Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County. No. 09CM2950 Thomas DeSantos, Judge.
Robert L. S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Judge of the Tulare Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Salvador Garcia Reyes (appellant) was charged in counts 1 and 5 of rape (Pen. Code, § 261, subd. (a)(2)); in counts 2, 3, 4, 6, 7, 9, 11, and 12 of committing a forcible lewd act upon a child (§ 288, subd. (b)(1)); in counts 8 and 13 of continuous sexual abuse of a child (§ 288.5, subd. (a)); in count 10 of committing a lewd act upon a child (§ 288, subd. (a)); in counts 14 and 15 of rape of a spouse (§ 262, subd. (a)(2)); and in count 16 of forcible sodomy (§ 286, subd. (c)(2)). It was further alleged as to counts 1, 2, and 12 that appellant tied or bound his victim (§ 667.61, subd. (b); in counts 1 through 13 that the statute of limitations was extended (§ 803, subd. (f)(1)); and in counts 1 through 16 that appellant committed sex offenses against multiple victims (§ 667.61, subds. (b)-(e)(5)). The alleged victims of appellant’s acts were his two stepdaughters and his wife.
All further statutory references are to the Penal Code unless otherwise stated.
Counts 1 through 8 were alleged to have been committed between 1998 and 1999; counts 9 through 12 between 1999 and 2001; count 13 between 1999 and 2003; count 14 in July of 2004; and counts 15 and 16 in 2005.
As taken from the probation report as the facts are not at issue on appeal.
On January 7, 2010, pursuant to People v. West (1970) 3 Cal.3d 595, appellant pled no contest to counts 2, 11, and 14. In exchange, the trial court granted the prosecutor’s request to dismiss the remaining counts and allegations with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754.
On February 8, 2010, the trial court denied probation and sentenced appellant to state prison for an aggregate term of 24 years, consisting of three consecutive upper terms of eight years for each of the substantive offenses. Appellant was also ordered to pay the following fines and/or fees: a restitution fine of $10,000 pursuant to section 1202.4, subdivision (b); a stayed $10,000 parole revocation fine pursuant to section 1202.45; a $90 court security fee pursuant to section 1465.8; a $90 court facilities funding assessment pursuant to Government Code section 70373, subdivision (a)(1); a $300 fine pursuant to section 290.3; a $300 state penalty assessment pursuant to section 1464; a $60 surcharge pursuant to section 1465.7; a $210 county penalty assessment pursuant to Government Code section 76000; a $150 court construction penalty pursuant to Government Code section 70372; a $30 DNA funding penal assessment pursuant to Government Code section 76104.6; and a $30 DNA funding penal assessment pursuant to Government Code section 76104.7. Appellant was ordered to register as a sex offender (§ 290); submit to AIDS testing (§ 1202.1); and provide blood and saliva samples (§ 296, subd. (a)(1)). Thereafter, appellant filed a notice of appeal, but neither sought nor obtained a certificate of probable cause. (See § 1237.5.)
Appellant contends the trial court erred in refusing to hold a Marsden hearing following his request at sentencing, and that the trial court erred when it improperly imposed various fees and fines. We agree with his latter contention, but in all other respects affirm.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
DISCUSSION
1. Marsden hearing
Appellant contends the trial court erred when it refused to hold a Marsden hearing following his request for substitute counsel at sentencing. We disagree.
The record of the plea hearing shows defense counsel advised the court that the prosecutor had made an offer to appellant to plead to three sex crimes, one per victim, with a maximum term of 24 years, but that appellant had rejected the offer. Appellant agreed that he was rejecting the offer. When asked if defense counsel had gone over the “facts that the prosecution is going to bring forth at trial” with appellant, defense counsel stated that appellant had had the opportunity to view the interviews with the victims and that he and counsel had “discussed them fully.” Appellant agreed that he understood the evidence the prosecutor would be presenting. Appellant then asked what the offer consisted of and, after the court explained it, he asked for time to reconsider. Following a discussion with defense counsel, appellant then indicated he wished to accept the offer.
Defense counsel and the trial court discussed the fact that, as originally charged, appellant was facing indeterminate life terms. Counsel stated that the terms of the plea agreement were “definitely” in appellant’s best interests.
The record of the plea hearing then shows that appellant was advised of and waived his constitutional rights and was advised of and acknowledged that he understood the consequences of his plea, including the fact that he could receive a maximum aggregate state prison sentence of 24 years.
One month later, at sentencing, defense counsel stated that appellant waived formal arraignment for judgment and sentence and stated there was no legal cause why sentence should not be pronounced. The trial court then gave a tentative ruling indicating it was inclined to impose three consecutive upper terms, for a total of 24 years’ imprisonment. Defense counsel argued against imposition of the aggravated term as to all three counts and instead requested a total term of 17 years. The prosecutor argued that the upper consecutive terms were appropriate. The court then sentenced appellant to a term of 24 years and imposed various fines and fees and calculated appellant’s custody credits.
The trial court then asked both counsel if there was “[a]nything further, ” to which defense counsel replied that appellant would like to speak to the court. Appellant then addressed the court, stating:
“I do not plead guilty. I’d like to see if I can get another attorney. I’d like to fight this. I want to go all the way to the top because none of that is true. I was not given anything on the investigation. I was sent a paper from human resources telling me that they were going to keep the video and the investigation was going to continue because there was nothing.
“And another letter I was sent said that the case was going to be open for a year. I’m not going to plead guilty to something I did not do just because they say. I’d like to continue to fight this, and if you can’t, I’d like to get another attorney and start from the beginning. I was not helped at all.”
The trial court denied appellant’s request, stating:
“The Court will note for the record that it went into questions in detail before concerning this matter, concerning the assertions that [appellant] now makes, and found to its satisfaction that what he states here, the attorney was more credible. [¶] And actually even some of his statements previously made to the Court he indicated that he had received the documents and reviewed the tape and the like. [¶] … [¶] And the Court will state that as far as the claims made against the attorney, the Court has already made a finding when it had the hearing last time as to the documentation, and [appellant] knowingly, intelligently, and voluntarily [entered a] plea of no contest.”
Appellant protested that he was “not told how many years or anything, ” to which the trial court stated that it had reviewed the transcripts and believed that appellant was adequately advised. The hearing then concluded.
Appellant now contends that the trial court erred by not holding a Marsden hearing based on his complaints at the conclusion of the sentencing hearing. Respondent argues that appellant not only waived his right to appeal during his change of plea hearing but is also foreclosed from raising this issue on appeal because he failed to obtain a certificate of probable cause. As to the merits of appellant’s claim, respondent contends no error occurred, and if it did, any error was harmless. We decline to resolve the waiver and/or foreclosure issue because, even if we consider the issue on the merits, we find no prejudicial error.
It is well established that a defendant “may be entitled to an order substituting appointed counsel if he shows that, in its absence, his Sixth Amendment right to the assistance of counsel would be denied or substantially impaired.” (People v. Berryman (1993) 6 Cal.4th 1048, 1070, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Under Marsden, when a defendant seeks to substitute appointed counsel based on a claim of inadequate representation, the trial court must afford the defendant an opportunity to articulate the basis for the request and to relate specific instances of counsel’s deficient performance. (Marsden, supra, 2 Cal.3d at pp. 123-124.) A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that the defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation likely will result. (People v. Crandell (1988) 46 Cal.3d 833, 854, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365; Marsden, supra, at pp. 124-125.) The rule requiring a Marsden hearing applies equally posttrial. “[T]he trial court should appoint substitute counsel when a proper [Marsden] showing has been made at any stage” because “[a] defendant is entitled to competent representation at all times” during the proceedings. (People v. Smith (1993) 6 Cal.4th 684, 695.)
While the decision of whether to allow a defendant to substitute counsel rests within the sound discretion of the trial court, the court “cannot thoughtfully exercise its discretion in this matter without listening to [the defendant’s] reasons for requesting a change of attorneys. A trial judge is unable to intelligently deal with a defendant’s request for substitution of attorneys unless [the judge] is cognizable of the grounds which prompted the request.” (Marsden, supra, 2 Cal.3d at p. 123.) The denial of a Marsden motion without careful inquiry into the defendant’s reasons for requesting substitute counsel does not qualify as an informed judicial determination. (Id. at p. 124; People v. Ivans (1992) 2 Cal.App.4th 1654, 1666.)
Generally, the standard of review on appeal of a denial of a Marsden motion is abuse of discretion. (People v. Barnett (1998) 17 Cal.4th 1044, 1085, citing People v. Berryman, supra, 6 Cal.4th at p. 1070.) “An abuse of discretion occurs where the court’s decision exceeds the bounds of law or reason.” (People v. Bell (1998) 61 Cal.App.4th 282, 287.) Although a trial court may abuse its discretion in ruling upon a motion for newly appointed counsel without first hearing the defendant’s reasons for the motion (Marsden, supra, 2 Cal.3d at p. 124), a denial of such motion does not require reversal if the record shows that the error was harmless beyond a reasonable doubt. (People v. Chavez (1980) 26 Cal.3d 334, 348-349.)
Here, while appellant did request substitute counsel and no formal Marsden hearing occurred, he had expressed no displeasure with his attorney throughout the plea hearing and subsequent sentencing until moments before he was remanded to the Department of Corrections and Rehabilitation. Appellant chose not to say anything until after (1) he pled guilty, (2) the court announced its intent to impose a 24-year sentence, (3) counsel argued for a lesser sentence, and (4) the court sentenced him in accordance with its tentative. Only then did appellant claim he did not wish to plead guilty and wished instead to “fight this, ” claiming he was not given evidence to prove he committed the crimes. He wanted to “start from the beginning” with another attorney because he was not “helped at all.” While the trial court did not ask for counsel’s response, the court did state on the record that it had questioned appellant “in detail” at the plea hearing concerning his plea and his knowledge of what the evidence was against him, and that appellant had made a knowing, intelligent, and voluntary plea.
A trial court always retains discretion to deny a Marsden motion as untimely. (People v. Whitt (1990) 51 Cal.3d 620, 659; People v. Jackson (1981) 121 Cal.App.3d 862, 872.) Under the circumstances, denial of this motion as untimely would have been well within the trial court’s discretion.
Even if the trial court should have conducted a Marsden hearing, we would not find that such a failure here compels remand to hold such a hearing. In Marsden, the Supreme Court reversed the defendant’s conviction because it determined it could not find beyond a reasonable doubt that the failure to hold a hearing did not contribute to the conviction. (Marsden, supra, 2 Cal.3d at p. 126; People v. Chavez, supra, 26 Cal.3d at pp. 348-349.) Here, appellant has made no showing that a Marsden motion would have been granted had it been heard, or that a more favorable result (i.e., a lesser sentence) would have been obtained had the motion in fact been granted. (See People v. Washington (1994) 27 Cal.App.4th 940, 944.)
In short, the record does not demonstrate an abuse of discretion. The trial court observed the performance of defense counsel throughout the proceedings and, based on appellant’s complaints about counsel, it was able to determine whether further inquiry was necessary. Nothing presented to the trial court supports a finding that there was a problem with representation such that it substantially impaired appellant’s right to effective counsel.
2. Imposition of fines and fees
At sentencing, the trial court imposed a $300 fine pursuant to section 290.3, subdivision (a) “to the case itself, and if not it shall be as to Count 2.” Appellant contends, and respondent concedes, that the amount of the fine violated constitutional proscriptions against ex post facto application of laws. We agree.
Section 290.3, subdivision (a) provides that a defendant must pay specified fines for violating offenses listed in section 290 (sexual offender registration). Forcible lewd act on a child is a crime listed in section 290. (§ 290, subd. (c).)
In 1998 and 1999, when appellant committed the offenses underlying his current convictions in count 2, the fines were $200 for a first conviction and $300 for each subsequent conviction. Section 290.3 was amended in 2006 to raise the fines to $300 for a first offense and $500 for each subsequent offense. (Stats. 2006, ch. 337, § 18, eff. Sept. 20, 2006.)
Under ex post facto principles, the amount of a fine is determined as of the date of the offense. (See People v. Saelee (1995) 35 Cal.App.4th 27, 30.) In this case, the trial court erred in imposing a $300 fine; it must be reduced to $200 in accordance with the provisions of section 290.3 in effect at the time appellant committed the offense, and the corresponding penalties and surcharges attributable thereto (§ 1464; Gov. Code, § 76000) recalculated and recited. (See People v. High (2004) 119 Cal.App.4th 1192, 1200.)
Respondent argues further that, when the case is remanded to the trial court, it must reconsider whether to impose a $300 section 290.3 fine to appellant’s conviction in count 11, a lewd act on a child, as well. Section 290.3, at the time of the offense, provided for a fine of $300 for each subsequent conviction “unless the court determines that the defendant does not have the ability to pay the fine.” (§ 290.3, subd. (a).) But as noted by appellant in his reply brief, the failure of the trial court to impose a fine for the second conviction did not result in an unauthorized sentence, and, absent a prosecutor’s objection, this court presumes that the trial court made the requisite implied findings of ability or inability to pay. (People v. Walz (2008) 160 Cal.App.4th 1364, 1371.) Accordingly, we must presume that the trial court determined that appellant does not have the ability to pay the additional $300 fines. This conclusion is bolstered by the trial court’s statement at sentencing that it was attaching the fine “to the case itself, and if not it shall be as to Count 2.” On remand, the trial court shall not impose any fines for the second conviction pursuant to section 290.3. (See People v. Hanson (2000) 23 Cal.4th 355, 363 [imposition of increased fines after appeal violates double jeopardy].)
Appellant also argues that various additional fines imposed violate ex post facto principles. Specifically, the surcharge under section 1465.7 became effective in 2002; the construction penalty under Government Code section 70372 became effective in 2003; the DNA penalty assessment under Government Code section 76104.6 became effective in 2004; and the DNA penalty assessment under Government Code section 76104.7 became effective in 2006, all of which postdate appellant’s criminal conduct in count 2. Appellant contends, and respondent concedes, that the fines imposed pursuant to these statutes must be stricken. We agree. (See People v. High, supra, 119 Cal.App.4th at pp. 1198-1199; People v. Batman (2008) 159 Cal.App.4th 587, 590-591.)
One final note: The current abstract of judgment erroneously does not list all fines and fees. (People v. Hong (1998) 64 Cal.App.4th 1071, 1080; People v. Sanchez (1998) 64 Cal.App.4th 1329, 1331-1332.) The abstract of judgment form used here, Judicial Council form CR 290 (rev. July 1, 2009) provides a section for “[o]ther orders” in addition to those delineated with statutory references on the preprinted form. If the abstract does not specify the amount of each fine, the Department of Corrections and Rehabilitation cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency. (People v. Hong, supra, at pp. 1078-1079.) At a minimum, the inclusion of all fines and fees in the abstract may assist state and local agencies in their collection efforts. (§ 1205, subd. (c).) Thus, on remand, the trial court shall reduce, recalculate and strike the fines and fees in accordance with this opinion and order an amended abstract to reflect these changes.
DISPOSITION
The judgment is modified to reduce the fine imposed pursuant to section 290.3 to $200. The trial court shall recalculate the corresponding penalties and surcharges. The trial court shall also strike the fines imposed pursuant to section 1465.7 and Government Code sections 70372, 76104.6 and 76104.7. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment accordingly and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
WE CONCUR: HILL, P.J., DETJEN, J.