Opinion
F077814
10-09-2019
THE PEOPLE, Plaintiff and Respondent, v. PHILLIP JUSTIN VONICH, Defendant and Appellant.
Patrick J. Hennessey, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. CRF53066, CRF54185)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge. Patrick J. Hennessey, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Smith, J. and DeSantos, J.
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In case No. CRF53066 (case No. 066), appellant Phillip Justin Vonich pled guilty to domestic violence (Pen. Code, § 273.5). In case No. CRF54185 (case No. 185), Vonich pled guilty to stalking when a temporary restraining order was in effect (§ 646.9, subd. (b)/count 1), stalking (§ 646.9, subd. (a)/count 2), making criminal threats (§ 422/count 3), and attempting to dissuade a witness (§ 136.1, subd. (a)(2)/count 5). Vonich also admitted an on-bail enhancement (§ 12022.1) in that case.
All further statutory references are to the Penal Code.
On appeal, Vonich contends the court: (1) abused its discretion when it denied his motion to withdraw plea; and (2) committed Marsden error. We find merit to Vonich's second contention and remand the matter to the trial court for further proceedings.
People v. Marsden (1970) 3 Cal.3d 118 (Marsden).
FACTS
Vonich was married to confidential victim No. 1 (CV1) for approximately 15 years and together they had two sons, ages eight and 19. Prior to April 2017, they had been separated intermittently. Sometime in April 2017, Vonich and CV1 separated permanently.
On April 3, 2017, as she pulled into her driveway, CV1 had to take evasive action to avoid hitting Vonich, who was lying on her driveway. Vonich then attempted unsuccessfully to pull CV1 out of the car, but he was able to take CV1's phone before running away. CV1 was bruised during the incident.
On April 4, 2017, after exchanging custody of their youngest son, Vonich began following CV1 in his vehicle, driving erratically and eventually rear-ending CV1's vehicle intentionally.
On April 7, 2017, while she cooked in her kitchen, Vonich argued with CV1, accused her of having an affair, and called her derogatory names. He then grabbed CV1 by the shirt, pushed her into the kitchen counter, and held her there briefly before releasing her. Vonich continued arguing with CV1 and he put her in a choke hold and applied pressure, making it difficult for her to breathe. Fifteen to 20 seconds later, Vonich released CV1 when her nephew arrived and intervened. Vonich then walked outside and punched the driver's side mirror of CV1's car. The attack left CV1 with a sore jaw and bruises on her arm. (Case No. 066.) Tuolumne County Sheriff's deputies arrested Vonich later that day.
On April 13, 2017, in case No. 066, the Tuolumne County District Attorney filed a complaint that, in addition to the domestic violence count to which he pled in that case, charged Vonich with assault with a deadly weapon (§ 245, subd. (a)(1)/count 1), misdemeanor vandalism (§ 594, subd. (a)(3)/count 2), petty theft (§ 484, subd. (a)/count 4), and misdemeanor domestic battery (§ 243, subd. (e)(1)/count 5).
On May 19, 2017, the trial court deemed the complaint filed in case No. 066 an information.
On August 21, 2017, Vonich violated a domestic violence restraining order by sending CV1 several text messages that contained derogatory remarks about her and her boyfriend, confidential victim No. 2 (CV2). When Vonich was arrested that day, he threatened to kill CV2 by stomping on his head and he stated that if he went to prison, it would be for killing him.
During an interview with sheriff's deputies, CV2 told them CV1 had been living with him and his daughter since April 2017. Once, while CV2 was walking, Vonich pulled up in his truck and yelled "You better get away from my family or I am going to get you and yours." On another occasion, Vonich tried to run CV2 off the road by swerving his pickup into CV2's lane, causing CV2 to swerve into an embankment to avoid an accident. Vonich also left a message on CV2's voicemail warning him that he better watch his back and look both ways because CV2 would not see him coming.
CV1 also was interviewed. She reported that Vonich had been following her and had gone to her workplace and chased her around the premises. CV1 believed Vonich was trying to dissuade her from proceeding with the case against him because in text messages he told her to "drop this shit" and that if she did, his life would be better (case No. 185).
On September 5, 2017, in case No. 185, the district attorney filed an amended information that in addition to the counts Vonich pled to in that case, charged him with a second count of making criminal threats (count 4) and an on-bail enhancement (§ 12022.1).
On October 3, 2017, Vonich was represented by attorney Robert Price from the public defender's office when he entered his plea in both cases, as noted above, in exchange for a lid of eight years and the dismissal of the remaining counts and two unrelated cases.
On November 21, 2017, when the parties appeared for sentencing, the court noted that the previous day Vonich filed a request to withdraw his plea and a Marsden motion. Defense counsel then advised the court that Vonich wanted to be assessed for drug court, that no one from the drug court treatment team had gone to see him, and that drug court was the reason Vonich took the plea deal for an eight-year lid. The court responded that the violence involved in the charges excluded Vonich from participating in drug court and that it did not see him as a suitable candidate. The court also stated that rather than ruling on his Marsden motion then, it was going to give Vonich an opportunity to "deal" with his motion to withdraw plea and, if that motion was granted, it would hold a Marsden hearing to determine whether new counsel should be appointed. It then continued Vonich's Marsden motion and appointed substitute counsel to investigate the feasibility of filing a motion to withdraw plea on Vonich's behalf.
On December 5, 2017, substitute counsel David Beyersdorf appeared with Vonich and advised the court that he intended to file a motion to withdraw plea on Vonich's behalf.
On December 21, 2017, Beyersdorf filed a motion to withdraw plea alleging Vonich had good cause to withdraw his plea because he was denied the effective assistance of counsel by Price in entering it. Price's allegedly deficient performance consisted of his failure to investigate all factual and legal defenses and the consequences of Vonich's plea. The moving papers also alleged that but for Price's deficient performance, Vonich would not have pled guilty and he would have insisted on going to trial.
In an attached declaration, Vonich stated that he met Price only a few times before he entered his plea and that he had witnesses, but he did not believe Price "interviewed them or investigated on [his] behalf." Vonich believed Price did not work in Vonich's best interest and that Price only wanted to settle his case. When Price presented the plea bargain to Vonich, he seemed to indicate Vonich had no choice but to accept it. Vonich accepted the plea agreement because he was scared Price would not be prepared to go to trial and felt he had no choice but to plead guilty.
On January 9, 2018, the court advised the parties that it wanted a declaration from Price because of the allegations of ineffective assistance of counsel.
On January 12, 2018, Price filed a declaration that detailed his contacts with Vonich. According to Price, he learned Vonich started using methamphetamine in early 2017 and that he was using drugs when he committed the underlying offenses. Price discussed the possibility of drug court with Vonich and Vonich stated he wanted to participate in the drug court program. Price spoke with the district attorney and, together with Vonich, they all agreed to an eight-year cap, so Price could argue for drug court or probation for Vonich. Price further stated that if Vonich had not pled, he would have been ready for trial by November 1, 2017, the trial's scheduled start date.
On January 23, 2018, at a hearing on the motion to withdraw plea, Beyersdorf submitted the matter on the motion and the attached declaration. The court then found Vonich failed to show he was denied the effective assistance of counsel in entering his plea and denied the motion.
Vonich responded to the court's ruling by stating that Price falsely told Vonich he was a good candidate for drug court, that statement was the sole reason he entered a plea to six felonies, and but for being advised he was a good candidate for drug court, Vonich would have taken the matter to trial. More discussion followed, during which the court noted no promises were made about drug court and that it was not mentioned in the change of plea transcript. The district attorney then interjected, stating she recalled from speaking with Price that the previous offer of a six-year stipulated sentence was changed to an eight-year lid so Price could argue for drug court, but no promises were made. The district attorney suggested the court might refer Vonich to drug court. However, based on the probation report and the charges, she did not believe Vonich was a good candidate.
The court stated it was concerned Vonich was induced to enter a plea by something that was not true but it did not see anything in the plea transcript about drug court. Vonich replied that Price told him he ran the drug court team for 14 years and that Vonich was a good candidate. The district attorney reiterated there was something spoken about drug court during negotiations and that was the reason for a plea offer with a cap and she suggested that a referral to drug court would "alleviate" the situation.
After further discussion, the court called the attorneys, including Price, together for a discussion off the record. When the hearing resumed on the record, the court reaffirmed its decision to deny the motion to withdraw plea, stating it did not find clear and convincing evidence that Vonich entered his plea involuntarily and that Vonich was not suitable for drug court because of the violence involved in his offenses. However, because it was concerned whether Vonich was suitable for probation, the court offered to send Vonich for a 90-day diagnostic exam pursuant to section 1203.03. If he was found suitable, the court would probably place him on probation. The court asked Vonich if he would like to do that. Vonich replied that he did and the court ordered him transferred to the California Department of Corrections and Rehabilitation (CDCR) to be evaluated. The court also stated that if it imposed a prison term, it would not be an eight-year term.
In a diagnostic evaluation dated March 13, 2018, CDCR's diagnostic team concluded Vonich was a poor candidate for probation and recommended incarceration.
On July 10, 2018, the court denied probation and sentenced Vonich to an aggregate term of five years four months in both cases: the middle term of three years on Vonich's domestic violence conviction in case No. 066 and in case No. 185, a consecutive one-year term on his stalking conviction in count 1; a consecutive eight-month term on his stalking conviction in count 2; a consecutive eight-month term on his making criminal threats conviction; a concurrent two-year term on his attempting to dissuade a witness conviction; and a stayed two-year term for the on-bail enhancement.
On July 16, 2018, Vonich filed a separate appeal in each case. However, he did not obtain a certificate of probable cause in either case.
On January 16, 2019, this court denied Vonich's "Request for Permission to Seek a Certificate of Probable Cause in the Tuolumne County Superior Court and to Construe Notice of Appeal to Include an Attack on the Guilty Plea Under Section 1237.5."
DISCUSSION
The Motion to Withdraw Plea
Vonich contends there was clear and convincing evidence he was misled on his eligibility for drug court, which was an important aspect of his plea agreement. Thus, according to Vonich, the trial court abused its discretion when it denied his motion to withdraw plea. Respondent contends this issue is not cognizable on appeal because Vonich did not obtain a certificate of probable cause. Respondent is correct.
" 'A defendant who has pleaded guilty or nolo contendere to a charge in the superior court, and who seeks to take an appeal from a judgment of conviction entered thereon' must fully comply with section 1237.5 and rule 8.304(b) of the California Rules of Court, which require that the defendant secure a certificate of probable cause in order to challenge the validity of the plea. [Citation.] In the absence of full compliance and a certificate of probable cause, the reviewing court may not reach the merits of any issue challenging the validity of the plea, .... [Citation.] Our Supreme Court has expressly disapproved the practice of applying the rule loosely in order to reach issues that would otherwise be precluded." (People v. Puente (2008) 165 Cal.App.4th 1143, 1149.) "A defendant must obtain a certificate of probable cause in order to appeal from the denial of a motion to withdraw a guilty plea, even though such a motion involves a proceeding that occurs after the guilty plea." (People v. Johnson (2009) 47 Cal.4th 668, 679.)
Since Vonich did not obtain a certificate of probable cause, his challenge to the court's denial of his motion to withdraw plea is not cognizable on appeal.
In view of our conclusion that this issue is not cognizable on appeal, we need not determine whether Vonich's waiver of his right to appeal also precludes him from raising this issue.
The Marsden Motion
Vonich contends the court erred by its failure to hold a Marsden hearing and that the error was not harmless beyond a reasonable doubt because the court did not hear the "full range" of complaints as to his representation by Price. Thus, according to Vonich, the matter should be remanded to the trial court for it to conduct a Marsden hearing. Respondent concedes the court committed Marsden error. However, respondent contends the failure to hold a formal Marsden hearing was harmless beyond a reasonable doubt because: (1) at the hearing on his motion to withdraw plea, Vonich presented his major concern to the court—the misadvisement regarding his eligibility for drug court; and (2) Price ably represented Vonich at his sentencing hearing by obtaining a sentence for him that was substantially less than the lid of eight years. We agree with Vonich.
"When a defendant seeks substitution of appointed counsel pursuant to People v. Marsden, supra, 2 Cal.3d 118, 'the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance.' " People v. Taylor (2010) 48 Cal.4th 574, 599. "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." (People v. Eastman (2007) 146 Cal.App.4th 688, 695.) "[I]f the defendant makes a showing during a Marsden hearing that his right to counsel has been ' " 'substantially impaired' " ' [citation], substitute counsel must be appointed as attorney of record for all purposes. [Citation.] In so holding, we specifically disapprove of the procedure adopted by the trial court in this case, namely, the appointment of a substitute or 'conflict' attorney solely to evaluate whether a criminal defendant has a legal ground on which to move to withdraw the plea on the basis of the current counsel's incompetence." (People v. Sanchez (2011) 53 Cal.4th 80, 90.)
It is clear from the foregoing authorities the trial court erred when it responded to Vonich's Marsden motion by appointing substitute counsel for the sole purpose of determining the feasibility of filing a motion to withdraw plea on Vonich's behalf and by its failure to hold a Marsden hearing.
Marsden error is reversible unless the record shows it was harmless beyond a reasonable doubt. (Marsden, supra, 2 Cal.3d at p. 126.) When the error involves a failure to hold a hearing on the motion, we cannot say the error is harmless because there is no way to know what Vonich may have shown had he received a full hearing on his Marsden motion. Further, although some of Vonich's reasons for his dissatisfaction with defense counsel came to light in the moving papers and at the hearing for his motion to withdraw plea, there could have been other reasons as well. Additionally, because the reasons for his dissatisfaction with Price were presented to the court in the context of a motion to withdraw plea, the court applied the clear and convincing evidence standard instead of the less stringent preponderance of the evidence standard. (Evid. Code, § 115 ["Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence."].) And, although Vonich made a colorable claim that defense counsel misadvised him that he was good a candidate for drug court, the court did not question Price to determine the veracity of that allegation.
Moreover, "[s]ubdivision (b) of section 1240.1 imposes a duty on trial counsel to 'execute and file on his or her client's behalf a timely notice of appeal when the attorney is of the opinion that arguably meritorious grounds exist for a reversal or modification of the judgment or orders appealed from' or 'when directed to do so by a defendant having a right to appeal.' " (People v. Hodges (2009) 174 Cal.App.4th 1096, 1105.) "If trial counsel believes that there exist arguably meritorious issues concerning the validity of the plea, counsel has a duty to help with requesting a certificate of probable cause for a defendant who has asked to appeal. 'When a defendant makes a timely request of his trial attorney to file an appeal from a judgment upon a plea of guilty, the attorney must file the 1237.5 statement, instruct defendant how to file it, or secure other counsel for him.' " (Id. at p. 106.)
Vonich's claim that the court abused its discretion in denying his motion to withdraw plea is not cognizable on appeal because Vonich did not obtain a certificate of probable cause. Additionally, it is unclear from the record whether Price told Vonich he was a good candidate for drug court as Vonich contends. Nevertheless, had a Marsden hearing resulted in substitution of counsel for all purposes, based on the record, it is possible substitute counsel might have deemed the alleged misadvisement of Vonich a reasonably arguable issue and assisted Vonich in perfecting his appeal. Therefore, because of the circumstances discussed above, we cannot conclude that the Marsden error here was harmless beyond a reasonable doubt.
DISPOSITION
The judgment of the trial court is reversed and the matter is remanded with the following directions: (1) the court shall hold a hearing on Vonich's Marsden motion concerning his representation by the public defender's office; (2) if the court finds that Vonich has shown that a failure to replace his appointed attorney would substantially impair his right to assistance of counsel, the court shall appoint new counsel to represent him and shall entertain such applications as newly appointed counsel may make; and (3) if newly appointed counsel makes no motions, any motions made are denied, or Vonich's Marsden motion is denied, the court shall reinstate the judgment.
We express no view on the merits of such a motion or whether one should be filed but wish to make clear such applications include the filing of a new motion to withdraw plea. --------