Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 62067575.
HULL, J.
A 15-count information charged defendant David John Argyris with a multitude of offenses occurring on five different dates. Defendant ultimately entered a negotiated plea of no contest to two counts of transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)), one count of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and two misdemeanor counts of driving under the influence (Veh. Code, § 23152, subd. (c)). He also admitted that some of these offenses were committed while he was on bail (Pen. Code, § 12022.1), that he had two prior drug-related convictions (Health & Saf. Code, § 11370.2, subd. (c)), and that he had served a prior prison term (Pen. Code, § 667.5). The trial court imposed an aggregate sentence of 15 years.
Defendant received a certificate of probable cause and raises two claims on appeal. He asserts that (1) ineffective assistance of counsel, coupled with the denial of his motion for a continuance, rendered his plea involuntary and unknowing, and (2) the court abused its discretion in denying his Marsden motion. (People v. Marsden (1970) 2 Cal.3d 118.) Neither contention has merit and we therefore affirm the judgment.
Given the nature of defendant’s claims, a recitation of the underlying facts is unnecessary, and we instead incorporate the relevant facts in the analysis that follows.
Discussion
I
Validity of Plea
Defendant contends that his plea was not knowingly and voluntarily entered because it was the product of ineffective assistance of counsel, a situation allegedly exacerbated by the denial of his attorney’s motion for continuance. Defendant’s claims are meritless.
“[A] plea is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.” (People v. Howard (1992) 1 Cal.4th 1132, 1175.)
“‘It is well settled that where ineffective assistance of counsel results in the defendant’s decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea.’ [Citations.] [¶] To establish ineffective assistance of counsel under either the federal or state guarantee, a defendant must show that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and that counsel’s deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel’s failings, the result would have been more favorable to the defendant.” (In re Resendiz (2001) 25 Cal.4th 230, 239, fn. omitted.)
Defendant cannot meet this standard.
Defendant asserts, and the People agree, that defense counsel miscalculated the number of prior controlled substance enhancements and on-bail enhancements that could potentially be imposed and therefore grossly overstated defendant’s maximum prison term. The 15-count information charged these enhancements in conjunction with many of the offenses and counsel assumed that sentences could be imposed accordingly. She calculated that defendant had 12 qualifying prior controlled substance convictions (four counts, each charging the same three prior convictions) and 8 qualifying on-bail enhancements (multiple allegations charged in connection with four counts). Consequently, counsel advised defendant that he faced a potential prison term of more than 65 years.
Counsel’s calculations were wrong. The type of enhancements at issue here are status enhancements that relate to the nature of the offender, not to the number of charged acts. Consequently, only one enhancement could be imposed for each of the three qualifying prior controlled substance convictions, and only one enhancement could be imposed for each of the three times defendant committed an offense while on bail. (See People v. Tillotson (2007) 157 Cal.App.4th 517, 542; People v. Augborne (2002) 104 Cal.App.4th 362, 376-377.)
Counsel’s error resulted in her overstating defendant’s potential sentence by 37 years. Rather than facing a sentence of 65 years as counsel believed, defendant actually faced a sentence of 28 years.
We agree with defendant and the People that counsel’s misstatement fell below the standard of care. However, that alone does not establish ineffective assistance of counsel: defendant must also demonstrate that he was prejudiced by counsel’s action. He cannot meet this burden.
There is no evidence in the record that defendant would have rejected the 15-year offer had he known that he faced a 28-year sentence rather than a 65-year sentence. As the People point out, this case is unlike People v. Johnson (1995) 36 Cal.App.4th 1351, 1358, in which the defendant filed a declaration in conjunction with his habeas petition, stating that he would not have accepted the plea had he been given an accurate calculation of his potential prison sentence. No such declaration is included here. Defendant’s agreed-upon sentence was half of what he might otherwise have received, and we will not presume that he would have rejected this offer had he been given the correct information.
Given this silent record, defendant cannot establish prejudice, dooming his assertion that ineffective assistance of counsel rendered his plea unknowing and involuntary.
In a related claim, defendant suggests that the court’s erroneous denial of his attorney’s request for a continuance also affected the validity of his plea. Again, the predicate for this claim is missing: the court’s ruling was well within its discretion.
“A continuance in a criminal trial may only be granted for good cause. [Citation.] ‘The trial court’s denial of a motion for continuance is reviewed for abuse of discretion.’ [Citation.] ‘There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.’ [Citations.]” (People v. Mungia (2008) 44 Cal.4th 1101, 1118.) However, “[a] showing of good cause requires a demonstration that counsel and the defendant have prepared for trial with due diligence.” (People v. Jenkins (2000) 22 Cal.4th 900, 1037.)
Defense counsel asked for a continuance on the morning of the first day of trial, Monday, August 13, 2007, asserting that she had received copies of 911 calls and related logs only on the preceding Friday. She also stated that she had learned on Friday that her file was missing the 55-page transcript from a January preliminary hearing relating to one of the incidents. She had received a copy only that morning, and had not completed reading it.
The deputy district attorney opposed the motion, noting that a trial date had been set two months earlier, in June.
The trial court denied the motion for continuance, stating, “We’re set for trial. It has been set for trial for some time now. The evidence was made available previously and so was the transcript available at all times . . . .” After discussion of other matters, including a pending suppression motion, the court concluded proceedings for the day, and scheduled the suppression motion and jury selection for the following day (Tuesday). Opening statements were set for Wednesday morning.
Given these circumstances, the trial court properly concluded that counsel had not demonstrated good cause for a continuance. The materials counsel received had been available well before trial, and counsel offered no explanation for failing to obtain these items earlier. They were neither lengthy nor complicated, and counsel had time to complete her review before proceeding with her suppression motion the next day. The court acted well within its discretion in denying counsel’s motion for a continuance.
II
Marsden Motion
Defendant contends that the trial court erred in denying his Marsden motion to substitute counsel. We disagree.
“Marsden motions are subject to the following well-established rules. ‘“‘When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].’ [Citations.]”’ [Citation.] Denials of Marsden motions are reviewed under an abuse of discretion standard. [Citation.] Denial ‘is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would “substantially impair” the defendant’s right to assistance of counsel. [Citations.]’” (People v. Barnett (1998) 17 Cal.4th 1044, 1085.)
Immediately after his attorney’s motion for continuance was denied, defendant made his Marsden motion seeking a new attorney. He said that his attorney had told him that she was not prepared and that he needed to file a Marsden motion. The court responded, “Well, that’s not a basis for the Marsden motion. The Marsden motion is a breakdown in communication or inability to work with counsel.” Defendant then described his difficulties in communicating with his attorney, saying that they argued about the case and were not compatible. Counsel also reiterated her claims that she had just received discovery items, and she added that communication with defendant had broken down because defendant believed she was unprepared.
The court ruled: “[T]he basis of a Marsden motion is much greater. It is not that your communication is difficult. That is not a high enough standard to meet the requirement of the Marsden motion to be granted, and at this point your Marsden motion is going to be denied.”
Defendant contends that the court erred in assuming that a Marsden motion can be based only on irreconcilable differences between an attorney and defendant. He notes that a Marsden motion is also proper if an attorney is not providing adequate representation, and he asserts his motion should have been granted on that basis. He contends that his attorney’s lack of preparation for trial, as demonstrated in her request for a continuance, established that he was not receiving adequate representation. We disagree.
As we have already discussed, the court properly denied counsel’s motion for a continuance. Defendant’s unsuccessful attack on that ruling does not open the door for a refashioned assault on the same perceived shortcoming through a different motion. The issue of whether a continuance was necessary had already been resolved adversely to defendant and the court properly refused to permit him to relitigate that matter in the guise of a Marsden motion. And, as defendant implicitly recognizes, he failed to demonstrate irreconcilable conflict to justify substitution of counsel on the other Marsden grounds.
Under these circumstances, the trial court acted well within its discretion in denying defendant’s motion. There was no error.
Disposition
The judgment is affirmed.
We concur: NICHOLSON, Acting P. J., BUTZ, J.