Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05-060384-5
Lambden, J.
Following a hearing where the trial court denied defendant’s motion to suppress the evidence (Pen. Code, § 1538.5), defendant pleaded no contest to possessing cocaine base for sale (Health & Saf. Code, § 11351.5). Defendant appeals and contends that the lower court erred in denying his motion to suppress the evidence. Additionally, he claims that the court breached his plea bargain agreement when it did not announce in open court that it was dismissing count 2 and all of the enhancement allegations. He also asserts that the matter should be remanded for resentencing or he should be able to withdraw his plea because, after he plead no contest to count 1, the court announced its ruling on defendant’s motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) in the presence of the prosecution. We are unpersuaded by defendant’s arguments and affirm the judgment.
All unspecified code sections refer to the Penal Code.
BACKGROUND
On March 20, 2006, an information charged defendant with count 1, possession of cocaine base for sale (Health & Saf. Code, § 11351.5), and with count 2, transporting cocaine base (id., § 11352, subd. (a)). Each count alleged that defendant was ineligible for probation (§ 1203.07, subd. (a)(11)) and enhancements based on prior felony convictions for possessing cocaine base for sale (Health & Saf. Code, § 11370.2) and a prior prison term (§ 667.5, subd. (b)). Defendant pleaded not guilty.
Defendant moved to suppress the evidence (§ 1538.5). On August 31, 2006, at the hearing on defendant’s motion to suppress the evidence, defendant told the court that he wanted new counsel. The court held a Marsden hearing (Marsden, supra, 2 Cal.3d 118) outside the presence of the prosecution. The court denied defendant’s request for new counsel.
Sergeant Charles Whitney and Officer John Lopez testified at the hearing on the motion to suppress the evidence. Whitney stated that on January 14, 2006, at about 10:30 p.m., he was on duty with Officers Canelo and Lopez. Over defendant’s objection, he stated that they were in an area of Richmond that was a high-crime area.
The trial court stated that it would allow questions about the crime in the area “subject to motion to strike.”
Whitney spotted a gold Buick that “appeared to be driving at a high rate of speed[,]” although he could not provide “a good estimation” of the car’s speed. He observed the car abruptly slow down and turn into a parking lot of a liquor store. He described the turn as follows: “[The car] stopped abruptly started the turn and then the back end of the vehicle started to fishtail.” Once the car entered the parking lot, he saw “it bottomed out and then went up in the air and came back down and then continued through the parking lot and stopped in front of the liquor store.” He admitted that scraping the front end of the car on the road was not a Vehicle Code violation. He believed, however, that defendant had violated the Vehicle Code by driving at an unsafe speed for the conditions.
The officers drove into the parking lot and parked adjacent to the Buick. Lopez testified that he had not noticed defendant’s car prior to entering the parking lot but, once the officers were parked next to defendant’s car, he noticed defendant’s car did not have a front license plate on it. He stated that it is a Vehicle Code violation not to have a license plate on the car.
Lopez testified that as the officers left their vehicle, Canelo turned the switch to activate the red light. Lopez, who was wearing his black utility uniform with his police badge, told defendant to get back into the car. Defendant responded by saying, “What’s up” or “What?” Defendant than started to run eastbound through the parking lot. He slipped in a mud puddle and fell to the ground. The officers caught up to him, put handcuffs on him, and placed him under arrest. Lopez stated that he had arrested defendant for running after he had made a vehicle stop and evading the police.
Lopez asked defendant why he ran, and defendant responded that he was on parole and he provided the officers with his parole number. After Lopez determined defendant was on parole, he searched defendant. He found a plastic bag containing 20 individually packaged pieces of suspected cocaine base. He also found “a lot of cash in his pocket.”
The trial court found Lopez’s testimony “credible” and ruled that either defendant’s car did not have a front license plate or Lopez believed there was no front license plate. The court stated that, once there was no front license plate, there was a reason to detain defendant and to tell him to get back in the vehicle so the officers could write a ticket. When defendant ran, he was disobeying the police officer. Once the officers learned that defendant was on parole, the search was legitimate both as incident to arrest and based on the conditions of parole where he would have no reasonable expectation of privacy.
On September 20, 2006, the court held a second Marsden hearing outside the prosecutor’s presence. Following that hearing, on September 29, 2006, defendant entered a plea of no contest to count 1, possessing cocaine base for sale (Health & Saf. Code, § 11351.5). The court honored the prior judge’s promise that in exchange for defendant’s plea defendant would receive a sentence of four years.
Defendant filed a timely notice of appeal.
DISCUSSION
I. Denying Defendant’s Motion to Suppress
Defendant maintains that the trial court erred in denying his motion to suppress evidence pursuant to section 1538.5, because he was illegally detained and arrested prior to the officers becoming aware that he was on parole. He maintains that neither reasonable suspicion existed to detain him nor probable cause to arrest him. He contends that the lack of a front license plate did not provide reasonable suspicion for a detention. For the reasons set forth below we conclude that the lower court did not err in denying defendant’s motion to suppress.
A. Standard of Review
“ ‘ “An appellate court’s review of a trial court’s ruling on a motion to suppress is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] . . . ‘The [trial] court’s resolution of each of these inquiries is, of course, subject to appellate review.’ [Citations.] [¶] The court’s resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, . . . is also subject to independent review.” ’ ” (People v. Ayala (2000) 23 Cal.4th 225, 255.)
B. The Law on Detention
The Fourth Amendment protects against unreasonable searches and seizures. (U.S. Const., 4th Amend.) A police officer may detain a person if the officer has a reasonable articulable suspicion that the detainee is or is about to be engaged in criminal activity. (Terry v. Ohio (1968) 392 U.S. 1, 21.) To satisfy this requirement, the police officer must “point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231.) The officer’s suspicion must also be objectively reasonable; the facts must be such that any reasonable officer in the detaining officer’s position would suspect the same criminal activity and the same involvement by the person in question. (People v. Aldridge (1984) 35 Cal.3d 473, 478.) If the officer has such an objectively reasonable suspicion, a defendant’s motion to suppress evidence seized in a search incident to the detention is properly denied. (People v. Daugherty (1996) 50 Cal.App.4th 275, 288-289.) An investigative stop or detention is held unlawful if it is predicated on circumstances which, when viewed objectively, support a mere curiosity, rumor or hunch, even though the officer may be acting in good faith. (People v. Conway (1994) 25 Cal.App.4th 385, 389.)
C. The Initial Detention in the Present Case
Defendant contends that the record does not support the lower court’s finding that the officers had reasonable suspicion to detain him under the totality of the circumstances. “Under the cases, an officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law.” (People v. Wells (2006) 38 Cal.4th 1078, 1082-1083.)
Here, the trial court found that the officers had an objectively reasonable suspicion that defendant had committed a traffic violation by not having a license plate on the front of his car. Whitney testified that he became interested in defendant’s vehicle because of the speed it was traveling and the unsafe turn. Lopez, however, testified that he did not really notice the car until they parked next to it in the parking lot; at that point, he noticed that it was missing its license plate. Once he noticed the missing plate, he told defendant to return to his car.
The People also argue that the officers had reasonable suspicion of a Vehicle Code violation based on the speed the car was traveling and the unsafe turn into the parking lot. The lower court did not find the record supported reasonable suspicion on these grounds and Lopez testified that he did not notice the car until it was in the parking lot. Since Lopez is the officer who ordered defendant back into his car and he had not observed the alleged speeding or alleged unsafe turn, we agree with the trial court that the record does not support a detention on these grounds.
Vehicle Code section 5200 provides: “(a) When two license plates are issued by the department for use upon a vehicle, they shall be attached to the vehicle for which they were issued, one in the front and the other in the rear. [¶] (b) When only one license plate is issued for use upon a vehicle, it shall be attached to the rear thereof, unless the license plate is issued for use upon a truck tractor, in which case the license plate shall be displayed in accordance with Section 4850.5.” Vehicle Code section 5201 requires the front license to be “mounted not more than 60 inches from the ground” unless specific exceptions apply.
“[W]hen there is articulable and reasonable suspicion that a motorist is unlicensed, that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, the vehicle may be stopped and the driver detained in order to check his or her driver’s license and the vehicle’s registration. (People v. Saunders (2006) 38 Cal.4th 1129, 1135 (Saunders).) In Saunders, the officer noticed that the truck was missing the front license plate, and the court pointed out that “the lack of a front license plate has long been recognized as a legitimate basis for a traffic stop.” (Id. at p. 1136.)
In the present case, defendant argues that no evidence was produced that he was required to have two license plates and therefore the prosecution did not prove that he actually violated any Vehicle Code. This argument was presented and rejected in Saunders, supra, 38 Cal.4th 1129. The Supreme Court explained: “[D]efendant offers no reason why [his] vehicle, a seemingly ordinary pickup truck, would have been issued only one license plate [citation] . . . . More importantly, defendant fails to explain why an officer observing the pickup truck with a missing front license plate would have had no basis for believing two plates had been issued.” (Id. at p. 1136.)
The issue is not, as defendant argues, whether defendant actually violated the Vehicle Code but whether Lopez had a reasonable basis for stopping him because he believed his vehicle should have had two license plates. Defendant presented no evidence that there was anything about his vehicle that would have alerted the officer that the vehicle only needed one license plate. In his reply brief, defendant mentions the Saunders opinion for the first time and attempts to distinguish it by arguing that the officers in Saunders also observed expired tags and therefore they must have looked at the rear of the vehicle and become aware that the pickup was a California vehicle. The Saunders court does not state that the officer knew or had to know that the car is a California vehicle. Rather, the Saunders court expressly states that “the lack of a front license plate has long been recognized as a legitimate basis for a traffic stop.” (Saunders, supra, 38 Cal.4th at p. 1136.)
Defendant also argues that the prosecution did not prove that defendant was required to comply with California’s licensing laws. He points out that some states, such as Arizona, only require a rear plate. (See People v. White (2003) 107 Cal.App.4th 636, 643, fn. 9.) In White, the court concluded the detention of defendant was illegal. (Id. at p. 643.) The officer had observed the car had only one Arizona license plate and erroneously believed that Arizona law required two license plates. (Ibid.) The court held that it was immaterial that the officer’s mistake of law may have been made in good faith. (Id. at p. 644.) In the present case, Lopez was not operating out of any mistake of law. The record contains no evidence that the license plate on defendant’s car was of another state that only required one plate. As already emphasized, there was no evidence to put the officer on notice that defendant was not required to have two license plates. Accordingly, when Lopez asked defendant to remain in his car, he had an objectively reasonable belief a violation of Vehicle Code section 5200 was possible.
Under Saunders, supra, 38 Cal.4th at page 1136, the lack of a front license plate provided Lopez with authority to stop defendant, the driver of the vehicle. Lopez testified that he observed that defendant’s vehicle was missing a front license plate and the trial court indicated that it believed his testimony. No evidence was presented that the vehicle had two license plates.
Additionally, Lopez testified that, as the officers left their vehicle, Canelo turned the switch to activate the red light of the officers’ car. Lopez, who was wearing his black utility uniform with his police badge, told defendant to get back into the car. Defendant maintains that it was reasonable for him to flee because the officers’ presence could indicate other criminal activity was occurring and he should get away as fast as possible. Further, he asserts this response was especially reasonable given that there was no mention of the missing license plate.
Lopez may not have said anything about the license plate to defendant, but he told defendant to return to the car. Moreover, according to Lopez, the officers’ vehicle had parked next to defendant’s car and the red light was shining. Thus, the court could infer from these facts that defendant saw the officer in a uniform, observed the officers’ vehicle with the red light illuminated parked next to his car, and heard the officer order him back into the car. The trial court could therefore conclude that a reasonable person would know the officers were attempting to make a traffic stop and that this encounter was not consensual. (See, e.g., Terry v. Ohio, supra, 392 U.S. at p. 19, fn. 16.)
Accordingly, we conclude the record supported the trial court’ finding that the officers had sufficient suspicion defendant had violated the Vehicle Code and that the officers were legally attempting to detain defendant.
D. Probable Cause for Arresting Defendant
When ordered back into the car, defendant fled. He fell and the officers were able to reach him and, at that point, arrested him. Defendant contends the officers did not have probable cause to arrest him.
“Every person who willfully resists, delays, or obstructs any . . . peace officer . . . in the discharge or attempt to discharge any duty of his or her office or employment” is guilty of violating section 148, subdivision (a)(1).) Section 836, subdivision (a)(1) provides that an officer may arrest an individual without a warrant when the officer “has probable cause to believe that the person to be arrested has committed a public offense in the officer’s presence.” “The existence of probable cause depends upon facts known by the arresting officer at the time of the arrest. [Citations.] ‘Probable cause for an arrest is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused. [Citations.] Probable cause may exist even though there may be some room of doubt. . . . The test in such a case is not whether the evidence upon which the officer made the arrest is sufficient to convict but only whether the prisoner should stand trial.’ ” (Hamilton v. City of San Diego (1990) 217 Cal.App.3d 838, 844.)
As the United States Supreme Court reaffirmed, “[T]he standard of probable cause ‘applie[s] to all arrests, without the need to “balance” the interests and circumstances involved in particular situations.’ [Citation.] If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” (Atwater v. Lago Vista (2001) 532 U.S. 318, 354.)
Here, defendant ran from the officers after being ordered to return to his car. Once defendant ignored Lopez’s attempt to make a traffic stop and defied Lopez’s command to return to his car, there was probable cause to arrest defendant for violating section 148. Probable cause for violating section 148 arises when the defendant “affirmatively respond[s] to the police officers with defiance.” (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1330 [“a reasonable inference could be drawn that [the defendant] willfully delayed the officers’ performance of duties by refusing the officers’ repeated requests that he step away from the patrol car”].)
Defendant contends that his flight was reasonable in light of the fact that the officers were shouting at him. He maintains that he presumed the officers were there in response to other criminal activity and he was merely attempting to avoid that other criminal activity. However, as discussed above, facts in the record supported the lower court’s conclusion that a reasonable person would believe that he was being detained by the officers; it was therefore not reasonable for defendant to run away and he was acting in defiance when he ran from the car after being instructed to return to the car. It is well established that fleeing from a proper investigatory detention by a police officer constitutes a violation of section 148. (See, e.g., In re Michael V. (1974) 10 Cal.3d 676, 680-681; People v. Lloyd (1989) 216 Cal.App.3d 1425, 1429; People v. Allen (1980) 109 Cal.App.3d 981, 987.) The trial court reasonably concluded that the officers had probable cause to arrest defendant as defendant’s conduct constituted an act of “willfully delay[ing]” (In re Muhammed C., supra, 95 Cal.App.4th at p. 1330) the officers in the discharge of their duties, within the meaning of section 148.
Once the officers arrested defendant, Lopez asked defendant why he ran and he said that he was on parole. Lopez confirmed that defendant was on parole and then searched him and found the drugs. Thus, the officers could legally search defendant as incident to arrest (see, e.g., Chimel v. California (1969) 395 U.S. 752, 763) and pursuant to his status as a parolee (Griffin v. Wisconsin (1987) 483 U.S. 868, 873-874; People v. Reyes (1998) 19 Cal.4th 743, 751; People v. Middleton (2005) 131 Cal.App.4th 732, 739 [“ ‘every grant of parole include[s] an implied search condition, and an officer’s knowledge of parole status [is] equivalent to knowledge of a parole search condition’ ”]).
Accordingly, we conclude that the officers chased defendant and caught him after he had defied Lopez’s attempt to detain him pursuant to a traffic stop and the officers had probable cause to arrest him for violating section 148, subdivision (a)(1). Defendant told the officers that he was on parole and the officers conducted a legal search incident to defendant’s arrest as well as on the basis of his parole status.
II. Denial of Objection to Testimony Regarding Crime in the Neighborhood
Defendant objected to Whitney’s testimony that the area where defendant was arrested was a high-crime area and that he had previously arrested people for drug sales, drug paraphernalia, and weapon violations in this area. The court responded that it would permit the evidence subject to a motion to strike. Defendant never moved to strike the testimony, but he now claims the court abused its discretion in admitting this evidence because it was not relevant.
The People maintain that defendant has forfeited any objection to the evidence because he never moved to strike. Additionally, the People assert that defendant’s objection at trial was that this evidence was irrelevant to the search. On appeal, the People maintain that he is arguing the evidence is irrelevant to the seizure, which is an issue not raised in the lower court. Even if we presume that defendant has preserved this issue for appeal, we conclude that this challenge fails on its merits.
We apply the abuse of discretion standard when reviewing any trial court’s ruling on the admissibility of the evidence. (People v. Cox (2003) 30 Cal.4th 916, 955.) Under this standard of review, “ ‘as long as there exists a reasonable or even fairly debatable justification, under the law, for the action taken, such action will not be here set aside.’ ” (People v. Clark (1992) 3 Cal.4th 41, 111.) Moreover, defendant must establish it is reasonably probable that the court would have granted his motion to suppress had this testimony been excluded. (People v. Watson (1956) 46 Cal.2d 818, 837.)
Defendant claims that Whitney’s testimony was irrelevant and the prosecution was attempting to justify the search based on the type of neighborhood. The trial court, however, did not make its finding based on the argument that defendant’s unprovoked flight in a high-crime area justified a detention. Further, defendant completely fails to provide any evidence establishing prejudice. He merely asserts in a conclusory fashion that admitting the evidence was not harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
We note that “[a]n area’s reputation for criminal activity is an appropriate consideration in assessing whether an investigative detention is reasonable under the Fourth Amendment.” (People v. Souza, supra, 9 Cal.4th at p. 240.)
Defendant has not shown that any federal constitutional error was involved to require the higher standard of harmless beyond a reasonable doubt. In any event, even under this higher standard, defendant’s assertion of error fails. If the evidence regarding the crime in the neighborhood is completely irrelevant as defendant asserts, admission of the evidence could not have been prejudicial. Indeed, this is the case. The evidence regarding crime in the neighborhood had no relevance to Lopez’s observation that defendant’s vehicle was missing its license plate. It also had no relevance to the officers’ arresting defendant after he fled in defiance of Lopez’s order that he return to his car. Thus, any error in admitting testimony regarding crime in the neighborhood was harmless even under the more stringent standard of Chapman v. California, supra, 386 U.S. at page 24. If this testimony had not been admitted, it is beyond a reasonable doubt that the court still would have denied defendant’s motion to suppress.
III. Resentencing
The abstract of judgment in this case provides that defendant was convicted of possessing cocaine for sale (Health & Saf. Code, § 11351.5) pursuant to a plea. The judgment does not indicate that defendant was convicted of any other enhancements. Similarly, the minute order states that defendant had changed his plea and pleaded no contest to possessing cocaine base for sale (Health & Saf. Code, § 11351.5). The minute order states that “[t]he remainder of the Information is dismissed on the motion of the People.”
Defendant contends that the trial court did not dismiss count 2 or the enhancement allegations associated with count 1 in open court, which deprived him of the benefit of his plea agreement. He argues that the court’s failure to do this entitles him to a new sentencing hearing or to the opportunity to withdraw his plea.
“A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.] ‘The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. (Civ. Code, § 1636.) If contractual language is clear and explicit, it governs. (Civ. Code, § 1638.)’ ” (People v. Shelton (2006) 37 Cal.4th 759, 767 (Shelton).)
In the present case, the plea form stated that defendant’s sentence would be four years. Further, paragraph No. 9 states the following: “I understand that the legal maximum state prison sentence for the charge(s) to which I am pleading guilty/no contest, including all sentence enhancements, is 13 years and 0 months, and that the maximum fine for the charge(s) is $10,000 per charge.” The plea form further stated at paragraph No. 29 the following: “Except for what is promised to me in open court ON THE RECORD I have not been promised or offered anything by anyone (including my attorney) that causes me to enter a guilty/no contest plea.” Finally, at paragraph No. 34, defendant indicated that he was pleading no contest to a violation of Health and Safety Code section 11351.5. Defendant’s attorney signed the form, and defendant’s name is printed above the signature line. In court, defendant stated that this reflected his signature on the plea form. Defendant also stated that he read and understood the paragraphs in the plea form.
In open court, the court stated twice that it was prepared to honor the master calendar judge’s “indicated disposition” by sentencing defendant to four years. No other conditions were stated. As already noted, defendant acknowledged in court that he had read, understood, and signed the plea form. Defendant stated that he was pleading no contest to count 1, violating Health and Safety Code section 11351.5. The court then told him that he would receive a sentence of the “midterm of four years in state prison.”
The court proceeded to discuss what was to be dismissed. The court asked: “[T]he People, I understand, in light of the sentencing I’ve imposed in this matter, are prepared to dismiss each and all of the probation ineligibility and charged enhancement and other enhancement allegations set forth in the Information; is that correct?” The prosecutor responded, “Yes, in Count Two.” The court granted the People’s motion.
Defendant complains that the court did not dismiss count 2 in open court and it did not make him plead to the special allegations associated with count 1 before dismissing them in open court. He asserts that he is entitled to have count 2 and the special allegations associated with count 1 dismissed in a new sentencing hearing or he must be given the opportunity to withdraw his plea. There is no reason to require the trial court to hold another sentencing hearing because the judgment makes it clear that defendant was convicted of count 1 and the judgment indicates that he was not convicted of any special allegations. Thus, the court did not impose a punishment significantly greater than what was agreed upon and there is no basis to require the court to hold another hearing or to permit defendant to withdraw his plea.
IV. Announcing its Ruling on the Marsden Motion in Open Court
Defendant made a Marsden motion for the second time on September 20, 2006. A little more than one week later, on September 29, 2006, defendant changed his plea and pled no contest to possession of cocaine base for sale.
After the trial court had questioned defendant about his understanding and signing of the plea form and had dismissed the charges and allegations, the court commented on defendant’s Marsden motion in open court. The following exchange occurred: “The Court: [¶] . . . [¶] I should add for the record, going back to the Marsden motion in this matter, I do want to note for the record the basis of my decision, I did not feel
“[The prosecutor]: Judge, I just want to remind you I am in the room.
“The Court: That’s fine. This doesn’t require any disclosure of confidence of strategies in that matter. [¶] I just want to state for the record that I followed such cases in making my decision as People v. Silva [(1988)] 45 Cal.3d 604, where the court held that the fact that a defendant does not think that counsel has the best interest of the client at heart is insufficient grounds to grant such a motion. [¶] Also, I followed the decision of cases such as People v. Berryman [(1993)]6 Cal.4th 1048, where the court found that it’s not sufficient grounds for a Marsden motion simply that defendant does not relate well with his counsel. [¶] And I also, along those lines, that is to say along the lines of [the] People v. Berryman case, also that it’s not sufficient for a defendant to say that I do not trust the attorney and therefore would not discuss the case fully with counsel.
“All those were without moral––were properly rejected in the cases that I’ve cited, and I think they have to be properly rejected in this case. The ultimate decision the court has to reach in this matter is whether counsel is providing adequate representation, or if they have such an irreconcilable conflict in their relationship that ineffective representation is likely to result. I don’t believe that that has been shown in this matter by the defendant. I don’t believe he’s shown that inadequate––that there’s inadequate representation, nor do I believe that he’s shown that there exists the kind of irreconcilable conflict that his attorney would not effectively represent him, at least if he’s willing to cooperate with her. [¶] So for all these reasons, and others besides, I have denied the Marsden motion in this matter.”
Defendant concedes that the court’s announcement regarding defendant’s Marsden motion was “gratuitous,” because defendant had already entered a plea and the court had already sentenced him. Still, he complains that the court violated his rights under the Sixth Amendment to counsel and California Rules of Court, rule 8.328(b)(1). He maintains that the defendant’s right to confidentiality regarding his Marsden motion extends beyond the taking of his plea.
California Rules of Court, rule 8.328(b)(1) provides in relevant part: “(1) The reporter’s transcript of any hearing held under . . . Marsden[, supra, ] 2 Cal.3d 118 must be kept confidential. . . .”
The Third District has explained when the prosecutor should be excluded from a hearing on the Marsden motion: “ ‘[T]he better practice is to exclude the district attorney when a timely request is made to do so by the defendant or his counsel. In the absence of a request, the trial court should exclude the district attorney whenever information would be presented during the hearing to which the district attorney is not entitled, or which could conceivably lighten the prosecution’s burden of proving its case.’ ” (King v. Superior Court (2003) 107 Cal.App.4th 929, 947.)
In the present case, defendant never objected to the prosecutor’s presence. More significantly, even if the court should have excluded the prosecutor prior to explaining its ruling on defendant’s Marsden motion, defendant cannot establish any prejudice under either the harmless or beyond a reasonable doubt standard. The trial court’s ruling came after defendant had pleaded no contest to count 1 and after the court had pronounced it would sentence him to four years. Defendant has completely failed to establish that the court’s statements had any prejudicial effect on him and therefore any error the court committed in announcing its ruling was harmless under any standard.
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Richman, J.