Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. W. Charles Morgan, Judge. Affirmed.
Allison K. Stanley, under appointment by the Court of Appeal, and Verlon Watkins, Jr., in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
McKINSTER, J.
Defendant and appellant Verlon Watkins, Jr., appeals after a guilty plea. Defendant was charged with one count of driving under the influence causing bodily injury (Veh. Code, § 23153, subd. (a)), an added allegation of causing bodily injury to a second person (Veh. Code, § 23558), one count of driving with a blood alcohol level in excess of 0.08 percent and causing bodily injury (Veh. Code, § 23153, subd. (b)), and one count of failing to provide the victim and a police officer with his name, address, and vehicle identification number (Veh. Code, § 20001). In addition, defendant was charged with four prior prison term enhancements. Defendant ultimately pleaded guilty to counts one and three, and admitted two prior prison terms.
Appointed counsel on appeal has filed a brief under People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738, [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth the facts and procedural history, and requesting this court to undertake a review of the entire record. We have now undertaken that review and we affirm.
FACTS AND PROCEDURAL HISTORY
Police responded to the scene of an automobile accident. The victim stated that while he was driving, another vehicle veered into his lane and struck his vehicle head-on. The driver of the other vehicle fled on foot. The victim driver had marks around his neck, although he did not report any immediate pain. The victim’s passenger had a laceration on one eye and did report pain to his hand. Defendant was apprehended walking along a street nearby. Defendant’s blood alcohol reading was 0.23 percent. A witness identified defendant in an in-field showup as the driver who had fled the accident scene.
Defendant was represented by the public defender’s office. The public defenders assigned to defendant’s case conducted plea negotiations before the preliminary hearing. Deputy Public Defender Hutchinson reported to defendant that a five-year sentence was the lowest term offered by the district attorney. Deputy Public Defender Gallogly succeeded to defendant’s representation. She conducted further plea bargain negotiations and represented defendant at the preliminary hearing stage. More negotiations followed the preliminary hearing, after defendant was held to answer.
On October 3, 2006, defendant moved the court under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) to relieve his appointed attorney. The court denied the motion. On October 31, 2006, defendant again expressed dissatisfaction with his representation and moved for a new attorney under Marsden. This motion was also apparently denied. Defendant then moved to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525; 45 L.Ed.2d 562]). This motion was granted, and defendant represented himself in propria persona.
On November 22, 2006, defendant moved the court to “reinstate” an offered plea bargain for a four-year prison term. Defendant alleged that the prosecutor had made such an offer, and defendant’s public defenders failed to communicate the offer to him. He asserted that he would have accepted a bargain to plead guilty for a four-year prison term. In essence, defendant sought specific performance of a four-year plea offer. When defendant learned that he would be responsible to issue any subpoenas for witnesses to testify at a hearing on the matter, he requested reappointment of counsel. Defendant was thereafter represented by appointed conflicts counsel, Joel Renk.
Eventually, a hearing was held on the motion to enforce a plea offer. Deputy District Attorney Fine, the deputy handling defendant’s case, testified that his supervisor had directed him not to offer anything lower than a five-year term. Former Public Defender Gallogly testified that she did receive a four-year offer from the People and discussed that offer with defendant on two separate occasions. Defendant rejected the deal both times. Public Defender Mullins, who had represented defendant after he was held to answer at the preliminary hearing, testified that, when she inquired of defendant why he had not accepted a four-year offer, as annotated in the file, defendant appeared surprised and said that he had never received an offer for four years.
At the conclusion of the hearing, the trial court made specific findings that there had been discussions and negotiations between defense counsel and the district attorney for a four-year prison term. The court did not find that the prosecutor had actually made such an offer. Nevertheless, the court found, Public Defender Gallogly had communicated an offer of four years to defendant, on two different occasions. Finally, the court specifically found that defendant had rejected the four-year offer both times, as well as rejecting any and all offers throughout the whole proceedings. The court therefore denied defendant’s motion.
Defendant then changed his plea. He agreed to plead guilty to two counts, and to admit two prior prison term enhancements, for an agreed sentence of five years in state prison, consisting of the middle base term of two years on count one, one year for the additional-injury allegation, plus one year each for the two prison term priors. The court imposed a $200 restitution fine and a $200 parole revocation fine, stayed. The additional unpleaded counts and allegations were dismissed.
After defendant filed a notice of appeal, appellate counsel has filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436, and Anders v. California, supra, 386 U.S. 738, [87 S.Ct. 1396, 18 L.Ed.2d 493], finding no arguable issues, and requesting this court to undertake an examination of the entire record. Appellate counsel has suggested as possible areas of inquiry, (1) whether the trial court properly denied defendant’s Marsden motions, and (2) whether the court erred in denying defendant’s motion to enforce a plea offer of four years.
We have afforded defendant the opportunity to file a supplemental brief on his own behalf, which he has done. Defendant also reasserts the issue of his motion to enforce a four-year plea offer and raises an issue of custody credits.
ANALYSIS
I. Marsden Motions Were Properly Denied
Defendant made two motions below to appoint new counsel under People v. Marsden, supra, 2 Cal.3d 118. The trial court denied both motions. Defendant expressed dissatisfaction with his attorney, claiming she had “lost interest” in his case on the first occasion, and complaining that the investigation was incomplete and that she had pursued possible dispositions (probation in an alcohol treatment facility) that were fruitless. The trial court found, and we agree, that defendant’s complaints did not demonstrate a breakdown in the attorney-client relationship.
II. The Court Properly Denied the Plea Enforcement Motion
Whether characterized as a motion for specific performance of a plea bargain, or as ineffective assistance of trial counsel (IAC)—i.e., for failing to inform defendant of the four-year plea offer—the motion below was properly denied. The evidence supporting defendant’s claim that such an offer was even made was the testimony and file notes of Gallogly. Gallogly also unequivocally testified, however, that she had communicated the offer to defendant, on two separate occasions, and that he rejected the offer both times. The trial court, having heard the testimony and assessed the credibility of the witnesses, credited Gallogly’s testimony in its entirety. “[T]he testimony of a witness whom the trier of fact believes, whether contradicted or uncontradicted, is substantial evidence, and we must defer to the trial court’s determination that these witnesses were credible.” (Estate of Odian (2006) 145 Cal.App.4th 152, 168.) If the motion is viewed as a claim of IAC, defendant bears the burden on appeal of demonstrating, among other things, that counsel had no valid tactical purpose for her actions. (People v. Lucas (1995) 12 Cal.4th 415, 442.) Here, of course, counsel did have a valid reason for her actions: She presented the four-year offer to defendant, but he rejected it.
No ground of reversal appears on the basis of the denial of the defense motion.
III. No Change in Custody Credits Is Warranted
In addition to repeating the issue with respect to his motion to enforce a four-year plea offer, defendant proposes that, if this court does not see fit to reverse his conviction on that ground, we should modify his sentence to award additional custody credits, i.e., to make his ultimate guilty plea “retroactive from 11-22-06, the day the original motion was filed.” This audacious claim is utterly meritless, though it serves to highlight, as was apparent through all the proceedings, defendant’s efforts to manipulate and game the system to his own advantage.
IV. No Other Issues
We have thoroughly examined the record and have discovered no other arguable issues.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P. J., RICHLI, J.