Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM024926
ROBIE, J.
Defendant John Charles Larrison pled no contest to a forcible lewd and lascivious act upon a child under the age of 14 years and two counts of felony child abuse. He entered his plea in exchange for a grant of probation for a term of eight years subject to certain terms and conditions including one year in county jail and a consecutive one-year county jail term for misdemeanor child cruelty in case No. CM024517.
Defendant was sentenced according to the terms of the plea agreement. His request for a certificate of probable cause (Pen. Code, § 1237.5) was granted. He now appeals.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant contends: (1) the trial court erred in failing to inquire into defendant’s complaints concerning counsel’s representation; (2) the probation order requires correction to reflect the number of hours of community service orally ordered by the court; (3) the probation order should be modified to strike improperly imposed fines; and (4) imposition of probation revocation fines for the two counts of child abuse violated the ex post facto doctrine. We agree that the trial court failed to conduct an inquiry into defendant’s complaints about counsel and will remand for a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118. We reach the merits of defendant’s remaining claims in the event the Marsden motion is denied, concluding that the probation order requires modification to reflect 200 hours of community service and to vacate the two $200 probation revocation restitution fines.
FACTS
Defendant called his nine-year-old stepdaughter into the bathroom, exposed his penis, put her hand on it, and told her to rub it. Defendant ejaculated in the bathtub. Defendant also touched his stepdaughter’s vagina while she was in the bathtub. Defendant had also physically abused his stepdaughter and eight-year-old son.
DISCUSSION
I
The Marsden Issue
Defendant contends the trial court failed to inquire into his dissatisfaction with his first attorney, Jodea Foster, as expressed in his motion for substitute counsel and later in his petition for a writ of habeas corpus. He argues his case is on all fours with People v. Eastman (2007) 146 Cal.App.4th 688 which reversed for failure to comply with Marsden.
After defendant entered his plea, he was evaluated by Dr. Paul Wuehler whose opinion was that defendant was not a pedophile but he should not be allowed contact with the victims until he undergoes treatment for some time.
On June 19, 2006, the same day Dr. Wuehler’s report was filed, defendant filed a letter stating in part: “I openly admit what I have done is wrong. I know I can not [sic] undo what has been done. The only thing I can do is prevent it from happening ag[a]in.” He then requested that the court grant probation. He concluded, “I deeply regret what has happen[e]d and wish to seek the help I need to keep this from happening once more.”
The probation officer thereafter prepared a report dated July 6, 2006, recommending that the court deny probation and sentence defendant to state prison for an aggregate term of eight years eight months.
At sentencing on July 19, 2006, defense counsel, Foster, told the court defendant “indicated a desire to withdraw his plea,” that Foster had discussed such a motion with defendant, and that “alternate counsel should be appointed.” Without making any inquiry, the court appointed new counsel, Mark Stapleton, to investigate the grounds for such a motion.
Before Stapleton indicated whether a motion to withdraw the plea would or would not be filed, defendant personally prepared a written motion for substitution of counsel dated September 22, 2006. Defendant used a form for the motion, filling in dates and marking the letters next to statements. He marked the following statements: “Counsel did fail and/or refuse to subpoena witnesses and other evidence favorable to the defense and deprived declarant of the testimony and physical evidence critical to the defense; [¶] Counsel has failed and/or refused to perform and/or have performed investigation(s) critical and necessary to the defense; [¶] . . . [¶] Counsel has failed and/or refused to impeach prosecution witness(es); [¶] . . . [¶] Counsel has failed and/or refused to declare prejudice and/or conflict against declarant and due to said failure has taken on the role of a surrogate prosecutor against declarant’s interest.”
On September 28, 2006, a minute order reflects that defendant’s motion was received, read, and considered and that the court denied defendant’s request without placing the matter on the calendar.
Before Stapleton indicated whether a motion to withdraw the plea would or would not be filed, defendant personally filed a petition for a writ of habeas corpus on October 20, 2006. He used a Judicial Council form but filled in several blank portions. He made the following statements in support of his claim of incompetence of counsel: After he was arrested, booked, and questioned at the police station, defendant claimed that Foster advised him to enter a plea “because other wise [sic] [he] would be found guilty.” Defendant entered a plea “without ever being asked any thing [sic] about the case or [his] defen[s]e.” He later learned that Foster “had evidence that rebut[t]ed statements made by the victim and witnesses of the pros[e]cution. When [he] first brought it to his attention he said I know but the DA does not want to he[ar] it.” Defendant decided then to withdraw his plea but counsel advised him to wait. When new counsel was eventually appointed, defendant claimed he gave him information to investigate but he “refused to.” In support of his challenge to the “legality of the conviction,” defendant claimed he was questioned at the police station without counsel and without waiving his right to the same, that the victim gave conflicting statements, and that spanking is justifiable and reasonable and is allowed even with an object other than his hand. Defendant noted that he had a motion to withdraw his plea based on the incompetence of his counsel still pending and that his motion to substitute counsel had been denied on September 28, 2006.
Attached to his petition, defendant included documents from the juvenile dependency proceedings involving his seven children. He also attached a copy of a memorandum he had written to Stapleton with a detailed chronology of his version of the facts underlying the offenses and some complaints about Foster, that is, Foster told defendant that it did not matter that defendant had been questioned without having been read his rights and that defendant’s spouse had said “a lot of bad things and I should take the deal, or go on the stand.”
On October 23, 2006, the court denied defendant’s petition for a writ of habeas corpus because defendant “has available remedies at law that have not been exhausted.”
On November 8, 2006, Stapleton stated there were no grounds to file a motion to withdraw the plea. He explained: “I have reviewed -- Mr. Foster kindly provided me his file, which I immediately reviewed, I sent Mr. Seam[a]n out to speak to [defendant]. I received a copy of Mr. Seaman’s recitals relevant to [defendant’s] assertions. In the meantime, [defendant] picked up another case, which, as the Court is aware, resolved two weeks ago. This matter was put over for me to complete my examination. And at this time I also will indicate that I’ve met with Mr. Foster to view the content of the file, most recently, assertions contained within a so-called petition for Writ of Habeas Corpus. It was provided two weeks ago by [defendant] essentially setting forth the same concerns relative to Mr. Foster’s recommendation that he articulated originally to me and my investigator. [¶] At this time, having reviewed the statutes and the afore-referenced materials, I find there are no legal grounds at this time to assert that he ought to be allowed to withdraw his plea, which would mean that the case is in a position to be returned to Mr. Foster for sentencing on the original matter.”
The court relieved Stapleton. Foster renewed his representation of defendant. Defendant did not state an objection to Foster’s renewed representation or seek substitute counsel. The court made no inquiry concerning defendant’s complaints in his previously filed motion or petition.
Relying upon People v. Eastman, supra, 146 Cal.App.4th 688, defendant contends the trial court failed to inquire into his complaints about Foster’s representation. The People argue that on July 19, 2006, defendant never requested substitute counsel and that the “first mention of ineffective assistance of counsel came from [defendant’s] motion for substitution of counsel, filed on September 27, 2006” and the result, i.e., appointment of new counsel, already occurred on July 19. Defendant has the better argument. We conclude that the trial court failed to conduct an inquiry into defendant’s complaints and erroneously delegated its obligation to Stapleton. We will remand for the limited purpose of conducting a hearing on defendant’s Marsden motion.
“ ‘ “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, 694-695.)
Here, Foster informed the court that defendant wished to withdraw his plea and that new counsel should be appointed. Obviously, Foster had no intentions of filing a motion to withdraw the plea. Without conducting any inquiry, the court appointed Stapleton to investigate the grounds for filing such a motion. Two months after Stapleton was appointed, defendant filed a motion for substitution of counsel. The motion is unclear whether defendant had complaints about Foster or Stapleton or both. The record reflects that the court conducted no inquiry in denying the motion. Thereafter, defendant filed a petition for writ of habeas corpus with complaints about Foster and Stapleton. The court again conducted no inquiry. Instead the court denied the petition because defendant had not exhausted his remedies, presumably referring to Stapleton’s investigation into the grounds for a motion to withdraw the plea. Subsequently, Stapleton informed the court that there were no grounds for a motion to withdraw the plea. The court accepted Stapleton’s representation, did not conduct an inquiry and reappointed Foster. We conclude that the court improperly delegated its duty to inquire.
In Eastman, which we agree with defendant is directly on point, 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, the defendant’s attorney informed the court that the defendant wished to withdraw his plea. The court appointed another attorney to determine whether such a motion 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. Thereafter, the defendant, in writing, complained about his first attorney, that is, he failed to investigate and he 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. (People v. Eastman, supra, 146 Cal.App.4th at pp. 690-691, 692-695.) 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.” (Id. 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.)
Here, the court did not inquire when Foster represented that defendant wished to withdraw his plea. The court did not inquire when defendant subsequently filed a motion for substitution of counsel. And the court did not inquire when defendant thereafter filed a petition for a writ of habeas corpus. Stapleton offered no details in support of his conclusion that there were no grounds for a motion to withdraw defendant’s plea and the court did not inquire. The court abandoned its obligation to make a record, that is, air and consider defendant’s complaints about counsel. Simply, the court abused its discretion.
The error is subject to a harmless error analysis. (People v. Marsden, supra, 2 Cal.3d at p. 126.) We conclude the trial court’s failure to conduct a Marsden hearing was not harmless beyond a reasonable doubt. While the record reflects some of defendant’s complaints, we do not know what defendant would have orally presented about Foster had he been given an opportunity. Further, defendant filed a motion for substitution of counsel after Stapleton was appointed. Although the motion does not specify which attorney, Foster or Stapleton, defendant’s subsequently filed petition for a writ of habeas corpus reflects that he had complaints about Stapleton as well (defendant gave him information to investigate but he “refused to”). A Marsden motion is prospective in nature; it raises the issue of “whether the continued representation by an appointed counsel would substantially impair or deny the right to effective counsel.” (People v. Dennis (1986) 177 Cal.App.3d 863, 870; see People v. Smith, supra, 6 Cal.4th at p. 695.) The trial court’s failure to conduct any inquiry was not harmless. We will remand.
II
The Remaining Issues
A
Hours Of Community Service
In the event defendant’s Marsden motion is denied, we reach defendant’s remaining contentions. Defendant next contends that the probation order requires correction to reflect the number of hours of community service orally ordered by the court. The People concede. We agree.
The probation report recommended 300 hours of community service. Defense counsel objected to the number of hours, stating that the “standard 200 hours” was “appropriate.” The prosecutor submitted the matter. The reporter’s transcript reflects that the trial court ordered 200 hours. The probation report also has a handwritten notation, crossing out 300 and inserting 200. The clerk’s minute order and order of probation reflect 300 hours. As defendant contends and the People concede, the oral pronouncement of judgment prevails here. (People v. Smith (1983) 33 Cal.3d 596, 599; In re Merrick V. (2004) 122 Cal.App.4th 235, 248-249.)
B
Improper Imposition Of Fines
Defendant next contends the probation order should be modified to strike improperly imposed fines. The trial court imposed various fees and fines including three $700 fines, representing a $200 fine plus assessments and surcharges. Defendant contends these three $700 fines were not authorized by statute. We conclude that the fines were authorized.
Defendant was convicted of violating section 288, subdivision (b)(1). Section 288, subdivision (e), provides, in relevant part: “Upon the conviction of any person for a violation of subdivision (a) or (b), the court may, in addition to any other penalty or fine imposed, order the defendant to pay an additional fine not to exceed ten thousand dollars ($10,000.00).”
Defendant was also convicted of two felony counts of violating section 273a, subdivision (a). Section 273a, subdivision (a), does not specify a fine. Section 672 authorizes a fine up to $10,000 for a felony when a fine is not otherwise specified.
Section 1203.1, subdivision (a)(1), authorizes the trial court to impose as a condition of probation a fine “in a sum not to exceed the maximum fine provided by law in the case.”
In entering his plea, defendant acknowledged that he faced a maximum state prison term of 10 years and $81,000 in fines. The court’s imposition of a $700 fine consisting of $200 plus assessments for each count was well within its statutory authority.
C
Probation Revocation Restitution Fines
Defendant finally contends that the court’s imposition of the $200 probation revocation restitution fines (§ 1202.44) for two counts of felony child abuse violated the ex post facto doctrine in that the offenses may have been committed prior to the effective date of the statute authorizing such fine. The People concede.
Defendant was charged in these counts with child abuse between September 1, 2003, and February 16, 2006. Section 1202.44 became effective on August 16, 2004. (Stats. 2004, ch. 223, § 3, pp. 11-12.)
When a defendant’s conduct is alleged to have occurred over a span of time during which a statute takes effect and the prosecution fails to prove beyond a reasonable doubt the time of the offenses, punishment under the statute would constitute a violation of ex post facto. (See People v. Riskin (2006) 143 Cal.App.4th 234, 244-245; People v. Hiscox (2006) 136 Cal.App.4th 253, 259-262.)
Here, defendant admitted the offenses charged as alleged, that is, between September 1, 2003, and February 16, 2006, and defendant stipulated to a factual basis for his plea. The exact date of his offenses was not proved beyond a reasonable doubt. The probation revocation restitution fine statute was effective during the time span alleged. Because defendant may have committed the offenses prior to the effective date of the statute, imposition of the fine violated the ex post facto prohibitions of the state and federal Constitutions. We will order the fines stricken.
DISPOSITION
The matter is remanded for the trial court to conduct a Marsden hearing concerning Jodea Foster. If defendant makes the required showing under Marsden, the court shall appoint new counsel. If defendant’s Marsden motion is denied, the trial court shall reinstate the judgment (order of probation) as modified to provide for 200 hours rather than 300 hours of community service and to vacate the $200 probation revocation restitution fines for the two counts of child abuse.
We concur: DAVIS, Acting P.J., BUTZ, J.