Opinion
A145766
03-09-2017
THE PEOPLE, Plaintiff and Respondent, v. WAYNE CHARLES SARVER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR-660779)
I.
INTRODUCTION
Wayne Charles Sarver appeals from his conviction and sentence following his plea of no contest to one count of possession of a stolen vehicle (Pen. Code, § 496d, subd. (a)), and his admission to having been convicted of a prior strike within the meaning of section 1170.12. He contends the court erred in the manner in which it conducted his motion for new counsel, pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), and in ultimately denying it, and in failing to rule on his motion to withdraw his plea based upon the same claim of ineffective assistance of counsel.
All further statutory references are to the Penal Code unless otherwise indicated.
A certificate of probable cause was issued by the trial court in connection with this appeal.
We conclude there was no error in the manner with which the court heard and decided appellant's Marsden motion, and in denying that motion, the court disposed of his motion to withdraw his plea, which was based only on his claim of ineffective assistance of counsel. Furthermore, if there was any procedural error in connection with the motion to withdraw his plea, any such error was harmless. Accordingly, we affirm the judgment.
II.
FACTS UNDERLYING OFFENSE
The facts are taken from the presentence probation report.
On January 12, 2015, A.G. reported to police that he had located his father's stolen 1998 Honda CRV. The vehicle was occupied by appellant although he was not in the vehicle when police arrived. Police contacted appellant inside the nearby Rescue Mission. He was on probation in Siskiyou County, so police conducted a search of him and found two keys that fit the stolen CRV. Appellant admitted he had been inside the vehicle, but claimed he had been given the keys by a friend who asked appellant to look after it.
In order to protect the identity of the victim, we refer to him as "John Doe" in this opinion, post, and will thus refer to his son by using his initials. (Cal. Rules of Court, rule 8.90.)
A.G. told police that appellant had taken the car once before without permission. Appellant had previously worked for the victim, and appellant's girlfriend lived on the victim's property.
III.
PROCEDURAL BACKGROUND
The Sonoma County District Attorney filed a felony complaint charging appellant with one count of being in possession of a stolen vehicle (§ 496d, subd. (a)). The complaint also alleged sentencing enhancements that appellant had committed prior offenses for which he had served three separate prison terms (§ 667.5, subd. (b)), and that he had not remained free from custody for a period of five years following those periods of imprisonment (§ 667.5)). It further alleged one of the prior convictions was a strike, within the meaning of section 1170.12. At a hearing on March 2, 2015, appellant entered a plea of not guilty to the charges and denied the allegations.
All further dates are in the 2015 calendar year, unless otherwise indicated.
The prosecution made a motion for a conditional examination pursuant to section 1337 because the alleged victim, John Doe, was over the age of 65 and resided in another county (within Weed, California). The trial court ordered that motion to be heard following the then-anticipated preliminary hearing.
However, prior to the preliminary hearing, the parties entered into a negotiated plea. The terms of that deal were that appellant would admit the felony charge and the strike allegation; in return, the prosecution agreed to request that he be sentenced to no more than four years in state prison, and the other allegations in the complaint would be dismissed. Appellant initialed and signed an "Advisement of Rights, Waiver, and Plea Form [for] Felonies" acknowledging the terms of the negotiated plea, the consequences of his plea, and the rights he was waiving by entering into the plea.
Among the recitals which appellant initialed on the plea form was one acknowledging that in agreeing to the negotiated plea, "[n]o one has made any threats to me or anyone else or placed any pressure of any kind in order to make me plead guilty or no contest." He further acknowledged that he had "had enough time to discuss with my attorney my constitutional rights, any defenses I may have to the charges and the consequences of this/these plea(s)."
In addition to appellant's signature and initials on the plea form, his appointed counsel dated and signed it acknowledging the following: "I have explained each of the above rights to [appellant] and have discussed the facts, consequences, including immigration, and possible defenses to the charges(s) with him/her. I concur with his/her waiver of rights and entry of . . . [a no contest plea]. I further stipulate that there is a factual basis for the plea(s) and that this document may be received by the Court as evidence of [appellant's] intelligent waiver of these rights . . . ."
A hearing was held on March 13, the same day appellant signed the written plea form. In addition to the recitals in the written plea form, during the hearing the court asked appellant a series of questions to determine if his plea was knowingly and voluntarily entered, and he understood the consequences of his plea and the rights he was waiving by entering it. The court asked the following questions:
"THE COURT: Have you had sufficient time to talk with your attorney, Mr. Raff, about the charge you're pleading to, the admission of the prior strike, the defenses to that charge, and the prior strike and the consequences of the plea and the admission to the strike?"
"[APPELLANT]: Yes."
"THE COURT: Mr. Raff, have you had sufficient time to talk to your client about those matters?"
"MR. RAFF: I have."
The plea was accepted, the matter referred to the probation department for a report, and the case continued for sentencing.
At a subsequent hearing on April 29, the court was advised that appellant wished to withdraw his no contest plea on the ground that he did not have effective assistance of counsel in connection with his defense. The court requested that any motion to withdraw the plea be filed, and the entire matter was continued to May 13.
On May 13, defense counsel explained his view that, because the withdrawal of plea request was based on the ineffective assistance of counsel, the court should first hear a Marsden motion and, if granted, then appoint new counsel to represent appellant in connection with any motion to withdraw. In light of counsel's comments, and the case authority referenced, the court cleared the courtroom and held a hearing on appellant's Marsden motion, which is discussed in more detail below. After hearing from appellant and defense counsel concerning appellant's complaint that he was not being properly represented, the court denied the motion, concluding there had not been a "total breakdown" of the attorney-client relationship, and that counsel had competently and professionally represented appellant.
When the public hearing resumed, the court noted that appellant had expressed a wish to retain private counsel at his own expense to represent him, and the court continued the sentencing hearing until May 27 to give him time to do so.
At the May 27 hearing, appellant was again represented by deputy public defender Raff, and a private attorney made a special appearance for another attorney who had been in contact with appellant about possible representation. Specially appearing counsel requested a week to pursue the matter of representation, which the court granted. Accordingly, the case was put over to June 5. On June 5, the court agreed to put the case over again, and continued the case to June 24 for substitution of counsel, or for sentencing.
The parties appeared for sentencing on June 24, with Mr. Raff alone representing appellant. A presentence probation report had been received by that date, and the court heard a brief statement from the victim's son, A.G. The court then sentenced appellant in accordance with the negotiated plea. No written motion to withdraw his plea was filed at any time on behalf of appellant, and nothing was said about withdrawing his plea at any of the hearings held after appellant's Marsden motion was denied.
IV.
DISCUSSION
A. Appellant's Marsden Motion
The May 13 Marsden motion hearing began with the court asking appellant why he felt that Mr. Raff should not continue as his counsel in the case. Appellant acknowledged that he did not feel pressured to enter into the negotiated plea, but that he was not properly counseled about "the position of it and what I was in." He pointed out that he had left several messages over a period of six weeks, and that his fiancé also had tried to contact counsel and got no response.
In response to further questioning from the court, appellant reiterated that he felt no pressure to enter a plea, but stated that he just did not feel comfortable with what he had done by signing the plea agreement, despite counsel having urged him to do so. Counsel thought appellant should take the offer because it was counsel's belief that appellant had no other choice, and that if he went to trial he would "get the maximum." He agreed that counsel did not misrepresent the deal terms to him. He was simply not pleased that counsel was insisting that appellant had no other real choice.
Appellant told the court that he now had the funds to pay for private counsel, and he was in communication with new counsel, stating that by the following week "I could have him." His primary complaint with his current public defender was that appellant was unable to contact him after leaving him messages making suggestions as to other people counsel could contact about the case. During the time Mr. Raff represented appellant, he only talked to him two times, and those occasions were while they were in court.
As noted earlier, after ruling on the Marsden motion, the court continued the case for several weeks for appellant to pursue the retention of private counsel. Substitution was never consummated, and the record is silent as to any reason that never occurred.
In response to a question by the court, defense counsel noted that he had been an attorney for 10 years working almost exclusively in criminal law. He worked "on and off" as extra help for the public defender's office for a number of years, and had worked for that office fulltime as a deputy public defender for the last three years.
In addition to talking to appellant in court, counsel noted that he visited appellant "at the farm" (the North County Detention Facility), where they spoke about his case. Counsel stated that at first it looked like the complaining witness, who was of advanced age and living in Shasta County, might have dementia and might be a "cooperative" witness. However, the complaining witness later filed a letter with the prosecution that seemed to dispel this possible avenue of defense. It was after that letter was submitted that counsel advised appellant to accept the offered plea agreement.
In context it is apparent that counsel was referring to the owner of the Honda CRV, who lived in Shasta County.
Apparently the referenced handwritten three-page letter was dated January 22, a copy of which was attached to the probation report. The victim appeared to have a lucid and detailed recollection of the events surrounding the theft of his vehicle and the financial costs incurred as a result of that theft.
Appellant denied that counsel had ever visited him at "the farm." He reiterated that he had only seen counsel in court the two times he previously mentioned.
The trial court denied the motion, finding that there had not been a "total breakdown" of the attorney-client relationship, and that defense counsel had competently and professionally represented appellant.
B. It Was Not Error to Deny the Marsden Motion
Initially we note that, after counsel brought the matter to the court's attention, the court properly decided that appellant's motion to withdraw his plea should be preceded by a hearing on his complaint that his counsel was ineffective under Marsden. (People v. Sanchez (2011) 53 Cal.4th 80, 89-90 (Sanchez).) Procedurally, Sanchez is instructive. There, the defendant wished to withdraw his plea of guilty based on a claim of ineffective assistance of counsel. Before hearing the Marsden motion, the trial court appointed substitute counsel to evaluate defendant's reasons for wanting to withdraw his plea. (Id. at p. 92.) In reversing the ruling, the Supreme Court stated in conclusion: "In the present case, the Court of Appeal reversed the judgment of the trial court and remanded the matter to that court with the following directions: '(1) the court shall hold a hearing on [defendant]'s Marsden motion concerning his representation by the public defender's office; (2) if the court finds that [defendant] has shown that a failure to replace his appointed attorney would substantially impair his right to assistance of counsel, the court shall appoint new counsel to represent him and shall entertain such applications as newly appointed counsel may make; and (3) if newly appointed counsel makes no motions, any motions made are denied, or [defendant]'s Marsden motion is denied, the court shall reinstate the judgment.' We believe this is the proper disposition." (Sanchez, supra, 53 Cal.4th at pp. 92-93.)
We review the trial court's ruling on a motion for substitute counsel under Marsden for abuse of discretion. (People v. Memro (1995) 11 Cal.4th 786, 857, overruled on another ground in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.) Once a defendant has been given the opportunity to express the reasons for his or her dissatisfaction with counsel, the trial court has discretion to deny the motion if the defendant has not "made a substantial showing that failure to order substitution is likely to result in constitutionally inadequate representation. [Citations.]" (People v. Crandell (1988) 46 Cal.3d 833, 859, disapproved on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) The defendant is not entitled to relief unless "the record clearly shows that the first appointed attorney is not providing adequate representation [citation], or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. [Citations.]" (People v. Crandell, at p. 854.) Thus, "a defendant bears a very heavy burden to prevail on [a Marsden] motion. The defendant . . . cannot rest upon mere failure to get along with or have confidence in counsel. [Citations.]" (People v. Bills (1995) 38 Cal.App.4th 953, 961.)
" 'Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would "substantially impair" the defendant's right to assistance of counsel. [Citations.]' (People v. Webster (1991) 54 Cal.3d 411, 435 . . . .)" (People v. Smith (1993) 6 Cal.4th 684, 691, as modified on denial of rehg. (Feb. 3, 1994).)
Appellant's complaints about counsel centered on the number of times the two met before his plea was entered and accepted, and whether counsel could, and should, have done more than simply urge appellant to accept the plea deal. Counsel's response was that he met with appellant three times before the plea was entered, and that counsel determined that the only possible defense would be to challenge the testimony of the victim who was elderly and may have been suffering from dementia. That pathway for the defense dead-ended when counsel saw the letter the victim wrote in January in which it was obvious that he was not mentally impaired.
As to the number of times counsel met with appellant before his plea was entered and accepted, the court faced conflicting testimony. To the extent appellant's version of the events diverged from defense counsel's version, the trial court, being familiar with the case and observing the demeanor and presentation of both appellant and defense counsel at the Marsden hearing, "was entitled to credit counsel's representations." (People v. Myles (2012) 53 Cal.4th 1181, 1207.) It is apparent the court found defense counsel to be a more credible witness on this point, a decision which is within the exclusive province of the trial court.
A notation on the first page of the letter in different handwriting states that a copy of the letter was given to "L. Brown in court 1/28/15." The clerk's transcript contains minute orders for hearings in this case before Mr. Raff made an appearance at which appellant was represented by attorney "L. Brown" and 'LDB."
Appellant admitted that he entered into the plea voluntarily and he offered no details as to what more counsel could have done given the overwhelming evidence against appellant. For example, he offered no denial of the charge nor did he specify any witnesses of other evidence counsel did not discover that would have been exculpatory.
We note also that the trial judge who heard the Marsden motion was the same judge who accepted appellant's plea after receiving appellant's written plea form in which he acknowledged that he had sufficient time "to discuss with my attorney my constitutional rights, any defenses I may have to the charges and the consequences of this/these plea(s)." Notwithstanding the plea form, the trial judge went further and asked appellant specifically on the record if he "had sufficient time to talk with your attorney, Mr. Raff, about the charge you're pleading to, the admission of the prior strike, the defenses to that charge, and the prior strike and the consequences of the plea and the admission to the strike?" Appellant again answered "Yes."
On the plea form, and again in open court, appellant's counsel acknowledged that he had sufficient time to discuss these matters with appellant. --------
Given these circumstances, it is clear to us that the trial court did not abuse its discretion in concluding that appellant was afforded competent counsel such that his right to the assistance of counsel had not been "substantially impaired." In reaching this conclusion, we reject appellant's argument on appeal that the degree of inquiry made during the Marsden hearing was inadequate to meet the requirements of Marsden and related cases. As explained above, the court asked open-ended questions of appellant, giving him great deference to describe his concerns about counsel's performance. The court also followed up with questions for counsel based on appellant's responses. There was no abuse of discretion in the degree to which the court investigated appellant's claim, and certainly no due process violation.
C. The Trial Court Did Not Violate Due Process or Commit Prejudicial Error Regarding Appellant's Request to Withdraw His Plea
As already discussed at length, the only basis for appellant's motion to withdraw his no contest plea was that he was inadequately advised about his defense in this case by his appointed counsel; that basis was disposed of when the trial court denied appellant's Marsden motion. As noted above, the Supreme Court in Sanchez, when faced with a motion to withdraw a plea based on ineffective assistance of counsel, explained the proper procedure for the trial court to follow: hear the Marsden motion first. Only if the court grants the motion should the court appoint new counsel to represent the defendant further, including in connection with the prosecution of the motion to withdraw the plea. (Sanchez, supra, 53 Cal.4th at pp. 92-93.) Thus, this procedure implicitly results in the denial of any motion to withdraw a plea that was based solely on the conduct of counsel found to be competent under the Marsden standard.
Moreover, even if the trial court erred in failing to act further on appellant's request to deny his plea, we could not reverse on that ground. The trial court's decision to deny a defendant's motion to withdraw a guilty plea rests in the sound discretion of the trial court, and will not be disturbed unless the defendant shows a clear abuse of discretion. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)
Section 1018 "permits a trial court to allow a criminal defendant to withdraw his guilty plea 'for a good cause shown.' . . . It is the defendant's burden to produce evidence of good cause by clear and convincing evidence. [Citation.]" (People v. Wharton (1991) 53 Cal.3d 522, 585.) This standard of proof requires the defendant to make a strong enough showing of good cause to leave no substantial doubt. (Lillian F. v. Superior Court (1984) 160 Cal.App.3d 314, 320.) "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. [Citations.] Other factors overcoming defendant's free judgment include inadvertence, fraud or duress. [Citations.] However, '[a] plea may not be withdrawn simply because the defendant has changed his mind.' [Citations.]" (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.)
Other than the conduct of counsel in negotiating and representing appellant in connection with his no contest plea, appellant suggests nothing he learned after the plea that would have affected his decision to accept it. He also explicitly denied (several times) any pressure or coercion by counsel to get him to accept the plea. Indeed, the recitations made both in the plea form and at the hearing at which is plea was entered and accepted by the court reveal that appellant had sufficient time to discuss the charges, evidence, and any defense available to him relating to the charges before entering his plea. Nothing suggests any other reason for wanting later to withdraw his plea other than a simple "change[ of] mind." (People v. Huricks, supra, 32 Cal.App.4th at p. 1208.)
Therefore, we conclude that the trial court acted appropriately in implicitly denying any request to withdraw appellant's plea when it denied his Marsden motion based on the same purported ineffective assistance of counsel underlying his withdrawal request. To the extent the court should have acted separately and independently to rule of appellant's plea withdrawal request, we conclude any such error was harmless by any recognized legal standard for prejudice. (People v. Valdez (1995) 33 Cal.App.4th 1633, 1639-1640 [where trial court errs in disposing of motion to withdraw plea, "[a] defendant suffers no prejudice where there are no legal grounds for withdrawal of the plea"].)
V.
DISPOSITION
The judgment is affirmed.
/s/_________
RUVOLO, P. J. We concur: /s/_________
REARDON, J. /s/_________
STREETER, J.