Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FSB057492. Jon D. Ferguson, Judge.
Kathleen Woods Novoa, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Felicity Senoski, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI Acting P.J.
Pursuant to a plea agreement, defendant pleaded no contest to second degree robbery (Pen. Code, § 211 ); in return, the remaining allegations were to be dismissed, and defendant was promised a low-term sentence of two years.
All future statutory references are to the Penal Code unless otherwise stated.
Defendant subsequently filed a motion to withdraw his plea. His motion was granted, and the People immediately amended the information by interlineation to add a second count of burglary (§ 459), to which defendant pleaded no contest pursuant to People v. West (1970) 3 Cal.3d 595. In return, the robbery count and prior conviction allegations were dismissed. Defendant was then sentenced to the low term of two years with credit for time served.
On appeal, defendant contends (1) the trial court erred in appointing the conflict attorney rather than conducting a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden); and (2) the trial court denied defendant his constitutional due process right to be present at all critical stages of the proceedings. We reject these contentions and affirm the judgment.
I
The factual background is taken from the preliminary hearing transcript.
On May 13, 2006, San Bernardino Police Officer Kimberly Hernandez was dispatched to Ronnie Finley’s residence. Finley informed the officer that two of his neighbor’s friends, one identified as defendant, were parked outside of his home, and he had had a conversation with them regarding Finley’s pit bull terriers. The conversation grew heated, and defendant hit Finley, knocking him to the ground. Defendant and his cohort then went through Finley’s pockets and took three $100 bills. Officer Hernandez observed that Finley’s head was red and swollen and there was a small cut and bruise on his cheek.
During the investigation, San Bernardino Detective Shauna Bragg interviewed Finley’s friend (another neighbor), who was with Finley before the incident. Finley’s friend said he heard loud voices coming from Finley’s back yard and went back to Finley’s residence. He saw Finley getting up off the ground and complaining about being hit. Finley did not mention anything about being robbed.
On September 26, 2006, an information was filed charging defendant with second degree robbery, a serious felony (§§ 211, 667.5, subd. (c), 1192.7, subd. (c).) The information also alleged that defendant had a prior strike conviction, to wit, a 1986 conviction for robbery (§§ 667, subds. (b)-(i), 1170.12, subd. (a)).
On November 27, 2006, defendant pleaded no contest to second degree robbery in exchange for a low term of two years in state prison and the dismissal of the remaining allegations.
On December 22, 2006, defendant, through appointed counsel Susan Israel, made an unopposed motion to withdraw his plea, which was granted, and he entered a new plea of not guilty to the charge. The prosecution immediately amended the information and added a second count of burglary (§ 459). Defendant then pleaded no contest to the burglary count and was immediately sentenced to the low term of two years in state prison with credit for time served. The remaining allegations were dismissed.
On January 26, 2007, Ms. Israel made an appearance on defendant’s behalf and indicated to the court that defendant wished to withdraw his plea to the burglary count. She stated, “I think we’re at a point where conflict panel should be appointed to discuss that with him and have him ordered back from prison for that purpose.” The trial court indicated a conflict panel member would be appointed to “pursue the motion [to withdraw the plea] and the validity thereof.” Ms. Linda Vose indicated to the court that she was available for the appointment. Ms. Israel was then relieved, and Ms. Vose was appointed as counsel for defendant. The trial court ordered a transcript of the plea proceedings of December 22, 2006, and calendared the matter for March 8, 2007.
At a hearing on February 1, 2007, Ms. Vose indicated that she had investigated the issue of defendant’s desire to withdraw his plea to the burglary count and was of the opinion that defendant had no legal grounds upon which to do so. Ms. Vose noted that defendant would have to seek relief through either a writ of habeas corpus or a writ of error coram nobis. Ms. Vose then acknowledged “And that’s outside the Conflict Panel’s contract[.]” The court then relieved the conflict panel and trailed the matter for confirmation of counsel.
On February 5, 2007, defendant filed a notice of appeal and requested a certificate of probable cause, which was granted.
The conflict panel was relieved on the morning of February 8, 2007, and in a confirmation of counsel, Ms. Israel accepted appointment. Ms. Israel indicated that she would inform defendant of the status of the withdrawal motion.
II
DISCUSSION
A. Appointment of Conflict Attorney
Defendant contends the trial court erred in appointing a conflict panel attorney rather than conducting a Marsden hearing on his second request to withdraw his plea. The People respond this claim should be rejected because defendant never expressly or impliedly articulated to the trial court that he wished to discharge his trial counsel on any basis; therefore, the trial court was under no duty to conduct a Marsden hearing.
“‘“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.”’ [Citation.] The decision whether to grant a requested substitution is within the discretion of the trial court; appellate courts will not find an abuse of that discretion unless the failure to remove appointed counsel and appoint replacement counsel would ‘substantially impair’ the defendant’s right to effective assistance of counsel. [Citation.]” (People v. Roldan (2005) 35 Cal.4th 646, 681.)
In People v. Smith (1993) 6 Cal.4th 684, the Supreme Court held that substitute counsel “should be appointed when, and only when, necessary under the Marsden standard, that is whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation] or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation]. This is true whenever the motion for substitute counsel is made.” (Id. at p. 696.)
In Smith, the Supreme Court also criticized the practice of appointing substitute counsel to represent the defendant in one matter while retaining original counsel to represent the defendant for all other purposes. In so holding, the court stated, “We are unaware of any authority supporting the appointment of simultaneous and independent, but potentially rival, attorneys to represent defendant. When a Marsden motion is granted, new counsel is substituted for all purposes in place of the original attorney, who is then relieved of further representation. If the Marsden motion is denied, at whatever stage of the proceeding, the defendant is not entitled to another attorney who would act in effect as a watchdog over the first.” (People v. Smith, supra, 6 Cal.4th at p. 695.)
In People v. Dickey (2005) 35 Cal.4th 884, after the defendant was convicted of first degree murder but before the penalty phase, the defendant’s counsel requested the appointment of separate counsel to represent the defendant in a motion for a new trial based on several grounds including the incompetence of counsel during the guilt phase portion of the trial. (Id. at p. 918 & fn. 12.) In responding to the motion, the court incorrectly stated that Marsden hearings are not to be conducted in the middle of a trial. (Dickey, at p. 919.) Thereafter, when the court questioned the defendant, he indicated that in addition to the competency of his counsel, there were other issues he wished addressed in the motion for a new trial. (Id. at pp. 918-920.) Nevertheless, even though the court did not conduct a Marsden hearing, it appointed separate counsel to assist the defendant prepare a motion for a new trial, which the court ultimately denied. (Dickey, at p. 920.) In addressing the potential Marsden issue the trial court stated, “‘I think at the time you were arguing this, that in my view there was a poor choice of words on the Court’s part. I know [defense counsel] let me know that it was not strictly a Marsden motion, and then I started to talking [sic] about a Marsden motion. And I do, of course, know the law, that you can have a Marsden motion at any stage of the proceedings. [¶] Mr. Dickey was not asking that the Court have that Marsden hearing. He, of course, was dissatisfied with the results after the jury returned the verdict of guilty and found the special circumstances to be true. [¶] So I do find that [the prosecutor] is absolutely correct, it was a poor choice of words on the Court’s part, and there was no reason to have a Marsden hearing at the time. It was not asked for.’” (Dickey, at p. 920, italics added.)
On appeal, the defendant, in pertinent part, claimed that the trial court committed Marsden error. In rejecting this contention, the Supreme Court stated, “We conclude the court did not commit Marsden error. ‘“Although no formal motion is necessary, there must be ‘at least some clear indication by defendant that he wants a substitute attorney.’” [Citation.]’ [Citation.] Defendant did not clearly indicate he wanted substitute counsel appointed for the penalty phase. To the extent he made his wishes known, he wanted to use counsel’s assertedly incompetent performance in the guilt phase as one of the bases of a motion for new trial, and he wanted to have separate counsel appointed to represent him in the preparation of such a motion. As his expressed wishes were honored, he has no grounds for complaint now.’” (People v. Dickey, supra, 35 Cal.4th at pp. 920-921, fn. omitted.)
Here, as in Dickey, original defense counsel requested the appointment of substitute counsel (or a conflict panel attorney) only for a specific reason, i.e., to assist defendant in determining whether to file a motion to withdraw plea. Additionally, like the defendant in Dickey, defendant never communicated to the court a desire to have substitute counsel appointed to represent him in all matters. Accordingly, we conclude that the representations made by defendant’s original counsel to the trial court did not trigger the trial court’s obligations under Marsden.
Nor does People v. Eastman (2007) 146 Cal.App.4th 688, a case heavily relied upon by defendant, help defendant. In Eastman, the defendant pleaded guilty to two counts of child molestation in exchange for a stipulated term of 10 years. At the sentencing hearing, defense counsel advised the court that the defendant wanted to withdraw his plea and that he believed the matter should be referred to conflict counsel. (Id. at p. 690.) Additionally, the defendant presented the court with a letter written by his mother alleging that defense counsel had not offered any defense, the district attorney threatened to jail his mother if she refused to testify against the defendant, and the defense counsel and the district attorney conspired to pressure the defendant to accept the plea bargain by telling him that his mother was going to testify against him. The letter concluded by stating that “we” hoped that there would be a response to it so that the defendant would receive an “adequate defense.” (Id. at p. 691.) Thereafter, the court appointed substitute counsel to investigate whether there was a factual or legal basis for the defendant to withdraw his plea. (Id. at p. 692.)
At the defendant’s continued sentencing hearing, substitute counsel informed the court that he would not be filing a motion to withdraw and explained his reasons. (People v. Eastman, supra, 146 Cal.App.4th at pp. 692.) Prior to being sentenced, the defendant gave the court a letter asking to be allowed to withdraw his plea alleging, in pertinent part, that the district attorney and defense counsel had falsely told the defendant that his mother agreed to testify against him and that during the two years the case was pending, Mr. Garcia did not make any attempt to pursue evidence, or investigate witnesses or information the defendant had provided to him. (Id. at p. 693.) After further discussion the court sentenced the defendant to the stipulated 10-year term. (Id. at p. 695.)
On appeal, the defendant contended the court erred in failing to conduct a Marsden hearing. In finding the court committed Marsden error, the Fifth District Court of Appeal stated, “Here Eastman submitted a letter to the court which asserted [defense counsel] had failed to adequately represent his interests. That letter required the court to give Eastman an opportunity to articulate his complaints. The letter on its face stated at least one specific factual complaint about Eastman’s appointed attorney: that he was acting in cahoots with the district attorney when they persuaded him to accept the plea bargain by falsely telling him his mother was going to testify against him. Although Eastman did not expressly ask to have his attorney replaced, the letter did request that Eastman receive an ‘adequate defense’ and his complaints set forth an arguable case that a fundamental breakdown had occurred in the attorney-client relationship that required replacement of counsel. The court was obliged to make a record that this complaint had been adequately aired and considered. [Citation.] Its failure to do so is error.” (People v. Eastman, supra, 146 Cal.App.4th at pp. 695-696.)
Eastman is inapposite because, unlike the defendant there, who provided the court with two letters complaining about his representation by defense counsel, defendant here never asserted to the court that his defense counsel had provided ineffective representation. Further, the only suggestion in the record that defendant might be dissatisfied with his representation by defense counsel was counsel’s statement that “I think we’re at a point where conflict panel should be appointed.” Based on this statement, defendant assumes a motion to withdraw his plea would be based on ineffective assistance of counsel. We recognize that defendant was not present in court when Ms. Israel represented to the court that defendant wished to withdraw his plea. However, defendant entered his plea and was sentenced over one month before Ms. Israel informed the court of defendant’s desire to withdraw the plea; defendant could have easily informed the court by letter of the basis for his desired withdrawal motion. Indeed, defendant’s competence to have done so is demonstrated by the notice of appeal he submitted to the court after the proceedings involving Ms. Vose concluded. Thus, Eastman is not controlling.
Defendant sent a handwritten notice of appeal to the superior court. In it, defendant noted the case number, his grounds for the notice of appeal, his request for certificate of probable cause, and his basis for the certificate of probable cause. He also requested that an attorney be appointed for him.
We conclude that the court did not commit Marsden error.
Nevertheless, we note although there was an insufficient showing here by defendant or his counsel to require the trial court to conduct a Marsden hearing, the court followed the wrong procedure. In this situation, the trial court should take a proactive role in inquiring of counsel whether he or she is stating the need for a Marsden hearing or declaring a conflict. If the court determines there is a conflict with or without conducting a Marsden hearing, it should then relieve the first attorney and appoint new counsel to represent the defendant for all purposes. If it determines the defendant is seeking substitution of counsel based on ineffective representation of counsel, it should conduct a Marsden hearing. If the court determines the defendant was denied adequate representation, it should relieve the first attorney and appoint substitute counsel. It should not, however, appoint substitute counsel if it finds the defendant was provided adequate representation. (People v. Smith, supra, 6 Cal.4th at p. 695.)
B. Right to be Present
Defendant argues the trial court denied him of his state and federal constitutional due process right to be present at a critical stage of the proceedings. Defendant claims the error occurred when the trial court did not “assure his presence” at the February 1, 2007, hearing, which resulted in the hearing date for the withdrawal motion to be vacated.
A criminal defendant has a statutory and constitutional right to be present during such phases of trial as are important to his or her defense unless he or she is voluntarily absent. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15; Pen. Code, §§ 977, subd. (b)(1) & (2), 1043, subds. (a) & (b); People v. Freeman (1994) 8 Cal.4th 450, 511; People v. Chavez (1980) 26 Cal.3d 334, 357-358 [“ . . . California courts throughout our history have taken note of the ‘most substantial’ nature of the defendant’s right to confront witnesses, designating it a ‘right of the highest importance’”].) However, “[a] defendant . . . ‘does not have a right to be [personally] present at every hearing held in the course of a trial.’ [Citation.]” (People v. Cleveland (2004) 32 Cal.4th 704, 741.) More specifically, under the due process clause of the Fourteenth Amendment, a criminal defendant does not have a right to be personally present at a particular proceeding unless the proceeding is “‘critical to [the] outcome’ and ‘his presence would contribute to the fairness of the procedure.’ [Citation.]” (People v. Waidla (2000) 22 Cal.4th 690, 742.) Similarly, under the California Constitution, “‘“[t]he accused is not entitled to be personally present during proceedings which bear no reasonable, substantial relation to his opportunity to defend the charges against him . . . . [Citation.]” [Citation.]’” (People v. Davis (2005) 36 Cal.4th 510, 530.)
Here, defendant’s absence at the February 1, 2007, proceeding did not constitute error. Defendant’s presence at that hearing had no reasonable and substantial relation to defendant’s full opportunity to defend against the charges. On January 26, 2007, Ms. Vose was appointed on defendant’s behalf to investigate the possibility of filing a motion to withdraw his plea. At the conclusion of her investigation, Ms. Vose determined that defendant had no legal grounds to file a motion to withdraw his plea, that filing such a motion was not an option for defendant at that point as he had already been sentenced, and that the proper avenue was through a writ of habeas corpus or writ of error coram nobis. With that postinvestigation determination, this was not a situation where defendant’s presence was essential. His appointed counsel was equipped to handle the issues related to his withdrawal motion. In fact, there is nothing in the record to indicate that defendant’s personal presence would have assisted the defense in any way. “Under article I, section 15 of the California Constitution, a criminal defendant does not have a right to be personally present ‘either in chambers or at bench discussions that occur outside of the jury’s presence on questions of law or other matters as to which [his] presence does not bear a “‘“reasonably substantial relation to the fullness of his opportunity to defend against the charge.”’”’” (People v. Waidla, supra, 22 Cal.4th at p. 742.) Numerous trial situations, far more closely connected to the trial itself than that presented in the instant case, have been held not to constitute a critical stage. (See, e.g., Kentucky v. Stincer (1987) 482 U.S. 730, 745-747 [107 S.Ct. 2658, 96 L.Ed.2d 631] [the defendant’s due process rights were not violated by his exclusion at a hearing in which the trial judge determined the competency of child witnesses; People v. Moon (2005) 37 Cal.4th 1, 20 [jury view of the crime scene is not a critical stage]; People v. Lang (1989) 49 Cal.3d 991, 1025 [same]; People v. Perry (2006) 38 Cal.4th 302, 312 [the defendant’s absence from a bench conference discussing exclusion of his wife from the courtroom was not a critical stage of the proceedings -- “a defendant may ordinarily be excluded from conferences on questions of law, even if those questions are critical to the outcome of the case, because the defendant’s presence would not contribute to the fairness of the proceeding”]; People v. Rogers (2006) 39 Cal.4th 826, 855-856 [the defendant had no state statutory or federal constitutional right to attend jury screening discussions]; United States v. Gagnon (1985) 470 U.S. 522, 526-527 [105 S.Ct. 1482, 84 L.Ed.2d 486] [trial court’s ex parte discussion with juror was not a critical stage]; People v. Morris (1991) 53 Cal.3d 152, 210 [discussion of jury instructions was not a critical stage].)
“The writ of error coram nobis is an appropriate procedure for a postjudgment challenge to a guilty plea allegedly induced by mistake, fraud, or coercion. [Citations.]” (People v. Chaklader (1994) 24 Cal.App.4th 407, 409; see also People v. Goodrum (1991) 228 Cal.App.3d 397, 400 [“trial court may entertain a postjudgment motion to withdraw a plea — technically styled a petition for writ of error coram nobis — whenever a defendant has been induced to enter the plea by misstatements made by a responsible public official”].)
Even if we were to assume there was a violation of the right to be present at a critical stage of the proceedings, defendant has the burden of showing that his absence prejudiced his case or denied him a fair and impartial trial. (People v. Cleveland, supra, 32 Cal.4th at p. 741; People v. Ervin (2000) 22 Cal.4th 48, 74.) Defendant has not met this burden. “Under the federal Constitution, error pertaining to a defendant’s presence is evaluated under the harmless-beyond-a-reasonable-doubt standard set forth in Chapman v. California (1967) 386 U.S. 18, 23 [ 17 L.Ed.2d 705, 87 S.Ct. 824].) [Citations.] Error under section[] 977 . . . is state law error only, and therefore is reversible only if ‘“it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” [Citation.]’ [Citations.]” (People v. Davis (2005) 36 Cal.4th 510, 532-533.)
Section 977, subdivision (b)(1) provides in pertinent part: “In all cases in which a felony is charged, the accused shall be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence. The accused shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present . . . .”
Defendant claims that his absence at the February 1, 2007, hearing “resulted in” the withdrawal motion hearing to be “dropped from the court’s calendar . . . .” However, as defendant acknowledges, the court was without jurisdiction to even hear the motion to withdraw. Defendant fails to explain how his attendance at the February 1 hearing would have benefited the defense or otherwise altered the outcome of the proceedings. We cannot detect prejudice to defendant on this record. The issue was purely a legal one, which his counsel was equipped to handle. Further, defendant has filed a writ of habeas corpus challenging his guilty plea in the trial court. Accordingly, defendant cannot show that his presence would have benefited the defense.
As explained by the People, we point out that before defendant’s opening brief was filed, defendant filed a petition for writ of habeas corpus in the superior court in case No. WHCSS-0700030 alleging claims of ineffective assistance of counsel for failure to investigate. The People request that we take judicial notice of the declaration filed by Ms. Israel in that habeas proceeding. We may take judicial notice of any records of any court of this state. (Evid. Code, § 452, subd. (d)(1).) However, we do not ordinarily take judicial notice of matters not previously presented to the trial court, because “[w]e review the correctness of the trial court’s ruling at the time it was made, however, and not by reference to evidence produced at a later date.” (People v. Welch (1999) 20 Cal.4th 701, 739.) Thus, we deny the request. Regardless, that evidence is irrelevant in resolving the issues in this case.
Because defendant provides no basis on which we could conclude the result of his trial would have been different had he been present at the hearing in question, we find defendant’s absence was harmless. For the same reason, his absence did not offend his constitutional rights to due process or a fair and reliable trial. A review of the record leads us to conclude that even if defendant had been present at the February 1 hearing it was harmless beyond a reasonable doubt. (See People v. Davis, supra, 36 Cal.4th at pp. 533-534.)
Defendant erroneously argues that the absence of a defendant from a critical stage of the proceedings is structural error requiring reversal. “Erroneous exclusion of the defendant is not structural error that is reversible per se, but trial error that is reversible only if the defendant proves prejudice. [Citations.]” (People v. Perry, supra, 38 Cal.4th at p. 312.) “A ‘structural’ error . . . is a ‘defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself,’ [citation]. We have found structural errors only in a very limited class of cases: See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (a total deprivation of the right to counsel); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (lack of an impartial trial judge); Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (unlawful exclusion of grand jurors of defendant’s race); McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (the right to self-representation at trial); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (the right to a public trial); Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (erroneous reasonable-doubt instruction to jury).” (Johnson v. United States (1997) 520 U.S. 461, 468-469 [117 S.Ct. 1544, 137 L.Ed.2d 718].) Defendant has made no showing of prejudice as a result of the decision to not allow counsel to proceed on the second motion to withdraw the guilty plea in defendant’s absence. In the absence of any suggestion of actual prejudice, reversal in this context would “undermine[] society’s interest in the administration of criminal justice.” (Rushen v. Spain (1983) 464 U.S. 114, 118 [104 S.Ct. 453, 78 L.Ed.2d 267].) Error, if any, was manifestly nonprejudicial.
III
DISPOSITION
The judgment is affirmed.
We concur: KING J., MILLER J.