Opinion
A152506
07-31-2018
THE PEOPLE, Plaintiff and Respondent, v. TAYLOR ROY SHEPARD, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. CR944148)
Defendant Taylor Roy Shepard was convicted of reckless driving while fleeing a police officer (Veh. Code, § 2800.2, subd. (a)), driving in the opposite direction of traffic (§ 2800.4), misdemeanor resisting a police officer (Pen. Code, § 148, subd. (a)(1)), and misdemeanor providing false information to a peace officer. (Pen. Code, § 148.9, subd. (a).) He raises a single issue on appeal—that the trial court's failure to hold a hearing on his fourth Marsden motion, made at sentencing, was prejudicial error. We conclude any error was harmless beyond a reasonable doubt, and affirm.
All further undesignated statutory references are to the Vehicle Code.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
BACKGROUND
We set forth only the facts necessary to address the issue on appeal.
At the outset of the sentencing hearing, defendant stated he was "not ready to proceed" and claimed he needed more than two hours to prepare, indicating he had told his attorney "we need to do some motions." The court passed the case and told defendant and his attorney to talk to one another.
The court then re-called the case and asked if there was any argument. Defense counsel called defendant's sister, who testified to his addiction and requested that he be placed in a rehabilitation facility. Defendant kept interrupting her testimony and stating he did not trust his attorney. At the conclusion of his sister's testimony, defendant stated he had "a speech" he wanted to give. His attorney stated "I'm going to call my client to testify," and defendant responded "You get on the stand too." When the court attempted to administer the oath to the defendant, he refused to raise his right hand and, thus, was not allowed to testify.
After defendant continued to interrupt the proceedings, the court stated "This is now at least the fifth time. [¶] . . . [¶] I've warned you to quiet down. [¶] . . . [¶] One more talk, you're out of this courtroom and we will proceed to your sentencing in your absence." At this point, defendant said "I want to call a Marsden motion. . . . I want the courts to appoint me a sentencing lawyer because I don't trust him to sentence me because I don't—he hasn't been. . . ." The court responded, "We've been through this and through this sir." Defendant continued "I don't know his job. I'm not knowing if he's competent or not for his job. But I've heard people say he's done way a lot and promotions and everything he's been doing for people. I don't see that in my case. I don't see that one bit, Your Honor. And you know that you've been sitting through my . . . jury trial. You know that. You shut me down yourself. Okay. You shut me down yourself, Judge. And I—yes, you have."
This was defendant's fourth "Marsden" motion. His first Marsden motion, made regarding his third attorney, resulted in a denial after a hearing. His second motion, regarding his fourth and final appointed attorney, was also denied after a hearing. Defendant's third Marsden motion was made two hours after his second one. After the defense attorney explained his strategy, defendant stated "Okay. Thank you. I trust your judgment the best. . . ."
The court responded, "I don't know what you're speaking . . . ," and defendant interrupted again, stating "You did." The court directed the bailiff to "Please remove this gentleman from my [courtroom]. He continues to shout over me. I am not going to tolerate this anymore." Defendant responded, "I'm calling for a Marsden motion." He was then removed from the courtroom.
At that point, the court asked defense counsel how he wished to proceed. Counsel responded "I do have argument. Mr. Shepard is asking for a Marsden. I don't know. . . ." The court stated, "I heard him. That's why I'm asking you. We've had multiple Marsden motions in this case." Counsel then stated, "I obviously don't think there's merit, and I'm ready to proceed with sentencing. So whatever the Court wants."
The court stated: "For the record, I removed him because—I think it's clear on the record, but just to make sure the record's crystal clear, he repeatedly spoke throughout the witness' testimony, throughout the Court's testimony, throughout the attorneys speaking. No matter how many times I asked him to be quiet and wait for his turn, he would not do so. And at the last minute, he mentions Marsden. I don't know that there's enough here for me to stop and all of a sudden have a Marsden motion. [¶] [I]f you see that differently, then that's—I will do it." Defense counsel agreed "I don't think there's a basis for a Marsden motion." The court further stated, "I mean, what he just said, which he shouldn't say, he gave his basis for the Marsden right here in open court. . . . But it was simply that he doesn't trust you . . . he doesn't like the results, basically. [¶] . . . [¶] I'm sure his feelings are true. They are his feelings. That would, however, not be the basis for granting a Marsden motion. So I don't [have] . . . anything for which—to cause the Court to have a Marsden motion."
After that, the court denied a defense motion to reduce count 1, evading a police officer, to a misdemeanor, and denied his Romero motion to dismiss the prior strike.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The court found no circumstances in mitigation, and following the recommendation of the probation department, sentenced defendant to the upper term of three years on count 1, doubled it due to defendant's prior strike, and added one year due to his prior prison term. The court also imposed the upper term of three years on count 2, driving in the opposite direction of traffic, doubled the term due to the strike, and stayed it pursuant to Penal Code section 654. The court imposed 180 days each, to run concurrently, as to both misdemeanor convictions (resisting a police officer and providing false information). The court additionally found defendant in violation of his probation in a prior case. The court permanently revoked probation, doubled the one-year sentence imposed due to defendant's prior strike, and ordered the two-year term to run consecutively, for a total prison term of nine years.
DISCUSSION
Defendant maintains the court committed prejudicial error by not holding a hearing on his fourth Marsden motion.
"[A] trial court must conduct [] a Marsden hearing only when there is at least some clear indication by the defendant, either personally or through counsel, that the defendant wants a substitute attorney. . . . [I]f a defendant requests substitute counsel and makes a showing during a Marsden hearing that the right to counsel has been substantially impaired, substitute counsel must be appointed as attorney of record for all purposes." (People v. Sanchez (2011) 53 Cal.4th 80, 84.)
However, "Marsden does not establish a rule of per se reversible error." (People v. Washington (1994) 27 Cal.App.4th 940, 944 (Washington).) Reversal is required only if "the court conclude[s] that it could not find beyond a reasonable doubt that the error did not contribute to the defendant's conviction." (People v. Chavez (1980) 26 Cal.3d 334, 349.)
In Washington, supra, 27 Cal.App.4th at page 944, this court held the trial court's failure to hold a postconviction Marsden hearing was harmless where the defendant "ha[d] made no showing . . . either that his Marsden motion would have been granted had it been heard, or that a more favorable result would have been achieved had the motion in fact been granted." In that case, the defendant made a motion for a new trial at the same time he made his Marsden motion. When the court was next in session, the court ruled on the new trial motion but failed to hear the Marsden motion, and neither the defendant nor his attorney indicated defendant still wanted to dismiss his attorney. (Washington, at pp. 942-943.) We concluded failure to hear the Marsden motion was harmless because the "basis for such a motion at such a time could have been only that his attorney had acted incompetently at trial or in filing the motion for new trial [citation] or, possibly, that Washington believed that counsel would be unable to represent him properly at sentencing." (Washington, at p. 944.) The court went on to conclude, "We cannot see how the appointment of a different attorney would have gained Washington a new trial, or could have had any effect on the sentence imposed. . . ." (Ibid.)
We reach the same conclusion here. Even assuming defendant made a sufficient Marsden motion to trigger a hearing, there is nothing in this record that remotely suggests defendant would have received a lesser sentence had new counsel been appointed. The evidentiary portion of the sentencing hearing was completed by the time defendant invoked Marsden—only the actual imposition of the sentence remained. And in that regard, the court stated on the record that it was considering the probation report, which included a statement by defendant's wife regarding his substance abuse, and a request that he be placed in the rehabilitation program at Delancey Street. As we have recited, defendant also presented evidence at the hearing, namely the testimony of his sister. Defendant was also given the opportunity to testify on his own behalf, but refused to take the oath. And after defendant was removed from the courtroom, his attorney made a Romero motion and sought to reduce count 1 to a misdemeanor. In short, defendant was fully able to make his case on sentencing.
Contrary to his assertion on appeal, defendant was also "allowed to explain why he wanted new counsel for sentencing." As we have recited, he told the court that he had heard his attorney had "done way a lot" for other people, but claimed that was not so for him. As both the court and defense counsel observed, this was not a basis to appoint new counsel
Thus, as in Washington, we "cannot see how the appointment of a different attorney . . . could have had any effect on the sentence imposed." (Washington, supra, 27 Cal.App.4th at p. 944.) Accordingly, even assuming the trial court should have conducted a Marsden hearing, there was no prejudicial error even under the heightened Chapman standard.
Chapman v. California (1967) 386 U.S. 18, 24. --------
DISPOSITION
The judgment is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.