Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Ct. No. SCE258529 Allan J. Preckel, Judge.
HUFFMAN, Acting P. J.
A jury convicted Said Zia Shaya of 13 counts of committing lewd acts upon a child under the age of 14 years (Pen. Code, § 288, subd. (a); counts 1-10, 13-15) and two counts of committing forcible lewd acts upon a child under the age of 14 years (§ 288, subd. (b)(1); counts 11-12). The jury also found true multiple victim allegations (§ 667.61, subd. (c)) as to all counts, within the meaning of the One Strike Law (§§ 667.61, subds. (b), (c) and (e)), and substantial sexual conduct allegations within the meaning of section 1203.066, subdivision (a)(8) regarding counts 1, 2, 5, 9, 11 and 12. The court sentenced Shaya to a total prison term of 60 years to life.
All statutory references are to the Penal Code unless otherwise specified.
Although no issue is raised on appeal regarding the inaccuracy of the abstract of judgment, during our review we have discovered that the abstract of judgment does not reflect the concurrent 15-year-to-life terms the court orally imposed for counts 1 and 12. If an abstract of judgment fails to reflect the judgment pronounced by the trial court, the error is clerical and the record can be corrected at any time to reflect the true facts. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We therefore order the abstract of judgment corrected to reflect the concurrent indeterminate sentences actually imposed for those counts. (§ 1260.)
Shaya appeals, contending the trial court violated his state and federal constitutional rights to counsel by failing to conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), by delegating its factfinding powers to a second attorney, and by summarily adopting that attorney's opinion without putting Shaya's complaints or the basis for their rejection on the record. We find no prejudicial error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because Shaya, a 57-year-old Chaldean Iraqi who became a naturalized United States citizen and operated a furniture upholstery business in El Cajon, California, does not challenge the sufficiency of the evidence to support his convictions and their attendant findings or raise any trial or sentencing errors other than his Marsden claims, we decline to set forth the sordid details regarding his sexual abuse of the minor victims in this case. Suffice it to say that three of the children testified at trial to a similar pattern of sexually abusive behavior toward them with Shaya preying on them while he was working on upholstery jobs for their respective families, and there was testimony from two other children showing that Shaya had also anally raped a young boy hired to help him in his business and had committed lewd acts on that boy's younger brother. Shaya testified in his own defense, denying any misconduct with the young victims, and presented three witnesses who testified as to his good reputation in the Chaldean community where he lived and worked.
After the jury returned its verdicts finding Shaya guilty of 15 child molestations, the matter was set for probation hearing and sentencing on April 11, 2007. At that time, the trial court noted it was in receipt of a motion for new trial filed by Shaya's attorney, Deputy Public Defender Victor Eriksen, the People's opposition to that motion, and a 14-page handwritten filing from Shaya, filed on March 26, 2007, which the court had advised both counsel about and had made it available for their review before the hearing. The court stated that Shaya's document "includes, first, a petition for writ of mandate under Penal Code section 871.6. Secondly, a motion for new trial. Third, a motion to remove Attorney Vic Eriksen as attorney for defendant due to a conflict of interest and to appoint substitute counsel, or allow defendant a reasonable time to obtain new retained counsel. And, fourth, a motion that the court order the above-entitled matter continued pursuant to Penal Code section 1050 until June 2nd of this year."
Counsel noted in his motion that the third ground raised for a new trial based on Shaya's belief he received ineffective assistance of counsel at trial would have to be further amplified by Shaya at the hearing because he had merely informed counsel by letter without specification that he had failed to provide him effective assistance at trial.
In the document, Shaya requested "motion for new trial due to unforeseen facts not brought forth during jury trial. And the unforeseen conflicts of interest which require appointment of new counsel." Citing Marsden, Shaya specifically claimed, "[d]efendant, Said Shaya, was not given an appropriate counsel to represent him on all of his proceedings of his criminal case. Defendant's counsel failed to guide his client in the most efficient way in order for defendant to get a fair trial. And during all this defendant's counsel failed to raise certain issue that would prove the defendant's innocence beyond a reasonable doubt." Shaya also requested replacement counsel several other times in the document.
When asked for input regarding procedures or scheduling of the motions, defense counsel suggested that Shaya's filing be addressed first "as to the issue regarding my effectiveness or my alleged conflict of interest without further specification" and for continuance before moving "into other bases to move for new trial." Counsel specifically stated, "I don't know if that would best be held as a Marsden motion because I don't know what support Mr. Shaya contends on his own behalf with respect to the motion for new counsel. So I suppose that would be a Marsden-type setting, or at least part of it would be a Marsden-type setting, and then address the rest of it in open court, maybe as to the continuance request, because I'm somewhat in the dark as to the basis for that as well." The prosecutor had no objection to defense counsel's suggestions on how to proceed, but advised the court that the victims and their families were waiting in the hall should the sentencing go forward.
The trial judge expressed his understanding and wish not to inconvenience anyone, but noted that "there are very significant matters and at least questions, if not legitimate issues, and I don't know whether the issues are legitimate or not at this point in the proceedings. But it seems to me that we are all best served, and the victims and their family members as well, to assure that a full and complete record is made and that all the proverbial i's are dotted and t's crossed." In that regard, the judge then inquired into Shaya's financial ability to hire counsel, asking defense counsel to talk with Shaya about the matter. After a brief conference, counsel informed the court that Shaya was "penniless" and was "specifically, requesting that your honor appoint counsel from P.C.C. to replace me."
The trial judge responded:
"Well, yes and no, which is to say that right now, I'm presented with simply very broad brush strokes and a conclusory statement, understanding Mr. Shaya's subjective view of his status and the proceedings to date. But I am simply presented with a conclusory statement, 'Gee, golly whiz, I wouldn't be in this circumstance if I had had fully competent counsel representing me in this case.' [¶] I've had the opportunity, obviously, to preside over the trial and all of the attendant proceedings leading up to trial. And based upon what I've seen, Mr. Shaya has been at all times represented by fully competent counsel within the meaning of the law applicable thereto, and I have observed absolutely nothing deficient in attorney Vic Eriksen's representation of Mr. Shaya. [¶] But that said, especially given the seriousness of this case and the arguably draconian recommendations of the probation department and the district attorney's office on behalf of the People respecting an appropriate sentence in this case, I believe it incumbent upon the court to specially appoint a second attorney to confer with Mr. Shaya and to review the record in this case and to make an independent analysis and evaluation of the adequacy of Mr. Shaya's representation and to otherwise determine whether there is believed to be a meritorious basis for pursuing a motion for new trial on Mr. Shaya's behalf based upon asserted incompetency of his counsel to date. [¶] So I am specifically not relieving attorney Vic Eriksen or the Public Defender's office. They will continue as counsel of record, and Mr. Eriksen individually as a member of that office will continue as appointed counsel for Mr. Shaya. However, for the reasons stated and for the purposes outlined by the court, the court does now direct the special appointment of separate and independent counsel through the Private Conflicts Counsel [(P.C.C.)] of the San Diego County Bar to meet and confer and advise Mr. Shaya and to then determine upon an appropriate course of action."
After the court adopted Shaya's suggestion that the matter be continued for a status conference to early June 2007, defense counsel Eriksen asked the court for some clarification regarding the special appointment of counsel, specifically whether "the privilege is waived for purposes of showing my entire file to that specially appointed counsel." The trial judge stated, "I understand your concern, and I do so find; that is to say, Mr. Shaya in his written filing has asserted that he had not been adequately represented. And in order to explore that, he necessarily waives and gives up his attorney-client privilege so as to permit you to share the totality of your knowledge and file in this case with that second attorney for purposes of facilitating that attorney's discharge of his or her function."
The court then asked Shaya if he understood what it had stated and whether he wanted the court "to appoint another attorney to explore the question as to whether or not Mr. Eriksen has adequately represented you?" After Shaya, who was assisted by a certified Arabic language interpreter, responded affirmatively, the court inquired as to whether Shaya understood "that by pursuing that assertion that you have not been adequately represented, you necessarily give up your attorney-client privilege concerning any confidential communications with Mr. Eriksen and as regards any confidential matters maintained in his file as part of his representation of you?" Shaya again responded affirmatively and then specifically gave up that privilege so another attorney could explore the adequacy of Eriksen's representation. After Shaya then waived time, the court set the matter for a status conference later in April with the designated P.C.C. attorney and "prospectively" for early June sentencing.
At the April 24, 2007 status hearing, P.C.C. attorney Albert W. Arena apprised the court that he had spent two-and-a-half hours with Shaya "at the George Bailey Detention Facility and discussed the contents of his motion for new trial, specifically the areas of concern that included conflict of interest . . . discussing all possible conflicts that may have existed, [and it was his] opinion that there is no meritorious conflict of interest between Mr. Shaya and the Public Defender's office." In Arena's professional experience, coupled with his knowledge of this case, he did not see a viable basis for pursuing on Shaya's behalf a motion for new trial on grounds of conflicts of interest or ineffective representation. Arena explained that he had looked at the matter with Shaya in terms of a potential ineffective assistance of counsel claim as well as the various aspects of the representation, including Shaya's thoughts regarding his privileged discussions with attorney Eriksen, and that in weighing the information provided by Shaya as well as having talked with Eriksen, he could find no meritorious claim for the ineffectiveness claim to be pursued by other counsel.
The trial court then relieved Arena of further responsibility in this case for any continuing representation of Shaya, continued Eriksen's representation for all purposes and confirmed the setting of this case for hearing the new trial motion brought on Shaya's behalf by Eriksen, augmented by Shaya's handwritten motion for new trial, and for sentencing should those motions be denied.
On June 12, 2007, after hearing argument from counsel, the court denied the respective new trial motions and Shaya's petition for writ of mandate included with his handwritten motion. The court then proceeded to sentence Shaya to prison and this appeal followed.
DISCUSSION
Shaya contends the trial court committed prejudicial constitutional error when it failed to conduct a Marsden hearing after he requested replacement counsel and the court instead appointed a second attorney to investigate the effectiveness of his first appointed counsel and accepted second counsel's conclusions there was no conflict of interest or ineffectiveness to support a new trial motion without putting his complaints or the basis for their rejection on the record. The People respond that any error in the court's failure to conduct a Marsden hearing was completely harmless because Shaya essentially received what he asked for, a conflict panel attorney to review the grounds for a new trial motion based on conflicts and ineffectiveness of his current counsel, and Shaya has not shown that "appointment of a different attorney [for all purposes] would have gained a . . . new trial, or could have had any effect on the sentence imposed." (People v. Washington (1994) 27 Cal.App.4th 940, 944 (Washington).) On this record, we conclude that any error was harmless.
The law is well established that when a true Marsden motion is made after conviction, i.e., a defendant seeks discharge of his appointed counsel and the appointment of another for all purposes because of purported inadequate representation, the trial court must give the defendant the opportunity to explain his reasons for wanting such new counsel. (People v. Barnett (1998) 17 Cal.4th 1044, 1085 (Barnett); People v. Smith (1993) 6 Cal.4th 684, 694 (Smith); Marsden, supra, 2 Cal.3d at pp. 123-125.) As in preconviction Marsden motions, after considering "any specific examples of counsel's inadequate representation that the defendant wishes to enumerate[,] substitution is a matter of judicial discretion." (People v. Webster (1991) 54 Cal.3d 411, 435; cf. Smith, supra, 6 Cal.4th at pp. 694-697.) Moreover, as our Supreme Court noted in Smith, supra, 6 Cal.4th 684:
"It is the very nature of a Marsden motion, at whatever stage it is made, that the trial court must determine whether counsel has been providing competent representation. Whenever the motion is made, the inquiry is forward-looking in the sense that counsel would be substituted in order to provide effective assistance in the future. But the decision must always be based on what has happened in the past." (Id. at pp. 694-695; italics omitted.)
" ' " 'A defendant is entitled to relief if 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].' [Citations.]" ' [Citation.]" (Barnett, supra, 17 Cal.4th at p. 1085.) The denial of new counsel for all purposes " '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.]' [Citation.]" (Ibid; see also People v. Roldan (2005) 35 Cal.4th 646, 681.)
Moreover, even though no formal motion is necessary to trigger a trial court's duty to conduct a hearing under Marsden, "there must be 'at least some clear indication by defendant that he wants a substitute attorney [for all purposes].' " (People v. Mendoza (2000) 24 Cal.4th 130, 157.) Where a defendant's request is only clear to the extent he makes his wishes known that he wants substitute or separate counsel appointed to represent him in the preparation of a new trial motion premised upon the ineffective assistance of his appointed counsel, he will have no grounds to complain when the court honors his expressed wishes. (People v. Dickey (2005) 35 Cal.4th 884, 920-921 (Dickey).)
Here, the trial court failed to conduct a Marsden inquiry at the time Shaya's written request for new counsel was presented. However, because the gist of Shaya's postconviction request was that he wanted separate counsel for a specific reason, i.e., to assist him with a new trial motion, claiming his court appointed attorney had provided ineffective assistance at trial and had a conflict of interest with him, and never communicated to the court a desire to have substitute counsel appointed to represent him in all further matters such as sentencing, the court's acquiescence in that request provides Shaya no grounds for complaint at this time. (Dickey, supra, 35 Cal.4th at pp. 920-921.)
Moreover, even assuming the court abused its discretion in failing to conduct a Marsden hearing to afford Shaya the opportunity to explain why he wanted a new attorney for all purposes, Marsden does not establish a rule of reversible error per se. (People v. Chavez (1980) 26 Cal.3d 334, 348-349.) Rather, reversal is not required if the error is found to be harmless beyond a reasonable doubt. (Ibid.; Washington, supra, 27 Cal.App.4th at p. 944.)
Although we are mindful that many cases have conditionally reversed and remanded for the limited purpose of conducting a Marsden hearing where, as here, it is not known precisely what a defendant might have shown had he received a full hearing on a Marsden motion (see People v. Eastman (2007) 146 Cal.App.4th 688, 697; People v. Mejia (2008) 159 Cal.App.4th 1081, 1086-1087; People v. Mendez (2008) 161 Cal.App.4th 1362, 1368-1369), we decline to do so in this case. To do so under the specific circumstances here would merely exult form over substance and waste precious judicial resources.
Shaya stated absolutely no facts to show any conflict of interest with trial counsel or ineffectiveness at the time of his written request that cited Marsden. Even though the trial court could not find any conflict or inadequacy of counsel in the proceedings before it, it granted Shaya's request for another attorney for purposes of investigating allegations of ineffective assistance of his trial counsel for his new trial motion. The second attorney specially appointed to review the matter with the consent of all parties, including Shaya, could find no facts to support a new trial motion based on a claim of conflict or ineffective assistance of counsel. Shaya did not then disagree with that counsel's representations to the court and has not stated any grounds on appeal for finding differently.
Although the procedure of appointing a conflict panel attorney to represent a defendant while he is still represented by other counsel has been disapproved by our Supreme Court in Smith, supra, 6 Cal.4th at pages 695 to 696 with regard to Marsden inquiries based on ineffective assistance of counsel, we can find no harm to Shaya by the use of the procedure in this case. As already noted, Shaya received the limited appointment of counsel that he sought by his written motions and he has never enumerated any specific examples of his trial counsel's inadequate representation that would warrant the trial court's exercise of discretion to substitute counsel for all purposes.
Nor has Shaya made any showing on appeal as to the factual basis of his Marsden request, that it would have been granted had it been heard, or that a more favorable result would have been achieved had the motion been granted. The motion being made after the trial was completed did not affect his trial in any way. (Smith, supra, 6 Cal.4th at p. 693.) Shaya never expressed below that he believed trial counsel would be unable to properly represent him at sentencing, and has not attempted to argue or cite any support in the record for a claim that he would or should have prevailed on the ineffective assistance of counsel ground in his motion for new trial. (See People v. Cornwell (2005) 37 Cal.4th 50, 102.)
It is well-established that "[s]entencing (pronouncement of judgment) is a critical stage in the criminal proceeding during which a criminal defendant has the constitutional right to . . . be represented by effective counsel and to present evidence with respect to mitigation of sentence." (People v. McGraw (1981) 119 Cal.App.3d 582, 594, fn. 1.)
Moreover, the fact no Marsden hearing was conducted does not preclude Shaya from attacking the competency of his trial attorney. (Washington, supra, 27 Cal.App.4th at p. 944.) Any claim of error by trial counsel, which was made in the court's presence and not raised in a new trial motion, may be made on appeal. (See, e.g., People v. Belcher (1974) 11 Cal.3d 91; People v. Shells (1971) 4 Cal.3d 626.) As to any matters outside the record, a criminal defendant has the remedy provided by a habeas corpus proceeding. Interestingly, Shaya has not attempted to claim or show ineffectiveness of trial counsel by either remedy. Nor has Shaya claimed that the second counsel the court appointed for him for the limited purpose of determining whether there was a conflict of interest or any viable ineffective assistance of counsel claim for a new trial motion was himself ineffective. Further, as noted earlier, other than the claimed Marsden failures, Shaya has not challenged his convictions and sentence in any manner or form on appeal.
In this case, the court specifically noted that it had observed and heard nothing in the proceedings before it that even suggested ineffectiveness of trial counsel. Shaya did not refute these comments or give any indication in his written request how specifically his counsel had been ineffective.
On this record, it is difficult to see how the appointment of new counsel would have gained Shaya a new trial or had any effect on the already favorable sentence he received based on his original counsel's thorough presentation of mitigating circumstances at that time. Shaya was allowed to speak on his own behalf at the sentencing hearing to voice any and all concerns he had. The essence of his complaints at that time were that the prosecutor had asked one child victim numerous questions at trial challenging the child's initial statement that Shaya had not done anything, the prosecutor had then used a letter or piece of paper to try to persuade that child to remember what he had earlier said, and the prosecutor had had a meeting with his attorney outside the courtroom to which he had objected. None of these concerns provides sufficient facts for Marsden error. (See People v. Cole (2004) 33 Cal.4th 1158, 1192 [complaints of counsel's inadequacy that involve only tactical disagreements provide no basis for Marsden error].) Thus, under the totality of circumstances, we find any error was harmless beyond a reasonable doubt and does not warrant reversal of either Shaya's convictions or sentence.
Although Shaya received a lengthy prison term of 60 years to life under the One Strike Law for his numerous acts of molestation against multiple minor children, the court did not impose the lengthier 138-year-to-life sentence proposed by the prosecutor and the probation officer, instead running many of the counts concurrently that could have been imposed consecutively.
In sum, we can find no prejudicial error on this record regarding Shaya's Marsden contentions.
DISPOSITION
The judgment is affirmed. The trial court is directed to correct the abstract of judgment in accordance with this opinion and to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.
WE CONCUR: NARES, J., AARON, J.
Further, contrary to Shaya's argument otherwise, we do not find that the trial court abandoned its constitutional and statutory obligations to make the ultimate determination whether to grant or deny the new trial motions based on ineffective assistance of counsel. All parties agreed to the second attorney procedure used to investigate Shaya's new trial claim and did not object to the court accepting the opinions of the "officer of the court" made after his investigation, which essentially boiled down to the fact that Shaya had no other facts showing conflict or ineffective assistance of counsel that were not already in his written motion. The court subsequently heard argument on the new trial motions filed by trial counsel for Shaya as well as reconsidering Shaya's written document before denying both of those motions. No abandonment of the court's duties are shown.