Opinion
F072229
03-16-2017
THE PEOPLE, Plaintiff and Respondent, v. ERIC DELGADO, Defendant and Appellant.
Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF296900A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Darryl B. Ferguson, Judge. Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
Before Hill, P.J., Levy, J. and Poochigian, J.
-ooOoo-
Defendant Eric Delgado pled no contest to a number of gang-related offenses, including voluntary manslaughter. Prior to sentencing, defendant moved for substitution of his court-appointed defense counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). The trial court denied defendant's Marsden motion and sentenced him to prison for 52 years. On appeal, defendant contends the trial court abused its discretion in denying his Marsden motion because it failed to conduct an adequate inquiry into his concerns about defense counsel and based its ruling on a misunderstanding of the law. Assuming without deciding defendant did not waive his claims as the People assert, we conclude the trial court did not commit Marsden error and therefore affirm the judgment.
BACKGROUND
We dispense with a summary of the facts surrounding defendant's crimes as they are not relevant to the issues raised on appeal.
On October 16, 2014, the Tulare County District Attorney filed a first amended information, charging defendant with murder (Pen. Code, 187, subd. (a); count 1) and criminal street gang conspiracy (§ 182.5; count 2). With respect to count 1, the information alleged that a principal personally used and discharged a shotgun, which proximately caused great bodily injury and death. (§ 12022.53, subds. (d), (e)(1)). The information further alleged count 1 was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)).
Further statutory references are to the Penal Code. --------
The parties entered a plea agreement on April 10, 2015. As part of the plea agreement, the trial court granted the People's unopposed motion to amend the information and defendant pled no contest to five counts: (1) voluntary manslaughter upon sudden quarrel or heat of passion (§ 192, subd. (a); count 1); (2) criminal street gang conspiracy (§ 182.5; count 2); (3) discharging a firearm from a motor vehicle (§ 26100, subd. (c); count 3); (4) carrying a loaded firearm on his person and/or in a vehicle while he was an active participant in a criminal street gang (§ 25850, subd. (c)(3); count 4); and (5) assault with a firearm (§ 245, subd. (a)(2); count 5). In addition, defendant admitted amended firearm enhancements in counts 1, 2, and 5, a great bodily injury enhancement in count 3, and gang enhancements in all five counts (§§ 12022.5, subd. (a), 12022.7, subd. (b), 186.22, subd. (b)).
Before the sentencing hearing began on June 30, 2015, defense counsel informed the trial court that defendant wanted a Marsden hearing and to withdraw his plea. Following a hearing, the court denied defendant's Marsden motion and request to withdraw his plea. The court then proceeded to sentence defendant to an aggregate prison term of 52 years.
After defendant filed a timely notice of appeal, the trial court granted defendant's second request for certificate of probable cause made on the ground the court had improperly denied his postplea Marsden motion.
DISCUSSION
Defendant now claims the trial court abused its discretion in denying his Marsden motion because the court failed to conduct an adequate inquiry into his concerns about defense counsel and denied the motion based on a misunderstanding of the law. We have reviewed the record and find no error.
A. The Marsden Hearing
To put defendant's claims in context, we present the entire discussion that took place at the Marsden hearing on June 30, 2015:
"THE COURT: All right. [Defendant], we are in the jury room on case number 296900 and the first thing we need to take up is your Marsden [motion]. And why don't you tell me what the situation is there.
"THE DEFENDANT: I don't, I believe that I could have, there could have been more evidence on my behalf found for on my behalf to win my case and I don't, I believe that there was like, like that they didn't go search for the evidence on my behalf that they should have.
"THE COURT: Like what evidence?
"THE DEFENDANT: Like go look for more of the witnesses on my behalf and saw the people who did that.
"THE COURT: Well let's see here.
"THE DEFENDANT: I don't believe we are seeing eye to eye on a couple of things.
"THE COURT: Like what?
"THE DEFENDANT: Like for example on this deal, I don't, I kind of do, I kind of did want to take it but I do not want to take it because I believe I could—I believe I could do better on a better deal.
"THE COURT: All right. Well this is the discussion we had when we took your plea:
'THE COURT: All right. Have you used any drugs or alcohol or taken any medication that is affecting your ability to understand what we are doing here today?'
"And your response was, 'no'.
[']THE COURT: Have you had any difficulty communicating with your attorney?
[']THE DEFENDANT: No.
[']THE COURT: Have you given your attorney all the information you have regarding these charges?
[']THE DEFENDANT: Yes.
[']The COURT: Has your attorney advised you of the possible defenses you might have?
[']THE DEFENDANT: Yes
[']THE COURT: Are you satisfied with the services and advi[c]e of your attorney?
[']THE DEFENDANT: Yes.
[']THE COURT: Other than what I have told you regarding the consequences of your plea and the indicated sentence, has anybody promised you anything or threatened you in any way to get you to plead no contest?
[']THE DEFENDANT: No Sir.'
"And then I asked [defense counsel] if he was aware of any promises or threats and he said 'no.'
"And then I asked you, I asked [defense counsel], 'Have you advised Mister'—you, 'of his constitutional rights, the consequences of his plea, the nature of the charges against him and any possible defenses' he might have and [defense counsel] responded 'Yes, Your Honor.' And you didn't make any response.
"And then I asked you and then I went over your constitutional rights with you. And then I asked you, 'Do you have any questions regarding the rights you are giving up, the consequences of your plea, the nature of the charges against you or any questions at all? No.'
"So you had your opportunity to complain and you have got buyer's remorse right now and that is normal.
"And then I took your plea and you pled no contest and admitted all the allegations, so I find there is no basis for a Marsden [motion] to relieve [defense counsel].
"And I believe that based upon the record, that what you wanted to withdraw your plea on is the ineffective assistance of counsel that you are claiming?
"THE DEFENDANT: Well yeah, I would like to kind of start all over.
"THE COURT: Well you can't start all over. You have already entered a plea and if that is the basis for your withdrawal of the plea I am going to deny it and we are going to go forward with sentencing." (Italics added.)
B. Standard of Review
A defendant is entitled to new appointed counsel if the record clearly shows the first appointed attorney is not providing adequate representation or there is such an irreconcilable conflict between defendant and counsel that ineffective representation is likely to result. (People v. Valdez (2004) 32 Cal.4th 73, 95.) When a defendant requests substitution of counsel because of claimed inadequate representation, the trial court must conduct an informal hearing at which the defendant is afforded an opportunity to relate specific circumstances supporting the claimed deficiencies in counsel's representation. (Id. at pp. 95-96.) We review the denial of a Marsden motion for abuse of discretion, and a denial is not an abuse of discretion unless the defendant has shown a failure to replace appointed counsel would substantially impair his or her right to the effective assistance of counsel. (People v. Barnett (1998) 17 Cal.4th 1044, 1085.)
C. Analysis
The record shows no abuse of discretion. The trial court conducted an adequate inquiry under Marsden by giving defendant the opportunity to state his grievances against defense counsel and relate specific instances of deficiencies in counsel's performance. The court then properly denied defendant's motion because defendant failed to make the required factual showing but merely offered general, vague, and/or speculative allegations of ineffective assistance.
Defendant first suggested defense counsel had failed to conduct an adequate investigation into potentially exculpatory evidence. When the trial court sought specific examples ("Like what evidence?"), defendant offered none but merely suggested counsel "could have" searched for additional eyewitnesses "on [his] behalf." However, defendant related no specific circumstances indicating such witnesses even existed or, if they did exist, they would be able to provide testimony favorable to the defense.
After the trial court began to respond to defendant's first complaint ("Well let's see here"), defendant offered a different reason for seeking new counsel, stating he believed he and defense counsel were not "seeing eye to eye on a couple of things" and thus suggested a conflict existed between them. When the court again sought specific examples, however, defendant did not explain how he and defense counsel had differed. Instead, defendant essentially acknowledged he had originally wanted to accept the plea agreement (albeit with some ambivalence—"I kind of did want to take it") at the time he entered it but now thought he could obtain "a better deal." (Italics added.) The trial court aptly described defendant's complaints as reflecting feelings of "buyer's remorse."
We find unpersuasive defendant's attempt to interpret the trial court's comments in this regard as evidence the court based its denial of defendant's Marsden motion on a misunderstanding of the law. The court accurately noted that, at the time of the change of plea hearing, defendant had not taken the opportunity afforded him to complain if he was dissatisfied with the plea agreement or with defense counsel's services. This is not the same as the trial court holding that "defendant's prior statements claiming satisfaction with his counsel bind him forever" or that "as a matter of law" because defendant failed to "complain about his representation at the time of the plea, he was estopped from complaining at a later time" as defendant asserts on appeal.
In fact, as already discussed, the trial court did permit defendant to complain about his representation, but defendant offered no specific circumstances suggesting that defense counsel had not conducted a sufficient investigation, that they had any conflict over the plea agreement, or that there was any factual basis for defendant's belief he could have gotten a better plea. Under the circumstances before us, the trial court was not required to inquire of defense counsel about defendant's nonspecific complaints of inadequate representation. (See People v. Terrill (1979) 98 Cal.App.3d 291, 299-300 [nothing in Marsden or later Supreme Court decisions requires the court to make inquiry of counsel when a motion for substitution is made; the trial court's obligation is to give defendant an opportunity to present argument or evidence in support of his or her claim of inadequate representation]; see also People v. Penrod (1980) 112 Cal.App.3d 738, 747-748 [disagreement with appointed counsel's trial preparation and strategy does not trigger any duty in the trial court to make inquiry of counsel].)
Defendant's citation to cases like People v. Munoz (1974) 41 Cal.App.3d 62, and People v. Groce (1971) 18 Cal.App.3d 292, does not persuade us to the contrary. In those cases, each defendant made specific charges of alleged deficiencies in counsel's performance or in counsel's attitude toward defendant requiring an explanation from counsel. Here, defendant made no similar claims. The trial court did not abuse its discretion in denying defendant's Marsden motion.
DISPOSITION
The judgment is affirmed.