Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F09904898 Denise L. Whitehead, Judge.
Richard Power, 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 Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Kane, J. and Poochigian, J.
Pursuant to a plea agreement, defendant Noel Richard Salazar pled no contest to false imprisonment by violence, assault with a deadly weapon, second degree robbery, and dissuading a witness by force or threat. On appeal, he contends the trial court abused its discretion and violated due process by denying his motion to withdraw his plea, which was based on ineffective assistance of counsel. Defendant explains that his plea was not made intelligently because defense counsel misadvised him on the strength of the prosecution’s case and the probable consequences of going to trial. The People respond that defendant’s Marsden hearing established he was represented by competent and effective counsel when he entered into the plea and thus there was no legal basis for withdrawing his plea. We will affirm.
People v.Marsden (1970) 2 Cal.3d 118.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the probation report.
On August 18, 2009, police responded to a report that a naked woman (the victim) was running through a residential backyard. When officers contacted the victim, she had a deep laceration above her eye, blood on her face and body, a swollen cheek, missing teeth, and multiple lacerations across her arms and legs. She appeared to have been beaten. She was despondent, terrified, and hesitant to talk to the officers. She eventually said Bulldog gang members were going to kill her and her family. She was afraid of retaliation. She described defendant as the person who beat her, and she identified him by name.
She had been hiding from defendant in an abandoned house. He found her and threatened to kill her. He told her she was his property. He said he was going to “beat the fuck out of [her].” He ripped off her clothes and assaulted her repeatedly for over an hour, even as she lay naked in her own blood. He kicked her in the vagina and poked her body with a knife and screwdriver. He told her he should just kill her. One of defendant’s cohorts (codefendant) looked through the victim’s purse and took two cell phones from it. Defendant told the victim she had an hour and a half to get back to Glenn Street (defendant’s territory) or he would kill her. When she tried to leave, he charged at her and beat her again. She finally escaped and ran, screaming for help.
When apprehended, defendant said he had had a relationship with the victim in the past. He admitted hitting her once in the face and kicking her in the “‘asshole.’” He eventually admitted taking her property and tearing her clothes, but he denied striking her with a pole. Codefendant admitted watching defendant beat the victim. Codefendant admitted taking the cell phones from the victim’s purse, but denied any involvement in the beating, which defendant committed unaided.
On September 14, 2009, defendant was charged with torture (Pen. Code, § 206; count 1), false imprisonment by violence (§ 236; count 2), assault with a deadly weapon (§ 245, subd. (a)(1); count 3), second degree robbery (§ 211; count 4), criminal threats (§ 422; count 5), and dissuading a witness by force or threat (§ 136.1, subd. (c)(1); count 6). The information further alleged that defendant had served four prior prison terms (§ 667.5, subd. (b)).
All statutory references are to the Penal Code unless otherwise noted.
On September 21, 2009, defendant pled not guilty to all charges and the matter was set for trial.
On October 16, 2009, defendant filed a Marsden motion, which the court set for hearing.
On October 20, 2009, defendant withdrew his request for a Marsden hearing and stated his desire to change his plea and accept the district attorney’s plea offer. On October 22, 2009, according to the plea agreement, defendant withdrew his not guilty plea, entered a no contest plea to counts 2, 3, 4, and 6, and admitted a great bodily injury enhancement and three prison priors. Counts 1 and 5 were dismissed. The agreement was for a stipulated sentence of 13 years eight months. On a plea form, defendant initialed the constitutional trial rights he was waiving and the terms of the plea. The form also informed him that any future felony convictions would qualify him for 25 years to life under the Three Strikes law. The trial court recited the charges, then said: “for a total term of 13 years, eight months, and also waiving appellate rights. Is that the offer of the People?” The prosecutor answered affirmatively. The court asked, “And is that your understanding of the plea agreement, [defendant]?” Defendant answered affirmatively. The court then discussed each individual right defendant would be waiving by accepting the plea, and asked if he understood. Defendant either responded that he did understand, or he stopped the court and asked for clarification. The court then took defendant’s plea.
On November 25, 2009, defendant admitted to the probation officer that he went over to the house where the victim was hiding and slapped and kicked her, but he did not torture her. He said she got her injuries from climbing the fence. He denied having a knife or stabbing the victim. He said he was forced to accept the plea because codefendant had accepted a plea first. Defendant said he should not get 13 years for something he did not do. He thought two years was more appropriate. He insisted he was not the monster he was made out to be.
On December 7, 2009, at the sentencing hearing, defense counsel informed the court that defendant wanted to file a motion to withdraw his plea and was requesting a Marsden hearing. The next day at the Marsden hearing, the court asked defendant why he believed he should have a different attorney. Defendant explained that defense counsel had not visited him enough, had not done what he told her to do, and had convinced him to accept the plea. He said he talked to other inmates and started to think that agreeing to 13 years eight months “with no appeal action” did not make any sense. An inmate told him he should ask defense counsel to write a motion to withdraw his plea. Defendant wrote to counsel, but she did not respond. He did not deserve 13 years eight months because his whole record was based on drug offenses. Inmates told him defense counsel should have suppressed “certain evidence” and said “certain things in court.”
The court turned to defense counsel, asking about her qualifications, then asking whether she saw any basis for withdrawal of the plea. Defense counsel said she did not. She said she advised defendant that even without the victim’s testimony he could be convicted of most counts, although perhaps not the torture count. He would be faced with witnesses, codefendant, and his own admissions. The victim, however, was apparently willing to testify, and therefore defense counsel advised defendant he was facing life and it was up to him to decide whether he wanted to take the plea. Counsel was surprised when he agreed to it based on his sister’s encouragement because he had insisted on going to trial.
Defendant told the court that he said to defense counsel, “You know, there is nothing. They have nothing on me, basically.” Counsel reminded him that codefendant had taken a deal and would testify against him. Defendant thought he and codefendant should have been in the courtroom at the same time. He did not know codefendant was going to turn on him.
In response, the court stated it believed defendant had been properly advised and there was no basis for withdrawal of the plea. But “in an abundance of caution, ” the court appointed advisory counsel to determine whether there was any basis for the motion to withdraw the plea. The court concluded the Marsden hearing.
A few months later, when the court reconvened the continued Marsden hearing, the court immediately asked defendant: “[W]as there anything else that you wanted to say regarding any concerns you had about your representation by [defense counsel]?”
In response, defendant said:
The court questioned defense counsel again about her representation of defendant and her advisements to him. Defense counsel explained that she visited defendant in jail and brought him the documents he requested. She advised him of the rights he would be giving up if he accepted the plea, his potential exposure if he went to trial, and his chances of succeeding on each of the counts. She advised him to take the plea.
The court asked defendant if he had anything further to add. In response, defendant extensively discussed the plea bargain, counsel’s advisements, and the lack of evidence against him. He complained that defense counsel told him he was “looking at life, ” and told him the prosecutor refused to offer a better deal. Defendant believed there was no truthful evidence against him and he should not have taken the deal. Furthermore, when he told defense counsel that the victim was beat up the day before he “even did anything to her, ” defense counsel told him it did not matter. He thought this made no sense. He said he was not a perfect person, but he was not violent and it was shocking that the prosecution would not offer him a better bargain. He was concerned that if he got into a fight to protect himself in prison, he would be subject to the Three Strikes law.
Defendant claims he was not given the opportunity to voice his concerns about defense counsel’s representation at the Marsden hearing. He argues: “But the hearing was put over for completion and then the ineffective assistance issue was decided on the basis that [advisory] counsel made no argument in support of [defendant’s] claims. [Defendant] was not asked if he had anything further to say on the subject.” As these facts demonstrate, defendant was given a full opportunity to state his grievances. Defendant’s uninterrupted comments at this hearing alone consume about four and one-half pages of transcript.
The court reiterated that it had not found a basis for granting the Marsden motion or for allowing defendant to withdraw his plea, but it had appointed advisory counsel to review the file to get an independent assessment so defendant would have the benefit of independent counsel on his claim that he should be allowed to withdraw his plea.
Advisory counsel said she spoke to defense counsel and also listened to the concerns defendant had just stated. Advisory counsel reviewed the evidence, which she detailed, and concluded it was in defendant’s best interest to take the plea. She believed defense counsel appropriately advised defendant to take the plea. In addition, advisory counsel reviewed the change of plea form and found it included the details of the sentence and the waiver of rights. She concluded there was no basis to withdraw the plea.
In response, the court denied the Marsden motion.
Back in open court, the court stated it had denied defendant’s Marsden motion. The court asked advisory counsel if she would be making a motion to withdraw the plea and she said she would not. At this point, the court relieved advisory counsel.
At the sentencing hearing on January 29, 2010, the court imposed the stipulated sentence of 13 years eight months.
DISCUSSION
I. Law
“On application of the defendant at any time before judgment …, the court may, … for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted…. This section shall be liberally construed to effect these objects and to promote justice.” (§ 1018.) “To establish good cause, it must be shown that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment, ” such as inadvertence, fraud, or duress. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) “However, ‘[a] plea may not be withdrawn simply because the defendant has changed his mind.’ [Citations.]” (Ibid.) We review the trial court’s ruling on a motion to withdraw a guilty plea for abuse of discretion (ibid.), and we “adopt the trial court’s factual findings if substantial evidence supports them” (People v. Fairbank (1997) 16 Cal.4th 1223, 1254).
When a defendant raises a motion to withdraw a plea on the basis of ineffective assistance of counsel, the trial court must conduct a Marsden hearing to determine whether defendant requires substitute counsel. (People v. Sanchez (2010) 189 Cal.App.4th 374, 379.) “[S]ubstitute counsel should be appointed when, and only when, necessary under the Marsden standard, that is whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation]. This is true whenever the motion for substitute counsel is made.” (People v. Smith (1993) 6 Cal.4th 684, 696 (Smith).)
During this procedure, appointment of advisory counsel (i.e., a second attorney to assist with the Marsden determination) is not appropriate. (Smith, supra, 6 Cal.4th at pp. 694-696; People v. Sanchez, supra, 189 Cal.App.4th at p. 380.) In Smith, the Supreme Court stated: “We are unaware of any authority supporting the appointment of simultaneous and independent, but potentially rival, attorneys to represent defendant. When a Marsden motion is granted, new counsel is substituted for all purposes in place of the original attorney, who is then relieved of further representation. If the Marsden motion is denied, at whatever stage of the proceeding, the defendant is not entitled to another attorney who would act in effect as a watchdog over the first.” (Smith, supra, at p. 695.) “[W]hen a defendant satisfies the trial court that adequate grounds exist, substitute counsel should be appointed. Substitute counsel could then investigate a possible motion to withdraw the plea or a motion for new trial based upon alleged ineffective assistance of counsel. Whether, after such appointment, any particular motion should actually be made will, of course, be determined by the new attorney.” (Id. at p. 696, italics added.)
“We review a trial court’s decision declining to relieve appointed counsel under the deferential abuse of discretion standard. [Citations.]” (People v. Jones (2003) 29 Cal.4th 1229, 1245, citing Marsden, supra, 2 Cal.3d at p. 123.) “To the extent there was a credibility question between defendant and counsel at the hearing, the court was ‘entitled to accept counsel’s explanation.’ [Citation.]” (Smith, supra, 6 Cal.4th at p. 696.)
II. Analysis
When defendant informed the trial court he wanted to withdraw his plea and have a Marsden hearing, the trial court properly suspended its sentencing proceedings and held a Marsden hearing. The court allowed defendant to voice all his concerns on the record, and allowed defense counsel to respond. Although the court stated it found no basis for withdrawal of the plea, it appointed advisory counsel to further examine the issue. As we have explained, and as the prosecutor recognized, this procedure was error. Nevertheless, the record clearly establishes that defendant was given the opportunity to fully state his complaints, which he did, and that the court thoroughly questioned defense counsel to determine whether her advisements and representation were adequate. Defense counsel said she and defendant discussed the evidence, the likelihood of defeating the charges, and the consequences of taking the plea. She advised defendant to accept the plea.
After the trial court appointed advisory counsel, the following discussion took place:
Defense counsel’s advice is amply supported by the record. Contrary to defendant’s claim, the case against him was overwhelming, particularly if the victim were to testify. And, as advisory counsel noted, defendant would not likely elicit sympathy from the jury. He was a gangster who beat, tortured, and threatened to kill a girlfriend if she did not return to his territory. His belief that he could defeat these charges because there was (allegedly) no DNA evidence against him was simply wrong.
Further, the record demonstrates that defendant was thoroughly advised of his rights and his options before entering the plea. He filled out a plea waiver form, he said defense counsel had explained the rights he was waiving, and he responded to the court’s explanations and questions. When he did not understand, he said so, and the court explained.
The fact that defendant may have been persuaded, or was reluctant, to accept a plea bargain does not demonstrate that the plea was involuntary. (People v. Ravaux (2006) 142 Cal.App.4th 914, 919; People v. Hunt (1985) 174 Cal.App.3d 95, 103; People v. Urfer (1979) 94 Cal.App.3d 887, 892.) In other words, mere advice and persuasion by defendant’s own attorney does not suffice to vitiate the plea. (People v. Evans (1960) 185 Cal.App.2d 331, 334.) Similarly, defendant’s notion, prompted by jailhouse grousing, that counsel should have made some undefined argument or suppressed some undefined evidence certainly does not demonstrate that counsel’s representation was deficient. Defendant’s concerns about his plea could properly be viewed by the trial court as buyer’s remorse. (See People v. Huricks, supra, 32 Cal.App.4th at p. 1208 [a plea may not be withdrawn simply because defendant has changed his mind; defendant’s claim that he was pressured into the plea is not enough to constitute duress; nothing in the record indicates he was under any more or less pressure than every other defendant faced with serious felony charges and the offer of a plea bargain].)
We have reviewed the record thoroughly and conclude defendant failed to show any deficiency in defense counsel’s advisements and representation, and failed to demonstrate that his plea was not made intelligently. In light of the evidence against defendant, defense counsel’s advice to accept the plea was not inappropriate. On this record, we see no ineffective assistance of counsel. Thus, the trial court did not abuse its discretion in denying defendant’s Marsden motion or in rejecting his motion to withdraw his plea on the basis of ineffective assistance of counsel.
Defendant contends he was denied due process because he not given the opportunity to argue the motion to withdraw his plea. This proposed motion, however, was premised on ineffective assistance of counsel, which was fully argued and considered. The court concluded, and we have agreed, that defendant’s counsel was not ineffective. The court therefore properly rejected the proposed motion to withdraw the plea on this basis.
DISPOSITION
The judgment is affirmed.
“[PROSECUTOR]: Just for clarification on the record, and I apologize if I missed it, I heard the court say it had heard the motion and was appointing counsel to see whether or not there are grounds to withdraw the plea?
“THE COURT: I have not yet granted the motion. I have appointed her for the advisory issue.
“[PROSECUTOR]: From the People’s standpoint, those are two separate issues whether -- the Marsden would be separate and apart in terms of
“THE COURT: Counsel, what I have done is I have not concluded the Marsden hearing. I’m appointing counsel to assist him on that particular issue.
“[PROSECUTOR]: I understand that’s what the court is doing. The People would just state our concerns in terms of the procedural posture of that, and I’ll submit, research the issue and be prepared. I want to make sure, especially with [defendant], that we’re proceeding exactly the way -- and I’m unfamiliar with the procedure of hearing a Marsden motion, which is between the defendant and his appointed counsel at the time, and then looking into the issue as to something that took place after allegedly whatever was the basis for the breakdown of this relationship.
“THE COURT: I can’t go into that with you, [prosecutor], because I would be disclosing
“[PROSECUTOR]: I understand.
“THE COURT: So there will be further hearing on the Marsden hearing on the 22nd.” (Italics added.)