Opinion
NOT TO BE PUBLISHED
Before Gomes, Acting P.J., Dawson, J., and Kane, J.
APPEAL from a judgment of the Superior Court of Merced County No. MC49073Ronald W. Hansen, Judge.
Kristin Cobery, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Joseph M. Cook, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Appellant, Azia Jonathan Snell, pled no contest to two counts of lewd and lascivious conduct with a child under the age of 14 (counts 1 and 2/Pen. Code, § 288, subd. (a)) and was sentenced to a six-year term.
On appeal, Snell contends: 1) the court erred by its failure to conduct a Marsden hearing on January 15, 2009; and 2) the court abused its discretion when it denied Snell’s motion to withdraw his plea. We will affirm.
People v. Marsden (1970) 2 Cal.3d 118.
FACTS
On July 13, 2008, Merced police were called to the home of a 13-year-old girl who reported that Snell forced her to have intercourse with him three times between June 8, 2008, and June 27, 2008. Snell was subsequently arrested and admitted having intercourse with the victim, but claimed it was consensual.
On August 5, 2008, the district attorney filed a nine-count information charging Snell with various sex offenses including the two he pled to.
On September 30, 2008, defense counsel, Eric Dumars, advised the court that Snell wanted a Marsden hearing. The court then conducted a hearing during which Snell complained that he was being denied his right to a speedy trial, Dumars was withholding evidence from him, Dumars did not appear to know what was going on in the case, Dumars was withholding some information from Snell’s family and giving them other information to make them think Snell was guilty. Dumars responded that he had shown Snell and his mother and sister a videotape of his confession, that he had not given Snell the police reports because sometimes other inmates get hold of them and use the information in them to attribute statements to his clients that are not true, and that he was prepared for trial. Dumars also stated that he believed it was in Snell’s best interest to resolve the case but he had not been able to get Snell to the point where Dumars could begin negotiations to settle the matter. The court heard additional comments from Snell before denying his Marsden motion.
On October 6, 2008, the court granted Snell’s motion to dismiss three counts. After an issue arose regarding Snell’s mental competency to stand trial, the court suspended criminal proceedings and referred him for a psychological evaluation.
On October 14, 2008, Snell was evaluated by Dr. J. Stanley Bunce who concluded that Snell was competent to stand trial. During the evaluation, Snell told Dr. Bunce that Snell had written a letter of apology to the victim, although he claimed that he did not know what he was doing at the time.
On October 27, 2008, the court found Snell competent to stand trial and reinstated criminal proceedings.
On the morning of December 16, 2008, the court denied Dumars’s request for a continuance until January 5, 2009. After Dumars stated that Snell wished to address the court, the court continued the matter to the afternoon. When the proceeding resumed, Snell entered his no contest plea to two counts of child molestation in exchange for the dismissal of the remaining counts and a stipulated six-year term consisting of two concurrent six-year middle terms.
On January 15, 2009, Dumars advised the court that Snell wanted to withdraw his plea and requested the appointment of conflict counsel to assist him. After some discussion regarding whether some type of showing was required before conflict counsel was appointed, the court offered to continue the matter a day to give Dumars time to talk to Snell. Dumars then stated:
“The only… thing I’d say, I’ve spoke at length with Mr. Snell. I don’t think that would … be beneficial to the Court or to Mr. Snell just to continue it for that. I guess I’ll just spit it out. I think what Mr. Snell’s [sic] saying is he was induced by me into taking the plea and there was duress by me and he’s not happy with how -- what the result was and that he thinks I forced him into doing this in some way, and I don’t agree with that assessment. But I am obviously partial.”
At another point, Dumars stated:
“Well, I’ll tell you this; that Mr. Snell at this point is not happy with me. He doesn’t want me to represent him. And that he feels he was rushed into it. He feels that there was … pressure applied, that he didn’t have time to talk about this, to think about this. And, again, [y]our Honor, I’m in an awkward position because I don’t agree with Mr. Snell’s assessments.”
When the prosecutor asked whether the defense was requesting a Marsden hearing, the court responded that it interpreted Dumars’s comments as a request to appoint substitute counsel to consider whether to file a motion to withdraw plea on Snell’s behalf. The court then appointed conflict counsel for that purpose.
On February 27, 2009, attorney Jeffrey Tenenbaum filed a motion to withdraw plea on Snell’s behalf. In a letter attached to the declaration, Snell stated he wanted to withdraw his plea because Dumars had not properly represented him. According to Snell, Dumars would not let Snell waive time so that Dumars could properly prepare Snell’s case. Snell also alleged that he entered his plea because he was not ready mentally or emotionally to go to trial and Snell felt pressured by Dumars’s statements to his family that Snell would lose his case at trial and was not going to “walk free, ” and by threats he received from the victim’s family. Snell also claimed he had only five minutes to decide whether to accept the plea bargain and he was unaware when he entered his plea that he could plead to lesser charges and receive a lesser sentence.
It appears from the record that Snell had a copy of this letter with him on January 15, 2009, and although the letter is mentioned in the record, a copy was not provided to the court on that date.
At a March 9, 2009, hearing on Snell’s motion, the prosecutor asserted that, in fact, Snell had several hours to decide whether to accept his plea bargain. The court agreed and noted on the record that the change of plea proceedings began in the morning and ended later that day in the afternoon. Afterwards, Snell testified he took the plea deal because Dumars’s statement that he would lose if he went to trial made him feel he had no other alternative, he felt rushed by Dumars, and he did not want to put his family through the ordeal of a trial. Snell further testified that he would have preferred to waive time to allow Dumars time to look over Snell’s paperwork and represent him properly. At the end of the hearing, the court found that Snell had not presented good cause to withdraw his plea and denied the motion.
On March 18, 2009, the court sentenced Snell to the stipulated sentence of six years.
DISCUSSION
The Failure to Hold a Marsden Hearing on January 15, 2009
Snell contends the court erred by its failure to hold a Marsden hearing at the January 15, 2009, hearing after Dumars advised the court that Snell wanted to withdraw his plea because Dumars had allegedly coerced Snell into entering into it. We will find that any error in the trial court’s failure to hold a Marsden hearing was harmless.
“[People v.] Marsden [(1970) 2 Cal.3d 118] 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 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.)
“‘In [People v.] Marsden [(1970) 2 Cal.3d 118], [the Supreme Court] said: “[A] judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant’s offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney. A judicial decision made without giving a party an opportunity to present argument or evidence in support of his contention ‘is lacking in all the attributes of a judicial determination.’ [Citations.]”’
“‘A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. [Citations.]’” (People v. Dickey (2005) 35 Cal.4th 884, 917.)
“‘“Although no formal motion is necessary, there must be ‘at least some clear indication by defendant that he wants a substitute attorney.’” [Citation.]’” (People v. Dickey, supra, 35 Cal.4th at p. 920.)
Marsden error is reversible unless the record shows it was harmless beyond a reasonable doubt. (People v. Eastman, supra, 146 Cal.App.4th at p. 697.) Here, even assuming that Dumars’s statements during the January 15, 2009, hearing triggered the court’s duty to conduct a Marsden hearing, the failure to conduct such a hearing was harmless.
On September 30, 2008, approximately two and a half months prior to Snell entering his plea, the court conducted a Marsden hearing during which it provided Snell ample opportunity to express his dissatisfaction with his representation by Dumars. At that time, Snell complained that Dumars appeared unprepared to try his case, was withholding evidence from him and his family, and was providing his family with information that made Snell appear guilty. Thereafter, Snell expressed the reasons for his dissatisfaction with his representation by Dumars in the letter to the court that was submitted in support of his motion to withdraw plea. He also had ample opportunity to air all of his complaints against Dumars to substitute counsel during the preparation of Snell’s motion to withdraw his plea and to the court during his testimony in support of this motion. After the September 30, 2008, Marsden hearing, Snell’s only complaint with respect to his representation by Dumars was that Dumars pressured him into entering a plea by: 1) not allowing Snell to waive time, thereby rushing him into entering a plea; and 2) telling Snell that he would be convicted if he went to trial. However, by denying Snell’s motion to withdraw his plea, the court rejected his claim that he was unduly pressured by Dumars. Thus, the record shows that Snell had ample opportunity and the assistance of substitute counsel in airing all of his complaints regarding his representation by Dumars and that the court considered and rejected these complaints. Accordingly, we conclude that any error in the court’s failure to conduct a Marsden hearing on January 15, 2009, was harmless beyond a reasonable doubt.
Snell’s complaint at the September 30, 2008, Marsden hearing that he was being denied his right to a speedy trial and Dumars’s request for a continuance on December 16, 2008, prior to Snell entering a plea that day, support the court’s implicit rejection of Snell’s claim that Dumars would not let him waive time.
The Denial of Snell’s Motion to Withdraw His Plea
Snell contends the court abused its discretion when it denied his motion to withdraw plea because the record shows that Dumars unduly pressured him into entering his plea. We disagree.
“A defendant who seeks to withdraw his guilty plea may do so before judgment has been entered upon a showing of good cause. [Citations.] ‘Section 1018 provides that... “On application of the defendant at any time before judgment... the court may, ... for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.” Good cause must be shown for such a withdrawal, based on clear and convincing evidence. [Citation.]’ [Citations.] ‘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.]’ [Citation.] ‘The burden is on the defendant to present clear and convincing evidence the ends of justice would be subserved by permitting a change of plea to not guilty.’ [Citation.]
“‘When a defendant is represented by counsel, the grant or denial of an application to withdraw a plea is purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result. [Citations.] On appeal, the trial court’s decision will be upheld unless there is a clear showing of abuse of discretion. [Citations.]’ [Citation.] ‘Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.’ [Citation.]” (People v. Weaver (2004) 118 Cal.App.4th 131, 145-146 (Weaver).)
Snell claims he was pressured into entering a plea by Dumars because Dumars would not allow him to waive time so Dumars could properly prepare his case and Dumars told Snell and his family that Snell would lose if his case went to trial. However, prior to entering his plea on December 16, 2008, Snell filled out a change of plea form wherein he acknowledged that he had plenty of time to speak with his attorney and no one had threatened him in order to get him to plea. During the change of plea proceedings, in response to questions by the court, Snell stated that he had read, initialed, and signed the change of plea form and he reiterated that he had enough time to speak with Dumars. Further, nothing in the transcript of the change of plea proceedings suggests that Snell felt pressured, threatened, or otherwise had any misgiving about entering his plea.
Moreover, the evidence against Snell appeared overwhelming because, in addition to the victim’s statements, during a post arrest interview Snell admitted having consensual intercourse with the victim and he wrote a letter of apology to her. Thus, any statements by Dumars to the effect that Snell likely would be convicted by a jury and that he was not going to go free were no more than candid assessments of Snell’s predicament at the time.
Further, the court could reasonably find from Snell’s acknowledgement that since entering his plea he became aware that he could have pled to lesser charges and received a lesser term that the true impetus for Snell’s motion was buyer’s remorse. However, “[p]ostplea apprehension (buyer’s remorse) regarding the anticipated sentence, … is not sufficient to compel the exercise of judicial discretion to permit withdrawal of the plea of guilty. [Citation.]” (People v. Knight (1987) 194 Cal.App.3d 337, 344.)
Snell cites Weaver, supra, 118 Cal.App.4th 131, in support of his contention that he established good cause to withdraw his plea. In Weaver, the defendant pled guilty to four counts of lewd conduct with a child under the age of 14 and six counts of attempted lewd conduct with a child under the age of 14. (Id. at p. 133.) During plea negotiations, the trial court repeatedly attempted to get the parties to resolve the matter by making comments the defendant interpreted as showing that the court believed he was guilty, dangerous, and that he would not get a fair trial. (Id. at p. 149.) Thereafter, the defendant filed a motion to withdraw his plea contending that he was pressured by the court and his attorney into entering into it. (Id. at p. 141.) In agreeing with the defendant that the court pressured him into entering a plea, the Weaver court stated:
“[W]hen the trial court abandons its judicial role and thrusts itself to the center of the negotiation process and makes repeated comments that suggest a less-than-neutral attitude about the case or the defendant, then great pressure exists for the defendant to accede to the court’s wishes.” (Weaver, supra, 118 Cal.App.4th at p. 150.)
Weaver is inapposite because in that case the trial court placed undue pressure on the defendant to enter a plea by engaging in conduct that the appellate court found reasonably led the defendant to believe the court thought he was guilty and that he could not receive a fair trial. Here, the trial court engaged in no conduct similar to that of the court in Weaver. Thus, we conclude that the court did not abuse its discretion when it denied Snell’s motion to withdraw his plea.
DISPOSITION
The judgment is affirmed.