Opinion
F055291.
3-3-2009
THE PEOPLE, Plaintiff and Respondent, v. JESUS MARIO VILLARREAL, JR., Defendant and Appellant.
Elizabeth Campbell, 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, Brian Alvarez and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
OPINION
THE COURT
Before Vartabedian, Acting P.J., Cornell, J., and Kane, J.
A motion for the appointment of substitute counsel on the ground that the current appointed counsel is providing inadequate representation is commonly called a Marsden motion. (People v. Smith (2003) 30 Cal.4th 581, 604.) In People v. Marsden (1970) 2 Cal.3d 118, the California Supreme Court ruled that when a criminal defendant requests a new appointed attorney, a trial court must conduct a proceeding in which it gives the defendant an opportunity to explain the basis for the contention that counsel is not providing adequate representation. (Id. at pp. 123-125.) The proceeding is commonly called a Marsden hearing.
Pursuant to a plea agreement, appellant Jesus Mario Villarreal, Jr. pled no contest to two counts of aggravated sexual assault of a child under age 14 and 10 years younger than the perpetrator (Pen. Code, § 269, subd. (a)). The court imposed a term of 30 years to life in prison, with the determinate portion of the sentence consisting of consecutive 15-year terms on each of the two counts.
On appeal, appellants sole contention is that the court erred in failing to conduct a closed Marsden hearing1 when appellant informed the court he wanted to withdraw his plea on the grounds of ineffective assistance of counsel. We will reverse and remand for further proceedings.
BACKGROUND
On March 4, 2008, at the time set for trial, appellant, represented by Tuolumne County Deputy Public Defender Saul Garcia, appeared in court and, through counsel, moved (1) to have attorney Frank Carson substituted in as attorney for appellant and (2) for a continuance of the trial. Also present was Carson, who told the court he had been retained to represent appellant, he was not prepared to begin trial, but he would be prepared to begin "[p]robably within 30 days." The court denied the motion as untimely.
All references to dates of events are to dates in 2008.
At that point, attorney Garcia told the court appellant wished to make a Marsden motion, based on an "irreconcilable conflict." A closed Marsden hearing was then held, and the court denied the motion.
Later that day, appellant again appeared in court, at which time the prosecutor indicated the parties had reached a plea agreement, under which appellant would plead no contest to counts 1 and 2, and would receive a sentence of 30 years to life in prison. At that point, the following colloquy occurred:
"THE COURT: And is that your understanding and what you want to do today, Mr. Villarreal?
"THE DEFENDANT: Yes, sir.
"THE COURT: Are you doing this freely and voluntarily, Mr. Villarreal?
"THE DEFENDANT: Yes, sir.
"THE COURT: And does this have anything to do with the fact that the Court did not allow Mr. Carson to substitute in as your counsel today?
"THE DEFENDANT: No, sir."
Later in the preceding, appellant entered his pleas and waived time for sentencing. The court then imposed sentence and continued the case to March 17, "for calculation of credits, victim-impact statement."
Appellant again appeared in court on March 17. After the victims mother addressed the court, the following exchange occurred:
"THE DEFENDANT: I dont want to cause any more pain. I dont want to draw this out any longer, but Im going to request to set aside my plea due to lack of effective counsel, your Honor.
"At the time of my plea, Mr. Garcia had knew my menatality. [Sic.] He knew exactly why I was doing it, and he knew that it was because I didnt want him to be my attorney. And we had agreed that we would come on the record and say that it was because of my lack of counsel of choice that I would be entering the motion [sic].
"And, your Honor, after the lunch break, we came back up and that changed. He said that I had to say that it wasnt because of that, and he also mentioned that my ... appellate rights such as they were — he basically gave me wrong information, your Honor.
"And I was under the impression that I would have to be defended by Mr. Garcia in an appeal as well; that was from a previous conversation with him. And Ive since learned that ... he wouldnt be the one to handle [the appeal] — he would just start the appeal. He wouldnt actually be representing me in the appeal; that weighed heavily in my decision as well.
"THE COURT: Mr. Villarreal, nothing I heard today changes my mind in terms of sentence in this case. I explained your waiver of appellate rights on the record under oath to you, you indicated — actually, on the record, not under oath.
"You indicated that you were not entering this plea ... because Mr. Carson was not allowed to substituted in on the day of trial. And, you know, your daughter and your family are going to suffer a lot for the rest of their lives as result of what you admitted you did in this case, Mr. Villarreal.
"And the two 15-years-to-life sentences are the appropriate recommendation, which is what you plead to. I think that is an appropriate sentence in this case. And I will order that you be remanded to the custody of the sheriff for transportation to the Department of Corrections."
DISCUSSION
As indicated above, appellant argues that at the hearing on March 17, at the point he informed the court he wanted to withdraw his plea on grounds of ineffective assistance of counsel, the court had an obligation to conduct a closed Marsden hearing; the court failed to do so; and therefore the case should be remanded for a hearing to determine whether new counsel should be appointed to represent appellant in presenting a motion to withdraw his plea. The People counter that the court allowed appellant to fully articulate the basis for his dissatisfaction with counsel, and therefore the requirements of Marsden were satisfied.
"Marsden 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 counsels effectiveness, the court must question counsel as necessary to ascertain their veracity. [Citations.]" (People v. Eastman (2007) 146 Cal.App.4th 688, 695 (Eastman).)
In applying these principles to the instant case, we find Eastman instructive. In that case, at sentencing, appellants appointed attorney, Marc Garcia, informed the court that the defendant wanted to withdraw his plea, and presented to the court a letter, written by the defendants mother, in which it was alleged that defense counsel and the prosecutor "`conspired to persuade Mr. Eastman to accept the plea bargain," falsely informing the defendant that his mother would testify against him. (Eastman, supra, 146 Cal.App.4th at p. 691.) The court then appointed another attorney "`for the specific grounds of determining motion to withdraw...." (Id. at p. 692.)
At a subsequent proceeding, that attorney, J. Tenenbaum, reported he had concluded there was no "`legal or factual basis" for a motion to withdraw the defendants plea. (Eastman, supra, 146 Cal.App.4th at p. 693.) At that point, attorney Garcia stated that the defendant wished to address the court. The defendant then presented a letter to the court in which he set forth a series of complaints about the manner in which Garcia had represented him, including "one specific factual complaint about Eastmans appointed attorney: that he was acting in cahoots with the district attorney when they persuaded him to accept the plea bargain by falsely telling him his mother was going to testify against him." (Id. at p. 695.)
There followed a colloquy between the defendant and the court in which the court explained that the defendants motion to withdraw had been denied and gave reasons for the denial, but did not inquire further about any of the defendants claims of ineffective assistance of counsel. (Eastman, supra, 146 Cal.App.4th at p. 694.)
The appellate court, noting that "[the trial] court was obliged to make a record that [the specific factual complaint set forth above] had been adequately aired and considered" (Eastman, supra, 146 Cal.App.4th at p. 696), faulted the trial court for "simply adopting" the opinion of attorney Tenenbaum (id. at p. 697). "No part of this procedure satisfied the requirements of Marsden." (Id. at p. 696.) The court reversed the judgment and remanded the matter with directions that, inter alia, the court hold a Marsden hearing.
The People argue that the instant case is distinguishable from Eastman because at the March 17 hearing "appellant articulated his complaints on the record, and the trial court addressed them." Therefore, the People contend, the court satisfied its "oblig[ation] to make a record that [appellants complaint] had been adequately aired and considered." (Eastman, supra, 146 Cal.App.4th at p. 696.) We disagree.
Appellant, like the defendant in Eastman, stated at least one specific factual complaint about attorney Garcias representation, i.e., he claimed as follows: he did not want Garcia to represent him; the only reason he pled no contest was that he was being forced to go forward represented by Garcia; Garcia initially told appellant that appellant could inform the court this was the reason for his plea; but Garcia later told appellant "he had to say it wasnt because of that ...." This assertion, if true, cast serious doubt on the voluntariness of appellants plea and raised the question of whether Garcia had been constitutionally ineffective. As the People note, the court responded to, and rejected, this claim. However the court did so without questioning Garcia as to the truth of appellants claim. The failure to inquire of Garcia regarding appellants assertions violated the requirement that "[i]f the defendant states facts sufficient to raise a question about counsels effectiveness, the court must question counsel as necessary to ascertain their veracity." (Eastman, supra, 146 Cal.App.4th at p. 695.)
We assume without deciding that the court provided appellant an adequate opportunity to articulate his complaints and thereby satisfied the first part of its obligation under Marsden. We also assume without deciding that the court did not err in hearing appellants complaints about counsel in open court. (See People v. Lopez (2008) 168 Cal.App.4th 801, 815 [although "[a]n in camera Marsden hearing is "`the better practice, ... a Marsden hearing in open court is permissible" under certain circumstances].)
Moreover, it is not clear that the court treated appellants comments as a Marsden motion. The court made no mention of the question of whether appellant was entitled to the appointment of substitute counsel and indicated, by its references to the sentence previously imposed, that it interpreted appellants comments as a challenge to the sentence.
On this record, we conclude the court did not satisfy its duty under Marsden to make a record that appellants complaint had been adequately considered.
The People next argue that any error was harmless. Again, we disagree. In Eastman, the court stated: "The error is reversible unless the record shows beyond a reasonable doubt that the error did not prejudice the defendant. (Marsden, supra, 2 Cal.3d at p. 126, citing Chapman v. California (1967) 368 U.S. 18, 24.) Because we do not know what Eastman might have shown had he received a full hearing on his Marsden motion, we cannot say the error was harmless. This is especially true in light of Eastmans claim that his plea was procured through the intimidation of his mother and misrepresentations defense counsel and the district attorney made to him, which presented a colorable basis for withdrawal of his plea. Good cause to withdraw a plea is shown if the defendant did not exercise free judgment in entering into the plea." (Eastman, supra, 146 Cal.App.4th at p. 697.)
Similarly, in the instant case, we do not know how defense counsel would have responded to questions regarding appellants allegations, and as indicated above, appellants complaint raises a question as to the voluntariness of his plea. On this record, the People have not demonstrated beyond a reasonable doubt that the Marsden error here was harmless.
DISPOSITION
The judgment is reversed and the matter remanded with the following directions: (1) the court shall hold a hearing on appellants Marsden motion concerning Mr. Garcia; (2) if appellant makes a prima facie showing of ineffective assistance of counsel, the court shall appoint new counsel to assist him for this purpose and shall entertain such applications as newly appointed counsel may make; and (3) if newly appointed counsel does not make any motions, any motions made are denied, or appellants Marsden motion is denied, the court shall reinstate the judgment.