Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. Ct. No. VCF228351, Gary L. Paden, Judge.
Jagdish J. Bijlani, 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 Kari L. Ricci, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Dawson, J.
STATEMENT OF THE CASE
Appellant, Gonzalo Lugo Tafolla, was charged in an information filed on December 1, 2009, with driving under the influence of alcohol (Veh. Code, § 23152, subd. (a), count one), driving with a blood alcohol level at or above.08 percent (Veh. Code, § 23152, subd. (b), count two), and driving without a driver’s license (Veh. Code, § 12500, subd. (a), count three). There were special allegations that Tafolla’s blood alcohol level was.15 percent or greater and that he had four drunk driving convictions in 2002 and two prior drunk driving convictions in the 1990’s.
On March 23, 2010, Tafolla brought a Marsden motion that was denied at the conclusion of a hearing. At the conclusion of a jury trial on March 24, 2010, Tafolla was found guilty of counts one and two. The jury found Tafolla’s blood alcohol level was.15 percent or greater. The court dismissed count three. Tafolla waived a jury trial on the truth of the prior convictions and the trial court found the allegations true. The court found true the four prior drunk driving convictions from 2002 but struck the prior convictions from the 1990’s.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
On May 5, 2010, the court sentenced Tafolla to prison for two years on count two. The court stayed Tafolla’s sentence on count one pursuant to Penal Code section 654.
Pursuant to Penal Code section 4019 as amended effective January 25, 2010, Tafolla received one for one credits for the time he was in custody prior to sentencing.
Tafolla contends that the trial court failed to make a meaningful inquiry concerning an allegation he made during the Marsden hearing. Tafolla further contends the trial court failed to adequately define the fines and fees it imposed at sentencing.
FACTS
On September 9, 2009, at 7:20 p.m., Woodlake Police Officer Henry Torres observed Tafolla speeding in a vehicle. Tafolla failed to stop behind a limit line of a stop sign and was not wearing a seatbelt. Torres stopped Tafolla and noticed Tafolla’s responses to questions were slow and lethargic, his speech was slurred, and he had the odor of alcohol on his breath. Tafolla’s eyes were red, bloodshot, and watery. Tafolla said he had consumed three beers with dinner. Torres believed Tafolla was under the influence of alcohol.
Tafolla failed the field sobriety tests administered by Torres. Tafolla was transported to the Woodlake Police Department. Tafolla was administered two blood alcohol tests. The two tests showed blood alcohol levels of.17 percent and.18 percent. Tafolla was then cited and released to a responsible, sober adult.
Outside of the presence of the jury, defense counsel represented to the court that Tafolla was going to testify against counsel’s advice. Tafolla testified that he was driving on September 9, 2009. He observed two police officers talking to each other through the windows of their patrol cars. As Tafolla drove, he noticed the police car driven by Torres was following him in an aggressive manner.
Tafolla pulled over. Torres asked him for his driver’s license. Tafolla asked Torres why he was being pulled over. According to Tafolla, after he exited his car, Torres asked Tafolla what he had been drinking. Tafolla explained he was having difficulty walking because he injured his foot after falling from a ladder and his ankle was swollen. Also, one of Tafolla’s legs is shorter than the other one.
Tafolla admitted to Torres that he had consumed some beer but he did not believe he was too impaired to drive a vehicle. Tafolla claimed that after being brought to the police department, he was not told he was being placed under arrest and was questioned without being informed of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Tafolla said he was asked to give multiple breath tests into at least four different machines, perhaps as many as eight different devices. Tafolla was released to a family friend.
MARSDEN MOTION
Hearing
On March 23, 2010, Tafolla made a motion pursuant to Marsden challenging the representation of his attorney, Amber Miramontes. Tafolla explained that he was told Miramontes no longer wanted to work for him. Tafolla stated he was told he could not use evidence or bring his witnesses to testify at trial.
Tafolla sent the court a letter outlining his complaints concerning his legal representation. The court did not receive the letter prior to the hearing. The court asked Tafolla to verbally explain his complaints. A letter from Tafolla dated March 19, 2010, and filed on April 12, 2010, is in the clerk’s transcript. Although the letter is rambling and unfocused, at the end Tafolla complains that Miramontes refused on several occasions to file a motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). Tafolla also states that Miramontes told him she would no longer represent him.
Miramontes replied that she never told Tafolla that she did not want to work for him anymore. Miramontes further explained that she would not file a motion Tafolla requested pursuant to Pitchess. Miramontes explained to Tafolla she would not subpoena witnesses that she believed were not relevant to the case. Miramontes stated Tafolla was asking her to do things she did not believe she had a legal basis to do.
Tafolla stated there was another officer involved in the case and the witnesses he sought to call were “vital to solve this.” One witness was a male friend of his family. Tafolla stated his rights were read to him and he was told he was in no condition to drive because he was “very drunk.” The other officer gave Tafolla a ride to an alley near where Tafolla’s aunt lived. Tafolla questioned why, if he was too drunk to drive, did the officer drive him home instead of allowing him to “sober up.”
Miramontes explained it was her understanding that Tafolla’s witnesses would testify that instead of keeping Tafolla in “detox, ” the police officers took Tafolla home and Tafolla believes this was proof he was not intoxicated. Miramontes stated the police officers would testify that they took Tafolla home. The court asked Miramontes about the Pitchess motion. Miramontes replied that based on her conversations with Tafolla, a Pitchess motion would be frivolous.
Tafolla asserted he had proof that Officer Torres was lying and that he wanted to challenge the officer’s credibility. The court explained to Tafolla that if he had some proof Torres was lying, the court would allow Tafolla to present that proof. The court found there was no breakdown in Tafolla’s relationship with counsel and denied the Marsden motion.
Analysis
Tafolla argues the trial court failed to make a meaningful inquiry concerning his contention that his counsel failed to file a Pitchess motion on the arresting officer. Tafolla states that although he was given an opportunity to speak as to the basis he sought to substitute counsel, the court did not specifically inquire into Tafolla’s knowledge of events not apparent from observations in the courtroom and the court, therefore, could not have exercised proper discretion in denying the Marsden motion. We reject Tafolla’s argument.
When a defendant seeks to discharge his or her appointed counsel asserting inadequate representation and substitute another attorney, the trial court must allow the defendant to explain the basis of the contention. A defendant is entitled to relief if the record clearly shows the first appointed attorney has not provided adequate representation or that the defendant and counsel have become embroiled in a conflict so irreconcilable, ineffective representation would be the likely result. The decision to grant the substitution is within the discretion of the trial court. Appellate courts will not find an abuse of that discretion unless the failure to remove and replace appointed counsel would substantially impair the defendant’s right to effective assistance of counsel. (People v. Abilez (2007) 41 Cal.4th 472, 487-488 (Abilez).)
Tafolla’s contention is based on his counsel’s refusal to pursue a Pitchess motion. The trial court gave Tafolla a meaningful opportunity to explain his underlying rationale for filing a Pitchess motion. Tafolla stated that he thought Torres was untruthful in his account of the circumstances surrounding Tafolla’s arrest.
During the Marsden hearing, Tafolla acknowledged that Torres had read him his Miranda rights. Tafolla’s assertion of Torres’s alleged untruthfulness seemed to hinge on Tafolla’s belief that because he was sent home after his arrest, that he was not intoxicated enough to have committed the offense. If this was a showing of officer misconduct or untruthfulness at all, it was a very weak showing that would not require further inquiry by the trial court. The trial court gave Tafolla a meaningful opportunity to explain the basis for his motion to substitute counsel. (People v. Jackson (2009) 45 Cal.4th 662, 688; Abilez, supra, 41 Cal.4th at p. 488.)
The court explained at the Marsden hearing that Tafolla could pursue this point at trial. At trial, Tafolla claimed, inconsistently from his statement in the Marsden hearing, that Torres did not give him his Miranda rights and that he was sober enough to be sent home the evening of his arrest.
Miramontes explained to the court that she did not believe there was any merit to such a motion and refused to file it. When a defendant chooses to be represented by counsel, that attorney is captain of the ship and can make all but a few fundamental decisions for the defendant. (People v. Alfaro (2007) 41 Cal.4th 1277, 1320.) Attorneys are not required to proffer futile objections. (People v. Anderson (2001) 25 Cal.4th 543, 587.)
Miramontes was in the best position to determine, based on her conversations with her client and her investigation of the case, that filing a Pitchess motion would have been futile. Her decision not to do so is supported by the very weak showing made by Tafolla during the Marsden hearing. To the extent there was any credibility question between the defendant and counsel at the hearing, the trial court was entitled to accept counsel’s explanation. (Abilez, supra, 41 Cal.4th at p. 488.) Tafolla further failed to demonstrate an irreconcilable conflict with counsel. (People v. Jackson (2009) 45 Cal.4th 662, 688 [tactical disagreements between defendant and counsel do not in themselves constitute an irreconcilable conflict].)
The court allowed Tafolla to express himself fully and its inquiry was as comprehensive as the circumstances would reasonably permit. The court listened to Tafolla’s reasons for substituting counsel before finding those reasons without merit. There is, therefore, no basis for concluding that the trial court failed to conduct a proper Marsden inquiry. (People v. Smith (2003) 30 Cal.4th 581, 607-608.)
FINES AND FEES
At sentencing, the trial court ordered Tafolla to pay a $400 restitution fine (Pen. Code, § 1204.4), a suspended $400 parole revocation fee (Pen. Code, § 1204.45), a $60 court security fee (Pen. Code, § 1465.8), and a $60 assessment (Gov. Code, § 70373). The court obtained a waiver from appellant to impose an aggregate amount of $2,470 in fees, fines, and penalty assessments, which were not individually set forth in the abstract of judgment. The parties agree this was in error.
All fines and fees must be set forth in the abstract of judgment even though a detailed recitation may be tedious. Without specification of each fee and assessment, the Department of Corrections and Rehabilitation cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate authorities. The trial court must specifically list, with the statutory basis, all fines, fees, and penalties. (People v. High (2004) 119 Cal.App.4th 1192, 1200-1201 (High).) We will therefore remand the matter.
DISPOSITION
The case is remanded for the trial court to specifically set forth the statutory basis for each fine, fee, and penalty assessment it imposed in accordance with High. The court shall prepare an amended abstract of judgment reflecting these changes and forward it to the appropriate authorities. The judgment is affirmed.