation report.

On April 29, 2008, appellant was charged with two serious felonies: attempted murder (count 1) and assault with a deadly weapon (count 2). Also, it was alleged that appellant used a deadly weapon in count 1, inflicted great bodily injury and committed a serious felony within the meaning of section 969f in count 2 and that he committed both offenses for the benefit of a street gang. (Pen. Code, §§ 664/187, subd. (a); 245, subd. (a)(1); 1192.7, subd. (c); 12022, subd. (b)(1); 12022.7, subd. (a), 969f; and 186.22, subd. (b)(1)(C).)

Unless otherwise specified all statutory references are to the Penal Code.

Six days later, appellant accepted a negotiated plea agreement. He pled guilty to count 2 and admitted the enhancements that were attached to this count. In exchange, count 1 and the remaining enhancements were dismissed. The indicated sentence was 15 years’ imprisonment.

Appellant filed a motion to withdraw his guilty plea that was largely based on the claim that his counsel was ineffective (the withdrawal motion). The motion was denied. He was sentenced to 15 years imprisonment and awarded 199 presentence custody credits.

Appellant argues that the judgment must be reversed because the court failed to rule on the ineffective assistance claim presented in the withdrawal motion and it did not conduct a Marsden inquiry to assess counsel’s adequacy. Appellant also contends that he is entitled to one additional presentence credit and that a clerical error in the abstract of judgment must be corrected. All of these arguments are persuasive. We will reverse and remand for further proceedings.

People v. Marsden (1970) 2 Cal.3d 1118 (Marsden).

DISCUSSION

I. The matter must be remanded for reconsideration of the withdrawal motion and judicial inquiry of appellant’s complaints about Olmos.

A. Facts

The sentencing hearing was set for July 2, 2008. At this hearing, appellant’s counsel Marcus Olmos stated that appellant “indicated he wants to withdraw his change of plea.” Also, appellant “indicated to me that he was in contact with his mother yesterday, and, apparently, the mother was going to hire an attorney for him. In fact, she was supposed to bring the attorney to court ….” The new attorney was not present. The court said that appellant’s supposed retention of an attorney who was not present did not constitute legal cause to continue the sentencing hearing. However, it agreed to continue the sentencing hearing to August 13, 2008, so that appellant could file a motion to withdraw his plea. The court warned appellant, “If you are hiring an attorney, he better get on it because the motion must be filed by that date.” Olmos stated that “just out of an abundance of caution,” he was “going to have another conflict attorney file the motion,” probably Timothy Donahue. The court stated that would be fine. The prosecutor asked if the court was appointing conflict counsel. The court replied, “No. I don’t know what the basis for the withdrawal is, but if it is going to be the claim of ineffective assistance, then you better have a conflict counsel appointed.” The hearing was adjourned.

On August 7, 2008, Donahue filed the withdrawal motion. He argued that “‘good cause’ exist[s] to withdraw the guilty plea because at the entry of the plea defense counsel had not completed investigation on behalf of defendant; specifically, did not talk to defendant’s alibi witnesses.” The withdrawal motion was supported by declarations authored by Donahue and appellant.

Donahue declared that he interviewed Olmos, reviewed Olmos’s file, spoke with investigator Denise Hulsey and reviewed the change of plea transcript. Also, he employed investigator Stan Morgan. Morgan interviewed appellant and spoke with appellant’s mother. Morgan also obtained unspecified documents from the Preston Youth Correctional Facility and the Division of Juvenile Justice.

Appellant declared that he spoke with “private investigators Hulsey and Fox” who told him that there was insufficient evidence of his guilt and that Olmos “just wanted to ‘get my case over with.’” After accepting the plea bargain, appellant “realized that Attorney Olmos never looked at my case.” Olmos did not communicate with him, inform him of all the evidence against him or present his side of the case. Olmos should have considered self-defense because the victim struck him first and he was protecting himself. Furthermore, “the victim says that he was pulled to the ground by the hood of the sweatshirt he was wearing, but the victim was actually wearing a sweatshirt that didn’t even have a hood. The victim also states that he was attacked by five (5) assailants but no one actually identified me as the one who stabbed the victim.” Appellant averred that he did not understand the words used at the change of plea hearing; he just followed Olmos’s instruction to respond affirmatively to each of the court’s questions.

The People filed written opposition but did not submit any declaratory evidence.

The withdrawal motion was heard on August 13, 2008, immediately before the sentencing hearing was conducted. Donahue argued that appellant “believes that he was inadequately represented. He also indicated that he didn’t understand the words used by the Court during the change of plea. Also believes there is insufficient evidence to convict him and that he has a defense to the charges that have been brought against him.”

The prosecutor argued that there were several pretrial conferences on this case. Olmos’s investigator was present in the courtroom and they spent over 30 minutes with appellant on the day he changed his plea. The prosecutor stated that he was prepared to call the investigator as a witness if the court wanted to hear from him.

The court stated that he did not need to hear from the investigator. Then it denied the withdrawal motion, ruling:

“Well, I clearly remember this plea. I remembered the negotiations that we had in chambers regarding this plea, and I’ve gone over the declaration of the -- the transcript of the plea. And I’ve also gone over comments made by the defendant to his probation officer. And it appears clear to me that this defendant fully understood the consequences of his plea. He’s had sufficient -- he’s had contact, and he’s been to court many times since 2002. He’s entered many pleas.

“I find he made a knowing, voluntary, express, and explicit waiver of his rights. He understood the nature and consequences of his plea.”

At this point, Donahue stated that Olmos would represent appellant at the sentencing hearing because he was appointed solely for the withdrawal motion. The sentencing hearing was conducted. Olmos obtained a reduction in the restitution and parole revocation fines that were recommended in the probation report.

B. The court failed to rule on the ineffective assistance claim.

Guilty pleas and admissions may be withdrawn before judgment for good cause shown by clear and convincing evidence. (§ 1018; People v. Cruz (1974) 12 Cal.3d 562, 566.) A defendant may show good cause by demonstrating that he received ineffective assistance at an important stage of the proceeding such as plea bargaining and pleading. To establish ineffective assistance of counsel, a defendant must show that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and prejudice. (In re Resendiz (2001) 25 Cal.4th 230, 239.) A defendant who pled guilty demonstrates prejudice resulting from ineffective assistance by establishing a reasonable probability that, but for counsel’s incompetence, he would not have pled guilty and would have insisted on proceeding to trial. (Id. at p. 253.) The denial of a motion to withdraw a guilty plea will not be disturbed on appeal unless an abuse of discretion is shown. (In re Brown (1973) 9 Cal.3d 679, 685.)

Appellant argues that the trial court erred by failing to investigate, consider and rule on the ineffective assistance claim raised in the withdrawal motion. We agree. The withdrawal motion was primarily based on ineffective assistance of counsel, yet the court failed to determine whether Olmos provided effective representation to appellant. Olmos did not submit a declaration and the court did not ask Olmos to respond to appellant’s complaints about his representation. The court declined to hear testimony from Olmos’s investigator. The court did not include appellant’s declaration in the list of documents it stated that it considered. In its oral ruling, the court only addressed appellant’s contention that he did not understand the consequences of his plea. The court did not inquire into or rule on appellant’s claim that Olmos failed to investigate alibi witnesses and did not consider the applicability of self-defense. The court did not determine whether Olmos’s representation fell below an objective standard of reasonableness or whether appellant was prejudiced. Because the court entirely ignored the ineffective assistance claim, its denial of the withdrawal motion cannot be upheld as a reasoned exercise of judicial discretion.

C. The court failed to inquire into appellant’s complaints about Olmos and did not determine whether substitute counsel should be appointed for sentencing.

Marsden and its progeny require that when a defendant complains about the adequacy of appointed counsel, the trial court permit the defendant to articulate his causes of dissatisfaction and, if any of them suggest ineffective assistance, to conduct an inquiry sufficient to ascertain whether counsel is in fact rendering effective assistance. [Citations.]” (People v. Eastman (2007) 146 Cal.App.4th 688, 695 (Eastman).) A defendant is not required to make a formal Marsden motion in order to trigger an inquiry obligation on the part of the trial court. (Id. at pp. 695-696.)

In this case, appellant averred sufficient facts in his declaration supporting the withdrawal motion to raise a question about Olmos’s effectiveness. Donahue reiterated these complaints during his oral argument. As a result, the court was obligated to question Olmos about these claims “… as necessary to ascertain their veracity.” (Eastman, supra, 146 Cal.App.4th at p. 695.) Even though appellant did not specifically ask for Olmos to be replaced, his complaints about Olmos “… set forth an arguable case that a fundamental breakdown had occurred in the attorney-client relationship that required replacement of counsel.” (Id. at p. 696.) Therefore, “[t]he court was obliged to make a record that this complaint had been adequately aired and considered. [Citation.]” (Ibid.) Since appellant is entitled to competent representation at every stage in the proceedings (People v. Smith (1993) 6 Cal.4th 684, 692), the trial court had an affirmative obligation to inquire into appellant’s complaints about Olmos to determine if he received effective assistance of counsel at the plea stage of the proceedings and to assess whether substitute counsel needed to be appointed for the sentencing hearing. (Eastman, supra, 146 Cal.App.4th at p. 697.) The court erred by failing to satisfy these obligations. (Id. at p. 696.)

D. The errors are prejudicial.

Failure to conduct an inquiry into counsel’s effectiveness requires reversal unless the record shows beyond a reasonable doubt that appellant was not prejudiced. (Eastman, supra, 146 Cal.App.4th at p. 697.) We do not know what might have been developed if the court had inquired into appellant’s complaints about Olmos, particularly his complaints that alibi witnesses were not interviewed and that he had acted in self-defense. Olmos did not file a responsive declaration. The court did not ask Olmos to respond to these claims and it declined to receive testimony from a defense investigator. It cannot be discerned from the limited record before us whether there was good cause for withdrawal of a guilty plea based on ineffectiveness of counsel or whether there occurred a fundamental breakdown in the attorney-client relationship necessitating appointment of substitute counsel for the sentencing hearing. As a result, we cannot find the court’s omissions harmless. (Ibid.) The court’s omissions require reversal and remand for inquiry and reconsideration of the withdrawal motion.

II. Appellant is entitled to 200 presentence custody credits.

Actual time in custody commences on the day of arrest and includes the day of sentencing. (People v. Smith (1989) 211 Cal.App.3d 523, 526.) Appellant was in presentence custody for the current offenses from February 22, 2208, to August 13, 2008. 2008 was a Leap Year. Therefore, appellant spent 174 days in presentence custody. He accrued 26 days of conduct credit pursuant to section 2933.1. This totals 200 presentence credits. However, he was only awarded 199 credits. Appellant argues and respondent concedes that he is entitled to one additional presentence custody credit. After examination of the record, we accept this concession as properly made. Since the judgment must be reversed and the matter remanded for further proceedings, the proper remedy is to order the trial court to modify the sentence on remand. (People v. Serrato (1973) 9 Cal.3d 753, 763 [unauthorized sentence may be corrected at any time].)

III. The abstract must be corrected to reflect the correct date of conviction.

Appellant was convicted on June 4, 2008. However, the abstract of judgment provides that he was convicted on June 4, 1989. Appellant argues and respondent concedes that correction of the abstract of judgment is necessary. After examination of the record, we accept this concession as correctly made. The proper remedy is to order preparation of a corrected abstract of judgment. (People v. Flores (1960) 177 Cal.App.2d 610, 612-614 [trial court has jurisdiction to correct an error in the abstract of judgment].)

DISPOSITION

The judgment is reversed and the matter remanded with the following directions: (1) the superior court shall conduct an inquiry into the veracity of appellant’s ineffective assistance claim raised in the withdrawal motion and shall conduct a Marsden inquiry to assess defense counsel’s effectiveness and to determine whether there occurred a fundamental breakdown in the attorney-client relationship requiring substitution of counsel; (2) the superior court shall reconsider its ruling on the withdrawal motion. If, after this inquiry and reconsideration, the superior court denies the withdrawal motion and determines that substitution of counsel is not necessary, then the judgment of conviction shall be reinstated and the sentence shall be modified to award appellant 200 presentence custody credits and, as modified, the sentence shall be reinstated. If, after this inquiry and reconsideration, the superior court denies the withdrawal motion but concludes that substitution of counsel is necessary, then the judgment of conviction shall be reinstated and the superior court shall appoint substitute counsel and conduct a new sentencing hearing during which it shall award appellant 200 presentence custody credits. In either event, the superior court shall prepare an amended abstract of judgment reflecting the additional presentence custody credit and correcting the date of conviction to June 4, 2008. The amended abstract of judgment shall be transmitted to the Department of Corrections.


Summaries of

People v. Almeida

California Court of Appeals, Fifth District
Apr 21, 2009
No. F056079 (Cal. Ct. App. Apr. 21, 2009)
Case details for

People v. Almeida

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CARLOS ALMEIDA, Defendant and…

Court:California Court of Appeals, Fifth District

Date published: Apr 21, 2009

Citations

No. F056079 (Cal. Ct. App. Apr. 21, 2009)

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