Opinion
F070211
08-23-2017
THE PEOPLE, Plaintiff and Respondent, v. KALVIN MICHAEL CARDENAS, Defendant and Appellant.
Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on August 23, 2017, be modified in the following particulars:
1. On page 10, footnote 8, the following verbiage is added so that the entire footnote 8 reads as follows:
"According to the People's trial brief, defendant was arrested and released in May 2012 for the Dinuba incidents. In September 2012, just four months later, he kidnapped and sexually assaulted the victim in this case.
"Defendant argues we must grant a petition for rehearing in this case because the factual summary constitutes an 'incorrect and misleading representation of the facts' since he waived the preliminary hearing, never had a trial, and entered his plea pursuant
to People v. West (1970) 3 Cal.3d 595 (West), so that '[t]here is no admissible evidence showing any of these allegations were true.'
"We decline to grant rehearing. We have explained the basis for the factual summary, and we will address the procedural history that led to defendant's plea agreement.
"Moreover, we cannot address defendant's appellate issues, and his complaints about the decisions made by both his defense attorneys, without explaining the context for those decisions based on the evidence that the People intended to introduce against defendant at a jury trial.
"Finally, a plea under West does not negate the superior court's statutory duty to obtain a factual basis for the plea. (§ 1192.5, People v. Holmes (2004) 32 Cal.4th 432, 435-436; In re Alvernaz (1992) 2 Cal.4th 924, 940, fn. 9; People v. Calderon (1991) 232 Cal.App.3d 930, 935.)"
There is no change in the judgment. Appellant's petition for rehearing is denied.
POOCHIGIAN, .J. WE CONCUR: GOMES, Acting P.J. FRANSON, J. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Fresno Super. Ct. No. F12907628)
OPINION
APPEAL from judgments of the Superior Court of Fresno County. Jon Kapetan, James A. Kelley, Jr., W. Kent Hamlin, and Gary D. Hoff, Judges. Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
Judge Kapetan ruled on the July 22, 2013, Marsden and Faretta motions; Judge Kelley ruled on the March 10, 2014, Marsden motion; Judge Hamlin ruled on the May 15, 2014, Marsden motion; and Judge Hoff ruled on the August 20, 2014, Marsden motion.
-ooOoo-
INTRODUCTION
Appellant/defendant Kalvin Michael Cardenas kidnapped a 10-year-old girl as she was walking to school and forced her into his pickup truck. He drove her to a secluded area, restrained her, and repeatedly sexually assaulted her. He left her partially submerged in a type of ponding basin, with her head above water. She was partially clothed and her hands were still restrained. He threatened to kill her if she tried to escape. The victim waited several hours and then managed to release her restraints, climbed out of the water, and was found by someone who lived in the area. The victim described the suspect and his vehicle to law enforcement officers, who released the description to the media in an attempt to find him. The investigators received a tip that a few months earlier, a man matching the description in a similar vehicle had tried to contact young girls in Dinuba. After additional investigation, defendant was identified as the Dinuba suspect, and the victim in this case identified defendant from a photographic lineup as the man who kidnapped and molested her. A warrant was obtained, and defendant was arrested and his truck seized. Defendant's cell phone was also seized, and the investigators discovered it contained photographs of the victim and a video that he filmed as he molested the victim.
Defendant was initially charged in the information with 15 felony counts, including four sexual assault charges that carried "one strike" special allegations pursuant to Penal Code section 667.61, subdivision (j), that mandated a term of life in prison without possibility of parole; four kidnapping charges that carried terms of life with the possibility of parole; and additional sexual assault charges that carried indeterminate terms of 15 years to life and 25 years to life.
All further statutory citations are to the Penal Code unless otherwise indicated.
As a result of a negotiated disposition, an amended information was filed that alleged eight felony counts and eliminated the kidnapping charges. Defendant pleaded no contest to count II, sexual penetration on a child under the age of 14 years accomplished by force, violence, duress, or fear of immediate and unlawful bodily injury (§ 289, subd. (a)(1)(B)); count V, sexual intercourse with a child 10 years of age or younger (§ 288.7, subd. (a)); and counts VI, VII, and VIII, oral copulation or sexual penetration of a child 10 years of age or younger (§ 288.7, subd. (b)). He also entered a no contest plea to the "one strike" special allegation charged as to count II, pursuant to section 667.61, subdivision (j), that the victim was a child under 14 years of age, defendant kidnapped the victim (§ 667.61, subds. (d)(2), (e)(1)), and defendant tied and bound the victim (§ 667.61, subd. (e)(5)). The court dismissed the remaining three charges in the amended information.
Defendant was sentenced to life without the possibility of parole for count II based on the "one strike" special allegation. The court stayed the indeterminate life terms for counts V through VIII.
As we will discuss below, the minute order and the abstract of judgment must be corrected.
On appeal, defendant contends the court should have granted his motion to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta), which he made on the day scheduled for the preliminary hearing and immediately after the court had denied his motion to replace appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
Defendant also contends the court should have granted the Marsden motions he made after he entered his plea and before he was sentenced, based on his claims that his defense attorney failed to meet with him, provide discovery, discuss possible trial strategy, and misstated the terms of the plea agreement.
We order the minute order and the abstract of judgment corrected and otherwise affirm.
FACTS
Defendant waived the preliminary hearing and entered into a negotiated disposition prior to trial. In his opening brief, defendant sets forth a brief statement of facts "based on the probation report," but he "does not concede the truth or accuracy of any of the allegations."
At the plea hearing, the parties stipulated that the law enforcement reports constituted the factual basis for defendant's pleas. Based on this stipulation, the following facts are quoted in their entirety from the Fresno County Sheriff's Department investigative report, which is reprinted in the probation report. As we will discuss below, additional details of the crime were disclosed in the People's trial brief and by the parties during the hearings in this case.
We are quoting the entirety of the sheriff's department report in order to illustrate the severity of the acts that were the basis for the numerous charges filed against defendant, and the nature of the evidence that would have been introduced at a possible trial, particularly the cell phone video that defendant took as he sexually assaulted the victim, and his recorded telephone calls that he made from jail to family members, where he admitted that he committed the crimes.
"The Confidential Victim (CV, age 10) was a fifth grade student ... [in Fresno]. She normally walks with her older brother to [an elementary school], where she takes the bus to [her own school]. On September 25, 2012, CV woke up late and her brother left without her. At approximately 8:00 a.m., when she left her home to go to school, her dog got out of the house and followed her. Her father had to drive to her location to pick up the dog. After [he] left, and as she was riding her bicycle to school, a male (later identified as [defendant] Kalvin Cardenas) drove up and said, 'Hi.' He advised his name was 'Paul,' and asked if she needed help with her bike. CV's bike pedal had broken, but she told him she was fine.
"[Defendant] then put CV's bicycle in the back of his truck and said, 'Get in. I'll take you to school.' CV did not want to, as she was scared, but [defendant] pushed her towards the truck. He asked her if it was okay if he got gas, first. Although CV did not want him to get gas first, she did not answer him. [Defendant] started driving and told CV that the place was 'worth it' because the gas was not expensive. He drove to the 'middle of nowhere,' got out, and purchased two bottles of water, at a gas-station, near a McDonalds. [Defendant] then paid for the gas and she stayed in the vehicle the entire time. When she tried to get out of the car, he tied her wrists together with a plastic 'zip-tie.'
"When they left the gas station, CV asked him if he was going to turn around and take her back to school. He told her he was going to turn around; however, CV observed [defendant] pull in somewhere and he said he was going to check his tires, but he never did. [Defendant] parked his vehicle, in a sandy field, like a desert. He pulled CV down so no one could see her, and she hit the back of her head on the door. He removed CV's shorts and underwear and touched her 'privates' and her legs. He touched her vaginal area with his mouth, which made her feel uncomfortable. He inserted his finger into her vagina three times, which hurt. She tried to get him to stop by pushing him away with her foot, but then he punched her in the stomach with his fist. When he touched her, he took pictures of her and her vaginal area.
"While still in the car, CV was lying down across the seat. CV kept trying to get up, but [defendant] kept pushing her down. He lay on top of her, held himself up with his hands and, with one hand, he kept her legs spread apart. With the other hand, he put on her chest to hold her down. [Defendant] was still wearing his shorts, but he unzipped his zipper and inserted what felt like a really sharp object (his penis) into her vagina, for more than one minute, but less than five minutes. While his penis was in her vagina, [defendant] told CV to be quiet, as CV cried, due to the pain.
"He then drove to another field, where there was a pond. CV tried talking to him and he told her to 'shut up.' CV stopped talking, but he told her to 'shut up' again and then hit her head really hard against the car window approximately five times. This caused her pain and left a bump or bruise to the side of her face. CV was able to break the plastic thing off her wrists. [Defendant] then used a red bungee to tie her hands together. CV noted it was not very tight, but [defendant] knew she could get it off easily, so he used some rope that looked like the handle from a paper bag. He tied the rope around her hands, tightly, and tied it in five knots so she could not remove it.
"[Defendant] picked her up from inside the vehicle and threw her on the ground, into the reeds by the pond. He also threw cactus leaves and a big dirt clod at her, striking her on the side of the head. He then told her to go into the water, until she was waist deep. [Defendant] left her in the reeds, and told her if she got out, he would kill her and he would be watching to make sure she stayed in the pond. CV was scared, as she thought he may drown her. She stayed in the reeds for a long time, as she watched the sun move through the sky (approximately five hours).
"After he left, she was able to take the red bungee off, but the rope was hard to remove, and she had to use her teeth to remove it. CV noted that the pond 'felt gross and there were a lot of bugs,' and the water was cold. When CV saw the sun starting to fade, she knew she had better try to return home before it got too dark. She recalled seeing a highway, so she walked there. She believed she walked for approximately 40 minutes before she passed a golf course. A female witness (Crystal) stopped and asked her if anything was wrong, and assisted her. Crystal then called police and CV's mother.
"When police responded, they noted Crystal had given CV a blanket to cover the lower part of her body. CV also had red marks on both her wrists, consistent with being tied up. Deputies also noted that CV was crying softly and asking for her mother. After CV was reunited with her mother, they were transported to Valley Children's Hospital for a sexual assault exam, which depicted acute genital trauma.
"Through further investigation, deputies received a call from a citizen in Dinuba, who reported a similar incident that occurred in May, 2012, involving [defendant] Kalvin Cardenas. A photographic lineup, including [defendant]'s picture, was provided to CV, who identified [defendant] as her abductor. Detectives later responded to a gas station, in an area described by CV. In the gas station's video surveillance, detectives observed [defendant] enter, purchase gas and two water bottles. [Defendant] kept looking back towards his vehicle, which matched the description provided by CV.
The People filed a trial brief in this case prior to the negotiated disposition, it is part of the record on appeal, and it explains the reference to the "similar incident" in Dinuba 2012.
According to the People's brief, on May 17 and 18, 2012, four girls who were between the ages of 10 and 12 years old, reported separate incidents where they were walking to school or in their neighborhood in Dinuba, and a man in a brown truck drove up and offered them rides. Each girl became afraid and ran away, and the truck briefly pursued them. In the last incident, a girl was walking to school when the man tried to get her into his truck. The girl ran to her school and the truck followed her. She reached the school and told the custodian what happened. The custodian got into his own car, drove around, and found the brown truck parked across from the school. The police found defendant sitting inside the truck. The girls identified defendant at an infield showup. Defendant was arrested in the Dinuba cases, but no charges were filed and he was released. The People's brief does not state why he was not charged.
After the victim in this case was rescued, the sheriff's department released the description of the suspect and his truck to the media. In response, a reporter from the Dinuba Sentinel newspaper contacted the sheriff's department and told them about the Dinuba cases. The sheriff's department contacted the Dinuba Police Department and learned about defendant's identity and his truck. The victim in this case was shown a photographic lineup and immediately identified defendant as the man who kidnapped and raped her.
The People's trial brief further stated its intent to introduce evidence at defendant's trial in this case, about his commission of the uncharged Dinuba acts because they were "eerily similar in the planning, execution and targeting of the victims," defendant drove around elementary schools when children were walking to class, and the children were about the same age as the victim. The People argued the evidence was relevant to prove his identity, method of choosing and gaining access to victims, and his purposeful selection of victims, pursuant to Evidence Code section 1101, subdivision (b).
As noted above, defendant entered into the negotiated disposition on the scheduled first day of trial, and the court never addressed the People's evidentiary motion.
"At approximately 5:10 a.m., on September 26, 2012, deputies [from the Fresno County Sheriff's Department] responded to [defendant]'s residence; however, he refused to come out. A search warrant was signed and [defendant] was taken into custody at approximately 8:15 a.m., when he was transported to Headquarters for an interview.
"After waiving his Miranda rights, [defendant] stated, 'wrong place, wrong time.' After the media gave a description of a suspect vehicle involved in a child abduction, he decided to abandon his vehicle, as it resembled his vehicle. When police arrived at his residence, he was 'scared' and did not want to come out. To a majority of the detectives' questions, [defendant] had no response. He stated, 'It wasn't me. It's a tough, tough spot to be in. Well for everybody, for you guys, for the people and obviously for me. It's not easy. You know I have to tell you guys, "Hey, it wasn't me." I am saying, like, I am telling you guys that I know it's a tough spot, but that wasn't me. I know I have a stupid brown little truck, but it wasn't me.' When advised of the surveillance video at the gas station, he had no response. He continually denied knowing CV, and then stated he 'still does not understand everything that happened.' He stated he was not the person they were talking to now. 'That's not who I am.' He stated he wanted to help, that he cared, but he was 'just shooken up.' Regarding CV's statements, he stated, 'I am not saying she is [a liar] and I am not saying she isn't.'
According to the People's trial brief, the deputies also recovered a security video from a tire shop on Madera and Belmont. It showed that defendant arrived in his truck at 10:12 a.m. He got out of the truck and zipped up his pants, and then filled air in a tire. A bicycle was visible in the truck's bed. The victim's bicycle was later found just east of the tire store.
"Detectives reference[d] an incident in Dinuba, to which he stated, 'What happened before was a mistake and I promised myself I would, I could never, you know. Never get crazy with anybody or nothing. I've changed. I've been different. I've been working. I have been trying to change my life around.' During further questioning, [defendant] stated, 'It's like you want me to sit here and say something, but it's like, there is no right answer.' [Defendant] then requested an attorney.
"Halfway through the interview, detectives located a cell phone in [defendant's] room that had photographs depicting CV, noting she was bound by the wrists by a plastic 'zip tie.' The phone was seized during the service of the search warrant and turned over to detectives with Internet Crimes Against Children. Detectives later reported that photos of CV were located, as well as video footage. The video showed [defendant] using a red cloth or shirt to wipe the victim. Detectives noted that they had seen a red cloth in the street, in the area where CV was located.
"[Defendant] was then transported to CRMC (Community Regional Medical Center) for a sexual assault examination.
"When detectives viewed the images on [defendant]'s phone, they located several images of CV, seated in the vehicle, naked from the waist down. In the video footage (1 minute, 50 seconds), created on September 25, 2012, at 9:27 a.m., detectives observed CV having a conversation with [defendant], who put one finger into CV's [opening]. She told him to promise that he was almost done. She told him he needed to take her to school, as they would know something was wrong, as she never misses school. She told him to be careful because she is too young for this and her body is still growing. Detectives then noted that it appeared [defendant] was masturbating, as his hand was observed moving and the tip of what appeared to be his penis was also seen [defendant] told CV to 'just wait.' [Defendant] then put one finger into CV's vagina and then wiped blood from his finger onto a red t-shirt, which he used to wipe CV's vagina.
The People's trial brief states that defendant's cell phone was found when his bedroom was searched pursuant to a warrant. Defendant's cell phone contained photographs of the victim and a video that graphically showed defendant sexually assaulting the victim.
At the sentencing hearing, the court asked the parties if there were any corrections to the probation report, including that report's inclusion of the investigative reports. The prosecutor stated that defendant videotaped the molestation, and the video showed defendant insert his finger into the victim's anal opening. The prosecutor also said that DNA from both defendant and the victim was found on a red T-shirt; and the defendant's DNA was found on a vaginal swab taken from the victim during the sexual assault examination. Defense counsel did not object to these statements. As a result of the prosecutor's statements, the court wrote on the report that defendant's DNA was "discovered on items."
"On October 3, 2012, detectives listened to [defendant]'s jail telephone conversation recordings. In those conversations, he admitted to family members that he was responsible. He stated it was his fault and he lied. He stated he had a problem and thought he was over it. His aunt told him he must repent, and ask God and the little girl for forgiveness, to which [defendant] agreed. He then stated he was trying to change and was sorry for letting everyone down."
According to the People's trial brief, defendant was arrested and released in May 2012 for the Dinuba incidents. In September 2012, just four months later, he kidnapped and sexually assaulted the victim in this case.
PROCEDURAL HISTORY
Felony complaint and retained counsel
On September 28, 2012, a felony complaint was filed that charged defendant with count I, sexual intercourse by means of force, violence, duress, menace, or fear of immediately and unlawful bodily injury (§ 261, subd. (a)(2)); count II, sexual penetration accomplished by force, violence, duress, or fear of immediate and unlawful bodily injury (§ 289, subd. (a)(1)(A)); count III, oral copulation accomplished by force, violence, duress, menace, or fear of immediately and unlawful bodily injury (§ 288a, subd. (c)(2)(A)); and counts IV, V, and VI, sexual intercourse or sodomy on a child 10 years of age or younger (§ 288.7, subd. (a)).
As to counts I, II, and III, the complaint alleged special allegations pursuant to section 667.61, subdivisions (a) and (j), the "one strike" law, that the victim was a child under 14 years of age, defendant kidnapped the victim (§ 667, subds. (d)(2), (e)(1)), and defendant tied and bound the victim (§ 667.61, subd. (e)(5)), such that he faced terms of either 25 years to life, or life without the possibility of parole for each count.
Section 667.61, known as the "One Strike" law, sets forth "an 'alternative and harsher sentencing scheme for certain sex crimes.' [Citation.] For the sex crimes falling within its reach (§ 667.61, subd. (c) [enumerating crimes]), a first-time offense can result in one of two heightened sentences. The sentence will be 15 years to life if the jury finds (or the defendant admits) one or more of the 'circumstances' listed in section 667.61, subdivision (e). (§ 667.61, subds. (b) & (e).) The sentence will be 25 years to life if the jury finds (or the defendant admits) either (1) two of the 'circumstances' listed in section 667.61, subdivision (e), or (2) one of the more aggravated 'circumstances' listed in section 667.61, subdivision (d). (§ 667.61, subds. (a), (d) & (e).)" (People v. Perez (2015) 240 Cal.App.4th 1218, 1223, original italics.)
In addition, section 667.61, subdivision (j)(1) states the sentence is life without the possibility of parole when the jury finds, or the defendant admits, an enumerated offense specified in subdivision (c), committed on a victim under 14 years of age, under one or more of the "circumstances" specified in subdivision (d), or two or more of the "circumstances" specified in subdivision (e).
On October 1, 2012, defendant appeared in court with retained counsel Ryan Sullivan. Defendant was held without bail. The court granted defendant's motion to continue the arraignment.
On October 18, 2012, defendant was arraigned and pleaded not guilty. Appointment of counsel
On November 29, 2012, the court conducted the pre-preliminary hearing. Defendant was present with Mr. Sullivan, who requested to withdraw. The court denied his request. Thereafter, Mr. Sullivan filed a motion to withdraw because defendant was unable to pay him. On December 4, 2012, the court granted Mr. Sullivan's motion to withdraw and appointed the public defender's office to represent defendant.
On January 17, 2013, the public defender declared a conflict. The court appointed Ciummo and Associates as conflict counsel to represent defendant.
On May 30, 2013, Joseph Aed of conflict counsel appeared with defendant and requested a continuance of the preliminary hearing. The court granted the motion. Scheduled Preliminary hearing — Marsden and Faretta motions
On July 22, 2013, Judge Kapetan called defendant's case. Defendant was present with Mr. Aed. The court was about to assign the matter to another department for the preliminary hearing, but Mr. Aed advised the court that defendant wanted to make a Marsden motion.
First Marsden hearing
The court conducted a Marsden hearing. Defendant complained Mr. Aed failed to follow his instructions to either waive or not schedule the preliminary hearing until they talked about the case. Defendant complained Mr. Aed had not discussed any defense strategy, Mr. Aed had not exhausted all discovery options, and defendant wanted certain transcripts, forensic results, and medical records from discovery.
Mr. Aed said he met with defendant four times. Defendant had not provided any information that should be investigated for the defense case. Mr. Aed gave defendant all the discovery he had received, with appropriate redactions about the victim. Mr. Aed had not yet received any DNA or forensic test reports.
Mr. Aed stated that defendant also wanted the video from his cell phone, which allegedly showed defendant sexually assaulting the victim. Mr. Aed had not received a copy of this video, but it was potentially pornographic and could not be given to defendant.
Mr. Aed had recommended waiving the preliminary hearing because it was a "high media case" and reports about the alleged crimes would not be in his best interests.
Defendant conceded that he had received discovery, but asserted Mr. Aed had not exhausted all discovery motions or tried to find out what the government had against him.
The court noted that defendant admitted he had received discovery from Mr. Aed, found there had not been a breakdown in their relationship, and denied defendant's Marsden motion.
Faretta motion
The court returned to the courtroom and advised the prosecutor that it denied defendant's Marsden motion. Defendant immediately made a Faretta motion to represent himself.
The court asked defendant whether he would be prepared to proceed with the preliminary hearing if his Faretta motion was granted. Defendant said no.
The court denied defendant's Faretta motion and found it "a delaying tactic." However, the court stated it would "conditionally grant the request based upon his ability to do the prelim [sic] today."
The court stated it was going to send the matter to Judge Sanderson for the preliminary hearing, and asked the parties to "make sure that courtroom is informed of my ruling regarding the Faretta and not to send it back here if they decide to grant it."
Waiver of preliminary hearing
On the same day, the matter was sent to Judge Sanderson, who acknowledged that she had been informed that defendant's Marsden motion had been denied, and his Faretta motion was denied as untimely.
Mr. Aed stated he had talked with defendant, and defendant was prepared to waive the preliminary hearing. The court advised defendant of his right to a preliminary hearing, defendant waived his right, and the court held defendant to answer.
On appeal, defendant contends the court erroneously denied his Faretta motion.
THE INFORMATION
On August 1, 2013, the information was filed that alleged 15 felony counts:
Count I—Sexual intercourse by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury (§ 261, subd. (a)(2));
Counts II and III—Sexual penetration on a child under the age of 14 years accomplished by force, violence, duress, or fear of immediate and unlawful bodily injury on a child (§ 289, subd. (a)(1)(B));
Count IV—Oral copulation on a child under the age of 14 years by force, violence, duress, menace, or fear of immediate and unlawful bodily injury (§ 288a, subd. (c)(2)(B));
Count V—Sexual intercourse with a child 10 years of age or younger (§ 288.7, subd. (a)), with a great bodily injury enhancement (§ 12022.7, subd. (a));
Count VI—Oral copulation or sexual penetration of a child 10 years of age or younger (§ 288.7, subd. (b)), with a great bodily injury enhancement;
Count VII—Sexual penetration of a child 10 years of age or younger (§ 288.7, subd. (b)), with a great bodily injury enhancement;
Count VIII—Oral copulation of a child 10 years of age or younger (§ 288.7, subd. (b));
Count IX—Second degree robbery (§ 211) with a great bodily injury enhancement;
Counts X and XI—Assault by means likely to produce great bodily injury (§ 245, subd. (a)(4));
Count XII—Kidnapping for the purpose of committing rape (§ 209, subd. (b)(1)), with a great bodily injury enhancement;
Count XIII—Kidnapping for the purpose of committing sexual penetration (§ 209, subd. (b)(1)), with a great bodily injury enhancement;
Count XIV—Kidnapping to commit oral copulation (§ 209, subd. (b)(1)); and,
Count XV—Kidnapping to commit robbery (§ 209, subd. (b)(1)).
As to counts I, II, III and IV, the information alleged special allegations pursuant to section 667.61, subdivision (j), the "One Strike" law, that defendant would be sentenced to life in prison without the possibility of parole because the victim was a child under 14 years of age, and upon proof of one or more circumstances from section 667.61, subdivision (d), and two or more circumstances from subdivision (e): defendant kidnapped the victim (§ 667.61, subds. (d)(2), (e)(1)), defendant inflicted great bodily injury on the victim (§ 667.61, subd. (d)(6)); and defendant tied and bound the victim (§ 667.61, subd. (e)(5)).
Each kidnapping charge alleged in counts XII through XV potentially carried a term of life in prison with the possibility of parole, "if the movement of the victim is beyond that merely incident to the commission of, and increases the risk of harm to victim over and above that necessarily present in, the intended underlying offense." (§ 209, subds. (b)(1), (b)(2).)
On August 6, 2013, defendant pleaded not guilty and denied the allegations.
On October 24, 2013, the court granted Mr. Aed's request for a continuance because another attorney from the conflict firm was going to be assigned to represent defendant. Pretrial Marsden motion
On November 7, 2013, defendant appeared with appointed counsel Franz Criego. The court granted defendant's motion for a continuance for further discovery. On December 11, 2013, the parties advised the court that they were ready for trial, scheduled to begin on February 10, 2014.
On January 6, 2014, defendant filed a handwritten motion to discharge Mr. Criego pursuant to Marsden and to continue the trial.
Second Marsden hearing
On March 10, 2014, the court held a hearing on defendant's Marsden motion. Defendant complained that Mr. Criego would not meet with him despite numerous requests, and they had not discussed strategy and tactics. Mr. Criego failed to provide him with complete discovery including interview transcripts, evidence disks, DNA and other forensic test results, and reports of medical examinations. Defendant believed Mr. Criego was biased against him and was unwilling and unreliable to handle his defense. Defendant said that when he first met Mr. Criego and tried to discuss discovery motions, Mr. Criego replied, "You know what you did." Mr. Criego also failed to discuss defendant's liability about the victim's civil suit against him.
Mr. Criego replied that he had met with defendant several times, including just two weeks earlier. Mr. Criego advised defendant about his potential sentencing exposure if he was convicted of the charged offenses. Mr. Criego said defendant demanded copies of the victim's medical records and a copy of the video that was found on defendant's cell phone, "when he took pictures of himself" with the victim. Mr. Criego told defendant that information was confidential as a matter of law, and could not be disclosed without a court order.
Mr. Criego said he had received approximately 580 pages of discovery from the district attorney's office. He had not yet received any DNA reports. He had thoroughly read these reports and believed "the People's case is cemented against my client." Mr. Criego explained:
"Between Pages 1 and 125 are the statements that were received from the other individuals, as well as references to Wally's tires. Wally's Tires where the other video shows my client's truck appear at the ARCO [gas station], which is consistent with the statements provided by the alleged victim in this case, who is less or was approximately 10 years of age.
"From Pages 124 through about 300 is a review of the physical examination because the police put the major crimes, as well as the homicide team to work on this case. Those pages talk about basically the other items that are followed up on Pages 1 through 124, as well as the tire tracks, the clothing belonging to my client,which he admitted that he left in the dumpster at his girlfriend's house, my client's truck that they located at the girlfriend's apartment, the blanket that was described, as well as the photographs dealing with the truck that the minor described as being broken, which prevented her from leaving, as well as various photographs and other items where my client allegedly threw the ten-year-old girl after he finished with her in a ponding reservoir hole when he tried to cover her with cactus and leaves, according to the alleged victim.
"From Pages 300 and thereafter to about 540, again, is a review of more additional follow-ups, including the tire tracks, the shoe tracks, as well as the MDIC [videotaped interview with the victim].
"In those regards, there are approximately ... six phone calls that the police and the jail recorded where my client admits his guilt, although the sign says it's going to be recorded and I tell my clients please stay off the phone. He managed to speak to his family members.
"Unfortunately for my client, the only thing I can do, because he wants to go to trial, is try to defend him and get him the best defense that he
can have. The problem is going to be the video that comes from my client's own cell phone that I have not made a [section] 1538.5 [motion to suppress], but do intend to do in limine motions because although all the police reports say that the phone was provided by my client's former roommate, the issue is whether or not the police had asked a former roommate to provide the phone if he came upon it, which then would be making the former roommate an agent of the police because a search warrant had, in fact, been issued, levied upon and no phone was located."
The parties stipulated to the investigative report as the factual basis for the plea, and that report states the cell phone was seized pursuant to a search warrant.
The court rejected defendant's claims, found Mr. Criego had made "big efforts" to prepare for trial, and denied the Marsden motion.
PLEA PROCEEDINGS
Advisement of possible plea agreement
On March 13, 2014, defendant's trial was scheduled to begin before Judge Hoff. Defendant appeared with Mr. Criego. The court stated the People were going to file a first amended information, and there might be a negotiated disposition to those charges. The court called a brief recess so Mr. Criego could discuss the matter with defendant.
After the recess, Mr. Criego advised the court that he was working with the prosecutor on possibly filing an amended information and reaching a plea agreement.
"The discussion we had on the enhancements I've explained to [defendant] that [section] 289(a)(1)(b) [sic] is life without the possibility of parole, that [section] 288.7(b), those are 15 to life, and that the [section 288] ... is a life without possibility of parole." (Italics added.)
After Mr. Criego made these statements to the court, he asked defendant if he understood, and defendant said yes. The prosecutor stated that another count in a potential amended information carried the term of 25 years to life, and Mr. Criego agreed.
Mr. Criego asked the court to continue the matter so the prosecutor could file an amended information, and they could try to reach a plea agreement: "With that, [defendant] understands he will not be having a jury trial...." Mr. Criego asked defendant if he understood, and defendant said yes.
"THE COURT: All right. Mr. Cardenas, if that's your intent, to avoid a jury trial and enter into a plea agreement as just been stated?
"[DEFENDANT]: Yes.
"THE COURT: And what I'm going to do is give you an opportunity to go over the amended pleading document that sets forth the charges and any enhancements. I'll give you an opportunity to discuss with your counsel the rights that you would be giving up for a jury or a court trial as well as an acknowledgement of the consequences of your plea, which are significant, with the life without the possibility exposure. The court will on the record, if you're still willing to do this tomorrow, take the change of plea. I will be asking you some questions, some questions concerning the rights and consequences relative to such a plea agreement and I want to be assured that you're entering into the plea agreement freely and voluntarily, in other words, it's your choice to do so having talked to your lawyer about your case, the possible exposure or sentence in this case and any defenses you may have to any of the charges in the case. And if you're telling me that's what you want to do, to have that time to go over that with him, and to - it's your intent to enter the change of plea, rather than doing it this afternoon we can do it tomorrow morning.... [¶] Is that your current intent, to enter the plea on the charges as they're going to be amended?
"[DEENDANT]: Yes.
"THE COURT: Do you have any questions at this point about what the charges are or your possible exposure?
"[DEFENDANT]: At this point, no." (Italics added.)
The court continued the matter to the following day.
The first amended information
On March 14, 2014, the prosecutor filed the first amended information that alleged eight felony counts:
Count I—Sexual intercourse by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury (§ 261, subd. (a)(2));
Counts II and III—Sexual penetration on a child under the age of 14 years accomplished by force, violence, duress, or fear of immediate and unlawful bodily injury (§ 289, subd. (a)(1)(B));
Count IV—Oral copulation on a child under the age of 14 years by force, violence, duress, menace, or fear of immediately and unlawful bodily injury (§ 288a, subd. (c)(2)(B));
Count V—Sexual intercourse with a child 10 years of age or younger (§ 288.7, subd. (a));
Counts VI, VII, and VIII—Oral copulation or sexual penetration of a child 10 years of age or younger (§ 288.7, subd. (b)).
As to counts I, II, III and IV, the amended information again alleged special allegations pursuant to section 667.61, subdivision (j), the One Strike law, that defendant would be sentenced to life in prison without the possibility of parole because the victim was a child under 14 years of age, upon proof of one or more circumstances from section 667.61, subdivision (d), and two or more circumstances from subdivision (e): defendant kidnapped the victim (§ 667.61, subds. (d)(2), (e)(1)), and defendant tied and bound the victim (§ 667.61, subd. (e)(5)).
In contrast to the original information, the amended information omitted the four kidnapping charges that carried terms of life with the possibility of parole, and the enhancements and special "one strike" allegations based on the infliction of great bodily injury.
The plea hearing
Also on March 14, 2014, defendant again appeared before Judge Hoff. The court stated it had received the amended information.
Mr. Criego said defendant wanted to withdraw his not guilty pleas and plead guilty to charges in the amended information, as set forth in a change of plea form that he was filing with the court. Mr. Criego asked defendant if he agreed. Defendant said he was pleading no contest. The court confirmed the form said no contest, and asked defendant if that was what he intended. Defendant said yes.
Mr. Criego gave the court a form entitled "Felony Advisement, Waiver of Rights, and Plea Form," that defendant had signed. The form stated that defendant was pleading no contest to violating section 289, subdivision (a)(1)(B) (count II), and the section 667.61, subdivision (j)(1) allegation; section 288.7, subdivision (a) (count V); and three counts of section 288.7, subdivision (b) (counts VI, VII, and VIII). The form also stated that he was not eligible for probation; and his maximum sentence would be "Life without Parole + 25 years to life plus 15 years to life x 3." (Italics added.)
The court reviewed the change-of-plea form and then extensively advised defendant about the charges and potential sentences.
"THE COURT: [I]n taking this plea as you have gone over the form and as your attorney has advised you, you have certain rights and I'm going to go through them very specifically with you, but I also want you to understand the nature of the charges and the consequences before entering the plea. The District Attorney's Office has now filed a First Amended Information, that's a charging document that sets forth eight charges against you and I'm going to read to you generically what each charge it.
"Count One charges you with an offense of forcible rape. Count Two charges you with sexual penetration by force. Count Three charges you with an additional count of sexual penetration by force. Count Four charges you with an offense of forced oral copulation. Count Five charges you with the offense of sexual intercourse with a child. Count Six charges you either either oral copulation or sexual penetration of a child. Count Seven is a similar charge to Count Six. Count Eight is a similar charge to Counts Six and Seven. Each of the offenses is alleged that the victim in that case was a child ten years of age or younger. Some of the charges include that specific reference to the child's age and that the offenses were committed based upon the fact that you kidnapped the victim for purposes of committing that particular offense.
"The plea agreement, as I understand it, is that you will be entering a no-contest plea to five of the charges and three of the charges will be dismissed. Count One, the forcible rape, Count Three, the sexual penetration by force, and Count Four, the forced oral copulation charge, those are the three counts that would be dismissed if you enter a plea to the remaining five.
"Of the remaining five ... Count Two, the sexual penetration by force, that is an allegation that you digitally penetrated the child, who was under the age of 14, by use of force, and that offense under ... section 289(a)(1)(B) carries a sentence of life without the possibility of parole. Counts Six, Seven and Eight also involve an allegation of either oral copulation or digital penetration. One of those counts involves the same act that constitutes the crime in Count Two. Now, while you could be found guilty of or you could plead to Count Two and that other charge in the information under ... section 288.7(b), even though you could plead to or be found guilty of both of those charges, since they are based upon the same sexual penetration on the same victim at that time, in other words, one incident, you could only be sentenced for one of those. However, the other four charges, the sexual intercourse and the other two charges of either digital penetration or oral copulation are separate offenses, even though they occurred on the same date with the same victim. They involve distinct separate sexual acts and you could be sentenced for each of those offenses, and you could be sentenced in the court's discretion consecutively, in other words, one sentence followed by another, followed by another. [¶] Do you understand that concept?
"THE DEFENDANT: Yes, sir." (Italics added.)
The court asked defendant if he had signed the change of plea form, reviewed it with his attorney, and understood the rights and consequences set forth in it. Defendant said he had done so and understood. The court asked if he had any questions about those rights or consequences. Defendant said no. The court advised defendant that a no contest plea was the same as a guilty verdict or guilty plea. Defendant said he understood.
The court advised defendant of his constitutional rights. Defendant said he understood and waived each right.
The court again advised defendant of the potential sentence:
"THE COURT: As I have previously mentioned to you, the maximum sentence that you can receive in this case as it is currently charged is quite substantial. It could be life without the possibility of parole followed by 25-to-life, followed by 15-to-life. In other words, each offense could be stacked one upon the other except for the one charge that is duplicative. Because of the nature of these charges you would not be considered for a grant of probation even if there was a theory upon which
you were eligible for probation. The court would not be finding you suitable for probation and you would be sent to prison on this matter. [¶] Do you understand that?
"THE DEFENDANT: Yes, sir.
"THE COURT: Do you understand that for the offense in Count Two, the sexual penetration by force where the alleged victim is under the age of 14, and with the allegation that states that you had kidnapped the person and moved them substantially for the purposes of accomplishing that act, that that sentence for that one charge is life without the possibility of parole? [¶] Do you understand that?
"THE DEFENDANT: Yes, sir." (Italics added.)
The court again advised defendant that it had discretion to impose consecutive or concurrent sentences on the other charges. Defendant said he understood.
The court asked defendant if anyone made any promises to induce his pleas, other than the dismissal of the three counts in the amended information. Defendant said no. The court asked defendant if he was entering the plea agreement freely and voluntarily, and it was his choice to do so after talking with his attorney. Defendant said yes. The court asked defendant and his attorney if they had sufficient time to discuss the matter. Both defendant and Mr. Criego said yes.
Thereafter, defendant pleaded no contest to count II, sexual penetration on a child under the age of 14 years by force, in violation of section 289, subdivision (a)(1)(B)), and no contest to the section 667.61, subdivision (j)(1) special allegations that he kidnapped the victim, and tied and bound her; count V, sexual intercourse with a child 10 years of age or younger, in violation of section 288.7, subdivision (a)); count VI, sexual penetration of the victim's vagina, committed on a child 10 years of age or younger, in violation of section 288.7, subdivision (b); count VII, oral copulation of a child 10 years of age or younger; and count VIII, sexual penetration of the victim's anus, committed on a child 10 years of age or younger.
After taking the pleas, the court again advised defendant about his sentence:
"THE COURT: [S]o we have set forth which specifics acts are which, in Count Two, the sexual penetration by force, is the same act as the sexual penetration that was included in Count Six. Again, Count Two is the charge that carries with it life without possibility of parole. Count Six, that same penetration under a different charging crime, is a 15-to-life charge, which you could only be sentenced for one of those two.
"THE DEFENDANT: Yes, sir.
"THE COURT: The sexual intercourse with a child under the age of ten in Count Five is 25-year-to-life. Each of the other two charges in Counts Seven and Eight dealing with the oral copulation and digital penetration of the anus, each one of them is 15-year-to-life. [¶] Do you understand that?
"THE DEFENDANT: Yes, sir." (Italics added.)
The court found defendant had entered his pleas knowingly, freely, and voluntarily. The court granted the People's motion and dismissed count I, sexual intercourse by force; count III, sexual penetration of a child under the age of 14 years by force; and count IV, oral copulation on a child under the age of 14 years by force; and the one strike allegations that would have resulted in terms of life without parole for all three counts.
POSTPLEA MARSDEN HEARINGS
The instant appeal is based on defendant's claim that the superior court should have granted his postplea Marsden motions. First postplea Marsden motion
On May 5, 2014, Judge Hamlin convened the scheduled sentencing hearing in Judge Hoff's absence. Defendant appeared with Mr. Criego, who said that defendant wanted to make a Marsden motion and withdraw his plea.
At the beginning of the Marsden hearing, Judge Hamlin stated to defendant:
"THE COURT: [Y]ou are asking to be allowed to withdraw your plea because you believe Mr. Criego has somehow been incompetent in his representation of you; is that correct?
"THE DEFENDANT: Yes, Your Honor.
"THE COURT: All right. So what the Court needs to hear then is reasons why you believe that his representation has been less than constitutionally adequate ... [¶] And you've expressed to Mr. Criego that you would like him to bring a motion to withdraw the plea and he advised you he does not believe there is merit in such a motion.
"THE DEFENDANT: Yes, Your Honor.
"THE COURT: So you're asking he be relieved and another attorney be appointed to represent you to bring that motion?
"THE DEFENDANT: Yes, Your Honor."
The court asked defendant to explain what would support a motion to withdraw his plea. Defendant said Mr. Aed, his prior attorney, had showed him the victim's medical reports, and Mr. Aed "was gonna give me more discovery before he left my case," including the transcript of the victim's videotaped interview. Defendant said he told Mr. Criego that Mr. Aed was going to give these materials to him, but Mr. Criego said defendant was not entitled to them. Defendant admitted he had the police report that summarized the victim's interview, but he wanted the entire transcript. He also wanted the diagram used during the interview, where the victim marked the places on her body that had been injured. Defendant said he never received police reports about interviews with the victim's family and his own relatives.
Defendant complained that Mr. Criego failed to meet with him in jail, discuss the prosecution's evidence, or address their trial strategy. On further questioning from the court, defendant said Mr. Criego met with him twice in jail.
Defendant said that "just minutes" before he entered his plea, he asked Mr. Criego to "show me what they have against me one last time, and he says, 'This is the deal they're gonna offer you; either take it or we're gonna go to trial,' and I really did not feel confident in Mr. Criego handling my case for trial."Defendant said that shortly after his plea, he sent a letter to Mr. Criego and asked him to withdraw his plea.
Mr. Criego advised the court that defendant's discovery complaint was based on his repeated request for the videotape the police seized from defendant's cell phone. Mr. Criego stated defendant recorded the cell phone video as he sexually assaulted the victim. Mr. Criego explained that the video contained the victim's voice, asking defendant to please stop because he was hurting her. Mr. Criego said defendant also demanded the victim's full medical and "rape kit" examination records.
Defendant told the court that he did not ask for the victim's medical records. However, defendant admitted he wanted to watch the cell phone video to "strategize" and hear the "dialogue."
The court asked defendant why he wanted to watch a video he took as he sexually assaulted a 10-year-old child. Defendant said he had been charged with forcible rape, and the video would prove he did not rape her.
Defendant next complained Mr. Criego did not discuss any plea offers until the day of trial. Mr. Criego explained to the court that the People did not make any offers until that day, when the amended information was filed. Defendant replied that he took the plea offer because he did not trust Mr. Criego to handle a trial.
The court asked defendant whether he thought there were any possible defenses to the charges since he had videotaped himself as he molested the victim. Defendant said the video only showed digital penetration, and not oral copulation or intercourse.
Mr. Criego advised the court that in addition to the videotape, defendant made several telephone calls to family members after he was arrested, and the jail recorded the calls. Mr. Criego said defendant admitted he committed the offenses and the People would have introduced them at trial. Defendant replied he had not seen transcripts of those calls.
Mr. Criego also advised the court that the People had security videos from a gas station and tire store that corroborated the victim's account, and showed defendant and his truck at those locations during the time of the kidnapping.
The court asked defendant if he realized his potential exposure under the original information. Defendant said he would have received multiple life sentences. Defendant said that as a result of the plea, he received "one life and a 25 and two 15s." The court corrected him and said it was "three terms of 15 to life, and defendant agreed. (Italics added.)
"THE COURT: "And the box for consequences says, 'life without parole.' That's what he entered a plea to.'
"MR. CRIEGO: Yes. And the People agreed not to file, as I call it, a Lindburg [sic] kidnapping.
"THE COURT: That kidnap carried what exposure?
"MR. CRIEGO: Depends on how they filed it. Minimum of two or three other 30 year to lifes [sic]." (Italics added.)
The court asked defendant what else Mr. Criego could have done besides showing him the cell phone video and the transcript of the victim's interview. Defendant said he did not have enough meetings with Mr. Criego, he never explained the charges, and they did not communicate well. Defendant admitted that he raised these same complaints against Mr. Criego at a Marsden hearing prior to the plea, and the court denied his Marsden motion.
"THE COURT: Did you express to Judge Hoff at the time you entered this plea that you were dissatisfied with Mr. Criego's representation?
"THE DEFENDANT: At the time, no, I didn't, Your Honor.
"THE COURT: So you entered the plea?
"THE DEFENDANT: I was - I'm sorry. I was not -I was not sure that I could file a Marsden motion at that time.
"THE COURT: So you entered the plea and you understood in entering this plea that your exposure was life without parole, plus 25 years to life, plus three counts of 15 years to life. Correct?
"THE DEFENDANT: Yes, your Honor.
"THE COURT: And you entered that because there was some additional exposure in the various other counts, correct?
"THE DEFENDANT: I believe so.
"THE COURT: Additional life terms that were going to also be imposed if you were convicted of all the charges, right?
"THE DEFENDANT: Yes, your Honor." (Italics added.)
Defendant said he understood but he still wanted a trial. The court asked if he told Judge Hoff that he wanted a trial before he entered the plea. Defendant said no, but he took the plea because he did not trust Mr. Criego to conduct the trial.
"THE COURT: Well, Judge Hoff went over this form with you, right? He talked about the rights you were giving up and the consequences of the plea?
"THE DEFENDANT: Yes, sir.
"THE COURT: And in the course of that conversation he asked if you had any questions, and if you'd had sufficient time to make your decision, and you entered the plea. So when you did that, you didn't express any misgivings to Judge Hoff about whether or not you should be entering this plea, correct?
"THE DEFENDANT: Yes, Your Honor."
Mr. Criego advised the court that he had given defendant forms with the elements of the charged offenses, and multiple scenarios of his potential exposure on the original charges.
Defendant said immediately after the plea, he wrote to Mr. Criego and the court, and asked to withdraw his plea. Mr. Criego visited him in jail, said he would look into it, and later sent him a letter "that he most likely will not."
The court asked Mr. Criego to address defendant's claims about discovery and the plea. Mr. Criego said defendant wanted to receive information that he believed was privileged, including the entirety of the victim's medical records, the rape kit examination, the victim's videotaped MDIC interview, and defendant's own cell phone video of the sexual assault. Mr. Criego said defendant raised these identical discovery complaints to the court at the pre-plea Marsden hearing, and Mr. Criego had explained these materials were privileged and could not be given to defendant. Mr. Criego believed defendant's cell phone video "was tantamount to pornography, that [defendant] knew or should have known what was on the video because he took the videos of himself."
Mr. Criego said he discussed the People's evidence with defendant - defendant's cell phone video of the assault; the security videos from the gas station and tire store; the victim's description of unique features inside defendant's truck; the victim's identification of defendant; and the recordings of defendant's telephone calls from the jail to his family, where he made inculpatory statements and admissions.
"MR. CRIEGO: [T]here was not much more I could do for him other than try to save him from spending the rest of his life in jail three times over.
"THE COURT: So what did you consider his actual exposure to be in this case?
"MR. CRIEGO: Judge, if they did a Lindburg [sic] kidnapping he'd never get out of prison, period, and I believe it was three 30 years to life or 90 years, three or four 15 to life, for an additional, I want to say, 45 years. I explained to him—because I gave him the time, I explained to him that I believed, the way I looked at it and the way it was calculated on what he was pleading to, explained to him I believe when he was 72 years of age he would be at least eligible for parole.
"THE COURT: Okay. And so when the change of plea form says 'life without parole plus 25 to life plus 15 year to life times three—'
"MR. CRIEGO: Yes, I explained to him.
"THE COURT: The plea he entered, however, provided an opportunity for parole?
"MR. CRIEGO: Yes.
"THE COURT: So this maximum sentence as a result of his plea really wasn't on the table as a result of his plea?
"MR. CRIEGO: That's correct.
"THE COURT: Life without parole was a risk if he went to trial?
"MR. CRIEGO: That is correct.
"THE COURT: Okay.
"MR. CRIEGO: That's why I say, it's not the normal change of plea form—
"THE COURT: Got it.
"MR. CRIEGO: --because he wanted to go back and think about it, and so we came back the next day.
"THE COURT: Got it.
"MR. CRIEGO: And not knowing what the District Attorney was gonna do, I had that change of plea form typewritten so that he could understand.
"THE COURT: Okay. So he's got—so if I understand what you believe the plea to be and the exposure to be, it is that he would serve 25 to life, plus three 15 year[s] to life terms, then he would begin a life sentence for which he'd have a possibility of parole?
"MR. CRIEGO: 30 to life, three 15 to life terms, and then—like I said, I'm talking off the top of my head, I didn't bring his file cause I didn't want it to prejudice me.
"THE COURT: Didn't want—
"MR. CRIEGO: Didn't want the file to prejudice me. In other words, I look to it and say, This, this, and this happened. I'm doing all this from memory.
"THE COURT: Okay. And is there - I mean, you believe your memory is complete enough?
"MR. CRIEGO: I believe my memory is complete, Judge, and so - let me put on the record, Judge, this is the most difficult case I've ever had to do in my 25 years of practicing law." (Italics added.)
The court asked Mr. Criego to explain his trial experience. Mr. Criego said he had done over 200 trials, and discussed the People's evidence against defendant:
"[T]o listen to [the victim] on the tape was enough to send a right-minded person over the edge. To go through the events where he had placed her in a hole, next to a reservoir, in - under water, and attempted to cover her with cactus and leaves was very difficult, and then to listen to him boast on the telephone [calls from jail] was just plain outrageous. I've managed to keep my sensibility and my perspective, and I tried to represent this young man to the best of my ability, even though what I found in this case to be extremely distasteful. I gave him a better representation than I probably give most people because I did not want to be reversed on appeal, but this was no easy case. Going through the evidence brought me to tears."
The court asked Mr. Criego if he "crafted a deal" that gave defendant "some possibility of parole during his natural life." Mr. Criego incorrectly responded in the affirmative. The court asked Mr. Criego if he believed defendant would have been convicted of every charge if he went to trial, and he never would have had "any realistic possibility of parole." Mr. Criego said yes, and defendant had one day to think about the plea. Defendant never said that he wanted to go to trial, or he thought Mr. Criego was not ready for trial.
Mr. Criego said he was ready for trial. The court asked Mr. Criego what his trial defense would have been. Mr. Criego said he told defendant that the People could prove he was the man who did it. Mr. Criego had asked defendant what his defense should be, and "there was complete silence." Mr. Criego said defendant's own cell phone video showed that he committed the crimes.
The court asked defendant if he wanted a trial. Defendant said he wanted a chance. The court asked defendant about how he would have addressed the victim's identification and description of his truck, the cell phone video, and the video from the gas station. Defendant said, "I cannot say."
The court asked defendant if he acknowledged what was on the video from his cell phone.
"THE DEFENDANT: I believe that's what the discovery will say.
"THE COURT: So then how is it that you could have done something at trial different or better than what you got here?
"THE DEFENDANT: I believe both sides would be heard.
"THE COURT: Okay. Both sides would be heard and then you'd get life without the possibility of parole for the kidnap plus several life terms consecutive. So you'd have no opportunity ever for parole, whereas this plea gives you a remote possibility of parole should you live long enough. So at the time you understood that cause you entered the plea, you thought it was in your best interest, right?
"THE DEFENDANT: That, along with not trusting ... Mr. Criego to take me through trial." (Italics added.)
Defendant again said Mr. Criego failed to fully discuss and strategize the case with him. The court asked defendant if he understood that the People could easily prove that he committed the offenses. Defendant replied, "That's what the papers say." Defendant added that Mr. Criego should have explained whether the People could prove the elements of the charged offenses, but he refused to give him the results of the rape kit, and he refused to ask for the DNA test results.
Mr. Criego explained the DNA tests were not completed at the time of the plea. Mr. Criego had explained to defendant that it would be "one more nail in the coffin" if the results were positive. Mr. Criego was trying to negotiate a plea before the district attorney obtained the DNA test results. Mr. Criego added that Mr. Aed, defendant's prior attorney, had gone over the entire case with defendant.
At the subsequent sentencing hearing, the prosecutor advised the court that the DNA tests had been completed, and a vaginal swab from the victim contained defendant's DNA.
The court asked defendant what the DNA test results would have shown. Defendant said the test would have been negative because he never had sex with the victim, but conceded that the cell phone video showed that he put his finger into her private area.
Defendant admitted that he asked Mr. Criego to show him the cell phone video because he just had police reports about the contents. The court reminded the defendant that he took the video himself as he molested the victim. Defendant said he could not recall everything that was on the video.
Mr. Criego said he talked about the cell phone video with defendant, and defendant said he never raped the victim but only used his finger. Mr. Criego said he explained to defendant that his finger was a foreign object. On further questioning from the court, defendant admitted he knew his finger was a foreign object.
Defendant next said he never saw transcripts of his recorded telephone calls from jail, and believed his statements were taken out of context. Mr. Criego said defendant never asked to see transcripts of the telephone calls to his family. Mr. Criego said that during the calls, defendant admitted he was with the victim and made other inculpatory statements.
Defendant said he felt intimidated to take the plea because Mr. Criego said the jury was going to see the "where the crime allegedly happened." Mr. Criego explained the prosecutor intended to ask the court to grant a motion for the jury to visit the crime scene in Kerman where defendant left the victim in the water. Mr. Criego tried to dissuade the prosecutor from making that motion because the jury would have seen the water pond where defendant left the victim while she was still bound, and it would have been highly prejudicial to defendant.
The court again asked defendant what else Mr. Criego could have done to prepare for trial. Defendant said both sides should be heard and he did not trust Mr. Criego.
"THE COURT: Well, for instance, you did not plead to a rape, but [the victim] says you raped her. Right?
"THE DEFENDANT: That's what they say, yes.
"THE COURT: So you think if you put this evidence on, the jurors had a videotape of you digitally penetrating [the victim] and [the victim] saying, Please, stop, the [victim] accurately describing your truck and the events and the locations, and you - that somehow the jurors would disbelieve a rape charge just because you went to trial?
"THE DEFENDANT: I - Your Honor, I have no idea.
"THE COURT: All right. I'm just trying to get a sense of what, if anything, you think Mr. Criego could have done at trial had he been better prepared, and I think all you're telling me is you just wanted a trial. You didn't - there wasn't any additional work to be done, really, it was just simply you wanted to go to trial?
"THE DEFENDANT: He did not discuss any defense he had ready."
Mr. Criego said he gave defendant a list of the elements for each charged offense, and asked him to explain "which of the elements the district attorney could not prove. He was unable to respond." Defendant said he did not respond because he did not know everything the district attorney had against him. Defendant added that he knew he did not rape the victim, but he was still charged with rape.
The court asked Mr. Criego whether defendant told him that the prosecution could not prove rape charges. Mr. Criego said defendant never said that. Mr. Criego explained the plea negotiations:
"... I continued to argue with the District Attorney even up to the day of trial regarding Count 1 [unlawful sexual intercourse], which she agreed to otherwise dismiss, however, there was nothing else that I could do so save this defendant from himself. Part of my job as a defense attorney is to assist my client and provide them with a service, even if it's distasteful in defending against themselves, and I tried to do that as zealously as possible. I did not lay down on this defendant. I argued with [the prosecutor] after 5:00 and all the way up until the time we came back the next day regarding a possible amendment [to the information] and the reasons why."
Mr. Criego said the prosecutor was going to amend the information to allege a kidnapping for the purpose of sexual crimes that carried life without parole, and the prosecutor also said she would file "a Lindburg [sic] baby kidnaping...."
The court's denial of the Marsden motion
The court advised defendant that it could not find Mr. Criego did anything that was not competent in negotiating the plea based on the nature of the evidence against him, including defendant's own cell phone video as he molested the victim and his incriminating telephone calls to his family. The court stated there was "no viable defense" and it appeared in defendant's best interest to enter the plea "to avoid life without the possibility of parole" and conviction on the rape charge that defendant claimed was not supported by the evidence.
The court denied defendant's Marsden motion and found Mr. Criego's representation had been adequate in light of the evidence against defendant.
"THE COURT: [Y]ou've got very strong evidence that he's at the scene of the kidnap, that he, in fact, took the child, and the child's in the truck at the time that he's depicted clearly in the [gas station and tire shop] videos, at that scene. You've got his own cell phone recording of him digitally penetrating the child. You've got a detective interview where he says he's not that kind of animal, and then recordings with his family where basically he admits that he had the truck and had the child, but denies some of the acts that he's charged with ... [¶] You have an uncompleted rape kit, but otherwise there are injuries consistent with what the child described as far as being placed in this hole and cactus being thrown over her and so forth..."
The court further noted that the victim described in detail the sexual acts that defendant committed against her, the victim was prepared to testify against defendant, and Mr. Criego believed there was no defense to any of the charges except defendant's claim that he did not rape the victim. Mr. Criego advised the court that there was also evidence that defendant had been arrested for another set of events that were substantially similar to the charged crimes (referring to the Dinuba incidents).
The court further found defendant entered the plea and did not express any of these concerns to Judge Hoff, the People intended to allege more serious kidnapping charges, and defendant's dissatisfaction with the plea agreement did not mean that his Marsden motion should be granted or the court should appoint substitute counsel to withdraw his plea. The court noted that Mr. Criego advised defendant based on the People's evidence.
The court concluded:
"It's absolutely unfathomable that with a videotape of you digitally penetrating the child, the child describing that act, and all of these other acts, it's unfathomable to me that a jury would disbelieve her as to the rape charge. Once they saw the videotape and heard the description of how you left that child in that hole, and once they saw the evidence that clearly placed your truck there and clearly involved the child's presence in that truck, there is no way that any lawyer could have provided a defense to these charges. And negotiating a deal on your behalf that did not involve life without the possibility of parole is highly competent representation." (Italics added.)
The court denied the Marsden motion and continued the sentencing hearing. Second Postplea Marsden motion
On August 20, 2014, Judge Hoff, who conducted the plea proceedings, convened the scheduled sentencing hearing. Defendant was present with Mr. Criego, and he made another Marsden motion.
At the Marsden hearing, the court asked defendant to explain what Mr. Criego did or failed to do, and how it affected his case. Defendant reviewed the history of his case and claimed Mr. Aed, his prior attorney, had promised to provide him with certain discovery. Defendant informed Mr. Criego about this, but he failed give him additional discovery and only gave defendant a small packet of police reports. Defendant complained Mr. Criego did not visit him in jail to discuss defense tactics. Defendant claimed he agreed to the plea deal "almost against my will as a last resort" because he felt Mr. Criego was not ready for trial. Defendant also claimed the trial would not have gone well because Mr. Criego talked to the media, and the public was biased against him.
Defendant further complained that Mr. Criego failed to advise him about a civil suit that "the alleged victim" filed against defendant and the school district. Defendant was upset because the school district was going to settle the case, and believed Mr. Criego did not address this problem.
Defendant added that the People improperly added an oral copulation charge to the amended information, he did not commit that crime, and the charge was added because the People had to dismiss the rape charge.
The court asked Mr. Criego for his trial experience, and what he had done to prepare defendant's case. Mr. Criego said he had practiced for 30 years and had been a certified criminal law specialist for 20 years. He had reviewed the entirety of discovery and he had been ready for trial.
Mr. Criego stated that defendant was upset because he would not give him the victim's medical records. Defendant also wanted the cell phone video that defendant took as he molested the victim. Mr. Criego told defendant those matters were privileged and he would not give him a copy of the cell phone video because "it was tantamount to pornography."
Mr. Criego also stated that defendant wanted the DNA report. Mr. Criego said he tried to arrange for a plea before the DNA tests were completed, and hoped avoid additional charges if the tests were positive.
"Without the DNA, the People could not make all of the charges that were alleged against him. Fortunately for the defendant, he pled two days before the DNA results came back, and those DNA results would have allowed the prosecutor to convict him of additional counts." (Italics added.)
Mr. Criego further explained that he met with defendant, described the evidence, and told him that the security videos from the gas station and tire shop showed defendant and his truck, and supported the victim's description of what happened.
Mr. Criego said he never talked to the media prior to the plea. He made a statement after the plea hearing and said that "it was in his best interests to enter into a negotiated plea."
The court advised defendant that Mr. Criego was not responsible for any civil cases filed against him. Mr. Criego said he had similarly advised defendant that he needed a civil attorney for that matter.
In response to the court's questions, Mr. Criego stated the information originally charged defendant with several "life top crimes" and life without the possibility of parole. He negotiated with the prosecutor to reduce some of the charges and the possible exposure.
"THE COURT: All right. At the time that the plea was entered, did you believe that [defendant] was agreeing to the plea agreement because he felt he was unprepared or you were unprepared for trial or that from your discussions with him was it because you felt that it was the best outcome that he could get under the circumstances based upon the evidence as you were aware of it?
"MR. CRIEGO: Based upon my discussions, it was because it was the best outcome and it gave him a shot at a realistic parole date as opposed to dying in prison. He would become eligible for parole as opposed to never becoming eligible for parole.
"THE COURT: And notwithstanding the fact that one of his counts does carry a life without the possibility of parole?
"MR. CRIEGO: Yes. As I explained to him, we never - we don't know what the law will be in the future, but during this period of time there may be an evaluation of the law and it may change, but certainly if he went down on more than one life top case he would never be eligible for parole in my opinion." (Italics added.)
The court asked Mr. Criego if he discussed a possible motion to withdraw after the plea hearing. Mr. Criego said the matter had been addressed at the prior Marsden hearing, defendant said he wrote a letter about it, but he had never seen it. In their last discussion, "it was more of an argument and I choose just not to argue with him any further."
The court asked Mr. Criego whether defendant was correct that the oral copulation charge was not supported by the evidence. Mr. Criego said the victim said it happened, and it was potentially supported by defendant's cell phone video of the molestation and the victim's words on the video.
The court asked Mr. Criego whether he could continue to represent defendant without any conflicting or adverse interests. Mr. Criego said yes, that he showed defendant "nothing but the upmost courtesy and respect although he has leveled many allegations against me both inside and outside the courtroom."
The court asked Mr. Criego if he was aware of any basis to withdraw the plea. Mr. Criego said no, the plea was negotiated over a period of time, and it wasn't just done as they arrived in court.
The court's denial of defendant's motion
The court advised defendant that it had reviewed his change-of-plea transcript, and it could not see any basis to withdraw the plea "other than that you say that you only took it because you felt the defense was unprepared for trial." The court stated the form set forth and highlighted the possible consequences of the plea:
"THE COURT: [T]hose do include the defendant's name, case number, what charges are being pled to, the consequences, which are listed as life without parole plus 25 years to life plus three charges at 15 years to life, the consequences area, and one other area concerning a factual basis were all added on to the form...." (Italics added.)
The court asked defendant if he was aware that one of the consequences was lifetime registration. Defendant said yes.
"THE COURT: And you were aware of the maximum exposure under the first amended [information] as well as the maximum exposure under the plea agreement which caused some counts to be dismissed?
"THE DEFENDANT: Yes."
The court denied defendant's Marsden motion and found insufficient cause to discharge Mr. Criego. The court found there were no irreconcilable conflicts that would result in ineffective representation, and defendant's claimed distrust did not justify discharge.
The court said it would not make "any judgment concerning any motion to withdraw the plea or basis for the plea although I did make an inquiry as to whether any discussions along those lines and/or discussions concerning the entry of the plea would have formed a basis for the court to conclude that Mr. Criego did not provide adequate counsel to the defendant for purposes of a Marsden motion."
The court resumed the matter in open court, and continued the sentencing hearing. The court encouraged defendant to speak with Mr. Criego if he thought there were other reasons to withdraw his plea. The court further stated:
"If it is something that Mr. Criego cannot advise you about, in other words, if for example the basis for the withdrawal of the plea is that you believe he's incompetent or that there's some other thing that he has done, that he has done, that would be the basis for the withdrawal of the plea, such as giving you incorrect advice or something like that, at that point if there's a showing of that, the Court could appoint counsel on a limited basis to perhaps look at the motion to withdraw the plea, but there's nothing before the court at this time that would warrant me doing that at this particular point in time. So I would encourage you to continue to discuss your case with him and the circumstances of your case." (Italics added.)
SENTENCING HEARING
The defense did not file a motion to withdraw the plea or request another Marsden hearing.
On August 27, 2014, Judge Hoff convened the sentencing hearing. Defendant was present with Mr. Criego.
The prosecutor stated defendant was going to be sentenced to life without parole, and she could not think of any possible mitigating factors. The prosecutor said defendant videotaped the sexual assault on his cell phone. The video showed defendant as he placed his finger into the victim's anus. The prosecutor said the DNA tests had been completed and showed that DNA from both defendant and the victim were found on a red T-shirt. Defendant's DNA was on a vaginal swab taken from the victim during the sexual assault examination.
The prosecutor's reference to the red cloth refers to a matter in the law enforcement report, which the parties stipulated to as the factual basis for defendant's pleas. According to the report, the video on defendant's cell phone showed defendant sexually assaulting the victim, and then using a red cloth or shirt to wipe the victim's body. The detectives found a red cloth in the street in the area where the victim was found.
Defendant asked to personally address the court. He said, "[t]his event was not planned," and he felt remorseful. Defendant did not ask to withdraw his plea.
The victim's parents personally addressed the court and described the physical and emotional trauma the victim endured, and that defendant's claim of being sorry did not come close to addressing the victim's pain. The prosecutor read the victim's letter to the court, that she had the courage to survive and go on with her life because she knew defendant would be in jail forever.
The court found the aggravating circumstances far outweighed any possible mitigating circumstances: "[Y]our motivation to act and the acts that you engaged in on that day ... are completely beyond comprehension and understanding to most individuals. I don't know if even you know what motivated you to do these things. But for those acts, you are the type of individual that needs to be segregated away from society to protect the public."
The court sentenced defendant to life in prison without possibility of parole for count II and the special "one strike" allegations. It also imposed terms of 25 years to life for count V, and 15 years to life for each of counts VI, VII, and VIII. The court stayed the terms for counts V through VIII in light of the term of life without parole it had imposed for count II.
As we will discuss in issue IV, post, both the minute order and the abstract of judgment must be corrected to reflect defendant's sentence.
Notice of appeal/certificate of probable cause
On or about September 30, 2014, defendant filed a notice of appeal to challenge the validity of his pleas. He also requested a certificate of probable cause for the denial of his Marsden motions. The superior court denied the request.
On October 15, 2015, defendant filed a petition for writ of mandate with this court, and requested an order to compel the superior court to issue a certificate of probable cause on the denials of his postplea Marsden motions. This court summarily denied the petition. Defendant then filed a petition for review of the denial with the California Supreme Court. (Cardenas v. Superior Court (F072498))
On January 22, 2016, the California Supreme Court granted defendant's petition for review, transferred the matter to this court, and directed this court to vacate its previous denial and issue an alternative writ to be heard by this court.
On February 9, 2016, this court vacated its previous denial of defendant's petition for a writ of mandate, issued an alternative writ, and directed the superior court to either grant defendant's certificate of probable cause or show cause why relief should not be issued. On February 11, 2016, the superior court vacated its previous denial and granted defendant's certificate of probable cause.
DISCUSSION
I. Denial of Faretta Motion
Defendant contends the court erroneously denied his motion to represent himself, which he made on the scheduled day for the preliminary hearing. Defendant contends his Faretta motion was timely and unequivocal, and the court's denial of the motion violated his Sixth Amendment right to represent himself and constitutes reversible error.
A. Timely and Unequivocal Faretta Motions
" 'A criminal defendant has a right to represent himself at trial under the Sixth Amendment to the United States Constitution. [Citations.] A trial court must grant a defendant's request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, he must make his request unequivocally. [Citations.] Third, he must make his request within a reasonable time before trial. [Citations.]" (People v. Stanley (2006) 39 Cal.4th 913, 931-932 (Stanley).)
"A trial court must grant a defendant's request for self-representation if the defendant knowingly and intelligently makes an unequivocal and timely request after having been apprised of its dangers. [Citations.]" (People v. Valdez (2004) 32 Cal.4th 73, 97-98.) The erroneous denial of defendant's timely and unequivocal motion to represent himself at trial is reversible error per se. (People v. Dent (2003) 30 Cal.4th 213, 217.)
"To invoke the constitutional right to self-representation, a criminal defendant must make an unequivocal assertion of that right in a timely manner. [Citation.] 'The court faced with a motion for self-representation should evaluate not only whether the defendant has stated the motion clearly, but also the defendant's conduct and other words. Because the court should draw every reasonable inference against waiver of the right to counsel, the defendant's conduct or words reflecting ambivalence about self-representation may support the court's decision to deny the defendant's motion. A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied. [Citation.]" (People v. Barnett (1998) 17 Cal.4th 1044, 1087, italics in original.)
"[T]he court's duty goes beyond determining that some of [the] defendant's words amount to a motion for self-representation. The court should evaluate all of a defendant's words and conduct to decide whether he or she truly wishes to give up the right to counsel and represent himself or herself and unequivocally has made that clear." (People v. Marshall (1997) 15 Cal.4th 1, 25-26.) A Faretta motion "made out of a temporary whim, or out of annoyance or frustration, is not unequivocal - even if the defendant has said he or she seeks self-representation. [Citations.]" (Marshall, supra, at p. 21.) "Applying these principles, courts have concluded that under some circumstances, remarks facially resembling requests for self-representation were equivocal, insincere, or the transitory product of emotion." (People v. Tena (2007) 156 Cal.App.4th 598, 607 (Tena).)
The mere fact that the defendant requests to represent himself after a Marsden motion has been denied does not demonstrate that the Faretta request is necessarily equivocal. (People v. Michaels (2002) 28 Cal.4th 486, 524.) However, "[e]quivocation of the right of self-representation may occur where the defendant tries to manipulate the proceedings by switching between requests for counsel and for self-representation, or where such actions are the product of whim or frustration. [Citation.]" (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1002.) In addition, "[n]umerous courts have held that after a defendant invokes the right to self-representation, a waiver may be found if it reasonably appears that the defendant abandoned the request. [Citations.]" (Tena, supra, 156 Cal.App.4th at pp. 609-610.) A series of cases illustrates these points.
In People v. Scott (2001) 91 Cal.App.4th 1197 (Scott), the defendant made a Marsden motion four days before trial. When the court denied his Marsden motion, the defendant immediately moved to represent himself but admitted he would not be ready for trial. The court declined to grant a continuance. The defendant complained that the court knew he did not want to go to trial with his appointed counsel. The defendant said that he would represent himself instead of going to trial with his attorney, but insisted he was not ready for trial. The court denied his Faretta motion. (Scott, supra, at pp. 1202-1205.)
Scott held defendant's Faretta motion was not timely since it was made just days before trial. Scott further held the defendant's Faretta motion was not unequivocal because he requested to represent himself immediately after the court denied his Marsden motion. The defendant's statements indicated he made the Faretta motion "only because he wanted to rid himself of appointed counsel," and the defendant's "main problem with counsel was a disagreement over trial tactics, which is 'an insufficient reason to grant an untimely Faretta request ....' [Citation.]" (Scott, supra, 91 Cal.App.4th at pp. 1205-1206, fn. omitted.)
In Stanley, supra, 39 Cal.4th 913, the defendant made a Marsden motion one year before the preliminary hearing in a capital case. During the Marsden hearing, defendant said he wanted to represent himself. The court explained the hazards of representing himself in a capital case. The defendant said he would just ask the court to appoint an attorney if he had any trouble during trial. The court denied the defendant's Faretta motion and found he was not making a knowing and unequivocal request to represent himself. The defendant then renewed his Marsden motion and it was also denied. The defendant accepted appointed of counsel and never again requested to represent himself. (Stanley, supra, at pp. 930-931.)
Stanley held that while the defendant's motion was timely, he did not knowingly and intelligently waive his right to counsel when he made the Faretta motion. The defendant "orally interposed his request for self-representation during a renewed Marsden hearing ... out of apparent annoyance or frustration with his first appointed counsel," after claiming counsel was withholding evidence from him. (Stanley, supra, 39 Cal.4th at p. 933.) Stanley also held that the defendant's subsequent conduct established he had abandoned his desire to invoke his Faretta rights. He made a later Marsden motion that was granted, and accepted appointed of another attorney who represented him at the preliminary hearing. (Stanley, supra, at p. 933.) "[O]nce defendant's request for self-representation was denied, he never renewed it.... In light of defendant's subsequent acceptance of several appointed counsel to represent him without ever renewing his request for self-representation, we conclude he must further be found to have ultimately abandoned his desire to invoke his Faretta rights .... [Citation.]" (Ibid.)
In Tena, supra, 156 Cal.App.4th 598, the defendant appeared before the court three weeks before the preliminary hearing, complained that his court-appointed attorney failed to subpoena witnesses for the preliminary hearing, and asked to " 'go pro per.' " The court denied his request without further explanation. (Id. at p. 605.)
When the defendant later appeared for the preliminary hearing, he immediately made a Marsden motion. During the hearing on the motion, the defendant said he wanted to "fire" his appointed attorney and hire private counsel, said his attorney failed to subpoena witnesses, and repeatedly said he did not want that attorney. The defendant asked for a continuance for a private attorney to assume representation. The court denied the Marsden motion and found the defendant failed to state good cause to substitute counsel. The court further stated that it would conduct the preliminary hearing, but advised the defendant that he could hire private counsel afterwards. The defendant became upset and demanded to represent himself at the preliminary hearing. The court denied the motion because it was not timely. After the preliminary hearing, the defendant appeared at subsequent hearings with retained counsel, who represented him through the remainder of the proceedings. The defendant never again moved to represent himself. (Tena, supra, 156 Cal.App.4th at pp. 605-607.)
Tena held that the defendant did not make an unequivocal request to represent himself under Faretta. (Tena, supra, 156 Cal.App.4th at p. 607.) Instead, the defendant's remarks "were impulsive reactions to his frustrated attempts to secure an attorney who would subpoena the witnesses that he desired, rather than unequivocal Faretta requests. His statements and conduct establish that his goal was a defense based on these witnesses but presented by counsel, rather than by himself.... [The defendant] made a single remark about self-representation, apparently born of frustration at his public defender's decisions" and the court's denial of his Marsden motion. (Tena, supra, at pp. 608-609.)
Tena further held that even if the defendant's request was unequivocal, "he waived this request through abandonment after the preliminary hearing ...." (Tena, supra, 156 Cal.App.4th at p. 607.) The defendant did not renew the request to represent himself, and the court never made any findings that would have made such a request futile. (Id. at p. 612.) The defendant proceeded to trial with retained counsel, and his conduct after the preliminary hearing demonstrated that he "abandoned any desire he may have harbored to represent himself ...." (Ibid.)
Tena also held that while the erroneous denial of a defendant's request to represent himself at trial is reversible error per se, "the denial of self-representation at the preliminary hearing, like the denial of counsel at the preliminary hearing, is subject to harmless error analysis" pursuant to Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). (Tena, supra, 156 Cal.App.4th at p. 614, italics added.) Tena concluded any Faretta error was harmless under Chapman since the defendant continued to trial with retained counsel, and he failed to demonstrate how the subsequent proceedings were impaired by his inability to represent himself at the preliminary hearing. (Tena, supra, at p. 615.)
B. Analysis
In reviewing defendant's contentions about the denial of his Faretta motion, we must note the circumstances under which he made the motion. Defendant appeared for the preliminary hearing with his appointed counsel, Mr. Aed, but immediately made a Marsden motion to replace him. Defendant complained Mr. Aed was not prepared and they had not discussed possible defense strategies. Defendant also complained Mr. Aed failed to exhaust discovery motions and he wanted certain materials.
The court asked Mr. Aed to reply. Mr. Aed explained he had met with defendant four times, and defendant failed to provide any information that could be investigated for his case. Mr. Aed had given defendant all the discovery he had received, but redacted certain information about the victim. Mr. Aed said defendant wanted the video from his own cell phone, which allegedly showed defendant sexually assaulting the victim. Mr. Aed said he had not received a copy of the video, but it was potentially pornographic and could not be given to defendant. Mr. Aed had advised defendant to waive the preliminary hearing because the news media was covering the case, and further news about the factual basis for the charges would not be in his best interests. In response, defendant admitted he had received discovery but complained Mr. Aed had not exhausted all possible discovery motions.
The court denied the Marsden motion and the matter resumed in open court. However, defendant immediately made a Faretta motion and said he wanted to represent himself. In response to the court's questions, defendant admitted he was not prepared to handle the preliminary hearing that day. The court said it would conditionally grant defendant's Faretta motion based on his ability to proceed with the preliminary hearing. Given defendant's statement that he could not do so, the court denied the Faretta motion and found it was a delaying tactic. Thereafter, Mr. Aed said defendant had agreed to waive the preliminary hearing.
The court properly denied defendant's Faretta motion because it was not unequivocal. Defendant requested to represent himself immediately upon the court's denial of his Marsden motion, and just before his preliminary hearing was going to commence. As in Tena, his Faretta request was solely the result of his thwarted desire for another appointed counsel, and was an emotional response made out of frustration at the denial of his Marsden motion.
In addition, as in Tena and Stanley, defendant never made another Faretta motion, even though he had no problem expressing himself during his subsequent Marsden motions. The court never made any statements that would have indicated that another Faretta motion would have been futile. Defendant thus abandoned any request to represent himself.
Finally, even if the court erroneously denied defendant's Faretta motion, any error is necessarily harmless. Defendant's motion was made immediately before the preliminary hearing. As explained in Tena, the erroneous denial of a Faretta motion during the preliminary hearing stage is subject to harmless error analysis under Chapman. In this case, after the court denied defendant's Faretta motion, defense counsel advised the court that he had discussed the matter with the defendant and decided to waive a preliminary hearing. The court advised defendant of his right to a preliminary hearing, and defendant expressly waived his right. Defendant has failed to demonstrate how the subsequent proceedings were impaired by his inability to represent himself at a preliminary hearing. II. Denial of Defendant's Postplea Marsden Motions
Defendant next contends that the court erroneously denied both his post-plea Marsden motions to discharge his appointed counsel, Mr. Criego. Defendant argues Mr. Criego failed to provide him with discovery, failed to meet and confer with him about tactics, did not develop a relationship of trust and confidence, argued against him at the Marsden hearings, and misrepresented the terms of the plea agreement. Defendant asserts the court should have granted his Marsden motions, and appointed another attorney to determine whether he should file a motion to withdraw his plea.
A. Marsden
We begin with the well-settled standards for a defendant to move for substitution of appointed counsel. "A defendant 'may be entitled to an order substituting appointed counsel if he shows that, in its absence, his Sixth Amendment right to the assistance of counsel would be denied or substantially impaired.' [Citation.]" (People v. Memro (1995) 11 Cal.4th 786, 857, overruled on other grounds by People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.)
" '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.]" (People v. Fierro (1991) 1 Cal.4th 173, 204, overruled on other grounds in People v. Thomas (2012) 54 Cal.4th 908, 941.)
A Marsden hearing provides a forum for the defendant to present complaints about the effectiveness of counsel and seek removal. (Marsden, supra, 2 Cal.3d at p. 126.) The defendant can confidentially voice concerns because Marsden hearings are held in camera. (People v. Dennis (1986) 177 Cal.App.3d 863, 871.) A Marsden hearing also affords defense counsel "the opportunity to address the defendant's concerns with respect to the defendant's representation and to explain counsel's performance." (People v. Horton (1995) 11 Cal.4th 1068, 1123.) The parties ultimately aid the court in determining whether the complaining party received adequate representation or whether defendant and counsel " ' "have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations]." [Citations.]' [Citation.]" (People v. Memro, supra, 11 Cal.4th at p. 857.)
If defendant raises a Marsden issue on appeal, or an issue related to Marsden, the previously sealed transcript of the in camera hearing is subject to disclosure. (See California Rules of Court, Rule 8.47.) "[S]tatements made in a Marsden hearing are subject to use immunity; that is, statements made by the defendant may not be used in further related proceedings ...." (People v. Knight (2015) 239 Cal.App.4th 1, 8.)
While the trial court must afford the defendant the opportunity to express specific reasons why he believes he is not being adequately represented, the court is not required to accept defendant's assertions of inadequate representation and may instead credit counsel's explanation. (People v. Vera (2004) 122 Cal.App.4th 970, 978-980; People v. Webster (1991) 54 Cal.3d 411, 436.)
A defendant's complaint that he does not like his attorney is "not enough [to show a conflict of interest]. '[I]f a defendant's claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law.' [Citation.]" (People v. Berryman (1993) 6 Cal.4th 1048, 1070 (Berryman), overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 822-823.)
"A defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense. [Citation.] Tactical disagreements between the defendant and his attorney do not by themselves constitute an 'irreconcilable conflict.' 'When a defendant chooses to be represented by professional counsel, that counsel is "captain of the ship" and can make all but a few fundamental decisions for the defendant' [Citation.]" (People v. Welch (1999) 20 Cal.4th 701, 728-729.)
"In seeking discharge of a court appointed attorney the defendant must show more than the fact the attorney made a mistake, he must show lack of competence." (People v. Lee (2002) 95 Cal.App.4th 772, 779, fn. omitted.)
"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.]' [Citation.]" (People v. Barnett, supra, 17 Cal.4th at pp. 1085-1086.)
Defendant raised several complaints against Mr. Criego in both postplea Marsden hearings. As we will explain, defendant had already raised many of these same complaints in his prior Marsden hearings. We will find that defendant's Marsden motions were properly denied based on the nature and circumstances of his complaints against counsel.
B. Discovery
We begin with defendant's numerous complaints that Mr. Criego failed to request, obtain, or provide him with all discovery materials before he entered his plea. Defendant asserts Mr. Aed, his prior attorney, promised to provide him with certain discovery, but Mr. Criego did not understand that he had a professional duty to comply with defendant's demand to receive all discovery materials.
Defendant thus asserts Mr. Criego was not legally barred from giving him the cell phone video that showed defendant as he sexually assaulted the victim, the entirety of the victim's medical records, the videotape of the victim's pretrial interview, and the telephone calls he made from jail to his family.
1. Pre-plea Marsden hearings
Defendant's complaints about discovery must be placed in context. Defendant's first Marsden hearing was on July 13, 2013, on the day scheduled for the preliminary hearing, when he was represented by Mr. Aed. Defendant complained Mr. Aed failed to provide him with certain transcripts and records. Mr. Aed advised the court that he gave defendant all the discovery he had received, with certain redactions about the victim.
Mr. Aed advised the court that defendant wanted a copy of the video from his cell phone, that showed defendant as he sexually assaulted the victim. Mr. Aed said he had not yet received a copy of the cell phone video, but it was potentially pornographic and could not be given to defendant, who was in custody in jail. Defendant conceded he had received discovery from Mr. Aed. The court denied the Marsden motion.
Defendant's next Marsden motion was made on March 10, 2014, shortly before the plea hearing, when he was represented by Mr. Criego. At that Marsden hearing, defendant claimed Mr. Criego failed to provide him with complete discovery, including transcripts, medical reports, and evidence discs. Mr. Criego explained defendant had demanded the entirety of the victim's medical records; Mr. Criego believed certain information was confidential. Mr. Criego said defendant also demanded a copy of the cell phone video that showed defendant as he sexually assaulted the victim. Mr. Criego said he told defendant that he could not give the video to him.
Also at the March 10, 2014, Marsden hearing, Mr. Criego gave a detailed description of the 580 pages of discovery that he had received, which did not yet include the results of the DNA tests. In the course of that hearing, it was clear that Mr. Criego had either provided defendant with the bulk of these materials or advised him of the contents. The court again denied defendant's Marsden motion.
2. Postplea Marsden hearings
At the first postplea Marsden hearing, defendant asserted Mr. Criego failed to give him all discovery materials before he entered his plea. Defendant admitted he had the police report that summarized the victim's pretrial videotaped interview, but claimed Mr. Aed had promised to provide him with the full transcript.
Mr. Criego advised the court that defendant wanted the entirety of the victim's medical records, the results from the rape-kit examination, and the cell phone video. Mr. Criego again said he had explained to defendant that the video amounted to pornography.
Defendant admitted he had police reports about the contents of the cell phone video. Defendant also admitted he wanted to watch the cell phone video to "strategize" and hear the "dialogue."
In response to the court's questions, defendant said he wanted to watch the cell phone video, and get the entirety of the victim's medical records, the rape-kit examination, and DNA test results, because he had been charged with rape but the cell phone video only showed digital penetration. Defendant said the tests would have been negative because he never had sex with the victim and he should not have been charged with rape.
Mr. Criego explained the cell phone video showed defendant as he sexually assaulted the 10-year-old victim. The child's voice could be heard on the video as defendant molested her, and she asked defendant to stop and said he was hurting her. The cell phone video may not have shown a rape, but the victim said that defendant raped her. Mr. Criego also explained that he negotiated the plea before the DNA tests were completed to avoid defendant's exposure to rape and additional charges. Mr. Criego said he told defendant that if they waited for the DNA results and the tests were positive, that would be "one more nail in the coffin" to support rape charges.
At the second postplea Marsden hearing, defendant repeated these same discovery complaints. Mr. Criego again explained that defendant was upset because he wanted the entirety of the victim's medical records, the DNA test results, and the cell phone video. Mr. Criego again said he told defendant that the video constituted pornography, and he negotiated the plea agreement before the DNA tests were complete to avoid additional charges if the tests were positive. At the subsequent sentencing hearing the prosecutor stated that defendant's DNA had been found on the victim's vaginal swab.
C. Analysis
Defendant's discovery complaints were properly rejected at both postplea Marsden hearings. It is clear that defendant was provided with discovery by both his attorneys, including police reports about the victim's pretrial interview and the description of the cell phone video.
Defendant complains that Mr. Criego was not legally barred from giving him the cell phone video, regardless of whether the contents constituted pornography. Defendant's argument is based on Westerfield v. Superior Court (2002) 99 Cal.App.4th 994 (Westerfield). In Westerfield, the defendant was charged with murder and possession of child pornography. The prosecution refused to duplicate and distribute copies of the pornographic images seized from the defendant's computer to defense counsel, but allowed counsel and a defense expert to review the materials at an FBI office in the presence of law enforcement representations. In response to a defense motion to compel production, the People offered to allow the defense attorneys and experts unfettered access to the images at the FBI office, without the presence of law enforcement officers, but still refused to provide copies. (Id. at pp. 996-997.)
Westerfield held that the publication and distribution of child pornography was prohibited by law, but there was an exception for agencies involved in the investigation and prosecution of such cases. Westerfield concluded that exception also permitted such images to be copied "for use by the defense in preparing for trial," and the defense attorney and experts could receive copies of the images without being supervised by prosecution officers. (Westerfield, supra, 99 Cal.App.4th at p. 998, italics added.)
In contrast to Westerfield, there was no dispute in this case about whether defense counsel had access to the video that defendant took on his own cell phone, that showed defendant as he sexually molested the victim. Instead, defendant's numerous discovery complaints at all four Marsden hearings was based on his repeated demands for a copy of that cell phone video, and his insistence that he needed to watch and listen to the "dialogue" as part of his trial strategy.
However, defendant was in custody at the jail at all relevant times. The government has a legitimate interest in maintaining the security of any detention facility, including the prohibition of any type of contraband. (Bell v. Wolfish (1979) 441 U.S. 520, 540.) Obscenity and pornography of any kind constitute contraband and are specifically barred from the possession of an inmate in California. (§§ 311.3, 311.11; 2601, subd. (c)(1)(A).) While defense counsel may have validly received a copy of the cell phone video under Westerfield, he could not have brought it into the jail or given it to defendant while he was a custodial inmate.
Defendant also asserts that Mr. Criego refused to give him the transcripts of his recorded telephone calls from the jail to his relatives. In response, Mr. Criego said he explained to defendant that he made inculpatory statements on the recordings, and defendant never asked to see the transcripts.
Defendant further asserts Mr. Criego erroneously refused to provide him with the entirety of the victim's medical records, the rape-kit examination, and the video of the victim's pretrial interview. Both Mr. Aed and Mr. Criego said that they declined to provide the entirety of these materials to defendant because they contained confidential information about the victim. In addition, it is undisputed that the positive results of the victim's rape-kit examination were not obtained until after the plea. Evidence about the victim's physical injuries and the victim's pretrial statements about the sexual assault would not have been confidential. However, it is conceivable that the entirety of the victim's medical records and her pretrial interview might have contained confidential information about the 10-year-old victim's personal characteristics that required redaction.
In any event, defendant admitted he had police reports about the victim's pretrial statements, but insisted he should have received the cell phone video, the entirety of the victim's medical records and the rape-kit examination prior to entering his plea, to support his claim that he did not rape the victim. Defendant said the video would show that he did not commit a rape, and he was sure that all the tests would be negative because he did not rape the victim.
At the postplea Marsden hearings, Mr. Criego said he explained the elements of the charged offenses to defendant and asked him about a defense strategy, but defendant did not say anything or claim that he did not commit certain acts. The record implies that defendant did not explain why he wanted to see the cell phone video and certain records until he made these statements about the rape charge at the postplea Marsden hearings. In addition, as we have explained, the positive DNA test results from the victim's rape-kit examination were not completed until after the plea hearing, and Mr. Criego stated his reasonable tactical decision to reach a plea agreement before there was more evidence to support additional charges.
Even if Mr. Criego should have provided defendant with any additional discovery materials, the court's denial of his postplea Marsden motions on this point is not prejudicial given the disclosures at the sentencing hearing. At that time, the prosecutor advised the court that the DNA tests had been completed, and defendant's DNA was on a vaginal swab taken from the victim, thus supporting Mr. Criego's decision to negotiate a plea before the DNA tests were completed and negating defendant's belief that these materials would refute any possible rape charges.
We thus conclude that defendant's complaints about discovery are refuted by the entirety of the record, he was not entitled to have a copy of the cell phone video while a custodial inmate, and to the extent that counsel should have provided any additional material about the rape charge, that claim is undermined by the disclosure at the sentencing hearing that defendant's DNA was found on the victim's vaginal swab.
D. Relationship , Meetings , and Tactics
Next, defendant complains the court should have granted the postplea Marsden motions because he did not have sufficient meetings with Mr. Criego; he failed to meet and confer with defendant about possible defenses and trial strategy prior to the plea, their few meetings were insufficient to form a relationship of trust and confidence; and their relationship had significantly deteriorated by the time of the postplea Marsden hearings.
A defendant's complaint that counsel rarely visited him "does not justify substitution of counsel. [Citation.]" (People v. Myles (2012) 53 Cal.4th 1181, 1207-1208.) "[T]he number of times one sees his attorney, and the way in which one relates with his attorney, does not sufficiently establish incompetence. Defendant [is] required to show more." (People v. Silva (1988) 45 Cal.3d 604, 622.) The frequently of counsel's meetings with defendant is not a reliable indicator of counsel's competence. (People v. Vera, supra, 122 Cal.App.4th at p. 980.) In addition, a disagreement about tactics is "insufficient to compel the discharge of appointed counsel, unless it signals a complete breakdown in the attorney-client relationship. [Citations.]" (People v. Crandell (1988) 46 Cal.3d 833, 859-860, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364, 365.)
As with his discovery claims, defendant repeatedly asserted throughout all his Marsden motions that both his attorneys failed to meet with him or discuss trial strategy, and his complaints were refuted at the Marsden hearings. At the first Marsden hearing, at the time of the scheduled preliminary hearing, defendant said that Mr. Aed failed to discuss the prosecution's evidence and the defense strategy. Mr. Aed said he had met with defendant four times and asked defendant for any information to investigate in support of his defense, but defendant did not provide any information to him.
At the second Marsden hearing, just before the plea hearing, defendant said Mr. Criego had not met with him, they had not discussed strategy and tactics, he had not explained the charges, and he was not ready for trial. Mr. Criego said he had met with defendant several times, discussed the People's extensive evidence against him, including the cell phone video, security videos, and the incriminating calls from jail, and explained the "People's case is cemented against my client."
At the first postplea Marsden hearing, defendant said Mr. Criego failed to meet with him, explain the charged offenses, discuss the People's evidence, or review trial strategy before the plea. In response, Mr. Criego again said he had discussed the People's evidence against defendant and his possible sentencing exposure. Mr. Criego said he gave defendant a list of the elements for each charged offense, and asked defendant to explain which elements the People could not prove, but defendant did not respond to his question.
Mr. Criego said he asked defendant what his defense should be in light of the People's evidence and the cell phone video that proved he kidnapped and molested the victim; defendant never said anything to him. The court then turned to defendant and asked how he would have addressed his cell phone video. Defendant said he could not respond to the court's question, but admitted that the People's "papers" said that they could prove he committed the offenses.
At the second postplea Marsden hearing, defendant once again claimed Mr. Criego did not visit him in jail, they never discussed the People's evidence or defense tactics, Mr. Criego talked to the media before the scheduled trial, and he refused to do something about the victim's civil suit against defendant and the school district. Mr. Criego again stated he met with defendant, described the evidence, and told him that the cell phone video and security videos proved he kidnapped the victim and supported her account of the kidnapping and sexual assault. Mr. Criego said he never talked to the media until after the plea, when he simply said that the plea was in defendant's best interests. As for the civil suit, Mr. Criego said he advised defendant that he needed a civil attorney for the victim's lawsuit. The court similarly advised defendant that Mr. Criego was not responsible for the civil lawsuit.
As with defendant's other claims, the court was entitled to accept counsel's explanations and did not abuse its discretion in denying defendant's Marsden motion on these points.
E. Defense Counsel's Trial Experience
Defendant argues that at both postplea Marsden hearings, the court improperly relied on matters outside the record because it cited Mr. Criego's experience as a criminal defense attorney when it denied the motions. Defendant asserts the court should have focused on defendant's complaints about Mr. Criego's alleged omissions in his representation of defendant.
A similar argument was rejected in People v. Roldan (2005) 35 Cal.4th 646 (disapproved of on other grounds by People v. Doolin (2009) 45 Cal.4th 390), which held the defendant's Marsden motion was properly denied based on the trial court's findings that "counsel was doing an 'exemplary job,' was a 'death penalty specialist,' was doing an 'excellent' job, and was a 'diligent' advocate on defendant's behalf," particularly since "defense counsel had a difficult task at the guilt phase because the evidence of defendant's guilt was overwhelming." (People v. Roldan, supra, at pp. 681-682, fn. omitted.)
In People v. Hines (1997) 15 Cal.4th 997 (Hines), the defendant complained the trial court improperly denied his Marsden motion based on its personal observations, since it commented "that counsel's courtroom performance had been 'superb' and that the court's 'own subjective perception' was that defendant 'couldn't be further wrong' in believing that counsel's voir dire during the previous few days demonstrated a negative attitude about the case." Hines held the court's comments were appropriate because defendant's Marsden complaints were based on defense counsel's conduct in the courtroom. (Hines, supra, at p. 1026.)
At both postplea Marsden hearings, the court asked Mr. Criego to explain his criminal trial experience. It did not rely on matters outside the record or its personal knowledge of Mr. Criego's experience. The court did not abuse its discretion by briefly citing Mr. Criego's experience when it denied defendant's Marsden motions.
F. Defense Counsel's Statements at the Marsden Hearings
Defendant next asserts that Mr. Criego argued against him at both postplea Marsden hearings, showed his anger and disgust at defendant's alleged crimes, damaged the confidentiality of their communications and any relationship of trust and confidence, and improperly advised the court that there was no merit to a motion to withdraw the plea.
As noted above, an in camera Marsden hearing affords defense counsel "the opportunity to address the defendant's concerns with respect to the defendant's representation and to explain counsel's performance." (People v. Horton, supra, 11 Cal.4th at p. 1123.) Defense counsel's statements at the Marsden hearings do not relate to "the substance of the ability of [counsel] to properly represent" the defendant. (People v. Smith (1993) 6 Cal.4th 684, 689 (Smith).)
In Berryman, supra, 6 Cal.4th 1048, the defendant raised several complaints about his appointed counsel at a Marsden hearing, including that he did not like or trust defense counsel. Defense counsel gave explanations for all of the defendant's complaints and added: " '[The defendant] has not liked me from the start. Maybe it's because he's - even though he is born and raised in Delano, for some extent, the last few years of his life, he's been in Los Angeles. His people are in Los Angeles. They desperately wish to have a Los Angeles attorney or someone from down there. They don't have the money.' 'In this case I will [need his cooperation]. And if he's not going to place his confidence in me - the trial is set May 2nd. There's adequate enough time for new counsel. I don't know if [the defendant] will have the same disagreements with new counsel, but I don't believe our relationship is ever going to get any better. And I'll leave it up to the Court.' " (Id. at p. 1069.) Berryman held defense counsel's statements about defendant at the Marsden hearing did not establish an irreconcilable conflict between them. (Berryman, supra, at pp. 1069-1070.)
In People v. Clark (2011) 52 Cal.4th 856, the defendant was charged with capital murder. Prior to trial, he made a Marsden motion and complained that he lacked confidence in counsel for several reasons, including her advice to accept a plea offer for life without parole. Counsel explained she had advised him to accept the offer, but dropped the idea when the defendant opposed it. Counsel also said she believed the defendant's complaints against her were the result of his mental health problems and paranoia. The court denied the Marsden motion. The defendant was convicted after a jury trial and sentenced to death. Clark rejected the defendant's claim that counsel's statements at the Marsden hearing about his mental health status demonstrated the breakdown of the attorney-client relationship. Clark noted that despite counsel's concerns about the defendant's mental state, she repeatedly assured the court that she would fight hard for the defendant. (Clark, supra, at pp. 909-913.)
In Smith, supra, 6 Cal.4th 684, the defendant pleaded guilty to felony charges pursuant to a plea agreement, but wanted to withdraw his plea prior to sentencing and claimed his court-appointed attorney provided ineffective assistance. (Id. at p. 687.) At the Marsden hearing, defense counsel admitted that he argued with the defendant on the day set for trial, became "a little irritated" with the defendant, and used foul language when he became "fed up with the accusations." (Smith, supra, at p. 688) Smith held the Marsden motion was properly denied even though defendant and his attorney exchanged some "heated words." (Smith, supra, at p. 696.)
In this case, Mr. Criego expressed some exasperation with defendant at the postplea Marsden hearings, particularly his refusal to acknowledge the impact of the People's evidence against him and his repeated demands for a copy of the cell phone video. Mr. Criego also said that it was "outrageous" and "distasteful" to hear the 10-year-old victim on the cell phone video, as she told defendant to stop because he was hurting her; and in her pretrial interview, as she described what defendant did. However, Mr. Criego also said he showed defendant the "utmost courtesy and respect," he represented defendant to the best of his ability, and gave defendant "a better representation than I probably give most people ... but this was no easy case."
Counsel's statements at the Marsden hearings did not undermine his relationship with defendant or create an irreconcilable conflict. Counsel was obliged to respond to the court's questions about defendant's complaints. In addition, counsel's statements about their conversations would not have been used against defendant if the court had granted any of his Marsden motions. "The need to fully disclose information in order to obtain effective counsel, as guaranteed by the Sixth Amendment, may require the defendant to waive the right against self-incrimination, as guaranteed by the Fifth Amendment. The need for use immunity in the context of a Marsden hearing is of course especially acute because at a Marsden hearing a defendant is acting, in many material respects, on his or her own and without the benefit of counsel. Thus ... statements made in a Marsden hearing are subject to use immunity .... [Citation.]" (People v. Knight, supra, 239 Cal.App.4th at p. 8.) III. Postplea Marsden Motions and the Plea Agreement
As set forth in the procedural history, ante, the information alleged four counts that mandated terms of life in prison without possibility of parole, four kidnapping counts that mandated life with parole, and additional charges that carried indeterminate terms. Defendant pleaded no contest to count II and accompanying "one strike" allegations, that mandated a single term of life in prison without possibility of parole.
Defendant asserts that at the postplea Marsden hearings, Mr. Criego told the court that he encouraged defendant to enter his plea because he could be paroled some day, even though he pleaded no contest to count II and admitted the special allegations that carried the mandatory term of life without parole. Defendant argues that in light of Mr. Criego's statements, the court abused its discretion when it failed to grant his Marsden motion, and appoint another attorney to investigate whether to file a motion to withdraw his plea because Mr. Criego misrepresented the terms to him.
In order to address these issues, we must review the court's consideration of a postplea Marsden hearing and a motion to withdraw a plea, and also review the plea proceedings in this case compared to counsel's statements at the Marsden hearings.
A. Marsden , Substitution of Counsel , and Moving to Withdraw a Plea
We begin with the court's consideration of a postplea Marsden motion when brought with a motion to withdraw a plea.
Although the decision to plead guilty or no contest "ultimately is one made by the defendant, it is the attorney, not the client, who is particularly qualified to make an informed evaluation of a proferred plea bargain. The defendant can be expected to rely on counsel's independent evaluation of the charges, applicable law, and evidence, and of the risks and probable outcome of trial. [Citations.]" (In re Alvernaz (1992) 2 Cal.4th 924, 933.)
When the defendant moves to withdraw his plea prior to sentencing, and claims his court-appointed counsel was prejudicially ineffective, the trial court must evaluate defendant's motion under the Marsden standard and determine whether the failure to replace counsel "would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict, that ineffective representation is likely to result [citation]." (People v. Smith, supra, 6 Cal.4th at p. 696.)
"A court may permit a guilty or no contest plea to be withdrawn 'for good cause shown.' [Citations.] ' "Good cause" means mistake, ignorance, fraud, duress or any other factor that overcomes the exercise of free judgment and must be shown by clear and convincing evidence.' [Citation.]" (People v. Dillard (2017) 8 Cal.App.5th 657, 665.) "[I]t is settled that good cause does not include mere 'buyer's remorse' regarding a plea deal." (People v. Simmons (2015) 233 Cal.App.4th 1458, 1466.)
" 'Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.' [Citation.]" (People v. Weaver (2004) 118 Cal.App.4th 131, 146.) "A defendant seeking to withdraw a plea based on the failure to advise on the direct consequences of a conviction must show actual ignorance of those consequences. [Citation.] The defendant also must show prejudice in the form of a reasonable probability that he or she would not have entered the plea had a proper advisement been given. [Citations.] A plea may not be withdrawn simply because a defendant has changed his or her mind. [Citation.]" (People v. Dillard, supra, 8 Cal.App.5th at p. 665, italics added.)
The granting of a motion to withdraw "made by a defendant who entered his plea with counsel is discretionary with the court and we will not disturb the trial court's ruling in the absence of a clear demonstration of abuse of discretion. [Citation.]" (People v. Quesada (1991) 230 Cal.App.3d 525, 538.) "In ruling on a motion to withdraw a plea, the trial court may take into account the defendant's credibility and his or her interest in the outcome of the proceedings. [Citation.]" (People v. Dillard, supra, 8 Cal.App.5th at p. 665.)
B. The Plea Proceedings
As set forth in the procedural statement, the information charged defendant with 15 felony counts: four counts alleged sexual offenses with special allegations pursuant to the One Strike law, and each carried a mandatory term of life in prison without possibility of parole; four counts alleged kidnapping offenses, and each carried a possible term of life in prison with the possibility of parole; and some of the other counts carried terms of either 15 years to life or 25 years to life. The information was filed before the positive DNA results were returned.
On the scheduled first day of trial, the court stated that the People were going to file an amended information and there might be a negotiated disposition. Mr. Criego advised the court that the possible plea agreement provided for defendant to plea to one count with the "one strike" special allegations, and "I've explained to [defendant] that [section] 289(a)(1)(b) [sic] is life without the possibility of parole...." (Italics added.) Mr. Criego asked defendant if he understood, and defendant said yes. The court granted a one-day continuance and advised defendant that he would have the opportunity to talk about the plea with his attorney, and the consequences of the possible agreement were "significant, with the life without the possibility exposure." (Italic added.)
The first amended information was filed the following day, and alleged eight instead of fifteen felony counts: four counts still carried the "one strike" special allegation for life without parole, but the four kidnapping counts were omitted.
Thereafter, defendant entered his pleas before Judge Hoff. We have already set forth Judge Hoff's extensive and comprehensive advisements at the plea hearing, and that he repeatedly told defendant that his no contest plea to count II, sexual penetration of a child under the age of 14 years by force, with the special "one strike" allegations, carried "a sentence of life without the possibility of parole." Judge Hoff told defendant that the maximum sentence he would receive for count II was "substantial," and it would be life without parole Defendant said he understood. The court asked defendant if anyone made any other promises, aside from dismissing three charges in the amended information; defendant said no. The court asked defendant if he had sufficient time to talk with Mr. Criego about the plea; defendant said yes.
After the court fully advised defendant of his constitutional rights and direct consequences, and defendant entered his pleas, Judge Hoff again explained to defendant that he had just pleaded no contest to count II and admitted the special allegations, and it carried the term of "life without possibility of parole." Defendant said that he understood.
C. The First Postplea Marsden Hearing
Judge Hamlin, who did not take the plea, heard defendant's first postplea Marsden hearing. As set forth above, defendant's primary complaints were about Mr. Criego's alleged failure to meet with him, discuss trial strategy, and give him the cell phone video and other materials.
After the court heard about the nature and the strength of the People's evidence against defendant, the court asked why defendant wanted to withdraw his plea and if he understood his potential sentencing exposure under the original 15-count information. Defendant said he would have received multiple life sentences, but as a result of the plea, he received "one life and a 25 and two 15s." The court corrected him and said he would get three terms of 15 years to life, and defendant agreed.
The court reviewed the change-of-plea form, and that it stated the consequences of his plea were "life without parole." The court again asked defendant if he understood his original sentencing exposure was life without parole plus additional life terms, and defendant said yes.
The court and Mr. Criego then engaged in a lengthy exchange about the terms of the plea agreement. Mr. Criego said that given the weight of the People's evidence against defendant, there was "not much more I could do for him other than try to save him from spending the rest of his life in prison three times over."
The court cited the change-of-plea form that said defendant's maximum possible term would be life without parole. Mr. Criego said that he explained to defendant that under the plea, "he would be at least eligible for parole" when he was 72 years old. The court asked if the plea provided an opportunity for parole, and Mr. Criego said yes. The court asked if life without parole was the risk if defendant went to trial, and Mr. Criego said yes. Mr. Criego further explained that the prosecutor promised to file additional kidnapping charges that carried terms of life without parole if defendant declined the plea offer.
During the entirety of their exchange about the plea, Mr. Criego advised the court that he was "talking off the top of my head," he did not bring defendant's file with him, he was answering the court's questions about the plea "from memory," and he believed his memory was complete.
Judge Hamlin denied the Marsden motion and found Mr. Criego was not incompetent to negotiate a plea agreement "[t]hat did not involve life without the possibility of parole," since there was "no viable defense" based on the cell phone video and the strength of the other evidence.
Defendant never interjected or made any statements about his understanding of his maximum sentencing exposure under the terms of the negotiated disposition.
1. Analysis
Defendant contends Judge Hamlin abused his discretion when he denied the first post-plea Marsden motion because his ruling was based on "false facts" that Mr. Criego negotiated a plea where defendant would be eligible for parole, and the prosecution agreed not to file more serious kidnapping charges. Defendant argues Mr. Criego's statements to the court should have raised "red flags" about his competence, and showed his "gross misunderstanding" of the plea and the applicable sentence.
Defendant argues that Mr. Criego gave him inaccurate advice that he would receive the sentencing benefit of being eligible for parole, but that advice was illusory since he was pleading to a charge that mandated the term of life without parole.
It is apparent from the record that Judge Hamlin was confused about the terms of the plea agreement and the mandatory life without parole that accompanied defendant's plea to count II and the special allegations. The court's initial statements about the plea were correct, when it referenced the change-of-plea form that said defendant would be sentenced to life without parole. Defendant acknowledged the court's recitation of the plea agreement at that time.
Unfortunately, Mr. Criego confused matters when he said that defendant would be sentenced to life with parole under the negotiated disposition. In making these statements, Mr. Criego admitted that he was not referring to his file and just stating the terms of the negotiated disposition by memory. Mr. Criego believed his memory was correct, but that supposition was inaccurate. In addition, the court did not examine the record to clarify defendant's pleas and potential sentencing exposure.
While Mr. Criego may have misstated defendant's sentencing exposure at the postplea Marsden hearing, his responses to defendant's complaints about discovery are supported by the record. As discussed above, defendant's repeated complaints about discovery were based on his demands for the cell phone video and the victim's medical records, and he finally admitted that he wanted the materials to disprove the rape charge. Defendant also admitted that he received police reports about the cell phone video and the other matters. As for tactics, Mr. Criego said that defendant never offered any information to support a defense, or explained if the People could not prove any of the elements. Defendant did not dispute Mr. Criego's statements. The court asked defendant how he would have addressed the weight of the People's evidence, and defendant declined to answer.
Affirmative misadvisement by counsel has been found to show deficient performance. (See, e.g., Padilla. v. Kentucky (2010) 559 U.S. 356 [misadvisement and omissions about immigration consequences]; People v. Huynh (1991) 229 Cal.App.3d 1067, 1083 [habeas issued where misadvisement by defense counsel concerning defendant's minimum term before parole eligibility].) The failure of trial counsel to correctly calculate a defendant's maximum potential sentence before permitting him to enter a plea has specifically been held to constitute a "dereliction of [counsel's] duty to ensure that defendant entered his plea with 'full awareness of the relevant circumstances and the likely consequences of his action. [Citation.]' [Citation.]" (People v. Johnson (1995) 36 Cal.App.4th 1351, 1357 (Johnson).)
In Johnson, the defendant's counsel told him that his maximum exposure was 38 years, when it was only 27 years. The defendant accepted a plea offer but only saved seven years, not 18 years as counsel had indicated. Johnson held the 11-year error in counsel's calculation led defendant to believe that, by accepting the plea bargain, he was shortening his potential sentence by about 18 years when, in fact, he was only saving seven years. The court granted the petition for habeas corpus based on ineffective assistance of counsel, and held counsel's misadvisement left defendant with a serious misapprehension of the consequences of his plea. (Johnson, supra, 36 Cal.App.4th at pp. 1356-1358.) --------
We note that at the plea hearing, defendant was repeatedly advised that he was pleading to a count that carried the mandatory term of life without parole. At the first postplea Marsden hearing, defendant made numerous claims about Mr. Criego's alleged ineffective performance but never asserted that he was misled about the life term. When Mr. Criego made these statements about the plea, defendant did not interject any comments or say there was any confusion about the plea agreement.
Judge Hamlin partially relied on his misunderstanding about the terms of the plea agreement when he denied defendant's first postplea Marsden motion. The court may have abused its discretion when it denied the motion without reviewing the record to clarify defendant's mandatory sentencing exposure. However, any error from the court's ruling at the first postplea Marsden motion on that point is not prejudicial since defendant made a subsequent Marsden motion before Judge Hoff, who had accepted defendant's plea. We thus turn to that final Marsden hearing.
D. The Second Postplea Marsden Hearing
Defendant began the second postplea Marsden hearing by again complaining that Mr. Criego did not give him all discovery materials, he did not visit him in jail, they did not discuss tactics, and he only agreed to the plea because he believed Mr. Criego was not ready for trial. Defendant did not make any comments about the exchange at the prior Marsden hearing, when Judge Hamlin and Mr. Criego discussed that he would be sentenced to life with parole. Defendant did not question what had happened at the prior hearing or request to withdraw his plea because he was allegedly misled about the life term.
As the second postplea Marsden hearing continued, Judge Hoff asked Mr. Criego about the plea agreement, given defendant's complaints that he had not received discovery or discussed possible defense tactics before he entered the plea. Mr. Criego said he negotiated with the prosecutor to reduce some of the charges and potential sentencing exposure, that gave defendant "a shot at a realistic parole date," and defendant "would be eligible for parole as opposed to never becoming eligible for parole."
Judge Hoff, who had taken defendant's plea, immediately realized Mr. Criego's error and reminded defendant that he pleaded no contest to a charge with a mandatory term of life without parole. Mr. Criego agreed that defendant faced life without parole, and explained that he told defendant that someday the law might change, "but certainly if he went down on more than one life top case he would never be eligible for parole in my opinion." Defendant did not object, protest, or question the statements made by Mr. Criego or the court's repeatedly clarification that he faced the mandatory term of life without parole.
Judge Hoff denied defendant's second postplea Marsden motion and again advised defendant that he pleaded to a charge that carried a mandatory term of life without parole, plus 25 years to life, plus three terms of 15 years to life. Defendant said he understood, and did not claim that counsel misrepresented the terms of the plea or request to withdraw his plea on that basis.
1. Analysis
Defendant contends that Judge Hoff should have granted his second postplea Marsden hearing because Mr. Criego again misstated the terms of the plea and defendant's sentencing exposure. Defendant asserts that Mr. Criego's advice to accept the plea for life without parole, with the expectation that the law would change in the future so he could be released on parole, was unrealistic and inconsistent with the modern trend to increase sentences for sex offenders and child molesters.
While Judge Hamlin may not have been aware of the terms of the plea agreement, Judge Hoff certainly knew what happened at the plea hearing. When Mr. Criego mentioned life with parole, Judge Hoff interrupted and again advised defendant that he entered a plea that carried a mandatory term of life without parole. Defendant never claimed he did not realize he faced that term, that he thought he was going to be sentenced to life with parole, or claim Mr. Criego had misled him into believing that he was going to be eligible for parole.
It appears that Mr. Criego advised defendant that it was slightly advantageous to plead to a charge that carried only one term of life without parole, as opposed to facing the original charges in the information with the maximum exposure of four terms of life without parole, plus the four original kidnapping charges that would have triggered terms of life with parole, in addition to the other indeterminate terms. Given the overwhelming weight of the evidence against defendant, including the video that he recorded on his own cell phone as he sexually assaulted the victim and recorded admissions, it cannot be said that Mr. Criego's advice was misleading. Mr. Criego's decision to negotiate a plea before the DNA results were returned also proved to be prescient, given the prosecutor's disclosure at the sentencing hearing that defendant's DNA was on the victim's vaginal swab.
Defendant argues his plea to a charge that carried life without parole was not a better outcome than if he had gone to trial because he "could have preserved multiple issues for appellate reversal" if there had been a jury trial. Defendant's argument is apparently based on the supposition that the court or the parties would have committed some type of error to undermine his convictions. However, defendant would have been subject to another trial unless his convictions were reversed for insufficient evidence as a matter of law.
In the context of the second postplea Marsden hearing, we cannot say that Judge Hoff abused his discretion when he denied defendant's motion for another attorney to investigate a motion to withdraw his plea. Judge Hoff had advised defendant at the plea hearing about the direct consequences of his plea, and defendant repeatedly said he understood that the plea carried the mandatory term of life without parole. At both postplea Marsden hearings, defendant never said that he did not understand his potential sentence or Mr. Criego had misadvised him. Indeed, Judge Hoff advised defendant that he would hear another motion before sentencing if defendant raised sufficient grounds to support it. Instead, defendant did not file any additional Marsden motions, and he was sentenced to life without parole.
Finally, defendant claims Mr. Criego also misstated the terms of the plea agreement when he said that the prosecutor was going to file more serious kidnapping charges against him if the case went to trial, and defendant would have faced additional terms of life without parole. Defendant asserts there is no evidence that the prosecutor made such a promise in exchange for his plea.
The original information alleged 15 counts; four counts alleged kidnapping charges that potentially carried terms of life with the possibility of parole, but those charges were not included in the amended information. While there was no express agreement on this matter, the record clearly implies that part of the negotiated disposition was to file the amended information that omitted the kidnaping counts. The prosecutor may very well have believed that additional kidnapping charges could have been filed, and declined to do so once defendant entered into the plea. We cannot say that such charges might not have been filed based on the record of this case.
We thus conclude that given the entirety of the record, including the plea proceedings and the multiple Marsden hearings, Judge Hoff did not abuse his discretion when he denied defendant's Marsden motion, and defendant has failed to show that he entered his plea based on misleading information about the mandatory term of life without parole. IV. Lee
Defendant relies on the United States Supreme Court's recent decision in Lee v. United States (June 23, 2017) ___ U.S. ___ (Lee), and argues that his complaints at the Marsden hearings, together with Mr. Criego's misstatements about parole, raised a meritorious ineffective assistance claim, and were sufficient for the court to appoint another attorney to file a motion to withdraw his pleas. As we will explain, however, the instant case is distinguishable from Lee.
In Lee, the defendant was a lawful permanent resident of the United States and operated a restaurant. A confidential informant advised federal officers that he also sold drugs, and contraband was seized during a search. A federal grand jury indicted him on one count of possessing ecstasy with intent to distribute. The defendant hired an attorney, who advised him that going to trial was risky and he would receive a lighter sentenced if he pleaded guilty. The defendant told his attorney that he was not a citizen, and repeatedly asked whether he would be deported. The attorney said he would not be deported if he pleaded guilty. Based on that assurance, the defendant accepted the prosecutor's plea offer in federal court, and he was sentenced to a year and a day in prison. However, the defendant later learned that he had pleaded guilty to a felony that subjected him to mandatory deportation. (Lee, supra, 137 S.Ct. at pp. 1962-1963.)
The defendant in Lee filed a motion to vacate his conviction and sentence, based on ineffective assistance for his attorney's erroneous advice. A federal magistrate conducted an evidentiary hearing, where the defendant and his attorney testified that " 'deportation was the determinative issue in [the defendant's] decision whether to accept the plea.' " (Lee, supra, 137 S.Ct. at p. 1965.) The defendant testified his attorney assured him that the government could not deport him if deportation was not part of the plea agreement. The attorney testified the defense case was weak and it was a bad case to try, but he would have advised him to go to trial if he had known the defendant would be deported under the plea agreement. (Id. at pp. 1963-1964.)
Based on the hearing testimony, the magistrate recommended to set aside the defendant's conviction and vacate his sentence based on ineffective assistance. However, the United States District Court denied relief. It found that counsel was ineffective, but the defendant could not show prejudice under Strickland resulting from counsel's erroneous advice: " 'In light of the overwhelming evidence of [the defendant's] guilt,' [the defendant] 'would have almost certainly' been found guilty and received 'a significantly longer prison sentence, and subsequent deportation,' had he gone to trial.' " (Lee, supra, 137 S.Ct. at p. 1964.) The Sixth Circuit affirmed the denial of relief and similarly concluded that the defendant could not show prejudice since he did not have any defense, he " 'stood to gain nothing from going to trial but more prison time,' " and " 'no rational defendant charged with a deportable offense and facing overwhelming evidence of guilt would proceed to trial rather than take a plea deal with a shorter prison sentence ....' " (Lee, supra, 137 S.Ct. at p. 1964.)
The United States Supreme Court reversed and granted defendant's petition for relief to vacate the conviction. Lee reviewed the familiar Strickland standard for ineffective assistance, that the defendant had to "demonstrate prejudice by showing 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' [Citations.]" (Lee, supra, 137 S.Ct. at p. 1964.) However, Lee qualified the prejudice analysis in defendant's situation:
"[I]n this case counsel's 'deficient performance arguably led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a proceeding itself.' [Citation.] When a defendant alleges his counsel's deficient performance led him to accept a guilty plea rather than go to trial, we do not ask whether, had he gone to trial, the result of that trial 'would have been different' than the result of the plea bargain. That is because, while we ordinarily 'apply a strong presumption of reliability to judicial proceedings,' 'we cannot accord' any such presumption 'to judicial proceedings that never took place.' [Citation.]
"We instead consider whether the defendant was prejudiced by the 'denial of the entire judicial proceeding ... to which he had a right.' [Citation.] [W]hen a defendant claims that his counsel's deficient performance deprived him of a trial by causing him to accept a plea, the defendant can show prejudice by demonstrating a 'reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.' [Citation.]" (Lee, supra, 137 S.Ct. at p. 1965, italics added.)
Lee held that such a defendant did not have to show that he would have been "better off going to trial." (Lee, supra, 137 S.Ct. at p. 1965.)
"That is true when the defendant's decision about going to trial turns on his prospects of success and those are affected by the attorney's error - for instance, where a defendant alleges that his lawyer should have but did not seek to suppress an improperly obtained confession. [Citations.] [¶] Not all errors, however, are of that sort. Here [the defendant] knew, correctly, that his prospects of acquittal at trial were grim, and his attorney's error had
nothing to do with that. The error was instead one that affected Lee's understanding of the consequences of pleading guilty...." (Id. at p. 1965.)
Lee rejected the Government's request to "adopt a per se rule that a defendant with no viable defense cannot show prejudice from the denial of his right to trial." (Lee, supra, 137 S.Ct. at p. 1966, original italics.)
"A defendant without any viable defense will be highly likely to lose at trial. And a defendant facing such long odds will rarely be able to show prejudice from accepting a guilty plea that offers him a better resolution than would be likely after trial. But that is not because the prejudice inquiry in this context looks to the probability of a conviction for its own sake. It is instead because defendants obviously weigh their prospects at trial in deciding whether to accept a plea. [Citation.] Where a defendant has no plausible chance of an acquittal at trial, it is highly likely that he will accept a plea if the Government offers one.
"But common sense (not to mention our own precedent) recognizes there is more to consider than simply the likelihood of success at trial. The decision whether to plead guilty also involves assessing the respective consequences of a conviction after trial and by plea. [Citation.] When those consequences are, from the defendant's perspective, similarly dire, even the smallest chance of success at trial may look attractive. For example, a defendant with no realistic defense to a charge carrying a 20-year sentence may nevertheless choose trial, if the prosecution's plea offer is 18 years. Here [the defendant] alleges that avoiding deportation was the determinative factor for him; deportation after some time in prison was not meaningfully different from deportation after somewhat less time. He says he accordingly would have rejected any plea leading to deportation - even if it shaved off prison time - in favor of throwing a 'Hail Mary' at trial." (Id. at pp. 1966-1967, italics in original.)
Lee also held, however, that "[c]ourts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant's expressed preferences." (Lee, supra, 137 S.Ct. at p. 1967, italics added.)
"In the unusual circumstances of this case, we conclude that [the defendant] has adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory
deportation. There is no question that 'deportation was the determinative issue in [the defendant's] decision whether to accept the plea deal.' [Citation.] [The defendant] asked his attorney repeatedly whether there was any risk of deportation from the proceedings, and both [the defendant] and his attorney testified at the evidentiary hearing below that [the defendant] would have gone to trial if he had known about the deportation consequences. [Citation.]
"[The defendant] demonstrated as much at his plea colloquy: When the judge warned him that a conviction 'could result in your being deported,' and asked '[d]oes that at all affect your decision about whether you want to plead guilty or not,' [the defendant] answered 'Yes, Your Honor.' [Citation.] When the judge inquired '[h]ow does it affect your decision,' Lee responded 'I don't understand,' and turned to his attorney for advice. [Citation.] Only when [the defendant's] counsel assured him that the judge's statement was a 'standard warning' was [the defendant] willing to proceed to plead guilty. [Citation.]" (Ibid., fn. omitted.)
Lee found there was "no reason to doubt the paramount importance [the defendant] placed on avoiding deportation," particularly since he had lived in the United States "for nearly three decades, had established two businesses in Tennessee, and was the only family member in the United States who could care for his elderly parents - both naturalized American citizens. In contrast to these strong connections to the United States, there is no indication that he had any ties to South Korea; he had never returned there since leaving as a child." (Lee, supra, 137 S.Ct. at p. 1968.)
Lee concluded that the defendant's claim that he would not have accepted a plea "had he known it would lead to deportation is backed by substantial and uncontroverted evidence," and he had demonstrated a " 'reasonable probability that, but for [his] counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.' [Citation.]" (Lee, supra, 137 S.Ct. at p. 1969.)
"We cannot agree that it would be irrational for a defendant in [his] position to reject the plea offer in favor of trial. But for his attorney's incompetence, [he] would have known that accepting the plea agreement would certainly lead to deportation. Going to trial? Almost certainly. If deportation were the 'determinative issue' for an individual in plea discussions, as it was for [the defendant]; if that individual had strong
connections to this country and no other, as did [the defendant]; and if the consequences of taking a chance at trial were not markedly harsher than pleading, as in this case, that 'almost' could make all the difference. Balanced against holding on to some chance of avoiding deportation was a year or two more of prison time. [Citation.] Not everyone in [his] position would make the choice to reject the plea. But we cannot say it would be irrational to do so." (Id. at pp. 1968-1969, original italics.)
A. Analysis
Defendant asserts the court should have granted his post-plea Marsden motions because, as in Lee, he was denied his constitutional right to due process and a trial because of Mr. Criego's alleged ineffective representation, regardless of the strength of the People's case against him. Defendant contends he accepted the plea only because of his oft-stated complaint that his attorney was not prepared for trial, and also based on defendant's claim that Mr. Criego allegedly told him that he would still be eligible for parole despite being sentenced to life in prison without parole.
However, there are key distinctions between Lee and this case. In Lee, the United States Supreme Court acknowledged that a plea should not be upset "solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies," and that the courts should instead "look to contemporaneous evidence to substantiate a defendant's expressed preferences." (Lee, supra, 137 S.Ct. at p. 1967.) In granting the defendant's petition for relief, Lee cited the "substantial and uncontroverted evidence" garnered from testimony at both the plea and evidentiary hearings that "backed" the defendant's claim that "he would not have accepted a [guilty] plea had he known it would lead to deportation." (Id. at pp. 1967-1968.)
The instant case lacks "contemporaneous evidence" to substantiate defendant's appellate claim that he felt compelled to accept the plea agreement because his attorney was not prepared and/or misrepresented the seriousness of his life sentence. At the two pre-plea Marsden hearings, defendant repeatedly complained that he had not received certain discovery. As we have already explained, his assertions were completely undermined by the entirety of those hearings and defendant's subsequent admissions that he had received discovery, with the exception of his insistent demands for a copy of the cellphone video that he took as he molested the victim.
At the second Marsden hearing, just before the plea proceedings, Mr. Criego responded to defendant's allegations about his preparedness with an extensive discussion of the discovery in the case, referring to specific page numbers and reports, implying that he had the materials in front of him as he responded to defendant's complaints and the court's inquiries. As with his discovery assertions, defendant's claim that his attorney was not prepared was refuted by the entirety of that second Marsden hearing.
At the plea proceedings, Judge Hoff repeatedly, extensively and unequivocally advised defendant that he was pleading to an offense that carried a mandatory term of life in prison without the possibility of parole, and asked defendant whether he had been made any promises beyond the People's agreement to dismiss the additional charges in exchange for his plea. Defendant said no. Indeed, appellate counsel conceded at oral argument that defendant could not claim any deficiencies in the court's advisements at the plea hearing.
Defendant made a third Marsden motion, which was heard just after the plea, and again asserted Mr. Criego was not prepared for trial and he never received certain discovery. Once again, the entirety of the hearing refuted defendant's assertions on these points. As the hearing concluded, however, Mr. Criego made the erroneous statements that defendant had pleaded to life with the possibility of parole, and Judge Hamlin apparently failed to review the record to clarify the terms of the plea agreement.
Defendant made his fourth and final Marsden motion just before the sentencing hearing, and it was heard by Judge Hoff, who had taken the plea. Defendant raised several complaints: Mr. Criego never gave him discovery, he had not been ready for trial, he failed to help with the victim's civil suit, and he spoke to the media to prejudice his case. As we have explained, these assertions were refuted by the entirety of the hearing.
As that final Marsden hearing continued, Mr. Criego again made the erroneous statement that defendant would be eligible for parole. Judge Hoff immediately realized and corrected the error - again advising defendant that he had pleaded to a charge with the mandatory term of life without possibility of parole - and invited defendant to disclose if he entered the plea because of incorrect advice.
Throughout the entirety of the Marsden hearings, and continuing to the sentencing hearing, defendant never said that he entered the plea because he thought he was being sentenced to life with the possibility of parole, and/or that Mr. Criego induced him to enter the plea with the false assertion that he would eventually be eligible for parole. Instead, his Marsden complaints were based on his continuing claims about not getting a copy of the cell phone video and other matters. Defendant never hesitated to express his complaints at these hearings, and there is no indication that he was somehow confused by the nature of his plea and the mandatory sentence he was about to receive.
Thus, in contrast to Lee, there is no "substantial and uncontroverted evidence" before this court to support defendant's appellate claim that he entered the plea because of being misled that he would be eligible for parole, even though Judge Hoff repeatedly advised him at the plea proceeding that he was pleading to an offense that carried the mandatory term of life in prison without parole. Mr. Criego made the misstatements toward the end of the third Marsden hearing, and at the beginning of the fourth hearing. At that final Marsden hearing, Judge Hoff immediately clarified any confusion created by Mr. Criego's statements and again unequivocally advised defendant that he was going to receive the mandatory term of life without parole.
Defendant had numerous opportunities at both the third and fourth Marsden hearings to question these statements. Instead, he again complained about the alleged discovery problems, and he did not protest or voice confusion when Judge Hoff again advised him that he was going to be sentenced to the mandatory term of life in prison without the possibility of parole. At the subsequent sentencing hearing, when he received the life term, he did not object or complain that he did not understand that his plea carried this mandatory term, or that he only entered the plea because he thought he was going to be eligible for parole.
We find that based on the record before this court, defendant has failed to show the type of prejudice that was prevalent in Lee.
V. Correction of Abstract of Judgment
At the sentencing hearing, the court sentenced defendant to life in prison without possibility of parole for count II and the special "one strike" allegations. It also imposed terms of 25 years to life for count V, and 15 years to life for each of counts VI, VII, and VIII. The court stayed the terms for counts V through VIII in light of the term of life without parole it had imposed for count II.
On appeal, the People advise this court that the minute order erroneously states that defendant was sentenced to 15 years to life for count V. The minute order must be modified and corrected to show that he was sentenced to 25 years to life for count V.
We further note that the abstract of judgment must also be modified. The abstract of judgment is for "indeterminate" terms and correctly states that defendant was convicted after entering pleas to counts II, V, VI, VII, and VIII, and that he was sentenced to life without parole for count II.
The lower portion of the abstract of judgment contains options to clarify whether the defendant was sentenced to 15 years to life or 25 years to life for any of the counts. In this case, however, the abstract does not state what indeterminate terms were imposed for any of counts V through VIII.
The abstract of judgment also contains a single check mark to indicate that count VI was stayed pursuant to section 654. It does not reflect that the court also stayed the terms imposed for counts V, VII, and VIII.
We thus remand the matter for correction of both the minute order and the abstract of judgment.
DISPOSITION
The matter is remanded to the superior court for the limited purpose of correcting the minute order and the abstract of judgment as set forth above, and transmitting certified copies of the amended abstract to all appropriate parties and entities.
In all other respects, the judgment is affirmed.
/s/_________
POOCHIGIAN, J. WE CONCUR: /s/_________
GOMES, Acting P.J. /s/_________
FRANSON, J.