Opinion
G037435
5-24-2007
THE PEOPLE, Plaintiff and Respondent, v. MANUEL MARQUEZ, Defendant and Appellant.
Manuel Marquez in pro per; andAnthony J. Dain, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.
NOT TO BE PUBLISHED
1. Factual and procedural background
Defendant Manuel Marquez pleaded guilty, over the objection of his lawyer, to first degree murder (Pen. Code, § 187, subd. (a)), possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1), and unlawful participation in a street gang (Pen. Code, § 186.22, subd. (a)); he also admitted an enhancement for use of a firearm. (Pen. Code, § 12022.53, subd. (b)). He waived preparation of a probation report and was sentenced to 50 years to life.
In the form signed by defendant wherein he acknowledged being fully informed of his rights, he stated the basis of his plea: "[O]n August 14, 2005 in Orange County I did unlawfully and with malice aforethought and with premeditation & deliberation kill Francisco Guttieroz, a human being; I did this by means of personally discharging a firearm that caused his death; I possessed this firearm, having previously been convicted of a felony, to wit: 01CF3245, VC 10851 on 1-29-02."
Defendant filed a timely notice of appeal, although the trial court denied his request for a certificate of probable cause. Although this, by itself, requires an affirmance (Cal. Rules of Court, rule 8.304, (b)), we will nevertheless address the possible issues identified.
Defendants court appointed lawyer filed an opening brief requesting this courts independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 441. We issued an order advising defendant that his lawyer had filed a brief stating no arguable issues could be found and permitting him to personally file a supplemental brief. Defendant filed such a brief. We will address the issues identified by defendants lawyer and by defendant. Our review of the record disclosed no other issues.
2. Potential Issues Identified by Counsel
a. Denial of Marsden Motion
Two months before entering his plea, the trial court conducted a closed hearing to consider defendants request under People v. Marsden (1970) 2 Cal.3d 118 that a new lawyer be appointed to represent him. In response to the courts question as to his reasons, defendant stated that there was a lack of communication and that he did not feel comfortable. Defendant acknowledged that he did not contend that his lawyer had done something he thought should not have been done. His lawyer, an extremely well qualified deputy public defender, stated that defendant had refused to talk to him apparently because of the lawyers inability to have defendant moved to a facility other than the Santa Ana jail pending trial. But the lawyer expressed the opinion that he could represent defendant "vigorously and effectually." When the court thereupon asked defendant to respond, he had nothing further to add.
`"A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. [Citations.] [¶] We review a trial courts decision declining to discharge appointed counsel under the deferential abuse of discretion standard. [Citation.]" (People v. Cole (2004) 33 Cal.4th 1158, 1190.) No such showing was made and the trial court did not abuse its discretion in denying the Marsden motion.
b. Plea Entered Over Objection of Counsel
Penal Code section 1018 provides in relevant part that no guilty plea to a felony punishable by death or life imprisonment without possibility of parole "shall be received from a defendant who does not appear with counsel, nor shall that plea be received without the consent of the defendants counsel." But the Penal Code imposes no such restriction in other cases. And where the plea is made willingly and knowingly, we know of no authority requiring the consent of counsel.
c. Admission of Premeditation
Defendants lawyer identifies as a potential issue, "[w]hether appellants first degree murder conviction must be reversed because appellant did not orally admit that he committed the murder with premeditation and deliberation." As we noted earlier, defendant wrote on the Tahl (People v. Tahl (1967) 65 Cal.2d 719) form that he "did unlawfully and with malice aforethought and with premeditation & deliberation kill Francisco Guttieroz . . . ." This is sufficient.
d. Degree of Offense of Murder
The court did not make a finding with respect to the degree of defendants crime. Penal Code section 1157 requires the fact finder to determine the degree of the crime where a crime is distinguished into degrees. There is no such requirement for a guilty plea as distinguished from a trial.
e. Validity of Plea and Lawfulness of Sentence
Our review of the record fails to find any facts impeaching the validity of the plea or the lawfulness of the sentence the court imposed on defendant.
3. Additional Issues Raised by Defendant
To the extent we understand the contents of defendants supplemental brief, we note the following.
Defendant seems to complain of a failure by the prosecution to provide him with discovery. We found only one reference pointing to this. In the transcript of the Marsden hearing, defendants lawyer states that he provided defendant with "all redacted copies of the police reports and discovery that I have on this case. He then sent me a letter earlier this week indicating . . . the screening department at the jail took out certain pages of the discovery . . . . My intention today actually was to make copies of those deleted pages . . . and give them to him . . . ." Because the Marsden motion was denied we must assume counsel carried out his responsibilities after the hearing, and there is nothing in the record to contradict this.
Defendant points out that the form he signed acknowledging his guilt was not signed by his lawyer. As noted, his lawyer did not agree that he should plead guilty. There is no requirement that counsel sign the form.
Defendant claims that he was in a holding cell during a hearing conducted on May 17, 2006. The minute order for that date shows defendant was present in court with counsel.
Defendant attacks the ruling after the Marsden hearing because he claims entitlement to counsel of his choice. The Sixth Amendment does not give an indigent the right to counsel of his choice. (Drumgo v. Superior Court (1973) 8 Cal.3d 930, 933-935.) We deal with defendants remaining contentions concerning the Marsden hearing above.
Defendant refers to a letter sent to the trial court dated July 29, 2006, wherein he stated, "I am trying to take back my `guilty plea." The contents of that letter do not constitute legal grounds for vacating the plea.
Count 3 of the amended complaint charged defendant with unlawful participation in a street gang. (Pen. Code, § 186.22, subd. (a).) Defendant questions whether it was "possible to bring up that charge when the crime was committed in a house, that I lived in all my life . . . ." This count was dismissed, as were the prior prison allegations.
DISPOSTION
The judgment is affirmed.
We Concur:
SILLS, P. J.
FYBEL, J.