Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Ventura, Ct. No. 2007022742, Kevin J. McGee, Judge
California Appellate Project, Jonathan B. Steiner, Executive Director, Richard B. Lennon, Staff Attorney, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, John R. Gorey, Deputy Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Gerald Heinz Schiede appeals the judgment entered following a court trial in which he was convicted of failure to register as a sex offender (Pen. Code, § 290, former subd. (a)(1)(A), now subd. (b)) (count 1) and failure to provide true sex offender registration information (former § 290, subd. (e)(2), now § 290.015) (count 2). He was sentenced to 18 months state prison on count 1, and a concurrent 18-month term on count 2. He contends the trial court erred in denying his Marsden motion. He also contends, and the People concede, that sentencing on count 2 should have been stayed. We shall order the judgment modified accordingly. Otherwise, we affirm.
All further statutory references are to the Penal Code.
People v. Marsden (1970) 2 Cal.3d 118.
FACTS AND PROCEDURAL HISTORY
In 2006, Schiede was convicted of misdemeanor annoying or molesting a child under the age of 18 (§ 647.6, subd. (a)). He was subsequently arrested again and convicted of failing to register as a sex offender (§ 290, subd. (b)). When he was released from custody on the registration offense on June 6, 2007, he was notified that he needed to register within five days. On June 13, Simi Valley Police Detective Robert Scannell contacted Schiede at his apartment and reminded him of his duty to register. Schiede told the detective "he could not in good conscience register" because he was not guilty of the original offense. When Detective Scannell came to Schiede's apartment again on June 15, Schiede reiterated that he was not going to register. That same day, Schiede was arrested again for failing to register.
Schiede was subsequently charged with failing to register. The proceedings were suspended after Schiede's attorney declared a doubt regarding his competence to stand trial. (§ 1368.) The court subsequently found Schiede competent based on the report of the doctor appointed to examine him, and the proceedings were resumed.
At trial, Schiede testified that he only pled no contest to the child molestation charge because his attorney had advised him to do so. Schiede stated that he had no intention of ever registering as a sex offender, reasoning that "[i]f I'm innocent, which I am, then registering would make no sense." While he claimed he had not fully understood the consequences of his no contest plea, he acknowledged his understanding that the plea "would have been the same as saying 'guilty.'" He also understood that his plea required him to register as a sex offender for the rest of his life, and that he would be sentenced to prison if he failed to register.
DISCUSSION
I.
Marsden
Schiede contends the trial court erred in denying his motion to replace his appointed counsel, Phillip Capritto, pursuant to People v. Marsden, supra, 2 Cal.3d 118. According to Schiede, the court cannot be said to have properly exercised its discretion in denying the motion because it did not sufficiently inquire into the reasons for Schiede's request. We disagree.
We review the court's denial of a Marsden motion for abuse of discretion. (People v. Abilez (2007) 41 Cal.4th 472, 488.) No abuse of discretion in this regard can be found unless the record demonstrates that the court's denial of the motion substantially impaired the defendant's right to effective assistance of counsel. (Ibid.)
When the defendant complains about appointed counsel's representation, the trial court must first allow the defendant to explain the basis of his or her complaint and relate any specific instances of counsel's perceived inadequate performance. (People v. Abilez, supra, 41 Cal.4th at pp. 487-488.) "If the defendant states facts sufficient to raise a question about counsel's effectiveness, the court must question counsel as necessary to ascertain their veracity. [Citations.]" (People v. Eastman (2007) 146 Cal.App.4th 688, 695.) The court must also allow counsel to respond to the complaint, and must "make a record sufficient to show the nature of [the defendant's] grievances and the court's response to them." (Id., at p. 696.) The motion should be granted if the record demonstrates that the defendant and his or her attorney "'. . . "'. . . have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.'" . . .'" (Abilez, supra, at pp. 487-488.)
Prior to sentencing, the court directed Capritto to meet with Schiede and attempt to convince him of the need to register in order to avoid a prison term. At the sentencing hearing on January 29, 2008, Capritto stated that he had spoken with Schiede the previous night after making two prior attempts earlier that day. Schiede made it clear to Capritto that he would never register because he was not guilty of the triggering offense. Capritto also noted that Schiede had told him he felt that Capritto was not helping him or listening to him. Schiede also complained to Capritto that he always walked away from him when he was talking, and told him that he believed he had failed him as an attorney.
When the court asked Schiede if he had anything to say, he stated that Capritto "does have the habit of walking away from me in the middle of a conversation. Personally, I don't have any problems communicating with people, and I would like to get a defender who is a little more interested in the case, rather than just saying something partial and then walking away whenever he's not in the mood to talk to me." After claiming that he did not fully understand the consequences of his no contest plea in the prior matter, he reiterated, "I would like to have a different defender who shows a little more interest in the case." He acknowledged, however, that "[w]hat Mr. Capritto said made sense, regarding the formal terminologies, I guess, especially last time we were here. But otherwise, person-to-person, he is rather next to impossible to talk to."
The court responded that "persons who receive the assistance of court-appointed counsel really aren't in a position to pick the attorneys who represent them. [¶] Mr. Capritto has told the Court, from what I've seen here in court, has tried to communicate with you about this matter and the situation you find yourself in. And I'm telling you that I would like to put you on probation. But if you're unwilling to agree to register, I'm really in a position where I can't do that." Schiede again reiterated his position that he should not have to register. After the court explained the situation to him yet again, Schiede replied, "[a]ll I can say is there was no incriminating evidence presented. So the only thing I can do is stick to my not guilty plea. It makes no sense for me to register, if I did nothing wrong." When the court reminded Schiede that he had pled no contest and that the plea was tantamount to a plea of guilty, Schiede again stated that he had entered the plea on the advice of his attorney and had not fully understood the consequences of his plea at the time it was entered. Based on Schiede's representation that he had no intention of registering, the court determined it had no choice but to sentence him to state prison.
In light of this record, it cannot be said that the court abused its discretion in refusing to appoint a different attorney to represent Schiede. Contrary to Schiede's claim, the court gave him every opportunity to explain the basis of his dissatisfaction with Capritto's representation. The record also reflects that the court ensured that Capritto fully communicated to Schiede the need to register. The court also inquired into the matter of Capritto's representation by asking him to make a record of his communications with Schiede.
Moreover, Schiede's complaints did not provide a legitimate basis for replacing Capritto as his attorney. While Schiede complained that Capritto "walk[ed] away" from him while he was talking, the record reflects that Capritto heard, considered, and acted on Schiede's concerns. In addition to declaring a doubt regarding his competence to stand trial, Capritto also sought, albeit unsuccessfully, to challenge the complaint on the ground that the conviction triggering the registration requirement was invalid. Capritto's stated frustration with Schiede was also understandable in light of the serious consequences Schiede faced as a result of his inability or unwillingness to accept counsel's advice.
Capritto demurred to the complaint on the ground that Schiede was sentenced on the child molestation charge during the time that the proceedings were suspended due to Schiede's incompetence to stand trial. The court overruled the demurrer because the alleged infirmity was not apparent on the face of the complaint. Schiede does not appeal from that ruling. We express no opinion whether Schiede could successfully challenge his prior conviction in another proceeding.
Capritto's actions also belie the claim that he did not express enough interest in the case, and the court's unsuccessful attempt to convey to Schiede the gravity of his refusal to register demonstrates that Capritto was not the cause of that refusal. Schiede's general disapproval of Capritto's representation is insufficient to compel his removal. "'. . . "[I]f a defendant's claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law."' [Citation.]" (People v. Memro (1995) 11 Cal.4th 786, 857.) Schiede was afforded a full opportunity to address his complaints regarding Capritto's representations, and the record does not demonstrate an irreconcilable conflict giving rise to a likelihood of ineffective representation. On the contrary, our examination of the record discloses an attorney who sought to fully protect his client's interests. Schiede, however, seems to have sought not his counsel's competence but his concurrence. He was entitled to the former, but not the latter. Accordingly, the court did not abuse its discretion in denying his request for a different attorney. (People v. Abilez, supra, 41 Cal.4th at p. 488.)
II.
Sentencing on Count 2
Schiede contends, and the People concede, that the sentence on count 2 for failure to provide true sex offender registration information should have been stayed pursuant to section 654 because the crime arose out of the same incident upon which his conviction on count 1 is based, i.e., his refusal to register as a sex offender upon his release from jail. We shall order the judgment modified accordingly.
DISPOSITION
The judgment is modified to reflect a stay of sentence on count 2 pursuant to section 654. The trial court shall forward the amended abstract to the Department of Corrections. As so modified, the judgment is affirmed.
We concur: YEGAN, Acting P.J., COFFEE, J.