Opinion
A129595
01-31-2012
THE PEOPLE, Plaintiff and Respondent, v. JOSE VACA MARTINEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. H-48556)
Defendant Jose Vaca Martinez, represented by retained counsel, pleaded no contest to two counts of molesting a four-year-old girl. Two additional counts, carrying sentences of 15 years to life, were dismissed as part of the plea bargain, and defendant agreed to a sentence of 14 years, consisting of the aggravated term of eight years for one count, and a consecutive term of six years for the second count. On the day set for sentencing, defendant unsuccessfully moved for a continuance for the stated purpose of attempting to hire other retained counsel. Defendant signed an appeal waiver. The trial court, however, granted defendant's request for a certificate of probable cause.
On appeal, he argues that the trial court abused its discretion in denying his motion for a continuance, and that the 14-year sentence is unauthorized. We find the trial court did not abuse its discretion, and that a defendant who knowingly and intelligently accepts an unauthorized sentence as part of a negotiated plea bargain, is now estopped from challenging it as unauthorized. We therefore affirm.
STATEMENT OF THE CASE
Following a preliminary hearing at which Jane Doe testified, an information was filed in Alameda County Superior Court charging defendant Jose Vaca Martinez with two counts of sexual penetration of a child under the age of 10 (counts 1 and 4), and two counts of lewd acts on a child under the age of 14 (counts 2 and 3). (Pen. Code, §§ 288.7, subd. (b), 288, subd. (a).)
Unless otherwise indicated, all statutory citations are to the Penal Code.
Trial commenced June 22, 2010, with pretrial motions and jury selection. On June 24, 2010, defendant indicated through a Spanish interpreter that he was "under [the] impression" that he would have a new attorney at trial. The court ruled that a substitution of attorney would not be allowed unless the new attorney was ready to go forward with the jury trial. The prosecutor stated that the 14-year offer remained open, there was no new offer, and the offer of 14 years would expire at 2:00 p.m. (when the jury panel was due to return). At 2:00 p.m., a resolution was reached. Defendant signed a plea waiver form with the assistance of counsel and a Spanish-speaking translator.
Pursuant to the negotiated disposition, counts 1 and 4 were dismissed in exchange for defendant's pleas of no contest to counts 2 and 3. The parties agreed to an aggregate prison sentence of fourteen years, consisting of the upper term of eight years on count 2 and the middle term of six years on count 3. Defendant also agreed to waive his right to appeal, among other rights. At the change of plea hearing, defendant and trial counsel both affirmed that the two had discussed the charges, the defenses, and defendant's rights. Defendant was informed that as a result of his plea, "[Y]ou will be sent to State Prison for 14 years." Defendant affirmed that he had not been threatened into entering his plea. He affirmed that he had initialed the plea waiver form and in fact gave up his constitutional rights. Asked if he had any questions for his attorney, defendant responded, "Maybe he can tell you about any question. I don't have any question in mind right now." Defendant entered his pleas of no contest and the court accepted them, finding that defendant "understands the nature of the crime charged, the possible penalties and consequences of a conviction; that he has freely, intelligently, and voluntarily waived his constitutional rights. And . . . there is a factual basis for these pleas . . . ." Counts 1 and 4 were dismissed as promised.
Defendant was not asked about his appeal waiver.
On August 4, 2010, the date set for sentencing, defense counsel gave the court a letter from defendant, stating: "I would like to address the court before I go any further: [¶] I would like to inform the judge that I do not wish to take the deal of 14 years in prison. [¶] It was never fully explained to me that I was signing a paper agreeing to the prison term of 14 years. I am 73 years old and that would be the equivalent of a life sentence for me at my age. The attorney I have now has never fully explained my options. I was never in the 11 months visited by my attorney, nor was I given an interpreter to help explain what was going on. I feel I need to change my plea to: 'not guilty.' I would like to put this case off so I can attempt to find a new attorney who I feel I can fully trust and one I can fully understand."
At the hearing, defendant's attorney stated that he had been contacted by Mrs. Martinez who had advised him in person "that in discussing the case and the disposition with her husband, she wished to hire another attorney and wished to withdraw the plea that we had entered with Mr. Martinez." (Italics added.) Trial counsel had advised Mrs. Martinez that she would have to contact an attorney, have that attorney in court, and make the request. Trial counsel advised the court that Mrs. Martinez had seen an attorney, but he was asking "for all of the money for the fee up front," and she could not afford that. He, trial counsel, was asking for a 45-day continuance "on her behalf."
Trial counsel also advised the court that defendant "has quasi alleged maybe some IAC . . . ." Mrs. Martinez had informed him that she felt defendant "was forced or coerced into entering the plea." Trial counsel advised the court that Mr. Martinez told the probation department that he did not understand fully what he was doing at the time of the plea. Although trial counsel knew that he "went through items and we used a Spanish interpreter that fully explained to Mr. Martinez that this is an actually written waiver that has become part of the file itself," since Mr. Martinez had never admitted wrongdoing, counsel was asking that the court continue the matter so that defendant or his wife could either hire a new attorney or have defendant referred to the public defender "to see if there's any basis for his motion [] to withdraw his plea." The prosecutor objected to any continuance because Jane Doe and her mother were both in court that day and the mother wished to address the court at sentencing. She also argued that there was no legal justification for withdrawing the plea: "Everything here was done in the open in terms of the defendant's plea. And I think the plea transcript would show that he made a knowing and voluntary waiver and entered into a plea negotiation." Trial counsel countered that he had no doubt he had proceeded properly in this case during the three days of trial before the court, but that if defendant wanted to withdraw his plea, "maybe we do need to get a transcript to have somebody else look at this just to see if anything that was done either by myself or whoever was improper."
The trial judge denied the request for a continuance, observing that he had been present when defendant changed his plea, and that defendant was fully assisted by a Spanish interpreter. He stated, "If I felt that there was any such lack of understanding, I never would have accepted the plea. . . . [¶] I believe that this is just another means of forestalling the inevitable."
After Jane Doe's mother made a statement in open court, defendant was sentenced in accordance with his plea agreement to 14 years in state prison.
Defendant timely filed a notice of appeal challenging the validity of the plea and requesting issuance of a certificate of probable cause to appeal the denial of a continuance, which the court granted.
STATEMENT OF THE FACTS
On August 1, 2009, when Jane Doe was six years old, she went to a garage sale with her parents and her younger brother who was three years old at the time of trial. The garage sale was at a house in Hayward where she and her family had often visited with defendant and his family. Jane Doe had seen defendant there lots of times.
Jane Doe went inside the house to use the bathroom, and defendant showed her where it was. When she came out of the bathroom, she and her brother started hanging by their hands from an exercise bar across a doorway. Defendant came next to her and put his hand under her underpants on her private part. His hand touched her on the skin and inside her body where "pee-pee" comes out. At the same time he was touching her, defendant also touched his tongue to her tongue and kissed her. She got away from defendant by falling off the bar onto the floor.
Defendant also touched her the same way, under her underwear and on her private part, and put his finger on the inside, when she was four. These incidents happened at the same house, when only defendant and his wife were at home.
On August 1, 2009, Jane Doe told her father about the molestation. He called the police and defendant was arrested. According to the probation report, that same day defendant admitted to the police that he touched Jane Doe underneath her underwear and inserted the tip of his finger into her vagina. He also admitted kissing her and placing his tongue in her mouth.
When he was interviewed by a probation officer on July 20, 2010, defendant denied touching Jane Doe or putting his finger in her vagina, and "also appeared confused about the negotiated plea and reported that he agreed to the deal because he was scared."
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion In Denying The Request For A Continuance.
Defendant argues that the trial court abused its discretion in denying his request for a continuance because he showed good cause. Relying primarily on People v. Ortiz (1990) 51 Cal.3d 975 (Ortiz)and People v. Munoz (2006) 138 Cal.App.4th 860 (Munoz), defendant asserts that good cause within the meaning of section 1050 was shown here because he "needed the time so he could find another attorney to replace his present retained attorney" with one "he could trust and understand" (1) to counsel him about possible plea withdrawal and (2) assist him at sentencing, a critical stage of the criminal process. He further asserts that the trial court misconstrued his request for a continuance as an "un-presented motion for plea withdrawal" and denied that nonmotion before it was made by a new attorney.
At the outset, we reject the Attorney General's contention that defendant's appeal must be dismissed because he signed an appeal waiver. While such waivers are generally enforceable, in this case, we decline to dismiss defendant's appeal because (1) the trial court did not orally elicit defendant's understanding of this waiver, as it did with defendant's other waivers, and (2) by granting defendant's request for a certificate of probable cause, the trial court signaled its view that the appeal waiver did not bar review of its denial of a continuance.
Defendant characterizes the court's denial of a continuance as tantamount to a denial of his right to discharge his retained attorney, and argues that the replacement of retained counsel would not have disrupted the orderly process of justice because orderly does not mean speedy or abbreviated. He asserts there was no ongoing or imminent trial, no evidence would have been compromised by delay, no witnesses whose appearances had already been scheduled and would have been further inconvenienced, and no possibility that memories would fade, as the victim's mother made clear that her memory and her daughter's memory of the events of August 1, 2009 "were all too vivid."
He also argues it would not have taken new counsel very long to familiarize himself or herself with a modest clerk's record of 139 pages, the court had "no rational basis" for its belief defendant was merely trying to "forestall the inevitable," and that the court failed to make "any meaningful inquiry as to the genuineness of [defendant's] stated concerns . . . about his poor relationship with his attorney . . . ."
Defendant requests that we take judicial notice of his retained attorney's State Bar disciplinary record under Evidence Code sections 452, subdivisions (d)(1) and (h), and 459. We decline to do so. Retained counsel's bar record was never brought to the trial court's attention by defendant or by any of his supporters as a basis for granting the continuance. For that reason, the attorney's State Bar history is not relevant to the sole issue before this court: whether the trial court abused its discretion in denying a continuance to look for substitute retained counsel. Accordingly, the request for judicial notice is denied.
We are not convinced by defendant's arguments. As we explain below, because the record before the trial court did not demonstrate good cause for a continuance, the trial court properly denied defendant's request for one.
Analysis
"In contrast to situations involving appointed counsel, a defendant may discharge his retained counsel of choice at any time with or without cause." (People v. Lara (2001) 86 Cal.App.4th 139, 152 (Lara), citing Ortiz, supra, 51 Cal.3d at p. 983.) "The right to discharge retained counsel is not, however, absolute. The trial court may deny a request to discharge retained counsel 'if discharge will result in "significant prejudice" to the defendant [citation], or if it is not timely, i.e., if it will result in "disruption of the orderly processes of justice" [citations].' [Citations.]" (People v. Keshishian (2008) 162 Cal.App.4th 425, 428 (Keshishian); see Lara, supra, 86 Cal.App.4th at p. 153.)
A continuance may not be granted in a criminal case absent a showing of good cause. (§ 1050, subd. (e).) "Motions to continue the trial of a criminal case are disfavored and will be denied unless the moving party, under Penal Code section 1050, presents affirmative proof in open court that the ends of justice require a continuance." (Cal. Rules of Court, rule 4.113.) " 'Whether a defendant has affirmatively demonstrated that justice requires a continuance is a factual matter' " (People v. Rhodes (1989) 212 Cal.App.3d 541, 555), and we review the denial of a continuance for abuse of discretion. (People v. D'Arcy (2010) 48 Cal.4th 257, 287.)
The authorities cited by defendant do not compel the conclusion that defendant demonstrated good cause for a continuance in order to substitute new retained counsel. However, Keshishian, which defendant distinguishes as presenting "vastly different" circumstances from this case, in our view, is actually instructive. In Keshishian, on the day set for trial to begin, defendant announced that he had "lost confidence" in his attorneys and asked for a continuance to "hire some other lawyers." (Keshishian, supra, 162 Cal.App.4th at p. 428.) Because the case had been pending for two and a half years, numerous continuances had been granted, the prosecution objected to further delay on account of the age of the case (six years had passed since the incident), and witness problems, the trial court denied the request. The Court of Appeal affirmed.
Ortiz did not involve the denial of a continuance. Ortiz holds that a trial court errs by denying a defendant's request to discharge retained counsel because the defendant has not shown the attorney to be incompetent. Munoz, likewise, did not involve the denial of a continuance. It applied Ortiz to a posttrial motion to discharge retained counsel. People v. Hernandez (2006) 139 Cal.App.4th 101 (Hernandez), likewise, did not involve the denial of a continuance and applies Ortiz. To the same effect is Lara. People v. Turner (1992) 7 Cal.App.4th 913 involved a defendant's motion to discharge an appointed legal aid attorney, not retained counsel. It held that Ortiz did not apply; People v. Marsden (1970) 2 Cal.3d 118 (Marsden)did. People v. Emery (2006) 140 Cal.App.4th 560 did involve the denial of a posttrial motion to continue sentencing to allow for investigation of a motion to withdraw a plea. However, the court never reached the merits of the defendant's claim because it dismissed the appeal for failure to obtain a certificate of probable cause.
The Keshishian court instructed that "under the applicable test for retained counsel, the court should 'balance the defendant's interest in new counsel against the disruption, if any, flowing from the substitution.' [Citation.] In so doing, the court 'must exercise its discretion reasonably: "a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality." ' [Citations.]" (Keshishian, supra, 162 Cal.App.4th at p. 429.) The reviewing court concluded the trial court had "applied the correct standard in rejecting appellant's last-minute attempt to discharge counsel and delay the start of trial. Appellant asked for and was given an opportunity to address the court concerning his desire to discharge counsel and his reasons for doing so. He stated only that he had 'lost confidence' in his attorneys. This request was made on the day set for trial after the case had been pending for two and a half years. An indefinite continuance would have been necessary, as appellant had neither identified nor retained new counsel. Witnesses whose appearances had already been scheduled would have been further inconvenienced by an indefinite delay. ' "The right to counsel cannot mean that a defendant may continually delay his day of judgment by discharging prior counsel," ' and the court is within its discretion to deny a last-minute motion for continuance to secure new counsel. [Citations.] That appellant had inexplicably 'lost confidence' in his experienced and fully prepared counsel did not constitute good cause for granting the continuance requested, nor justify the disruption to the judicial process that would have ensued. The trial court did not err in denying the request." (Ibid.)
Like the defendant's showing of good cause in Keshishian, the defendant's showing in this case also falls short of what is required. In this case, the only basis for a continuance attributable to defendant himself was in his letter to the court. In that letter, he informed the court that he did not "wish to take the deal of 14 years in prison," indicating, at a minimum, that he understood he had a deal for 14 years in state prison. He then claimed it was "never fully explained" to him that he "was signing a paper agreeing to the prison term of 14 years," although he understood that at his age of 73 "that would be the equivalent of a life sentence." He also claimed that his retained counsel had "never fully explained [his] options," had never visited him in jail, and that he was never "given an interpreter to help explain what was going on." He said he "would like to put this case off so I can attempt to find a new attorney who I feel I can fully trust and one I can fully understand." (Italics added.)
On August 4, 2010, when the court received this missive, defendant had been represented by retained counsel since at least the preliminary hearing on March 19, 2010. Counsel may or may not have visited him in jail, but he had appeared in court with defendant or on his behalf no fewer than 11 times, including three trial days, between March 19 and June 24, 2010. He was presumably familiar with the case and prepared for trial. On June 24, 2010, the final day defendant had a choice between taking the prosecutor's offered plea bargain of 14 years or proceeding to trial by jury, defendant for the first time indicated through a Spanish interpreter that he was "under [the] impression" he would have a new attorney at trial. The trial court ruled that a substitution of attorney would not be allowed unless the new attorney was ready to go forward with the jury trial.
The court made it clear it would not allow the substitution of an attorney who was unprepared to go forward, and defendant had 42 days between his plea and his sentencing date to (1) discharge his attorney, (2) hire new counsel, or (3) ask for a continuance of the sentencing date. Yet, he did none of those things. In fact, like the defendant in Keshishian, he had neither identified nor retained new counsel. Nor did defendant ever ask to discharge his attorney on the sentencing date.
Substantial evidence in the appellate record of court appearances and the change of plea hearing support the trial court's observations that defendant was at all critical times assisted by an interpreter and that defendant betrayed no confusion about the plea bargain at the time of the plea. The same judge had reviewed the signed change of plea form and questioned defendant about the change of plea and agreed sentence of 14 years. In light of the fact that the victim and her mother were present for the purpose of testifying at the sentencing hearing, that defendant's letter contained at least one manifest untruth (about interpreter assistance), and that defendant had a prior history of wanting to postpone the inevitable by raising the possibility of new counsel, the court did not abuse its discretion in denying a continuance on the basis of defendant's letter. As in Keshishian, the trial court here acted well within its discretion in deciding that defendant's last-minute attempt to begin looking for new retained counsel and postponing the sentencing hearing did not outweigh the court's interest in proceeding with a previously set sentencing hearing, when the victim and her mother were present in order to exercise their state constitutional rights to be heard (art. 1, § 28, subd. (b)(8)), and for closure. (Art. 1, § 28, subds. (a)(6) & (b)(9).)
As relevant here, Article 1, section 28 of the California Constitution provides:
"(a) The People of the State of California find and declare all of the following:
[¶] . . . [¶]
(6) Victims of crime are entitled to finality in their criminal cases. . . ."
Nor did trial counsel's comments add anything to the good cause calculus. On the contrary, those comments showed that the impetus for substitution of new counsel and plea withdrawal came from defendant's wife, not defendant himself, and that retained counsel was making the request for a 45-day continuance on her behalf. Furthermore, to the extent that trial counsel also advised the court that defendant had "quasi alleged maybe some" ineffective assistance of counsel, those allegations reflected Mrs. Martinez's feeling that defendant "was forced or coerced into entering the plea." In any event, it was not the court's prerogative to inquire, Marsden-style, about retained counsel's failings. (Munoz, supra, 138 Cal.App.4th at p. 866; Hernandez, supra, 139 Cal.App.4th at pp. 108-109.) The balance of trial counsel's comments supported the trial court's view that defendant had been adequately counseled by his attorney, with the assistance of a Spanish interpreter, about the contents of the plea waiver form and the parameters of the plea bargain.
Finally, nothing in the record demonstrates that defendant was indigent, or that he was interested in substituting appointed counsel for retained counsel. Trial counsel's suggestion that the matter be continued so that defendant could be referred to the public defender for a consultation on whether "there's any basis for his motion [] to withdraw his plea" appears, on this record, to be wholly his own. In short, the record supports the trial court's implied finding that the ends of justice would not have been well served by a 45-day continuance of the sentencing hearing. No abuse of discretion appears.
II. Defendant Is Bound By A Bargained For Unauthorized Sentence.
Defendant argues that his bargained for sentence of 14 years is unauthorized and, therefore, unenforceable, and his sentence should be reduced to 10 years. The People concede, and we agree, that defendant's sentence is unauthorized in the sense that section 1170.1 only authorizes consecutive sentences of one-third the midterm, in this case, two years instead of six. However, defendant's sentence is not unenforceable for that reason. "The rule that defendants may challenge an unauthorized sentence on appeal even if they failed to object below is itself subject to an exception: Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process." (People v. Hester (2000) 22 Cal.4th 290, 295, original italics.)
Here, the court had fundamental jurisdiction. "A lack of jurisdiction in its fundamental or strict sense results in ' "an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties." [Citation.] On the other hand, a court may have jurisdiction in the strict sense but nevertheless lack " 'jurisdiction' (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites." [Citation.] When a court fails to conduct itself in the manner prescribed, it is said to have acted in excess of jurisdiction.' [Citations.]" (People v. Lara (2010) 48 Cal.4th 216, 224-225.) " ' "[F]undamental jurisdiction cannot be conferred by waiver, estoppel, or consent . . ." [whereas] "an act in excess of jurisdiction is valid until set aside, and parties may be precluded from setting it aside by such things as waiver, estoppel, or the passage of time." ' " (People v. Letner and Tobin (2010) 50 Cal.4th 99, 140, quoting People v. Lara, supra, at p. 225.)
California case law has long applied estoppel or waiver principles to reject challenges to plea bargains that contain some unauthorized elements, as long as the defendant knowingly and intelligently entered his plea; the limiting provision at issue was enacted for the benefit of criminal defendants as a class; defendant falls into that class; and the defendant received the benefit of his bargain. (See, e.g., People v. Otterstein (1987) 189 Cal.App.3d 1548, 1550-1552; People v. Jones (1989) 210 Cal.App.3d 124, 132-133. See also People v. Nguyen (1993) 13 Cal.App.4th 114, 122-123.)
Here, the bargain offered by the prosecution and accepted by the defendant was for 14 years in state prison in exchange for no contest pleas to the two counts of child molestation charged under section 288, subdivision (a). So far as the record shows, no other bargain was on the table. Fourteen years could not be reached except by waiving the limitations of section 1170.1. If defendant had refused the bargain, he would have gone to trial on those two counts, as well as, two more counts of child molestation charged under section 288.7, and if he had been convicted of one of those counts, he would have faced an indeterminate sentence of 15 years to life. So far as the record of the change of plea shows, defendant entered his pleas intelligently and knowingly and with an understanding of the consequences of his plea and the risks he was thereby avoiding. Defendant personally agreed to the bargained for sentence.
Penal Code section 288.7, subdivision (b) provides: "Any person 18 years of age or older who engages in oral copulation or sexual penetration, as defined in Section 289, with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 15 years to life."
The sentence range for violation of Penal Code section 288, subdivision (a) is imprisonment in state prison for three years, or six years, or eight years. Except for the consecutive sentencing rule, the upper term of eight years and the middle term of six years for each count are proper terms, for a total of fourteen years as agreed.
--------
Defendant cites In re Williams (2000) 83 Cal.App.4th 936 for the proposition that "[a] plea bargain that purports to authorize the court to exercise a power it does not have is unlawful and may not be enforced." (Id. at p. 944.) The Williams court made that statement in an entirely different context than that presented by these facts. In Williams, the defendant entered into a plea bargain for a certain amount of presentence credit. However, when the Department of Corrections informed the court that defendant was not entitled to that credit, the court unilaterally recalled the sentence and took away the credit, in violation of defendant's plea bargain. The Williams court's observation was made in the course of its discussion of whether defendant was entitled to specific performance of an element of the bargain that was not in the court's power to grant. Here, by contrast, defendant's plea bargain was not violated. On the contrary, he received the benefit of his 14-year bargain, as did the People, and avoided a harsher indeterminate life sentence with a minimum of 15 years. Under these circumstances, Williams is inapposite and defendant has not demonstrated that he is entitled to a reduction of his bargained for sentence.
CONCLUSION
The trial court did not abuse its discretion in denying defendant's request for a 45-day continuance, made on the day previously set for sentencing, to find new retained counsel to replace existing retained counsel. Defendant knowingly and intelligently bargained for, and agreed to, a 14-year sentence and he is estopped from challenging it as unauthorized.
DISPOSITION
The judgment is affirmed.
____________________________
Marchiano, P.J.
We concur:
____________________________
Dondero, J.
____________________________
Banke, J.
"(b) In order to preserve and protect a victim's rights to justice and due process, a victim shall be entitled to the following rights:
[¶] . . . [¶]
(8) To be heard, upon request, at any proceeding, including any . . . sentencing . . . .
(9) To a speedy trial and a prompt and final conclusion of the case and any related post-judgment proceedings."