Opinion
A131002 Marin County Super. Ct. No. SC170781A
09-28-2011
THE PEOPLE, Plaintiff and Respondent, v. TYRONE JOHNSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appellant pled guilty to one felony count of abuse of a cohabitant, but later indicated that he wished to withdraw his plea based on ineffective assistance of counsel. The trial court conducted a hearing into the reasons for appellant's dissatisfaction with his counsel and his desire to withdraw his plea, and declined to appoint new counsel to handle the motion to withdraw the plea. Appellant contends the trial court committed reversible error in failing to appoint substitute counsel to represent him in filing a motion to withdraw his guilty plea. We disagree, and affirm.
FACTS AND PROCEDURAL BACKGROUND
On June 21, 2010, appellant and his live-in girlfriend at the time got into an argument, which became physical. According to the girlfriend (the victim), appellant hit her in the face with his fist, and then continued hitting her in the head, face, back, and chest. When the victim attempted to defend herself, appellant grabbed her by the hair and pushed her backwards. She fell onto a glass coffee table, which broke, resulting in cuts on her arms and back. She also reportedly suffered a broken bone in her hand, which required a cast.
This case was resolved by a guilty plea without a preliminary hearing having been held. Accordingly, as the parties have done in their briefs on appeal, we draw our statement of facts from the probation report. All further references to dates are to the year 2010 unless otherwise noted.
Appellant claimed that the victim initiated their physical altercation in an effort to prevent him from leaving their apartment. Had the case gone to trial, appellant would have contended he acted in self-defense.
Appellant was charged with one count of felony abuse of a cohabitant (Pen. Code, § 273.5, subd. (a) ) with an enhancement allegation that he personally inflicted great bodily injury on the victim (§ 12022.7, subd. (e)). On September 8, he accepted a plea bargain under which he pled guilty to the substantive felony charge; the enhancement allegation was dismissed; and the prosecution agreed not to seek a state prison sentence.
All further references to statutes are to the Penal Code unless otherwise noted.
On October 29, a hearing was held at appellant's trial counsel's request, at which counsel informed the court that appellant wished to move to withdraw his plea. Appellant's counsel explained that the grounds for the proposed motion would be ineffective assistance of counsel, and suggested that under the circumstances, the correct procedure would be for the court to hold a hearing under People v. Marsden (1970) 2 Cal.3d 118 (Marsden hearing) to determine whether substitute counsel should be appointed to represent appellant. The court agreed, and held a Marsden hearing outside the presence of the prosecutor.
At the Marsden hearing, appellant told the court he had acted in self-defense; noted that he had no prior record of violence; and expressed regret about accepting the plea bargain he had been offered. Appellant's counsel explained that the police report of the incident indicated that the victim had suffered a bone fracture as well as cuts, but he had not yet ordered the victim's medical records at the time he received the plea offer, so he could not verify whether the prosecution could prove the great bodily injury enhancement. He explained that when he had ordered medical records in the past, a copy had sometimes been sent to the prosecution, and he did not want to provide them with that evidence in advance of the preliminary hearing.
Appellant's counsel told the court that if the enhancement turned out to not to be provable, appellant wanted at least to have a preliminary hearing, and possibly to go to trial on a self-defense theory. Counsel indicated that he had explained to appellant that the police report of the incident indicated that the victim had suffered a fracture, and that in his experience, police reports on such matters were "about 90 percent reliable." Counsel had advised appellant that the promise of probation and of the dismissal of the enhancement made the plea offer attractive, particularly since the charged enhancement, if proven, would have made the conviction a "strike" under the Three Strikes Law.
Counsel explained that he was concerned the offer would no longer be available if the enhancement allegation went forward after a preliminary hearing, and that he had therefore advised appellant to accept the offer, even though he did not yet have the victim's medical records. After trial counsel had explained the situation, the trial court twice offered appellant a chance to say anything further that he wished, and appellant responded he had nothing to add. The court then indicated that nothing appellant or his counsel had said suggested that counsel's advice to accept the plea amounted to ineffective assistance of counsel, and declined to appoint new counsel for the purposes of a motion to withdraw the plea. The court did, however, continue the matter in order to give appellant and his existing counsel time to discuss whether appellant wished to file a motion to withdraw his plea.
Appellant did start to explain that the victim "had been through a lot of stuff" in her personal history, but when the court explained that this was irrelevant to the issue currently before the court, appellant accepted this.
On November 9, appellant appeared for sentencing. His trial counsel indicated that appellant wished to retain private counsel in order to file a motion to withdraw his plea, and sought a continuance for that purpose. A discussion ensued, and the court concluded that the motion could be filed even after sentencing, if appellant were sentenced to probation. In accordance with the plea bargain, the court then sentenced appellant to probation for three years on conditions that included a 90-day jail term, and dismissed the great bodily injury allegation. Appellant requested a certificate of probable cause to appeal from the trial court. The request was granted, and this timely appeal ensued.
The record does not indicate that any private counsel entered an appearance on appellant's behalf in the trial court, nor does it appear that any motion to withdraw the plea was ever filed.
DISCUSSION
Appellant's sole contention is that the trial court abused its discretion, and violated appellant's federal and state constitutional rights to effective assistance of counsel, by declining to appoint substitute counsel to represent appellant in filing a motion to withdraw his guilty plea. Appellant notes that upon being informed that a criminal defendant wishes to withdraw a guilty plea on the basis of ineffective assistance of counsel, some trial courts have appointed substitute counsel to investigate the matter, rather than holding a Marsden hearing. (See, e.g., People v. Eastman (2007) 146 Cal.App.4th 688; People v. Mendez (2008) 161 Cal.App.4th 1362.) Appellant acknowledges, however, that the appellate cases hold the proper procedure under these circumstances is to hold a Marsden hearing. (See People v. Eastman, supra, at pp. 696-698; People v. Mendez, supra, at pp. 1366-1368.) Appellant does not appear to contend that the trial court here erred in so doing.
The California Supreme Court has granted review in a case presenting the issue whether a Marsden hearing is required when a criminal defendant wishes to move to withdraw a plea, after conviction, on the ground of ineffective assistance of counsel. (People v. Sanchez (2010) 189 Cal.App.4th 374, review granted Feb. 2, 2011, S188453.) That issue is not presented by this case, however, inasmuch as the trial court here did hold such a hearing.
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Rather, appellant argues that after holding the Marsden hearing, the trial court should have appointed new counsel. As appellant acknowledges, we review the trial court's ruling on this issue for abuse of discretion. (People v. Memro (1995) 11 Cal.4th 786, 857, overruled on another ground in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.) Indeed, once a defendant has been given the opportunity to express the reasons for his or her dissatisfaction with counsel, the trial court has discretion to deny the motion if the defendant has not "made a substantial showing that failure to order substitution is likely to result in constitutionally inadequate representation. [Citations.]" (People v. Crandell (1988) 46 Cal.3d 833, 859, disapproved on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) The defendant is not entitled to relief unless "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.]" (People v. Crandell, supra, at p. 854.) Thus, "a defendant bears a very heavy burden to prevail on [a Marsden] motion. The defendant . . . cannot rest upon mere failure to get along with or have confidence in counsel. [Citations.]" (People v. Bills (1995) 38 Cal.App.4th 953, 961.)
Here, appellant's sole complaint about his appointed counsel was that counsel had advised him to accept the prosecution's plea offer without first verifying whether the victim had in fact suffered a broken bone, as the police report indicated. Counsel explained to the trial court at the Marsden hearing that he had tactical reasons for proceeding in this manner: his experience indicated that police reports were almost always accurate in these details; he did not want to risk supplying the prosecution, before the preliminary hearing, with medical records supporting the great bodily injury enhancement; and the offer, which was very attractive, was not likely to remain available after the preliminary hearing, particularly if the enhancement turned out to be readily provable. In light of this reasonable explanation of trial counsel's tactical decision, appellant was not entitled to new counsel based on his disagreement with this approach. (See People v. Welch (1999) 20 Cal.4th 701, 728-729 [tactical disagreements between defendant and counsel do not by themselves constitute irreconcilable conflict requiring substitution of appointed counsel]; People v. Hart (1999) 20 Cal.4th 546, 604 [trial counsel's decision not to provide defendant with copies of police reports was tactical decision made in defendant's best interests, and did not entitle defendant to substitution of counsel]; People v. Crandell, supra, 46 Cal.3d at pp. 859-860 ["disagreement concerning tactics is . . . insufficient to compel the discharge of appointed counsel, unless it signals a complete breakdown in the attorney-client relationship"].)
Moreover, even if the trial court erred in failing to appoint substitute counsel, we could not reverse on that ground if the error was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 36; People v. Washington (1994) 27 Cal.App.4th 940, 944 [Marsden does not establish a rule of per se reversible error].) Here, in order for appellant to show that he was prejudiced by the trial court's action, he would have to demonstrate that if substitute counsel had been appointed, it would have been possible for him to file a successful motion to withdraw his plea.
Penal Code section 1018 "permits a trial court to allow a criminal defendant to withdraw his guilty plea 'for a good cause shown.' . . . It is the defendant's burden to produce evidence of good cause by clear and convincing evidence. [Citation.]" (People v. Wharton (1991) 53 Cal.3d 522, 585; see also People v. Fairbank (1997) 16 Cal.4th 1223, 1254; People v. Nance (1991) 1 Cal.App.4th 1453, 1456.) This standard of proof requires the defendant to make a strong enough showing of good cause to leave no substantial doubt. (Lillian F. v. Superior Court (1984) 160 Cal.App.3d 314, 320.) "To establish good cause, it must be shown that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment. [Citations.] Other factors overcoming defendant's free judgment include inadvertence, fraud or duress. [Citations.] However, '[a] plea may not be withdrawn simply because the defendant has changed his mind.' [Citations.]" (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.)
In the present case, the reasons appellant gave for desiring to withdraw his guilty plea amount to his having changed his mind, on the basis of a tactical disagreement with his trial counsel. The record made at the Marsden hearing demonstrates that appellant was aware of all the relevant facts—including his counsel's decision to postpone verifying the victim's bone fracture—at the time he entered his plea. He openly admitted that his trial counsel "gave me a choice, . . . an opportunity to [decide] should I take [the plea offer] or not." Thus, there is no indication that appellant's guilty plea was induced by mistake, ignorance, inadvertence, fraud, or duress. For that reason, even if substitute counsel had been appointed to assist appellant in seeking to withdraw his guilty plea, the effort could not have successful. Accordingly, if there were any error in failing to appoint substitute counsel, a proposition we have rejected, it nonetheless was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is AFFIRMED.
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RUVOLO, P. J.
We concur:
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REARDON, J.
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SEPULVEDA, J.