Opinion
H042925
07-09-2018
THE PEOPLE, Plaintiff and Respondent, v. ABELARDO VELA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. Nos. F1452257, F1555277)
Defendant Abelardo Vela pleaded no contest to possession of a dirk or dagger, receiving a stolen vehicle, and possession of methamphetamine. He admitted numerous allegations and enhancements. The trial court imposed a total term of four years in prison. The court also imposed a laboratory fee, a drug program fee, and related penalty assessments.
Vela contends the penalty assessments were unauthorized because the laboratory and drug program fees do not constitute fines or penalties under Government Code section 76000 (imposing penalty assessments "upon every fine, penalty, or forfeiture" imposed and collected in criminal cases). Second, Vela contends the trial court erred by denying his motions to replace appointed counsel under Marsden. We conclude both claims are without merit. We will affirm the judgment.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
I. BACKGROUND
The facts of the offenses are not set forth in the record. They are immaterial to this appeal.
In September 2014, in case No. F1452257, the prosecution charged Vela by information with two counts: Count 1—possession of a sap or similar weapon (Pen. Code, § 22210); and count 2—possession of a dirk or dagger (§ 21310). The information further alleged Vela had suffered five prior strike convictions (§§ 667, subds. (b)-(i), 1170.12), four prior prison terms (§ 667.5, subd. (b)), and that he was out of custody on supervised release at the time of the offense (§ 12022.1).
"Sap" is not defined in the statute or case law. One dictionary defines it as "a blackjack, policeman's club, or other object used as a bludgeon." (Webster's 3d New Internat. Dict. (1993) p. 2013.)
Subsequent undesignated statutory references are to the Penal Code.
In November 2014, Vela was represented by the public defender. Throughout pretrial proceedings, Vela had refused to waive time. On the eve of trial, Vela moved for the appointment of new counsel under Marsden. After the trial court denied the motion, Vela moved to represent himself under Faretta and requested a continuance to prepare for trial. The trial court denied the Faretta motion but granted a continuance for appointed counsel to conduct further investigation.
Faretta v. California (1975) 422 U.S. 806 (Faretta).
A week later, Vela filed a petition to proceed in propria persona and moved again to represent himself under Faretta. This time, the trial court granted the motion. In April 2015, however, Vela moved for reappointment of counsel. The trial court granted the motion.
Shortly thereafter, in case No. F1555277, the prosecution charged Vela by felony complaint with four counts: Count 1—buying or receiving a stolen vehicle (§ 496d); count 2—possession of a dirk or dagger (§ 21310); count 3—possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); and count 4—driving with the privilege revoked or suspended (Veh. Code, § 14601.5, subd. (a)). The complaint further alleged Vela was out of custody on bail at the time (§ 12022.1), in addition to multiple prior strike convictions and prison terms.
In May 2015, while represented by the public defender, Vela entered a plea agreement to resolve both cases for a total term of four years. In case No. F1452257, he pleaded no contest to count 2 (possession of a dirk or dagger), and count 1 (possession of a sap) was dismissed. Vela admitted all strike priors and prison terms, but the enhancement under section 12022.1 was dismissed. In case No. F1555277, Vela pleaded no contest to count 1 (receiving a stolen vehicle), and count 3 (possession of methamphetamine). He admitted all strike priors and prison terms, and he admitted he was out on custody on bail at the time of the offenses. Count 2 (possession of a dirk or dagger) was dismissed.
At the time, he also pleaded no contest to count 4 (driving with a suspended license), but the plea was later withdrawn nunc pro tunc and dismissed at the sentencing hearing.
The sentencing hearing was held in September 2015. Before the court pronounced sentence, Vela again moved to replace his appointed counsel under Marsden. The trial court denied the motion. The court then imposed a total term of four years, equal to two years eight months for possession of a dirk or dagger, consecutive to one year four months for receiving a stolen vehicle. The court struck the remaining punishments for the enhancements and prior prison terms. Finally, the court imposed a laboratory fee, a drug program fee, and the penalty assessments for these fees. (Health & Saf. Code, §§ 11372.5, subd. (a), 11372.7.)
Vela obtained a certificate of probable cause to appeal on the grounds that the trial court erroneously denied his Marsden motions.
II. DISCUSSION
A. Penalty Assessments on the Laboratory and Drug Program Fees
Vela contends the court erred by imposing penalty assessments on the laboratory and drug program fees. He argues that, because these amounts constitute "fees" and not punitive "fines," the penalty assessments do not apply. The Attorney General contends the amounts are fines subject to penalty assessments.
The California Supreme Court recently considered a closely related question in People v. Ruiz (2018) 4 Cal.5th 1100. Ruiz was convicted of conspiracy to transport a controlled substance. (Health & Saf. Code, § 11379, subd. (a).) On appeal, Ruiz contended the trial court erroneously imposed laboratory and drug program fees because these amounts are not punitive and were therefore unauthorized under section 182 (providing that conspiracy to commit a felony "shall be punishable in the same manner and to the same extent as is provided for the punishment of that felony.") The California Supreme Court rejected that argument. Based on the legislative history underlying the relevant code sections, the court held that the Legislature intended that the payments prescribed under these code sections constitute fines, penalties, and punishment.
Because Vela's argument is materially no different from that rejected by the high court in People v. Ruiz, we conclude his argument must be rejected here as well. We conclude this claim is without merit.
B. Denial of Vela's Motions to Replace Appointed Counsel Under Marsden
As set forth above, Vela moved twice to replace his appointed under Marsden—once during pretrial proceedings in case No. F1452257, and then again at the sentencing hearing after he had entered pleas in both cases. He contends the trial court erred in denying each of the two motions. The Attorney General contends Vela's appeal from the first denial is not cognizable under section 1237.5 because he subsequently pleaded no contest. Assuming Vela may appeal both denials, the Attorney General contends neither ruling was an abuse of discretion.
1. Procedural Background
a. Pre-Plea Marsden Motion
On the eve of trial in case No. F1452257, Vela moved under Marsden to replace the public defender appointed to represent him at trial. The trial court held a closed hearing in the absence of the prosecutor to hear Vela's motion.
Vela voiced several complaints about his counsel's representation. First, Vela asserted counsel had failed to communicate with him, ignoring his phone calls and requests to confer on defenses and trial strategy. Second, Vela complained counsel had not filed certain pretrial motions and writs Vela had requested. At the preliminary hearing, Vela wanted counsel to file a writ of prohibition or mandamus to stop the proceedings because Vela believed his witnesses had not been allowed to testify. Vela also wanted counsel file a Pitchess motion seeking discovery on the police officer who arrested Vela. Vela explained that the officer had questioned him without advising him of his Miranda rights, and Vela believed discovery would show the officer had previously falsified police reports. Vela also asserted counsel should have moved to dismiss the information under section 995 because the objects found in his possession were not prohibited under the charged statutes. Counsel declined to file any of these motions.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Third, Vela complained that counsel had failed to subpoena witnesses who could provide "critical" testimony. Vela argued that his sister would testify that she was present on the night he was arrested, and that Vela's purpose for going out that evening was to look for his niece, who was out past curfew. Vela explained that he had in his possession a jack handle—the alleged sap, apparently—because he had been changing the tires on his car. Vela proffered that his niece would also testify to these facts.
The trial court then sought a response from Vela's trial counsel. Counsel had represented Vela at the preliminary hearing after Vela declined to waive time. The other attorney appointed at that time had gone on vacation or retired. Counsel had conferred with Vela at the preliminary hearing, and counsel later spent "a couple hours" at the main jail discussing the case with Vela. Counsel believed it would have been tactically and strategically unwise to call witnesses on Vela's behalf at the preliminary hearing. Counsel pointed out that the charged offenses—both possession offenses—did not require proof of specific intent. Counsel further opined that a Pitchess motion would have been futile because the officer's credibility was not critical to proving the elements of the offenses, there being no dispute about whether Vela possessed the items. Counsel also opined that a motion to dismiss under section 995 would have been futile because there was probable cause to show the items in Vela's possession qualified as prohibited items under the applicable statutes. Vela had provided counsel with the names of two potential witnesses, but counsel advised Vela it would be difficult to interview them in time for trial if Vela continued to refuse to waive time. Counsel had advised Vela to settle.
The trial court found Vela had not suffered ineffective assistance of counsel. The court declined to second-guess counsel's opinions concerning the tactical wisdom of calling defense witnesses at the preliminary hearing. The court also found the suggested motions under Pitchess or section 995 were not likely to succeed. The court characterized the putative Pitchess motion as a "fishing expedition" and ruled that a motion to dismiss under section 995 would be futile where "the essential facts of possession were not disputed." As to the introduction of Vela's proposed witnesses, the court pointed out that they might still be allowed to testify at trial in Vela's defense. On these grounds, the trial court denied Vela's Marsden motion.
Vela then moved under Faretta to dismiss his appointed counsel on a "limited" basis. When the trial court asked Vela if he would require more time to prepare for trial, Vela responded affirmatively. The court then denied the Faretta motion as untimely and because Vela was not sincerely seeking to dismiss counsel but was instead reacting to the denial of his Marsden motion.
Vela did not explain what he meant by "limited counsel" but it appears he was requesting appointed counsel in an advisory or standby capacity.
Appointed counsel then moved for a continuance, seeking time to interview Vela's proposed witnesses. After Vela waived time, the trial court granted a continuance.
b. Post-Plea Marsden Motion
As set forth above, the prosecution charged Vela in a second case before trial began on the first case. While represented by appointed counsel, Vela entered pleas to settle both cases.
At the sentencing hearing, before the trial court pronounced judgment, Vela moved a second time to replace his appointed counsel under Marsden. Vela had also filed a written Marsden motion raising several generic claims of ineffective assistance, which the trial court characterized as "boiler plate." The court again held a closed hearing in the absence of the prosecutor.
Vela presented a litany of complaints concerning appointed counsel's representation. He asserted counsel had failed to explain the consequences of various dispositions; failed to diligently research the law applicable to the second case; failed to move for a reduction in bail; failed to respond to Vela's messages and communications concerning bail reduction; and ignored Vela's requests to advise him on specific points of law. Vela specifically complained about his felony conviction for pleading no contest to receiving a stolen vehicle under section 496d. Vela asserted the offense should have been resolved as a misdemeanor under Proposition 47.
Vela further asserted that, although he had admitted his strike priors at the plea hearing, he had not wanted to do so because he believed the prosecution could not prove them. He claimed the documents necessary to prove the prior convictions were no longer available. Finally, Vela contended that the knife for which he had been charged under section 21310 did not constitute a dirk or dagger under the statute. He claimed counsel had ignored this fact.
The trial court then solicited counsel's response. As to receipt of a stolen vehicle under section 496d, counsel pointed out that the question whether the offense could constitute a misdemeanor under Proposition 47 was still being litigated in the courts of appeal and had not yet been resolved. Counsel stated his own understanding of the law at the time was that the offense did not qualify as a misdemeanor under Proposition 47. With respect to the prosecution's ability to prove the strike priors, counsel stated, "[T]hey absolutely have sufficient documentation to prove those." As to the dirk or dagger charge, counsel opined that a jury would have convicted Vela on that count because the knife was found in his pocket locked in the open position. Counsel added that it was Vela's decision to settle the case instead of going to trial. As to bail, counsel pointed out that Vela had already been released on bail when he was arrested for the charges filed in the second case.
The trial court found Vela was aware of the status of the paperwork proving his strike priors and that he simply disagreed with counsel over whether the proof was sufficient. Similarly, as to the knife, the court found Vela disagreed with counsel about whether the knife constituted a dirk or dagger as a legal matter. As to receiving a stolen vehicle under Proposition 47, the trial court noted "this is disputed law at best" and it could not constitute ineffective assistance of counsel to give advice on a point of law that is disputed and not contrary to established law. On these grounds, the trial court denied the Marsden motion.
2. Legal Principles
"[C]riminal defendants are entitled under the Constitution to the assistance of court-appointed counsel if they are unable to employ private counsel. However, the decision whether to permit a defendant to discharge his appointed counsel and substitute another attorney during the trial is within the discretion of the trial court, and a defendant has no absolute right to more than one appointed attorney." (Marsden, supra, 2 Cal.3d at p. 123.)
" 'A defendant "may be entitled to an order substituting appointed counsel if he shows that, in its absence, his Sixth Amendment right to the assistance of counsel would be denied or substantially impaired." [Citations.] The law governing a Marsden motion "is well-settled. 'When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance. [Citation.] 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.]' " (People v. Jackson (2009) 45 Cal.4th 662, 682, quoting People v. Memro (1995) 11 Cal.4th 786, 857.)
We review the denial of a Marsden motion for abuse of discretion. (People v. Barnett (1998) 17 Cal.4th 1044, 1085.) Denial is not an abuse of discretion "unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel." (People v. Smith (2003) 30 Cal.4th 581, 604.)
3. Neither Denial of the Marsden Motions Was an Abuse of Discretion
First, we consider the Attorney General's claim that Vela has no cognizable appeal from the denial of his pre-plea Marsden motion because he subsequently pleaded no contest in that case. For this proposition, the Attorney General relies on section 1237.5 as construed by People v. Lobaugh (1987) 188 Cal.App.3d 780 (Lobaugh). Section 1237.5 provides, "No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere [. . .] except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court." (§ 1237.5.) In Lobaugh, the court held that section 1237.5 foreclosed the defendant from appealing the denial of his pre-plea Marsden motion because such a claim does not "go to the legality of the proceedings resulting in the plea" as required by subsection (a). (Lobaugh, supra, 188 Cal.App.3d at p. 786.) (See also People v. Lovings (2004) 118 Cal.App.4th 1305 [applying the holding of Lobaugh]).
Vela does not deny that Lobaugh is squarely on point, such that its holding would foreclose him from appealing the denial of his pre-plea Marsden motion. Rather, Vela essentially argues that Lobaugh was wrongly decided. He contends the cases relied on by Lobaugh do not support its holding that the erroneous denial of a Marsden motion would not "go to the legality of the proceedings" under section 1237.5. (See People v. DeVaughn (1977) 18 Cal.3d 889, 895-896 [issues cognizable on an appeal following a guilty plea are limited to issues based on "reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings" resulting in the plea]; People v. Turner (1985) 171 Cal.App.3d 116, 125-126 [by pleading guilty a defendant waives any right to question how evidence had been obtained just as fully and effectively as he waives any right to have his conviction reviewed on the merits].) We decline Vela's invitation to disagree with Lobaugh.
Even assuming Vela's claim is cognizable, we would find no abuse of discretion in the denial of his pre-plea Marsden motion. Vela generally complained about his counsel's lack of communication regarding trial strategy and certain strategic decisions counsel made, such as the refusal to file a Pitchess motion or subpoena witnesses for the preliminary hearing. He now contends this resulted in a deterioration of the attorney-client relationship to the point where there was a complete breakdown in communication.
We are not persuaded. The record shows the primary point of contention was Vela's disagreement with his counsel's tactical decisions. But counsel explained why a Pitchess motion would have been futile, and the record supports that analysis. Similarly, counsel made a tactical decision not to assert an affirmative defense at the preliminary hearing; the record suggests that was a reasonable strategic choice. While Vela might have preferred his counsel to spend more time communicating with him about the case, nothing in the record demonstrates counsel provided ineffective assistance in that regard. The record supports the trial court's finding that Vela's trial counsel provided effective assistance of counsel under the applicable constitutional standard during pre-plea proceedings. Nor did the denial of the motion impair Vela's right to effective assistance of counsel. Accordingly, even if Vela's claim were cognizable, we would conclude the trial court did not abuse its discretion in denying the pre-plea Marsden motion.
Vela contends the denial of his post-plea Marsden motion was also an abuse of discretion. Several of Vela's complaints at the post-plea hearing simply reiterated the same claims he had raised in his pre-plea Marsden hearing, in which the trial court found no ineffective assistance of counsel. He again asserted a breakdown in attorney-client communications, and he challenged his attorney's assessment of the legal merits underlying the charges against him. As to his plea to the charge of receiving a stolen vehicle (count 1), he asserted the offense should have been classified as a misdemeanor under Proposition 47. He claimed the knife for which he was charged in count 2 did not constitute a dirk or dagger. And he claimed the prosecution could not have proved his prior felony convictions.
None of these claims demonstrated ineffective assistance or any other grounds for granting a Marsden motion. As to the Proposition 47 claim, the law at the time was unsettled on the question of whether the offense of receiving a stolen vehicle could qualify as a misdemeanor. As to the merits of the other charges and allegations, Vela points to no evidence in the record contradicting his trial counsel's assessment that the prosecution could have proved them beyond a reasonable doubt. Trial counsel proffered factual and evidentiary grounds that would have supported convictions on those charges, and nothing Vela asserted then or now would show otherwise. Nor did the relationship between Vela and his trial counsel deteriorate to the point of a breakdown serious enough to require reappointment of counsel. We perceive no abuse of discretion in the trial court's rulings on these matters, and denial of the motion did not impair Vela's right to assistance of counsel.
In November 2017, more than two years after the sentencing hearing, the California Supreme Court held that theft of an automobile under Vehicle Code section 10851 could qualify as a misdemeanor under Proposition 47. (People v. Page (2017) 3 Cal.5th 1175.) Prior to that decision, the Court of Appeal for the Fourth District had held that buying or receiving a stolen vehicle under section 496d did not qualify as a misdemeanor under Proposition 47. (People v. Varner (2016) 3 Cal.App.5th 360.) --------
For all these reasons, we conclude Vela's claims are without merit, and we will affirm the judgment.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Bamattre-Manoukian, J. /s/_________
Grover, J.