Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F01589
RAYE, Acting P. J.An information charged defendant Theresa Martina Faison with possession of a short-barreled shotgun (Pen. Code, § 12020, subd. (a) -- count one), possession of a firearm by a convicted felon (§ 12021, subd. (a)(1) -- count two), and second degree robbery (§ 211 -- count three) and alleged two prior prison terms (§ 667.5, subd. (b)). The information also charged James Beasley Faison with second degree robbery in count three and alleged a strike prior for attempted robbery.
All further statutory references are to the Penal Code.
Defendant entered a no contest plea to the lesser related offense of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), as a nonstrike offense, and admitted the two prior prison term allegations in exchange for dismissal of the remaining counts and a stipulated sentence of five years, that is, the midterm of three years for the underlying offense and one year each for the two prior prison terms. The same day, codefendant James Faison entered a guilty plea to grand theft from the person of another and admitted the strike prior in exchange for a stipulated term of six years in state prison.
The court sentenced defendant to state prison for an aggregate term of five years pursuant to the plea agreement.
Defendant appeals. She obtained a certificate of probable cause. (§ 1237.5.) She contends the trial court committed reversible error in failing to conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). We will affirm the judgment.
Codefendant James Faison is not a party to this appeal.
The Attorney General responds that the appeal must be dismissed because defendant “never requested or obtained a certificate of probable cause challenging her conviction.” The Attorney General is mistaken. Defendant requested a certificate of probable cause on March 6, 2008, and the court granted the request on March 21, 2008. In any event, a certificate of probable cause is not required here. “A determination that defendant is entitled to substitute counsel has no necessary implication for his no contest plea, which plea stands until a motion to withdraw it is made and granted.” (People v. Vera (2004) 122 Cal.App.4th 970, 978.) A “defendant [is] not required to obtain a certificate of probable cause to challenge the trial court’s denial of defendant’s postplea Marsden motion,” which seeks a new attorney in order to obtain effective assistance in the future, notwithstanding that the decision on the motion is based on counsel’s preplea conduct. (Vera, at p. 978.)
Background
Defendant was represented by court-appointed counsel Arturo Reyes when she entered her plea on December 5, 2007. Attorney Reyes explained that defendant “will plead to a reasonably related Penal Code Section 245, nonstrike, related to Count 3 [second degree robbery] and admit her two prior convictions; and it’s going to be mid-term, plus two, so the aggregate term of five years.” The court reiterated the plea agreement as a plea “to felony assault, not a strike or serious felony within the meaning of the strike law. You will receive the mid-term of three years. You would admit two prior prison term allegations, so that your total sentence would be five years in prison.” Defendant agreed that no one had made any promises or threats in order to get her to enter her plea, other than what was stated in open court. Defendant agreed that she had had enough time to discuss the case with her attorney and had no questions about her plea. The court then took defendant’s plea: “Miss Faison, you are charged with the robbery of Monica Flores in Count 3.... To the lesser but reasonably related offense of felony assault, a violation of [section] 245[, subdivision] (a)[(1)], not a strike or serious felony within the meaning of the strike law, what is your plea?” Defendant pled no contest. She also admitted two prior prison term allegations.
The prosecutor set forth a factual basis for defendant’s plea, and defense counsel had nothing to add or change: “With respect to the co-defendant, Theresa Faison, on February 14th, 2007, in the County of Sacramento, she committed an assault by means of force likely to produce great bodily injury against the victim, Monica Flores. That would be as a nonstrike. [¶] She suffered a prior conviction on March 27th, 2003, out of the County of Sacramento for a felony violation of Health and Safety Code Section 11352, having been sentenced to prison and [having] not remained free for the required five-year period. [¶] Additionally, she has a prior conviction on June 2nd of 2006 in Sacramento County for a felony violation of Penal Code Section 475(c). She also received a prison commitment and had not remained free for the required five-year period before committing this offense.” After finding the pleas were knowingly, intelligently, and voluntarily entered, the court queried whether defendant wished to be sentenced immediately or wanted her case referred to probation. Attorney Reyes stated: “If I may, Your Honor, I have spoken to [defendant] and in chambers we spoke about the recommendation to the reunification program. It is my understanding -- and I need to make some phone calls and set it all up. [¶] I would like to come back in two or three weeks, waive referral to Probation and come back two or three weeks and do sentencing then.” The court granted defendant’s request.
At sentencing on January 18, 2008, the court stated that it had met with Attorney Reyes in chambers and learned that defendant “expects not to qualify for the family reunification of some type” and “will go to prison.” The court stated that Reyes had submitted a letter written by defendant, and that the court had reviewed and discussed the letter with counsel. The court summarized defendant’s written letter as a request “to withdraw her plea and enter a plea to a different charge and accept a five-year state prison suspended sentence with a year in jail so that she can reunify with her child.” The court declined defendant’s request, commenting the plea agreement was “appropriate under the circumstances.”
Defendant’s letter reads as follows: “First & foremost, God bless & thank you for taking the time out to read this. [¶] The reason why I’m writing this letter is to ask that the [section] 245(a)(1) that I took be dropped to a lesser type of charge because it[’]s disqualifying me from the Family Foundations Program which is ran [sic] under CDC, where I can have my 2 month old daughter I birthed while incarcerated. Also, I would like to volunteer myself into a community based residential treatment program, like the ‘Well Alternative,’ to further assist me in my drug and alcohol problems I have & had before being incarcerated, once I parole from the FFP. I take full responsibility for my actions and am ready to make a positive change in my life & my kids lifes [sic]. All I’m asking for is a chance. I’ve never been to a program & I believe they’ll help me help myself. If this is not [an] option, then I’m asking to get a 5 yr. joint suspension so that I can go to the parole office and seek help to be placed into a program. I just want some help, had I not been drinking last February 14th, I wouldn’t of [sic] found myself in jail. Please consider these options for me. I’d really appreciate it & thank you for working with me.”
When the court asked if there was “any legal cause why sentence should not now be pronounced,” Attorney Reyes stated: “[M]y client has informed me that she would like to withdraw her plea and requests the Court appoint counsel so she can be advised as to whether or not she can withdraw her plea. [¶] She has stated to me she did not know she was pleading to a [section] 245(a)(1). All she thought she was pleading to was an assault. Therefore, she would like to consult with someone to see if there are grounds for her to withdraw her plea.” The prosecutor suggested there were no grounds for withdrawing the plea, noting that “it was quite clear during the plea negotiations as to what she was pleading to as to what she was charged with” and that there was no “reasonable way she can conclude she was pleading to a simple assault.” The court reviewed the transcript of the entry of plea hearing and then took a brief recess.
After the recess, the court first addressed Attorney Reyes’s request for the appointment of a different lawyer to represent defendant, commenting “this is not a situation where you personally are refusing to make a motion to withdraw her plea. [¶] As I understand it, you made a motion. You call it a request but you did represent [defendant] in her request to withdraw the plea, the grounds being that she states that she was confused or misunderstood the crime that she was pleading to. [¶] Is that correct?” Reyes confirmed that that was the case. Defendant did not say anything at all. The court continued, “So I don’t know that there’s any conflict in the understanding as to the circumstances under which she entered the plea that could be effectively addressed by a lawyer, other than yourself. [¶] On the merits, having reviewed the plea transcript, I simply don’t see that it is possible that she could have misunderstood the crime that she was entering her plea to or the consequences of entering her plea. [¶] This is a situation where she had hoped to qualify for a program, but there was no guarantee that she would qualify for the program once committed to prison. [¶] You have undertaken to get her into that program. We postponed sentencing at least once, as I recall, for that purpose. It seems to me that you represented her to the best of your ability. [¶] I see no benefit or no reason to postpone sentencing any further for that purpose. I don’t believe she has grounds to withdraw her plea, and I am going to make that my ruling.”
Defendant then stated she did not understand that the assault was a section 245, subdivision (a)(1) assault, an “assault with a deadly weapon,” but thought instead it was a lesser assault since “it was just a fight.” The court pointed out that she had pled to a section 245 offense. Defendant replied, “He told me it was assault.” The court noted that defendant had pled to assault by means of force likely to produce great bodily injury (as stated by the prosecutor in setting forth a factual basis for the plea), a nonstrike section 245, subdivision (a)(1) offense, and not an assault with a deadly weapon. The court stated, “[S]o there is really no misunderstanding at all.” Defendant responded, “What I was asking for was a lower -- not my lower time. I’ll take the time. I am not saying about the time. I am meaning a lower -- the Penal Code. I don’t know if I am saying it right. [¶] Something lower than that 245. That is excluding me with this program. Me going to prison, that will not stop me from my alcohol habit or any more resources I might need. That is basically putting me in a warehouse where it is overpacked. [¶] I just had a child while I have been here. I want to be able to reunify with my kid and at the same time get the resources for me. There aren’t a lot of people that take programs that have assaults or anything violent. That will start me for anything in the future. All I am asking for....” The court interrupted and noted that anything less was a misdemeanor. Defendant responded that she would “take it as a felony.” The court responded, “I can’t make a misdemeanor into a felony if it is not a felony under the law.” The court then sentenced defendant. Defendant thereafter asked, “What did the two one-year prison priors come from? Immunity was only a one-year prison prior? I am confused with that.” The court responded that there were two separate convictions and that her attorney could explain it to her. She vented, “What type of f[-----] system is this?” That ended the proceedings.
Analysis
“‘“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. Hart (1999) 20 Cal.4th 546, 603; see People v. Smith (1993) 6 Cal.4th 684, 694-696.)
“[A] trial court’s duty to permit a defendant to state his reasons for dissatisfaction with his attorney [under Marsden] arises when the defendant in some manner moves to discharge his current counsel.” (People v. Lucky (1988) 45 Cal.3d 259, 281.) “‘Although no formal motion is necessary, there must be “at least some clear indication by defendant that he wants a substitute attorney.”’ [Citations.]” (People v. Valdez (2004) 32 Cal.4th 73, 97; see Lucky, supra, 45 Cal.3d at p. 281, fn. 8; People v. Lee (2002) 95 Cal.App.4th 772, 780; People v. Rivers (1993) 20 Cal.App.4th 1040, 1051, fn. 7.) Absent a clear indication in the record, no error occurs when the trial court fails to conduct a Marsden hearing. (People v. Dickey (2005) 35 Cal.4th 884, 917-922; People v. Richardson (2009) 171 Cal.App.4th 479, 484.)
On appeal, defendant claims that when she entered her plea, she believed she qualified for the alternative sentencing program for pregnant and parenting women, and when she requested to withdraw her plea in her letter, “[t]he court failed to treat [her] motion to withdraw her plea, as a Marsden motion.” She cites People v. Minor (1980) 104 Cal.App.3d 194 (Minor) and argues, “[t]he net effect was to deny [her] the opportunity to freely and openly address the court regarding the deficiencies she perceived in defense counsel’s representation. Had she been permitted to speak freely to the trial court as would have been the case if the required Marsden hearing had been held, [her] own expressions of what she believed to be counsel’s failings might have revealed additional inadequacies recognizable only to the experienced trial judge but not to [defendant] [her]self.” She adds in her reply brief that “[h]er request for new counsel at sentencing was based on her conflict with her trial counsel.” She cites People v. Eastman (2007) 146 Cal.App.4th 688 (Eastman) in support of her claim.
Neither Minor nor Eastman assists defendant. In Minor, the defendant confirmed at arraignment that he wanted to relieve the office of the public defender, having had “several” public defenders represent him “at different stages of the proceedings,” and to hire another attorney although he did not have the money to do so. The court summarily denied the request without determining the reason for the defendant’s request. (Minor, supra, 104 Cal.App.3d at p. 197.) Minor determined that the defendant’s due process rights were violated and reversed with directions. (Id. at pp. 197-200.)
Minor is distinguishable. Here, defense counsel stated that defendant wanted new counsel to pursue a motion to withdraw her plea based on her confusion or misunderstanding about the crime to which she entered a plea. However, counsel proceeded on her behalf and moved to withdraw her plea.
In Eastman, the defendant entered a plea of no contest to two counts of child molestation in exchange for a stipulated state prison sentence of 10 years. At sentencing, defense counsel informed the court that the defendant wished to withdraw his plea. The defendant personally provided the court with a letter written by his mother, who detailed defense counsel’s alleged misconduct of persuading the defendant to accept the plea bargain by falsely telling him that his mother planned to testify against him. (Eastman, supra, 146 Cal.App.4th at pp. 690-691.) The court appointed another attorney to determine whether a motion to withdraw the plea should be filed. The second attorney reviewed the case; conferred with the first attorney, the prosecutor, and defendant; and concluded that there were no grounds for a motion to withdraw the plea. (Id. at pp. 692-693.) Thereafter, the defendant, in writing, complained about his first attorney’s failure to investigate and stated defense counsel and the prosecutor had falsely told the defendant that his mother agreed to testify against him. The defendant asked to withdraw his plea. The court denied the defendant’s request and imposed the stipulated term. The defendant contended on appeal that at sentencing, the court failed to conduct a Marsden hearing concerning the defendant’s complaints about his first attorney before appointing a second attorney and instead delegated the responsibility to the second attorney. (Id. at pp. 693-695.)
Eastman held that the trial court erred in failing “to make a record that [the defendant’s] complaint [about the fundamental breakdown in the relationship with his attorney] had been adequately aired and considered.” (Eastman, supra, 146 Cal.App.4th at p. 696.) Eastman concluded that although a second attorney had been appointed to investigate whether to bring a motion to withdraw the defendant’s plea, such action did not “discharge [the court’s] duties under Marsden....” (Ibid.) The second attorney provided no details in concluding there were no grounds for a motion to withdraw the plea. (Ibid.) Eastman stated that when a court “appoint[s] [a second attorney] to determine for the court whether there was a legal or factual basis for withdrawal of the plea,” it “abandon[s] its own constitutional and statutory obligations to make the ultimate determination itself based upon the relevant facts and law of which the court is made aware by some legally sanctioned procedure. [Citations.]” (Id. at p. 697.)
Eastman is distinguishable. Here, defense counsel orally moved to withdraw defendant’s plea because she was confused or misunderstood the crime to which she was pleading, that is, she did not know she was pleading to a violation of section 245, subdivision (a)(1) and thought she was only pleading to an assault. Unlike the defendant in Eastman, defendant did not complain about counsel’s performance.
We conclude the trial court did not err. Attorney Reyes requested a new attorney for defendant so that a motion to withdraw the plea could be filed. But upon questioning by the court, Reyes confirmed that he was not refusing to file such a motion and, in fact, he so moved on the ground that defendant was confused or misunderstood. Defendant did not state on the record in open court that she wanted a new attorney. Instead, she simply wanted to withdraw her plea and enter a new plea to an offense that did not disqualify her from the reunification program. The record does not demonstrate that defendant complained to the court about the adequacy of the representation she received. The only preplea complaints were about her speedy trial rights. She was jointly charged and would be jointly tried with James Faison, her brother. His attorney likewise sought continuances to locate defense witnesses. Defendant’s brother did not want to represent himself, so good cause continuances were granted over her brother’s and defendant’s personal objections. The letter that defendant suggests should have been treated as a Marsden motion was a motion to withdraw the plea because she could not get into a reunification program with a conviction for the offense to which she entered a plea. In her letter, she never expressed dissatisfaction with defense counsel. We conclude that defendant did not properly present a Marsden motion requiring the trial court to conduct an inquiry.
DISPOSITION
The judgment is affirmed.
We concur: BUTZ , J., CANTIL-SAKAUYE , J.