Opinion
C054989
4-24-2008
THE PEOPLE, Plaintiff and Respondent, v. RICK LEE SAMS, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant Rick Lee Sams pleaded no contest to one count of continuous sexual abuse and one count of forcible sexual penetration. After the plea, but prior to sentencing, defendant sought to file a Marsden motion. The trial court took no action on that motion. Defendant now appeals, contending the matter must be reversed based on the courts error in not holding a hearing on his postplea Marsden motion. We agree and shall reverse and remand. Defendant also contends the court erred in imposing certain penalties on the forcible sexual penetration count. The People properly concede this point. We shall order those penalties stricken.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
FACTUAL BACKGROUND
Because there was no preliminary hearing, the facts are taken from the probation report.
Because of the nature of the issues raised on appeal, the substantive facts are only briefly summarized. Over the course of a number of years, defendant engaged in a sexual relationship with his stepsister. She was 13 years old at the time the sexual relationship started. This relationship included defendant kissing her, rubbing her chest, vagina and buttocks, holding her down and taking her clothes off, digitally penetrating her, and forcing her to rub his penis. The sexual assaults continued approximately once a week for two years.
During approximately the same time frame, defendant also had a sexual relationship with his stepdaughter. She was in the seventh grade when this began. He kissed her, rubbed his genitals against her and forced her to touch his genitals. Defendant also inappropriately touched his stepdaughters friend.
PROCEDURAL BACKGROUND
Defendant was charged with two counts of continuous sexual abuse (Pen. Code, § 288.5, subd. (a)), two counts of sexual battery by restraint (§ 243.4, subd. (a)), one count of committing a lewd act upon a child (§ 288, subd. (c)(1)), one count of forcible sexual penetration by a foreign object (§ 289, subd. (a)(1)), one count of child molestation (§ 647.6, former subd. (a) [now (a)(1)]) and one count of attempted child molestation. (§§ 664, 647.6, former subd. (a) [now (a)(1)].)
Undesignated statutory references are to the Penal Code.
On October 5, 2006, defendant pleaded no contest to one count of continuous sexual abuse (§ 288.5, subd. (a)) and one count of forcible sexual penetration by a foreign object (§ 289, subd. (a)(1)—count 3). As part of the plea, the remaining counts were dismissed with a Harvey waiver. It was noted in the plea form initialed by defendant that probation would be granted only if the sentencing judge found the case to be unusual under section 1203, subdivision (e).
People v. Harvey (1979) 25 Cal.3d 754.
On November 15, 2006, defendant wrote to the court indicating he was having difficulty communicating with his lawyers, that he had not understood the gravity of the charges against him when he entered his plea, that his attorneys had not spoken to witnesses he had informed them about, that he did not want to admit things that were untrue, and that he had been inappropriately pressured into agreeing to the plea deal. He also stated he wanted to withdraw his plea and file a Marsden motion.
On January 5, 2007, defendant met with the probation officer. He was informed he was not statutorily eligible for probation and became upset. He informed the probation officer that he had been told when he accepted the plea agreement that he was eligible for probation and would be requesting a grant of probation.
On January 18, 2007, after receiving the probation report and the section 288.1 report, the court asked if there was any legal reason or cause why sentence could not be imposed. Defense counsel stated there was not. No mention was made of defendants letter, desire to withdraw his plea or the Marsden motion.
Counsel had previously made a motion to continue the sentencing hearing so she could file a statement in mitigation on defendants behalf. This motion was denied.
The court found this was not an unusual case so defendant was neither eligible nor suitable for probation. The court sentenced defendant to the midterm of 12 years on the continuous sexual abuse charge and a full, separate consecutive midterm of six years on the forcible sexual penetration charge. In addition, the court imposed a restitution fine of $7,200 (Pen. Code, § 1202.4, subd. (b)), as well as the various mandatory fines and fees. The fines included penalties under Penal Code section 1465.7, subdivision (a) and Government Code sections 70372 and 76104.6, on the forcible sexual penetration count.
Defendant filed a request for a certificate of probable cause, alleging ineffective assistance of counsel and that the sentence imposed was greater than that to which he agreed. Defendants request for a certificate of probable cause was denied.
DISCUSSION
I
Defendant contends the trial court committed reversible error by not holding a hearing on his postplea Marsden motion prior to sentencing him. The People reply that defendants appeal should be dismissed because he did not obtain a certificate of probable cause and his challenge implicates the validity of the plea itself. The People make no argument on the substantive aspect of defendants claim.
"A determination that defendant is entitled to substitute counsel has no necessary implication for his no contest plea, which plea stands until a motion to withdraw it is made and granted." (People v. Vera (2004) 122 Cal.App.4th 970, 978.) A defendant is not required to obtain a certificate of probable cause to challenge a trial courts denial of a postplea Marsden motion, even if some of the complaints relate to trial counsels preplea conduct. (Vera, at p. 978.)
Despite the fact that Vera is on point on the subject and was cited by defendant, the People make no reference to Vera and no effort to distinguish it from this case. We find no basis for distinction and find the holding in Vera persuasive.
"Marsden and its progeny require that when a defendant complains about the adequacy of appointed counsel, the trial court permit the defendant to articulate his causes of dissatisfaction and, if any of them suggest ineffective assistance, to conduct an inquiry sufficient to ascertain whether counsel is in fact rendering effective assistance. [Citations.] If the defendant states facts sufficient to raise a question about counsels effectiveness, the court must question counsel as necessary to ascertain their veracity." (People v. Eastman (2007) 146 Cal.App.4th 688, 695 (Eastman).)
Because the People chose not to address the substantive issue raised by defendant, they again have made no effort to distinguish Eastman from the instant case. As with Vera, we find no basis for distinction.
Here, defendant wrote to the court expressly invoking Marsden and making specific complaints about his attorney and the representation he was receiving. The court was obliged to make a record that these complaints had been adequately aired and considered. (Eastman, supra, 146 Cal.App.4th at p. 696.) The court failed to do so. In fact, the court failed to even acknowledge defendant had invoked Marsden at all. This was error.
Nor can we deem the error harmless. The error is reversible unless the record shows beyond a reasonable doubt that the error did not prejudice defendant. (Marsden, supra, 2 Cal.3d at p. 126, citing Chapman v. California (1967) 386 U.S. 18, 24, [17 L.Ed.2d 705, 710-711].) While the record reflects some of defendants complaints about counsel, we do not know what defendant would have orally presented to the court had he been given the opportunity. Nor do we know what counsels responses would have been. We cannot consider the merits or veracity of defendants claims because they were not presented to the trial court. Accordingly, the proper remedy is to remand for further proceedings. (Eastman, supra, 146 Cal.App.4th at pp. 697, 699.)
II
Defendant also contends the trial court erred in imposing penalties under Penal Code section 1465.7, subdivision (a) and former versions of Government Code sections 70372 and 76104.6 as to the forcible sexual penetration count (count 3), as the statutes were not operative until after the date of that offense. The People properly concede this point.
Defendant was charged with committing the forcible sexual penetration between August 1, 2000, and July 31, 2001. Penal Code section 1465.7, subdivision (a) became operative on September 30, 2002 (Stats. 2002, ch. 1124, § 46); Government Code section 70372 became effective on January 1, 2003 (Stats. 2002, ch. 1082, § 4); and Government Code section 76104.6 was approved by the voters and took effect on November 3, 2004 (Ballot Pamp., Gen. Elec. (Nov. 2, 2004) text of Prop. 69, § IV.1, pp. 144-145).
As we have previously held, it violates the prohibition against ex post facto laws to impose fines under Penal Code section 1465.7 and Government Code section 70372 on offenses committed prior to their enactment. (People v. High (2004) 119 Cal.App.4th 1192, 1197-1199 (High).) Relying on High, we recently held, "the DNA penalty assessment [Gov. Code, § 76104.6] is explicitly designated a penalty; it is calculated in direct proportion to other fines, penalties, and forfeitures imposed; it is collected using the same provision for collecting the state penalty assessment; and it will be used primarily for future law enforcement purposes. Thus, it is a punitive ex post facto law with respect to offenses committed prior to its effective date." (People v. Batman (2008) 159 Cal.App.4th 587, 591.) Accordingly, the Government Code section 76104.6 penalty was improperly imposed on count 3. We will order these penalties on count 3 stricken.
DISPOSITION
The judgment is reversed, and the matter is remanded for the trial court to conduct a Marsden hearing. If defendant makes the required showing under Marsden, the court shall appoint new counsel. If defendants Marsden motion is denied, the trial court shall reinstate the judgment as modified, striking the penalties on count 3 under Penal Code section 1465.7, subdivision (a) and Government Code sections 70372 and 76104.6, and send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur:
SCOTLAND, P.J.
MORRISON, J.