Opinion
F072384
11-09-2017
THE PEOPLE, Plaintiff and Respondent, v. STEVEN MARIN, Defendant and Appellant.
Tutti Hacking, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. PCF296971)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Gary M. Johnson, Judge. Tutti Hacking, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Smith, J. and Meehan, J.
-ooOoo-
Appellant Steven Marin pled no contest to second degree robbery (Pen. Code, § 211), admitted three prior prison term enhancements (§ 667.5, subd. (b)), and was sentenced to a three-year prison term. On appeal, Marin contends the court abused its discretion when it denied his Marsden motion and his motion to withdraw plea. (§ 1018.) Although we conclude that neither of these contentions have merit, our review of the record disclosed that the court imposed an unauthorized sentence when it stayed three prior prison term enhancements. Therefore, we will modify the judgment by striking these enhancements. In all other respects, we affirm.
All further statutory references are to the Penal Code.
People v. Marsden (1970) 2 Cal.3d 118.
FACTS
On March 19, 2014, at approximately 8:40 a.m., Marin took his dog and went to the Sol Del Valle convenience store in Lindsay, California, to buy dog food. When he entered, cashier Nucico was at the back of the store. From some racks by a cash register at the front of the store, Marin took a bar of soap, a toothbrush, batteries, candy, and two packages of gum. He walked away from the register and placed them in his pocket. Marin then spoke with Nucico at the front of the store and asked her if the store stocked hot link sausages.
Store employee Pedro Mendez saw Marin on the store's video surveillance system. As Marin spoke with Nucico, Mendez went and stood in front of the exit door with his left arm on the door, holding it shut. Mendez told Marin he knew Marin took some property and had it in his pocket, and that Marin needed to give it back. Marin retrieved a bar of soap from his pocket and gave it to Mendez. Mendez told Marin he knew he had more items in his pocket and to also return those items. Marin then pushed past Mendez with his shoulder against Mendez's chest and exited the store. Mendez followed and tried to detain Marin by grabbing his left arm. Marin turned around and struck Mendez on the right side of his face. Mendez let Marin go and continued to follow him at a distance as Marin and his dog ran away. Mendez yelled at Marin to stop and Marin yelled back, "F*** you, Mexican."
Lindsay Police Officer Matthew McMillan responded to the store. Nucico told McMillan she saw Marin push past Mendez and swing at Mendez outside the store, but she was not sure if Marin actually struck Mendez because she was on the phone calling 911. McMillan saw a red area on the right side of Mendez's face.
After interviewing the employees, McMillan searched for Marin, found him in an abandoned building a short distance away, and detained him. Mendez was taken to the location and after he identified Marin as the man he confronted in the store, Marin was arrested. Marin did not have any money on him at that time.
On April 3, 2014, an issue arose regarding Marin's competency to stand trial and the court referred him for a psychological evaluation (§ 1368).
On May 2, 2014, the court considered and denied Marin's Marsden motion.
On May 9, 2014, Dr. Doriann Hughes evaluated Marin and diagnosed him with bipolar I disorder by history. Dr. Hughes did not observe any evidence of major depression, which was a major criterion for that diagnosis, but did observe clear evidence of mania. During the interview, Marin demonstrated irritability, agitation, grandiosity, talkative and pressured speech, racing thoughts and distractibility. Marin expressed grandiose ideations like the belief that he was more knowledgeable than his attorney or the judge and persecutory beliefs about his legal situation like stating that his attorney was acting more like a district attorney and that the judge only listened to his attorney. Marin was also animated and had some psychomotor hyperactivity. According to Dr. Hughes, symptoms of mania generally last at least several days to a week.
Dr. Hughes also diagnosed Marin with alcohol use disorder by history based on his extensive history of alcohol use that started at age nine and developed into daily consumption at age 13.
Marin reported a long history of treatment for bipolar disorder that included taking lithium for the past 14 years. According to Marin, he typically experienced symptoms of mania he described as "Speedy Gonzalez" that included racing thoughts, increased goal-directed activity such as "cleaning everything," and a decreased need for sleep. Marin also reported that his manic episodes generally occurred two times per month and lasted for a day. Marin denied experiencing severe symptoms of depression but he acknowledged sometimes feeling irritable and angry. He denied experiencing auditory or visual hallucinations. Marin did not report ever experiencing amnesia or acting without an awareness of what he was doing. Nor did Dr. Hughes state in her report that these were symptoms of bipolar I disorder or symptoms that Marin might experience.
Dr. Hughes found Marin was able to understand the nature and purpose of the criminal proceedings against him. Nevertheless, she concluded he was not competent to stand trial because he would not be able to cooperate with his counsel in a rational manner in presenting a defense due to the manic symptoms he was experiencing.
On May 30, 2014, based on Dr. Hughes's report, the court found Marin incompetent and it suspended criminal proceedings.
Dr. Hughes reevaluated Marin on August 8, 2014. She concluded that the medications had stabilized Marin, he no longer was experiencing acute symptoms of bipolar I disorder, and that he was again competent to stand trial.
During the evaluation, Marin stated that the day he was arrested, he was looking for a hotdog for his dog at a different store than the one involved in the robbery and the next thing he remembered was someone reaching into his pockets. He claimed he was not in his right mind and did not remember what happened.
On August 20, 2014, based on Dr. Hughes's latest report, the court found Marin had regained competence and reinstated criminal proceedings.
On September 15, 2014, the district attorney filed an information charging Marin with the second degree robbery offense and the three prior prison term enhancements to which he pled. The December 16, 2014, Marsden Hearing
All further references to a Marsden hearing refer to the December 16 Marsden hearing.
On the morning of December 16, 2014, the day set for trial, Marin did not dress out. Marin told the court he wanted to get an attorney from the National Alliance for the Mentally Ill to represent him and replace appointed counsel Steven Prekoski, because he wanted an attorney who "[knew] about" mental illness. During a lengthy discussion, Marin told the court he did not mean to disrespect Prekoski, that he had to explain his request because of the respect he had for him, and that he had nothing against Prekoski because he knew "how good he [was]."
Prekoski, a deputy public defender, had represented Marin during most of the proceeding up until then.
After the court denied the request as untimely, Marin continued to insist that he wanted to retain private counsel. During another lengthy discussion, the court asked Marin several times if he wanted a Marsden hearing. In responding to the court, Marin stated he did not want to be rude to Prekoski and make him think "[he was] not good enough" and that he knew Prekoski was "a good person." At another point, he asked the court if there was a hearing "called [a] conflict of interest." Eventually Marin acquiesced to a Marsden hearing, telling the court, "If that's going to allow me ... to try to get my own attorney, yes, I do. [¶] ... [¶] That's the only reason I'm doing it, and I'm ashamed of myself for doing it."
The court then conducted a Marsden hearing during which Marin complained, in pertinent part, that Prekoski did not contact or obtain a letter from Ray Rios, a mental health worker in Wasco who had worked with Marin. Rios allegedly stated that Marin could not have formed the specific intent required to commit robbery and, according to Marin, it could have changed his case. Marin also complained that Prekoski had not given him some letters Marin requested or obtained medical records that showed he could not lift one of his arms above his head or swing it. He also alleged that Prekoski had not spoken with a Dr. Hayes. Dr. Hayes allegedly told Marin to have his attorney call him and Dr. Hayes would tell the attorney that due to lack of medication, Marin was in a state of amnesia when he went into the store and did not know what he was doing.
Marin was apparently referring to a Dr. James, who he claimed treated him while he was in custody in the county jail. During the hearing, Marin identified Dr. Hayes as an African-American psychiatrist or psychologist who worked for Tulare County. Prekoski did not know who Dr. Hayes was and thought Marin was confused. Prekoski interpreted Marin's comments as referring to Dr. Hughes.
Prekoski responded that he had all the police reports, the relevant surveillance video and photos, both mental health reports by Dr. Hughes, a review from Anka Behavioral Services and that he had communicated with Rios. Prekoski also stated that he conducted the preliminary hearing, visited the scene, spoke to the witnesses, vigorously attempted to get a settlement, had prepared with "vim and vigor," and could hardly wait to present the case to a jury.
Prekoski also told the court that he had spoken with Dr. Hughes and mental health worker Rios. According to Prekoski, Rios told him that the day before the robbery Marin might have been in a manic state. However, due to problems of "imminents (sic) and timing," Prekoski felt the evidentiary value of the statement was minimal and that the court would not allow Rios to testify that Marin was in a manic state 36 hours before the underlying incident. Instead, Prekoski followed up on the witnesses whom he thought would help show Marin was in a state of disarray and perseveration, acting nonsensical, and having mental health issues when he took the items in the store. Prekoski did not know of any doctor who would testify Marin could not have formed the specific intent required to commit robbery and he felt that, at most, a doctor could testify about Marin's diagnosis and how it affected him "that [day]" if he was in a manic state. Prekoski also did not believe that a doctor who had not evaluated Marin or witnessed the incident would testify that Marin did not have the intent to steal when he took the items from the store.
Marin responded that Dr. Hughes said his mania could last more than one day and that he saw Rios the day before the incident at the store, not 36 hours as asserted by Prekoski. According to Marin, Rios had to call the police because Marin was acting "crazy" and he was told to leave or he would get charged with trespassing. Marin left and ended up in Lindsay. Marin reiterated that according to Dr. Hayes, he could not have committed a robbery because Marin was "in a state of - - not blackout," but of amnesia where he did not know what he was doing and was "just going like a robot." After again referring to Rios's statement that he could not have formed the specific intent to commit a robbery, Marin stated, "And like I say, everywhere you go, you get stuff from [Dr.] Hughes, 'manic episode' and that's where an individual who's bipolar can go off and just black out -- I'll call it a blackout."
The court stated it believed Prekoski to the extent there were conflicts between what he and Marin stated. In denying the Marsden motion, the court found attorney Prekoski had asserted clear and valid responses to all of Marin's concerns, that he was "more than prepared to go to trial," and that there had not been a breakdown in the attorney-client relationship.
In Limine Motions
Soon after the Marsden hearing, the court considered the prosecutor's in limine motions. When the prosecutor stated she had not received any reports from a medical expert, Prekoski disagreed and pointed out that the prosecution had the reports from Dr. Hughes, that Marin's "mental health defect" was clear and undeniable, and that Marin could provide the foundation that he suffered from that defect. The prosecutor replied that Marin's testimony regarding his diagnosis would be hearsay. After some discussion, the court ruled that if something had not yet been provided to the prosecution, it was untimely and would not be allowed into evidence. More discussion followed and then Prekoski stated that he was not calling any witnesses except Marin unless the People denied that his client had a mental health defect, in which case he would call a doctor to impeach any such claim.
When the court considered the prosecutor's motion to exclude reference by Marin to any mental impairment, Prekoski argued that the motion should be denied, but if not, he would get a doctor to testify about Marin's mental defect and he would not need a continuance. The court eventually ruled that Marin could testify to the symptoms he was experiencing during the underlying incident but not to his diagnosis of bipolar I disorder because the latter testimony would be hearsay. Following a lengthy discussion, Prekoski told the court he would call Dr. Hughes to see if she was available that afternoon or the following day and the court agreed to allow him to do that.
The Change of Plea Proceedings
After the court ruled on the in limine motions, there was a break in the proceedings. When the trial resumed that afternoon, Prekoski advised the court that, against his advice, Marin wanted to enter a plea. Prekoski also stated he would not stipulate to a factual basis because he did not believe one existed and that he would not state Marin was then in his right mind because he did not think Marin was doing the right thing. Prekoski further stated that he thought the case should be tried and that if they lost they should depend on the "good-hearted nature of the magistrate" not to impose the maximum term. He also stated that he thought Marin should explain himself to the jury with Dr. Hughes's help and let the jury decide whether or not he committed a robbery.
The court asked Marin if he wanted to enter a plea in exchange for a sentence of three years. Marin replied that he did not feel the jury was going to understand the issues of mental illness, that he was blacked out "or whatever you want to call it" and did not know what he was doing. Marin further stated he did not know anything about the items in his pocket, that when Mendez asked him, he replied, "What stuff?" He then pulled out the soap and gave him $3. According to Marin, he went in the store to get something for his dog, got some change, and the next thing he knew he "supposedly ... punched a guy and all of that." He concluded his comments by stating that he knew he did not commit a robbery but he was scared to "roll the dice."
The court replied that if Marin pled it would give him an indicated sentence of three years because what it had heard in the last two days caused him to believe a three-year term was an appropriate sentence. Marin responded that he would enter a plea. The court then took Marin's no contest plea to the robbery charge and his admission of the three prior prison term enhancements. During the change of plea colloquy, Marin told the judge he was satisfied with the advice and services of his counsel, that he understood what Prekoski had spoken to him about that day and had communicated well with him. Before concluding the hearing, the court stayed the prior prison term enhancements.
The Motion to Withdraw Plea
On June 2, 2015, when Marin appeared for sentencing, Prekoski informed the court that he and Marin had a disagreement over witnesses Marin wanted to present at Marin's sentencing hearing. After some discussion, Marin told the court he wanted to withdraw his plea. Later in the proceedings, the court granted Marin's Faretta motion to represent himself and it continued the sentencing hearing. Before the hearing concluded, Marin asked the court at what point he could withdraw his plea. The court responded it was up to him to file a motion to do so.
Faretta v. California (1975) 422 U.S. 806.
In discussing whether Marin wanted to represent himself, the court told Marin that if he wanted to fire Prekoski, it would require a Marsden motion. Marin replied that he did not want to fire him and reiterated that he knew Prekoski was a "good attorney."
On July 15, 2015, Marin filed a written, pro se motion to withdraw plea. As grounds for the motion, the moving papers cited Marin's receipt of new evidence consisting of approximately 200 pages of mental health records. In the moving papers, Marin complained that at his pretrial hearing, defense counsel Prekoski failed to enter into evidence all his mental health records and the names of the mental health staff he intended to call as witnesses.
On July 16, 2015, Marin filed another pro se motion to withdraw plea. In the moving papers, Marin alleged that he gave Prekoski the names of two expert witnesses, including Dr. James, and two lay witnesses to subpoena. Dr. James allegedly told Marin that on the day of the robbery, Marin was in a state of amnesia and did not know or understand what he was doing, and to have his attorney call him so they could discuss this. Marin allegedly told Prekoski three times to call Dr. James, but he never did. On December 16, 2014, Marin was ready to have his case tried to the jury. However, when Marin asked Prekoski if he subpoenaed Marin's witnesses, Prekoski replied he had not but that he called two of them and "one [of them] might make it." Marin asserted this amounted to the withdrawal of a meritorious defense and that the "surprise and influence of [having] no witnesses" for his defense coerced him into entering a plea.
Marin also alleged as grounds for the motion that around July 1, 2015, he received new evidence from the Tulare County Sheriff's Department. The evidence consisted of mental health records containing his mental diagnosis, psychiatric reports, prescribed medications, intake and receiving screenings, and mental health progress reports dating from the date of his arrest. Marin, however, did not include any of these records with his motion to withdraw plea. Nor did he ever provide a note from Dr. James or any other documents that supported his assertion that Dr. James believed that during the robbery, Marin was in an amnesia phase of a manic episode that prevented him from forming the specific intent to steal.
On August 31, 2015, at a hearing on the motion, Marin did not present any witnesses in support of his motion. During a lengthy exchange with the court, Marin stated that Prekoski did not obtain medical records that would have shown that he had torn ligaments in his right arm as a result of being hit by a car. He also asserted that Prekoski did not subpoena witnesses Marin wanted him to call to show that he had a long-standing mental illness and that he was not claiming he was mentally ill because he was "in trouble with the law." When Prekoski told Marin he faced a possible sentence of "[e]ight years with 85 [percent]" if he was found guilty at trial, Marin said, "There's no way, no way," and he told Prekoski to tell the court he would plead no contest.
Presumably, this would have shown he could not have punched Mendez.
Marin identified Rios and the witnesses on a list included in his first motion to withdraw plea, i.e., Dr. James, Dr. Hughes, and a Deputy Sheriff Padilla, as the witnesses he asked Prekoski to subpoena.
The prosecutor argued that the change of plea transcript showed Marin entered into a knowing, intelligent, and voluntary waiver of his rights and that he entered a plea against the advice of his counsel. Thus, according to the prosecutor, Marin's attempt to withdraw his plea was simply "a case of buyer's remorse."
The court found that Marin did not enter his plea because of duress, that he entered his plea "knowingly, intelligently and voluntarily," and it denied the motion. The court then sentenced Marin to the indicated middle term of three years.
DISCUSSION
The Marsden Hearing
Marin contends that at the December 16, 2014, Marsden hearing, he established that defense counsel provided ineffective representation because he articulated the following reasonable bases that supported granting the motion: (1) Prekoski did not feel Rios's testimony was relevant and had not gotten a letter from him; (2) Prekoski had not done enough investigation regarding his shoulder injury; and (3) Prekoski did not contact Dr. James, who had told Marin he was in an amnesia phase of a manic episode during the robbery and was unaware of what he was doing. Thus, according to Marin, the court abused its discretion when it denied his Marsden motion.
Marin never requested substitution of appointed counsel on December 16, 2014, prior to the court conducting a Marsden hearing. Instead, he requested the opportunity to hire private counsel and only acceded to the court's holding a Marsden hearing because he thought the court might then allow him to hire private counsel. Thus, Marin was not entitled to a Marsden hearing. (People v. Sanchez (2011) 53 Cal.4th 80, 89-90 (Sanchez) [Trial court is obligated to conduct Marsden hearing only when there is some clear indication by defendant, either personally or through his counsel, that defendant wants a substitute attorney].) However, assuming this issue is properly before us, we reject Marin's contentions.
"In California, the 'seminal case regarding the appointment of substitute counsel is Marsden, supra, 2 Cal.3d 118, which gave birth to the term of art, a "Marsden motion." ' [Citation.] [¶] ... [¶] We recognized [in Marsden] that 'criminal defendants are entitled under the Constitution to the assistance of court-appointed counsel if they are unable to employ private counsel.' [Citation.] We explained that 'the decision whether to permit a defendant to discharge his appointed counsel and substitute another attorney during the trial is within the discretion of the trial court,' that 'a defendant has no absolute right to more than one appointed attorney,' and that a trial court is not bound to accede to a request for substitute counsel unless the defendant makes a ' " 'sufficient showing ... that the right to the assistance of counsel would be substantially impaired' " ' if the original attorney continued to represent the defendant." (Sanchez, supra, 53 Cal.4th at pp. 86-87, italics added.)
"Marsden motions are subject to the following well-established rules. ' " '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.]" ' [Citation.] Denials of Marsden motions are reviewed under an abuse of discretion standard. [Citation.] Denial 'is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would "substantially impair" the defendant's right to assistance of counsel. [Citations.]' " (People v. Barnett (1998) 17 Cal.4th 1044, 1085.) Marsden error does not require reversal unless the error is prejudicial beyond a reasonable doubt. (Sanchez, supra, 53 Cal.4th at p. 92.)
"Robbery is 'the taking of personal property of some value, however slight, from a person or the person's immediate presence by means of force or fear, with the intent to permanently deprive the person of the property.' " (People v. Jackson (2016) 1 Cal.5th 269, 343.) The force required for robbery is more than " 'just the quantum force which is necessary to accomplish the mere seizing of the property.' " (People v. Garcia (1996) 45 Cal.App.4th 1242, 1246 [slight push on cashier's shoulder to move her out of the way so defendant could reach into register was sufficient force required for robbery].)
It was undisputed that Marin took items from the store without paying for them. Although Marin contended he could not have raised one arm to punch Mendez, he did not dispute that he used more than the force necessary to seize the items when he pushed Mendez out of the way with his shoulder to escape out of the store. Thus, the only disputed issue in the case was whether Marin had the specific intent to permanently deprive the store employees of the goods he took, i.e., the intent to steal.
Marin believed Rios was an important defense witness because Rios could answer vital questions about Marin's mental illness, Rios believed Marin's mental illness prevented him from forming the specific intent to steal, and he could testify that the day before the robbery, Rios observed Marin in his office in a manic state. However, Prekoski was aware Marin suffered from bipolar I disorder, its symptoms, and the way they affected Marin from having read Dr. Hughes's evaluations, and presumably from speaking with her and with Marin. Thus, it was not vital, as Marin contends, for Prekoski to contact Rios in order for him to understand Marin's mental illness. And, in any case, it is clear from the record that Prekoski did contact Rios.
Further, since Rios was not a psychiatrist or psychologist, his opinion that Marin could not have formed the specific intent to steal was irrelevant. And, as discussed more fully below, the record does not contain any evidence that Marin could not form the specific intent to steal when he was in a manic state. Additionally, Rios's observation of Marin in an apparent manic state a day earlier was of limited value in proving that Marin was in a manic state during the robbery. Marin told Dr. Hughes his manic episodes usually lasted only a day. Dr. Hughes did not contradict Marin's statement because in Marin's first evaluation she stated that the symptoms of bipolar disorder generally lasted a few days to a week. In any case, Marin's symptoms also could have begun one or more days prior to Marin going to Rios's office and ended that day. Thus, Rios's observation of Marin in a manic state in his office, by itself, provided little proof that Marin was in a manic state the following day during the robbery.
Marin also failed to show that defense counsel provided ineffective representation by his failure to obtain medical records relating to his injured arm. The records would not have assisted in defending Marin against the robbery charge because, as noted above, the force element of robbery was satisfied when Marin pushed Mendez out of the way to get out of the store. Further, although the records may have shown Marin could not raise one arm or swing it at Mendez, he could have struck Mendez with his other arm.
Nor does Prekoski's failure to contact Dr. James show deficient representation. During the Marsden hearing, Marin apparently referred to a Dr. James as Dr. Hayes. When Marin mentioned the nonexistent Dr. Hayes, Prekoski believed Marin was referring to Dr. Hughes, whose written evaluations he had reviewed and whom he contacted. Thus, the lack of contact with Dr. James resulted from Marin providing the wrong information to Prekoski and not from a deficiency in representation. Additionally, as discussed below, the failure to contact Dr. James did not prejudice Marin because Marin never provided any evidence that supported his assertion that Dr. James believed Marin was in an amnesia phase of a manic episode during the robbery and that he could not form the specific intent to steal while in such a state.
Marin also contends Prekoski failed to provide certain unspecified records that Marin requested from him. However, during the Marsden hearing, Prekoski told the court that he turned over to Marin all documents he possessed, except the preliminary hearing transcript because it was "proprietary to the court reporter" and he could not make copies of it.
The court provided Marin ample time during the Marsden hearing to state the reasons why he thought Prekoski provided inadequate representation. Afterwards, the court allowed Prekoski to respond to Marin's concerns and he provided reasonable explanations for why he did or did not do the things about which Marin complained. Thus, we conclude that the court did not abuse its discretion when it denied Marin's December 16, 2014, Marsden motion.
The Motion to Withdraw Plea
Marin contends defense counsel provided ineffective representation because he did not subpoena relevant witnesses or investigate Marin's shoulder injury. He further contends that this caused him to enter a plea under duress because he felt he had no option but to enter a plea to avoid the possibility of a harsher sentence if he tried the case to a jury. Marin also contends he was prejudiced because he had a complete defense to the robbery charge, i.e., that he was "out of his mind" during the robbery due to being off medications, and that it is reasonably probable he would not have entered a plea if counsel had been adequately prepared for trial. We reject these contentions.
Marin also appears to contend that defense counsel provided ineffective representation because he did not make any pretrial motions and was unsuccessful in opposing most of the prosecutor's 12 in limine motions. Marin forfeited these contentions by his failure to assert them as a basis for his motion to withdraw plea. (In re P.C. (2006) 137 Cal.App.4th 279, 287 [As a general rule, a party may not present a new theory on appeal.].) --------
Section 1018 provides, in part: "On application of the defendant at any time before judgment ... the court may, ... for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.... This section shall be liberally construed to effect these objects and to promote justice." "The defendant has the burden to show, by clear and convincing evidence, that there is good cause for withdrawal of his or her guilty plea. [Citation.] 'A plea may not be withdrawn simply because the defendant has changed his [or her] mind.' [Citation.] The decision to grant or deny a motion to withdraw a guilty plea is left to the sound discretion of the trial court. [Citations.] 'A denial of the motion will not be disturbed on appeal absent a showing the court has abused its discretion.' [Citations.] 'Moreover, a reviewing court must adopt the trial court's factual findings if substantial evidence supports them.' " (People v. Breslin (2012) 205 Cal.App.4th 1409, 1415-1416.)
To establish good cause to withdraw a guilty plea, the defendant must show by clear and convincing evidence that he or she was operating under mistake, ignorance, or any other factor overcoming the exercise of his or her free judgment, including inadvertence, fraud, or duress. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1207-1208.) "[I]n order successfully to challenge a guilty plea on the ground of ineffective assistance of counsel, a defendant must establish not only incompetent performance by counsel, but also a reasonable probability that, but for counsel's incompetence, the defendant would not have pleaded guilty and would have insisted on proceeding to trial." (In re Alvernaz (1992) 2 Cal.4th 924, 934.) A defendant's self-serving statement that he would not have entered a plea if he had been provided effective representation is insufficient in and of itself to sustain his burden of proof as to prejudice, and must be corroborated independently by objective evidence. (Cf. id. at p. 938.) "A contrary [rule] would lead to an unchecked flow of easily fabricated claims." (Ibid.)
In his motion to withdraw plea, Marin complained that Prekoski failed to subpoena Dr. Hughes, Dr. James and mental health worker Rios. Dr. Hughes could testify to the symptoms of bipolar I disorder, to her diagnosis that Marin suffered from this disorder, and possibly that Marin was in a manic state during the robbery. However, in her evaluations of Marin, Dr. Hughes did not indicate that amnesia or a loss of awareness of one's conduct were symptoms of bipolar I disorder. Nor did Marin in his comments to her (or to the court) contend that these were symptoms of his mental illness or that he had ever experienced such symptoms. In view of these circumstances, it is clear Dr. Hughes would not have been able to testify that when Marin was in a manic state, he experienced amnesia or that he lost awareness of what he was doing. Thus, her testimony would not have assisted the defense in proving that during the robbery Marin did not have the specific intent to steal. In any event, before Marin advised the court that he wanted to enter a plea, the court had agreed to allow defense counsel to call Dr. Hughes. Thus, the failure to subpoena Dr. Hughes should not have been a factor in Marin's decision to plead because it appeared that she would be available to testify once the taking of testimony began.
Additionally, the court could reasonably have found from Marin's misidentification of Dr. James as Dr. Hayes during the Mardsen hearing that Prekoski was unaware Marin believed Dr. James might have relevant information. In any case, in determining the facts, the court was not bound by Marin's uncontradicted statements that Dr. James believed Marin could not have formed the requisite specific intent. (People v. Hunt (1995) 174 Cal.App.3d 95, 103.) This is particularly true here because Marin did not include in his motion to withdraw plea any mental health records or any notes or other documents from Dr. James that supported his repeated assertion that the doctor believed that during the robbery Marin was in an amnesia phase of a manic episode that prevented him from forming the specific intent to steal. Thus, the record supports the court's implicit finding that Prekoski did not provide deficient representation by his failure to subpoena Dr. James.
The record also supports the court's implicit finding that Prekoski did not provide deficient representation by his failure to subpoena mental health worker Rios or to obtain medical records pertaining to Marin's arm. As discussed earlier, Rios was not a critical witness. Further, Marin wanted the records to negate the force element of robbery because he believed they would show he could not have punched Mendez. However, the force element of robbery was established by Marin forcibly exiting the store and, in any event, the medical records would not have proven that Marin could not have punched store employee Mendez.
Moreover, Marin has not shown that he was prejudiced by defense counsel's representation because it is clear from the foregoing discussion that it did not result in the withdrawal of a meritorious defense, as Marin contends, and Marin does not cite any objective evidence that corroborates his claim that he would not have entered a plea but for counsel's allegedly deficient representation. (In re Alvernaz, supra, 2 Cal.4th at p. 938.) Thus, we conclude that that the record supports the court's implicit finding that Marin was not denied the effective assistance of counsel in entering his plea.
Further, substantial evidence supports the court's finding that Marin entered his plea knowingly, intelligently, and voluntarily. During the change of plea proceedings, Marin told the court that he had had enough time to speak with defense counsel about his case, that he communicated well with him and understood what he said, and that he was satisfied with his advice and representation. Marin also told the court that no one had forced him, threatened him, or promised him anything to enter a plea and that he was entering a plea in order to avoid a greater sentence. Thus, we further conclude that the court did not abuse its discretion when it denied Marin's motion to withdraw plea.
The Stayed Prior Prison Term Enhancements
An order staying imposition of a prior prison term enhancement is an unauthorized sentence and is subject to correction on appeal. (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1521.) Thus, the court imposed an unauthorized sentence when it stayed the prior prison term enhancements Marin admitted and we will strike the enhancements.
DISPOSITION
The judgment is modified to strike the prior prison term enhancements the court stayed. As modified, the judgment is affirmed.