Opinion
D069460
01-26-2017
THE PEOPLE, Plaintiff and Respondent, v. VICTORIA CHRISTOPHER, Defendant and Appellant.
Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Alana Cohen Butler, and Warren Williams, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCS281592) APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Affirmed. Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Alana Cohen Butler, and Warren Williams, Deputy Attorneys General, for Plaintiff and Respondent.
Victoria Christopher stole merchandise from a department store and then threatened to stab a loss prevention officer when he confronted her about the theft outside of the store. A jury found Christopher guilty of one count of robbery (Pen. Code, § 211; count 1) and she pleaded guilty to one count of resisting an officer (§ 148, subd. (a)(1); count 2).
Subsequent statutory references are to the Penal Code unless otherwise specified.
On appeal, Christopher contends: (1) the Estes theory of robbery put forth by the prosecution conflicts with the common law definition of robbery that the Legislature intended to codify in section 211; (2) the trial court erred in refusing to give the jury a pinpoint instruction indicating it is not robbery under the Estes theory unless the assailant uses force or fear with the intent to get away with the stolen goods; and (3) the trial court erred by failing to conduct a Marsden hearing. We conclude California law supports the Estes theory of robbery, the court did not err by refusing to give the requested pinpoint instruction, and the court was not required to conduct a Marsden hearing. Accordingly, we affirm the judgment.
An Estes robbery is a robbery in which the assailant uses force or fear after the initial taking, as described in People v. Estes (1983) 147 Cal.App.3d 23 (Estes).
The term Marsden hearing arises from People v. Marsden (1970) 2 Cal.3d 118.
FACTUAL AND PROCEDURAL BACKGROUND
On August 20, 2015, Sarah Gonzales, a loss prevention associate at a mall department store, watched on store security monitors as Christopher placed a bottle of fragrance and other items into her purse. Gonzales notified her manager, Miguel Solorzano, and continued to watch Christopher on the store security monitors while Solorzano followed Christopher around the store at a distance. Christopher eventually walked out of the store with the items still in her purse and without paying for them. Solorzano went out another nearby exit and confronted Christopher on the sidewalk in front of the store.
Solorzano identified himself as loss prevention, told Christopher to stop, and asked her to follow him back inside the store to discuss the merchandise in her purse. Christopher refused and denied having any merchandise. Solorzano referenced the fragrance and reached out towards Christopher's purse. Christopher moved her arm away and said, "if you touch me, I'll stab you." Solorzano continued to try to convince Christopher to go back inside the store and Christopher continued to refuse. Solorzano attempted to grab her to guide her back into the store and Christopher threatened a second time to stab him while reaching her hand towards her purse. Solorzano then pulled Christopher down to the ground and held her by the arm as she continued to try to reach into her purse.
Gonzales went outside to assist and saw Solorzano holding Christopher by the wrist. Solorzano told Gonzales that Christopher had threatened to stab him and asked Gonzales to call the police. Christopher said, "Go ahead. Call the police. You're lucky I'm not going to call someone else," and reached for her phone. Solorzano took Christopher's phone away from her and Gonzales called the police.
National City Police Department Officer Daniel Long arrived at the scene, approached Christopher, who was sitting on the curb, and asked her to put her purse down. Officer Long asked Christopher to give him the purse several times but she refused. He then asked her to place her hands on top of her head. Christopher refused at first but eventually complied and Officer Long was able to get control of her hands. He then attempted to place her in handcuffs. After he put the handcuffs on one of her wrists, she violently pulled her other hand away and twisted, breaking both hands free. After a struggle, Officer Long was able to gain control of Christopher.
Police Corporal Wade Walters also arrived on the scene and, at some point, took possession of Christopher's purse. Corporal Walters discovered a knife, approximately 10 inches in length, inside Christopher's purse. The police also recovered approximately $394 worth of merchandise Christopher had taken from the department store.
The People charged Christopher with one count of robbery and one count of resisting an officer. She pleaded guilty to the charge of resisting an officer and proceeded to trial on the charge of robbery.
At trial, the prosecution presented Gonzales, Solorzano, Officer Long, Corporal Walters, and a mall security guard as witnesses. Christopher did not testify or present any additional witnesses. During closing argument, the prosecution asserted Christopher committed robbery by taking the items from the store and using force or fear to resist Solorzano's attempts to prevent her from getting away with the stolen merchandise. Christopher's attorney conceded Christopher stole the items but argued the prosecution had not proven beyond a reasonable doubt that Christopher used force or fear as required to prove robbery and, to the extent the jury believed she did use force or fear, she did so only to avoid being touched or taken back inside the store, and not with the intent to carry out the theft.
The jury found Christopher guilty of robbery.
DISCUSSION
I. The Estes Theory of Robbery
"Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) The California Supreme Court has consistently approved a theory of robbery referred to as the Estes theory, in which the use of force or fear occurs while the defendant is attempting to escape with the stolen property, after the defendant has actually taken possession of it but before he or she has reached a place of temporary safety. (See Estes, supra, 147 Cal.App.3d at pp. 27-28; People v. Anderson (2011) 51 Cal.4th 989, 994-995 [approving Estes and concluding the forcible act may be committed after the taking if motivated by the intent to retain the property]; People v. Gomez (2008) 43 Cal.4th 249, 257 [approving Estes and concluding evidence the defendant used force to retain the property was sufficient to prove robbery]; People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8 [approving Estes and concluding theft becomes robbery if the perpetrator "resorts to force or fear while carrying away the loot"].)
Christopher concedes this court is bound by the decisions of the California Supreme Court with respect to the Estes theory of robbery (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450), but nevertheless asks us to state a view that the Estes theory conflicts with the plain language and legislative intent of section 211. Specifically, Christopher argues the legislature intended to incorporate the common law definition of robbery into section 211 and that the common law definition requires the perpetrator to use force or fear at the time he or she initially takes possession of the stolen property, and not during his or her escape. For the reasons set forth herein, we decline to state such a view.
We review questions of statutory interpretation de novo. (See Doe v. Brown (2009) 177 Cal.App.4th 408, 417.) Here, we are aided by the California Supreme Court's examination of the historical evolution of the common law crimes of larceny and robbery in People v. Williams (2013) 57 Cal.4th 776 (Williams). In Williams, the court looked to the common law to infer the meaning the legislature intended when it used the phrase "felonious taking" in section 211. (Williams, at p. 781.) The court explained the term "felonious taking" originated from the common law crime of larceny, which was defined as the taking and carrying away of someone else's personal property with the intent to deprive the owner of possession. (Id. at p. 782.) The court determined the Legislature likely intended to attach the same meaning—the taking and carrying away of someone else's property—when it used the term "felonious taking" to define robbery in section 211. (Williams, at pp. 786-787.) Thus, the court concluded the elements necessary to prove robbery under section 211 are essentially the same as those necessary to prove common law larceny, with the additional requirement that the perpetrator must use force or fear to accomplish the felonious taking. (Williams, at p. 787.)
The court in Williams did not specifically address from a historical standpoint the issue of when the assailant must use the requisite force or fear. However, because "felonious taking" includes both taking and carrying away in the context of common law larceny and the court in Williams concluded the Legislature intended the same meaning when it used the same term in section 211, it follows that "felonious taking" in section 211 must also include both the original taking and the carrying away. The court's explanation in Williams, as in a number of other cases, that robbery, like larceny, " 'is a continuing offense that begins from the time of the original taking [and does not end] until the robber reaches a place of relative safety' " confirms this conclusion. (See Williams, supra, 57 Cal.4th at p. 794, quoting Estes, supra, 147 Cal.App.3d at p. 28; see also People v. Cooper, supra, 53 Cal.3d at p. 1165, fn 8 [long line of California cases "implicitly hold that the asportation component of the taking continues while the loot is carried away, and does not end on slight movement"]; People v. Gomez, supra, 43 Cal.4th at pp. 254-255.) Thus, the definition of robbery in section 211 as a "felonious taking" that is "accomplished by means of fear or force" supports the rule set forth in Estes that a perpetrator commits robbery when he or she uses fear or force during the carrying away phase of larceny.
Christopher argues the Estes line of cases confuse the issue of what a defendant must do to commit a robbery under section 211—including, specifically, the use of force or fear—with the issue of how long the robbery continues. To the contrary, because both robbery and the underlying common law crime of larceny are continuous in nature, the discussion of the duration of the crimes in the Estes line of cases is directly relevant to the question of whether a perpetrator has accomplished a felonious taking by means of force or fear, as required by section 211.
Estes cites People v. Laursen (1972) 8 Cal.3d 192 (Laursen) and People v. Kent (1981) 125 Cal.App.3d 207 (Kent), among other authorities. (Estes, supra, 147 Cal.App.3d at p. 28.) In Laursen, the court explained robbery is an ongoing crime that continues through the carrying away phase and, therefore, concluded a kidnapping during the course of a defendant's escape constituted a "kidnapping for the purpose of robbery." (Laursen, at p. 196.) In Kent, the defendant admittedly stole money from a purse and then struck the owner in the face when she confronted him, but argued he committed larceny and assault rather than robbery because he had used force only after the larceny was complete. (Kent, at p. 213.) The court rejected this argument and confirmed the use of force required by section 211 can occur during the escape, citing to People v. Anderson (1966) 64 Cal.2d 633, 638. (Kent, at p. 213, fn. 6.) The Anderson court concluded the defendant committed robbery when he used force or fear to maintain possession of a gun against the owner's will after originally obtaining possession of it with the owner's consent by pretending to be interested in purchasing it. (Anderson, at p. 638.) The cases cited in Estes lend support to the conclusion in Estes that a defendant commits robbery when he or she uses force or fear after originally taking possession of another's goods in order to maintain possession of, or get away with, the goods.
In order to escape the California precedent regarding Estes-type robberies, Christopher asks us to adopt the reasoning set forth by the Supreme Court of Michigan in People v. Randolph (2002) 466 Mich. 532 . There, the court determined the common law definition of robbery required the perpetrator to use force or fear in order to gain possession of goods in the first instance. (Id. at pp. 167-168.) The Supreme Court of Michigan decided Randolph by a narrow majority, with the dissenting justices reaching the opposite conclusion upon examination of the history of the common law. Shortly thereafter, the Michigan Legislature amended the robbery statute to explicitly include the use of force while "in flight or attempted flight after the commission of the larceny." (Mich. Comp. Laws § 750.530, amended by 2004 Mich. Legis. Serv. Public Act No. 128, effective July 1, 2004.) We decline to adopt the reasoning set forth by the Supreme Court of Michigan in Randolph.
Finally, Christopher asserts that, if we accept the definition of robbery set forth in Estes, there is no jury instruction properly explaining when the perpetrator must use force or fear in order to commit a robbery. As Christopher points out, CALCRIM No. 1600, the standard jury instruction for robbery, includes a bench note stating the court may need to provide additional instruction "[i]f there is an issue as to whether the defendant used force or fear during the commission of the robbery." (CALCRIM No. 1600, Bench Notes, Instructional Duty.) In such a case, CALCRIM No. 1600 refers the court to CALCRIM No. 3261. Consistent with Estes, that instruction indicates the crime of robbery continues until the perpetrator reaches a temporary place of safety. (See CALCRIM No. 3261, While Committing a Felony: Defined-Escape Rule.) Although Christopher may disagree with the definitions therein, the instruction adequately ensures the jury understands precisely when the carrying away phase of a "felonious taking" ends so that the jury is able to determine whether the alleged use of force or fear was contemporaneous with the theft.
The court did not instruct the jury with CALCRIM No. 3261 in this case. Christopher did not ask the court to provide the instruction and on appeal does not assert the court erred by not doing so. --------
II. Pinpoint Instruction Regarding Use of Force or Fear
Christopher also argues the court erred by refusing to give a pinpoint instruction regarding the mental state necessary to commit an Estes-type robbery. In response, the People argue Christopher forfeited this argument because she did not provide a written request for the instruction to the trial court. Finally, in the event we agree that her counsel forfeited the argument, Christopher argues her counsel was ineffective.
A. Background
At the conclusion of the trial, Christopher's attorney orally requested the following pinpoint instruction: "force or fear is specifically given, has to be used in order to take away the loot, not for any—it is not a robbery to commit an assault, perhaps a battery on somebody, unless your intention is to get away with the loot." She argued CALCRIM No. 1600 did not make it clear the individual had to use force or fear with the intention of getting away with the loot in an Estes robbery situation. The court responded that Christopher's counsel could argue the point during closing, but concluded the standard instruction framed the issue adequately for the jury. After some further discussion regarding whether the court should make a change to the specific language of CALCRIM No. 1600 regarding the requisite use of force or fear, the court advised it would use the standard language without alteration. Christopher's counsel then stated, "[s]o long as I can argue and I am confident . . . that is a correct statement of the law, I am okay with that."
B. Forfeiture
In criminal jury trials, counsel must submit all proposed jury instructions on points of law to the court in writing before closing arguments begin. (§ 1093.5; People v. Ramos (1997) 15 Cal. 4th 1133, 1180 (Ramos).) Doing so allows the court to make determinations regarding the appropriate instructions in an intelligible and orderly manner. The trial court does not err by refusing to give proposed instructions that are not timely submitted in writing. (Ramos, at pp. 1180-1181.) As with any other ruling, a party may not assent to the court's decision with respect to a particular instruction and then complain of the decision on appeal. (See Cushman v. Cushman (1960) 178 Cal.App.2d 492, 498.)
Here, Christopher's attorney made an oral request for a pinpoint instruction during the discussion of CALCRIM No. 1600 but admittedly did not submit the requested instruction in writing. Additionally, the oral request did not set forth the exact language in an intelligible and orderly manner. Further, Christopher's counsel ultimately acquiesced when the court explained its view that the standard language set forth in CALCRIM No. 1600 adequately framed the relevant issue for the jury. On appeal, Christopher argues submission of a written instruction would have been futile. We disagree. The court expressed a willingness to hear additional argument on the matter and to read a motion submitted on another instruction. Instead of submitting something in writing or making further argument, Christopher's counsel stated she was "okay" with the instruction in CALCRIM No. 1600. Thus, Christopher forfeited her right to assert the court erred in refusing to give the proposed pinpoint instruction. (Cf. People v. Hughes (2002) 27 Cal.4th 287, 345 [counsel invited error by withdrawing request for instruction].)
C. The requested instruction was duplicative
and any error was harmless
Despite this forfeiture, we address the merits of Christopher's argument and conclude the court did not err in refusing to give the instruction because it was duplicative of other instructions and, even if the court did err, the error was harmless.
1. The requested instruction was duplicative
A criminal defendant may request a jury instruction that pinpoints the rule of law regarding a specific defense theory. (People v. Gutierrez (2002) 28 Cal.4th 1003, 1142 (Gutierrez).) However, the court does not err in refusing to give a requested pinpoint instruction if the instruction may confuse the jury or where the other instructions the court does give adequately address any valid point raised by the additionally requested instruction. (Id. at pp. 1143-1144; People v. Hendricks (1988) 44 Cal.3d 635, 643.) When considering a claim of instructional error on appeal, we consider the correctness of the jury instructions from the entire charge and presume the jury is capable of understanding the instructions given. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248; People v. Homick (2012) 55 Cal.4th 816, 853.)
Here, the court recognized the issue Christopher's counsel sought to address, stating there was "a real issue whether the . . . threat about the knife was to prevent the touching [by the loss prevention officer] or whether it was to keep the property," but determined the standard instruction adequately framed the issue for the jury. We agree. CALCRIM No. 1600 instructed the jury the defendant was guilty of the crime of robbery if she "used force or fear to take the property or to prevent the person [from whom the property was taken] from resisting" and had the intent, when using the force or fear, "to deprive the owner of [the property] permanently." It was not necessary to also instruct the jury "it is not a robbery to commit an assault, perhaps a battery on somebody, unless your intention is to get away with the loot" as Christopher requested. The additional instruction would have been duplicative.
Christopher argues People v. Kane (1946) 27 Cal.2d 693 (Kane) supports her assertion the additional instruction was necessary, but Kane is readily distinguishable. The issue in Kane was whether the court should have provided a pinpoint instruction indicating the defendant was not guilty of robbery if the defendant used force against an accomplice, with the consent of the accomplice, for the purpose of covering up the accomplice's involvement in the crime, as opposed to using force for the purpose of carrying out the theft. (Id. at pp. 698-699.) Here, Christopher does not allege the loss prevention officer she threatened was an accomplice and, as discussed, the standard instruction adequately addressed the defense's theory that she did not commit robbery because she did not threaten Solorzano with the intent to get away with the stolen merchandise. (See People v. Bolden (2002) 29 Cal.4th 515, 556 [concluding the standard robbery instruction adequately explains the defendant must apply the force or fear after or while forming the intent to steal and for the purpose of accomplishing the taking].)
2. Any error was harmless
Finally, even if the court erred in refusing the additional instruction, we conclude any such error was harmless.
We first address the applicable standard for determining whether the asserted error was prejudicial. Where the error involves a right under the federal Constitution, we apply the more stringent federal standard set forth in Chapman v. California (1967) 386 U.S. 18, 23-24. Christopher argues we should apply Chapman here because the refusal to give the pinpoint instruction violated her constitutional right to adequate instruction on the main theory of her defense, relying primarily on People v. Rogers (2006) 39 Cal.4th 826 (Rogers). In Rogers, the defendant argued the court's refusal to give an instruction on a lesser-included offense embodying the defense's theory of the case violated his federal due process right to a complete defense. (Id. at pp. 871-872.) The court disagreed and concluded there was no constitutional violation because the defense had not asked for the instruction and the defendant had fully presented his chosen defense during closing. (Id. at p. 872.) Christopher argues Rogers requires application of the Chapman standard here because her counsel did request the pinpoint instruction. But, as discussed above, she subsequently conceded to the use of the standard instruction without the pinpoint. Further, the court did provide instruction on the elements of robbery, including the requisite use of force or fear, and, as in Rogers, Christopher fully presented her chosen defense during closing. Thus, Rogers does not compel review under the Chapman standard in the present case.
Instead, where the court refuses to give a pinpoint instruction clarifying a matter of state law but does give instructions regarding the elements of the asserted crime and does permit counsel to argue its asserted defense, courts have consistently applied the state law standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836-837 (Watson). (People v. Earp (1999) 20 Cal.4th 826, 887; Gutierrez, supra, 28 Cal.4th at p. 1144; People v. Hughes (2002) 27 Cal.4th 287, 363; People v. Fudge (1994) 7 Cal.4th 1075, 1111-1112.) Under the Watson standard, the error is not prejudicial and reversal is not warranted unless we determine it is reasonably probable the jury would have reached a result more favorable to the defendant absent the instructional error. (Watson, at pp. 836-837.) To make that determination, we review the entire record, "including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict." (People v. Guiton (1993) 4 Cal.4th 1116, 1130.) A court's refusal to instruct with a proposed pinpoint instruction is harmless under the Watson standard if the closing argument pinpoints the asserted defense and the instructions given sufficiently cover the topic. (Earp, at p. 887; Gutierrez, at p. 1144; Hughes, at p. 363; Fudge, at pp. 1111-1112.)
Here, the court adequately instructed the jury on the elements of robbery, including the use of force or fear, using the standard jury instructions in CALCRIM No. 1600. During closing arguments, the prosecution argued that, pursuant to the instructions the court gave, Christopher used force or fear with the intent to deprive the owner of the property. The prosecution did not argue the mere use of force or fear during the course of the theft was enough, regardless of the intent with which it was used, but instead asserted Christopher threatened the loss prevention officer with the intent of carrying out the theft. The defense then emphasized this intent requirement, and argued there was not sufficient evidence for the jury to know whether Christopher's intent when she threatened Solorzano was to take the property or, instead, to prevent Solorzano from touching her. The prosecutor objected at one point to defense counsel's argument during rebuttal on the grounds she had explained specific intent in a manner inconsistent with the jury instructions, but defense counsel immediately clarified the point. Without objection, she reiterated that when Christopher used force or fear, she had to have done so with the intent to take away the property. After hearing these arguments and the instruction under CALCRIM No. 1600 that robbery requires force or fear "to deprive the owner of [the property] permanently," the jury found Christopher guilty under the prosecutor's stated theory. We therefore conclude the court adequately informed the jury concerning the necessary intent underlying the use of force or fear and, even assuming the trial court erred in failing to provide the requested pinpoint instruction, it is not reasonably probable that failure affected the jury's verdict. (See Watson, supra, 46 Cal.2d at pp. 836-837.)
D. Christopher's counsel was not ineffective
To the extent we conclude, as we have, that Christopher forfeited her argument regarding the pinpoint instruction by failing to submit it in writing, Christopher argues her counsel was ineffective. A defendant arguing ineffective assistance of counsel must show counsel's performance was well below the standard of reasonableness under prevailing professional norms and the deficiency undermined the fairness of the defendant's trial or, put another way, the result would have been more favorable to the defendant but for counsel's unreasonably substandard performance. (Strickland v. Washington (1984) 466 U.S. 668, 686-688; In re Wilson (1992) 3 Cal.4th 945, 950.) On review, we presume the trial counsel's decisions were proper and give deference to trial counsel's tactical choices. (Strickland, at pp. 691-694; People v. Hinton (2006) 37 Cal.4th 839, 876.) Because we have concluded the pinpoint instruction was not necessary and the court did not err in refusing to give it, with or without a written request, we also conclude Christopher's counsel was not ineffective due to her forfeiture of the argument regarding the pinpoint instruction.
III. Marsden Hearing
Christopher also argues the court erred by failing to conduct a Marsden hearing when she stated she wanted to withdraw her plea on count 2 and needed legal advice.
A. Background
At the sentencing hearing, the court stated it intended to sentence Christopher to the low term on count 1 and give her credit for time served on count 2. Immediately thereafter, Christopher stated she wanted to withdraw her previous plea of guilty on count 2. She told the court she "filed a notice of appeal to pull the plea" and that her counsel had refused to file a motion to withdraw the plea. The court explained that Christopher had a right to be sentenced in a timely manner on the second count and, if she wanted to withdraw her plea, she would need to waive her right to sentencing until after the court could hear the motion to withdraw the plea.
After conferring with Christopher, defense counsel attempted to set a date for a motion to withdraw the plea. The court again asked Christopher to waive her right to be sentenced that day on count 2. Christopher stated she did not understand what was going on. After the court attempted to explain it two more times, Christopher stated she wanted to withdraw her plea. However, when the court asked to waive time for sentencing, she again said she did not understand. The court explained once more and Christopher responded, "I need legal advice." The court then stated the sentencing was going forward because Christopher would not waive time. The court sentenced Christopher to the low term on count 1 and imposed a concurrent term on count 2 with credit for time served.
B. The court was not required to hold a Marsden hearing
Criminal defendants who are unable to afford private counsel have a constitutional right to the assistance of court-appointed counsel. (Marsden, supra, 2 Cal.3d at p. 123.) A defendant with appointed counsel also has the right to change or substitute counsel but that right is not absolute and is, instead, conditioned on a showing the defendant's right to effective assistance of counsel would be substantially impaired absent substitution. (Ibid.) Thus, when a defendant represented by appointed counsel requests substitution based on the ineffectiveness of his or her current counsel, the court is required to conduct a Marsden hearing to determine whether substitution is necessary. (People v. Mendoza (2000) 24 Cal.4th 130, 155.) In order to trigger the need for a Marsden hearing, there must be " 'at least some clear indication by the defendant that he [or she] wants a substitute attorney.' " (Id. at p. 157, quoting People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8.)
Here, Christopher stated she wanted to withdraw her plea and her appointed counsel refused to file the motion. However, after discussing it with Christopher, her counsel attempted to schedule a hearing date for a motion to withdraw Christopher's plea, indicating counsel had agreed to file the motion. The court did not proceed with the motion, however, because Christopher refused to waive her right to sentencing. Although Christopher stated she needed legal advice, the context surrounding this remark does not indicate Christopher was seeking substitute counsel, but instead that she did not understand why she needed to waive her right to sentencing, despite numerous attempts by her counsel and the court to explain it. On this record, we conclude Christopher did not make a request for substitute counsel in a sufficiently clear manner as to invoke an obligation for the court to hold a Marsden hearing. Therefore, the court did not err by failing to do so.
DISPOSITION
The judgment is affirmed.
/s/_________
HALLER, Acting P. J. WE CONCUR: /s/_________
O'ROURKE, J. /s/_________
AARON, J.