Opinion
C081948
03-13-2020
THE PEOPLE, Plaintiff and Respondent, v. MELISSA DIANE NICHOLS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 15F7236, 15F7237)
Defendant Melissa Diane Nichols appeals following her convictions for identity theft and burglary. On appeal, she contends the trial court erred in denying her Marsden motion. We conclude there was no error. She also makes a number of challenges to various probation conditions, including that they did not conform to the oral pronouncement of judgment, and were unconstitutionally vague and facially overbroad. We conclude those claims are moot because her probationary term has expired. Accordingly, we affirm the judgment.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
BACKGROUND
M.B. reported suspicious activity at her neighbor's home and described two cars she had seen at the house. The house had been unoccupied for some time, but still contained personal property, including a 1966 Ford Mustang. Responding to the call, sheriff's deputies went to the house and found the door leading to the garage looked like it had been kicked in. Three days later deputies found defendant driving one of the cars that had been seen at the house, and her husband in possession of the Mustang.
A few months later, J.P. recognized a truck from surveillance footage as one that had been used during the burglary. When officers arrived and tried to confirm defendant's identity, they found A.G.'s identification. A.G. had been the victim of a previous burglary. Officers discovered fraudulent checks and multiple bills of sale for other vehicles in the truck. Defendant could not provide proof of ownership of the truck, and both the truck and attached trailer had stolen license plates.
Defendant pleaded guilty to burglary (Pen. Code, § 459) and identity theft (§ 530.5, subd. (a)). In exchange for the plea, a number of other felony counts would be dismissed with a Harvey waiver. In the written change of plea form, defendant acknowledged that if she had caused any economic loss to a victim, she would be required to pay the actual full restitution to that victim. The trial court also reviewed that possibility with her at the plea hearing. Defendant indicated in both the written form and at the hearing that she had discussed the matter with her attorney, understood the charges to which she was pleading, the sentencing consequences, and any potential defenses.
Undesignated statutory references are to the Penal Code.
People v. Harvey (1979) 25 Cal.3d 754. --------
At her presentence probation interview, defendant reported she might have been misinformed about the charges by her attorney. She wanted to speak with her attorney about "redacting" her plea and believed there was a conflict with her attorney. She stated she was "unsure" if she would make a Marsden motion at sentencing. At the sentencing hearing, defense counsel informed the trial court defendant wanted to withdraw her plea, in part based on advice counsel had given her prior to the plea. Counsel stated he did not believe there were grounds to withdraw the plea. The trial court held a Marsden hearing.
Defendant stated she wanted to withdraw her plea because she did not have all the information she needed to make the decision. She had been desperate to get out of jail so as not to lose custody of her daughter. She claimed she had not understood if she pled guilty she "would be held responsible for everything that may be missing from the home and the restitution of that." She also indicated she had not had very much to time speak with her attorney before the plea. Defense counsel agreed they had had limited time to discuss the case, but they had discussed it and he felt they had sufficient time to discuss the case. He stated he had concerns about the plea that he expressed to defendant and he had explained restitution to her. She had never mentioned any issue to him regarding child custody. He believed the disposition of the case was reasonable and did not believe he had failed to advise her of anything material to her case. Accordingly, he did not believe there were grounds for a motion to withdraw the plea. Defendant then agreed she and the defense attorney had now had a full discussion about everything relevant to the case. The trial court denied defendant's Marsden motion, finding there were not grounds to relieve counsel and appoint new counsel. In accordance with the plea agreement, the trial court suspended imposition of sentence, granted defendant three years' probation, and imposed various fines and fees.
Defendant sought and obtained a certificate of probable cause.
DISCUSSION
I
Marsden Hearing
Defendant contends the trial court failed to adequately inquire into whether it should appoint substitute counsel to assist defendant in filing a motion to withdraw her plea and misconstrued the relevant law.
The trial court must hold a hearing on whether to appoint substitute counsel to investigate and present a motion to withdraw a plea "only when there is 'at least some clear indication by defendant,' either personally or through his [or her] current counsel, that defendant 'wants a substitute attorney.' " (People v. Sanchez (2011) 53 Cal.4th 80, 89-90.) A court need only treat a motion to withdraw a plea based on ineffective assistance as a motion to appoint substitute counsel if the defendant gives " 'some clear indication . . .' . . . that [he or she] 'wants a substitute attorney.' " (Id. at p. 84.) Defendant gave no such indication. At most, defendant expressed concerns about her representation and said she was unsure if she would seek new counsel. Thus, we agree with the People that defendant was not entitled to a Marsden hearing.
Even if we were to determine defendant was entitled to a Marsden hearing, there was no error in the conduct of this hearing. In a Marsden hearing, the trial court must allow the defendant to explain the basis of her or his complaint and relate specific instances of counsel's inadequate performance and allow counsel to respond accordingly. (People v. Abilez (2007) 41 Cal.4th 472, 487-488.) If the defendant presents facts that raise a question about counsel's effectiveness, the court must question counsel to ascertain the veracity of the claims made. (Id. at p. 488.) The court must also make a record to sufficiently show the nature of defendant's complaints and the court's response to them. (Ibid.) A defendant is entitled to different counsel if the record demonstrates appointed counsel is not providing adequate representation or defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. (Ibid.)
Here, the trial court conducted an adequate Marsden hearing. The trial court allowed defendant to express her concerns about entering the plea, including that she did not understand the extent of her restitution obligations and she and counsel had not had much opportunity to discuss the plea before she entered it. The trial court had counsel respond to defendant's claims, and counsel indicated he had explained restitution to her, and advised her of the material components of the plea. Defendant also informed the court that since entering the plea, she and defense counsel had had a full discussion about everything and she now understood. This record does not reflect either inadequate representation or an irreconcilable conflict between counsel and defendant. We conclude the hearing was adequate under Marsden.
II
Probation Conditions
Defendant claims errors with respect to a number of the probation conditions. She claims the probation order does not reflect the oral pronouncement of probation conditions 16 and 19; probation conditions requiring her to participate in counseling, mental health evaluation and recommended treatment, prohibiting her from having checking accounts or credit cards without prior authorization, and restricting her travel are unconstitutionally overbroad and vague; and the electronics search condition is unconstitutionally vague or overbroad.
Defendant was granted three years' probation on March 9, 2016. The probationary term has expired. Generally, the expiration or termination of probation renders an appeal challenging a condition of probation moot. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120, fn. 5; In re R.V. (2009) 171 Cal.App.4th 239, 245.) Where there is a matter of broad public interest that is likely to recur, or the same controversy is likely to recur between the parties, we may exercise our discretion to resolve the issue. (See, e.g., Carbajal, at p. 1120, fn. 5; R.V., at p. 245; see also In re Anna S. (2010) 180 Cal.App.4th 1489, 1498.) This is not such a case. Since defendant's probation has ended, we conclude the challenges to the probation conditions are moot.
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
BUTZ, Acting P. J. /s/_________
MAURO, J.