Opinion
C082037
05-01-2017
THE PEOPLE, Plaintiff and Respondent, v. PARRISH D. HEAVENS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF15273)
Defendant Parrish D. Heavens contends the trial court erroneously failed to construe his statements at sentencing as a motion for new counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with rape (Pen. Code, § 261, subd. (a)(2); count 1), attempted murder with premeditation (§§ 664, subd. (a), 187, subd. (a), 189; count 2), willfully causing permanent disability or disfigurement (§ 205; count 3), torture (§ 206; count 4), and corporal injury (§ 273.5, subd. (a); count 5). As to count 1, the information also alleged the crime fell within the one strike law (§ 667.61, subds. (d)(3), (4), (6) & (e)(2), (3)), that defendant inflicted great bodily injury (§ 12022.8), and that defendant used a deadly weapon during the commission of a sexual offense (§ 12022.3, subd. (a)). As to counts 2, 3, 4, and 5, it was further alleged defendant used a deadly weapon. (§ 12022, subd. (b)(1).) As to counts 2 and 5, it was also alleged defendant inflicted great bodily injury. (§ 12022.7, subd. (e).) Three prior prison terms were further alleged. (§ 667.5, subd. (b).) It was also alleged the crimes required a state prison sentence. (§ 1170, subd. (h).)
Undesignated statutory references are to the Penal Code.
Defendant pleaded no contest to counts 1 and 2, pursuant to People v. West (1970) 3 Cal.3d 595. With respect to count 1, defendant also pleaded no contest to a one strike allegation and the deadly weapon use enhancement. (§§ 667.61, subd. (d)(4), 12022.3, subd. (a).) The remaining counts were dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754.
During the sentencing hearing, the trial court required defendant to enter his statement of remorse because he was making disparaging comments about the victim. His counsel informed the court defendant wanted to withdraw his plea. The trial court denied it, noting it had "reviewed the contents of the transcript and [saw] no grounds to withdraw this plea." Defendant asked if he could appeal, saying: "I don't feel that I'm being treated fair by not being able to read [my statement of remorse]. And I wanted a jury trial, but I was informed that I would lose in a jury trial. And there is a lot of evidence that was manipulated by [the prosecutor]. [¶] . . . [¶] . . . There's a lot of argument in there that would show you that I didn't do what they're saying that I did. I didn't rape [the victim]. I did not rape her. She had consensual sex with me." The trial court again stated it was denying defendant's motion to withdraw his plea. Defense counsel informed defendant he could appeal. Defendant stated, "I thought I had a right to be able to withdraw my plea, because I never made a plea except for no contest, and I want to retract my plea --." Interrupting, the trial court stated, "Denied." Defendant continued, "-- and have an attorney present with me that will defend me." The trial court stated that defense counsel "has done a very good job defending you, sir." Defense counsel informed the trial court he had nothing further to state.
The judge issuing judgment and sentencing was not the same judge who accepted defendant's plea. Defendant waived the right to be sentenced by the same judge who took his plea. --------
The trial court again stated it was denying defendant's motion to withdraw his plea, reasoning that the plea form was legally correct and defendant was "not misadvised about anything." In addition, the trial court "took a great deal of time explaining everything to Defendant" during the plea hearing and had "found that Defendant made a knowing, intelligent and voluntary waiver of his constitutional rights. [¶] By reviewing the transcript, I believe that that is true. I think [defendant] knew exactly what he was doing."
The trial court sentenced defendant as follows: 25 years to life for count 1, plus 10 years consecutive for the weapon enhancement, and a life term for count 2. Defendant appealed and obtained a certificate of probable cause.
DISCUSSION
Defendant contends his statement that he wanted to "retract my plea" and "have an attorney present with me that will defend me" was a request for new counsel and thus obligated the court to hold a Marsden hearing. According to defendant, when the trial court stated defense counsel had "done a good job defending [defendant]," it was indicating that it interpreted defendant's statement as an allegation of ineffective assistance. We disagree.
"When a defendant seeks substitution of appointed counsel pursuant to [Marsden], 'the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. The defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.' [Citations.]" (People v. Taylor (2010) 48 Cal.4th 574, 599.) A trial court is obligated to conduct a Marsden hearing only when "there is 'at least some clear indication by defendant,' either personally or through his current counsel, that defendant 'wants a substitute attorney.' [Citation.]" (People v. Sanchez (2011) 53 Cal.4th 80, 89-90.)
Despite defendant's contentions, he failed to make any " 'clear indication' " that he wanted a substitute attorney. (People v. Sanchez, supra, 53 Cal.4th at p. 90.) Read as a whole, defendant's statements indicate that he wanted a jury trial because he claimed he did not rape the victim. As such, he wanted to withdraw his plea and proceed to trial, where he would be represented by a lawyer. Defendant never criticized his current lawyer or otherwise indicated he wanted to be represented by a different lawyer. Moreover, in the context of defendant's desire to withdraw his plea and proceed to trial, the trial court's statement regarding defense counsel's performance indicates it thought defendant received a fair plea deal. We reject defendant's claim.
DISPOSITION
The judgment is affirmed.
RAYE, P. J. We concur: BUTZ, J. HOCH, J.