Opinion
C052347
4-20-2007
THE PEOPLE, Plaintiff and Respondent, v. JAMES WILLARD WHITFIELD, Defendant and Appellant.
NOT TO BE PUBLISHED
As a result of his involvement in an offense in which another individual shot at two rival gang members, defendant James Willard Whitfield pled no contest to attempted murder and admitted an enhancement for having served a prior prison term.
In exchange for his plea, the remaining charges and enhancements, as well as another case, were dismissed with the understanding that defendant would be sentenced to eight years in state prison. He was sentenced in accordance with the plea agreement.
Defendant appeals, claiming the trial court erred by failing to make adequate inquiry during two Marsden hearings as to whether there had been an irreconcilable breakdown in his relationship with his trial attorney. We agree with the People that defendants contention is not cognizable on appeal absent a claim that his plea was not voluntarily and intelligently entered. Accordingly, we shall dismiss the appeal.
DISCUSSION
Prior to defendant entering his guilty plea, the trial court conducted two Marsden hearings pursuant to defendants request to have his appointed counsel relieved. In each instance, after inquiring into the reasons for defendants request, the court denied the motion. Conceding that the trial courts inquiry into the adequacy of his representation was sufficient, defendant argues the court erred in not considering whether there was an irreconcilable conflict between defendant and his attorney. We conclude that defendants claim is foreclosed by his plea.
In People v. Lobaugh (1987) 188 Cal.App.3d 780, 786, this court held that a defendants argument concerning the denial of a Marsden motion was not cognizable on appeal absent a contention that the defendants subsequent guilty plea was not voluntary and intelligent. We concluded that the argument was foreclosed for purposes of appeal because the "error d[id] not go to the legality of the proceedings resulting in the plea." (Ibid.) An identical conclusion was reached in People v. Lovings (2004) 118 Cal.App.4th 1305, 1311-1312, even though the defendant in that case had obtained a certificate of probable cause, as did defendant in the matter now before us.
Defendant urges us to reject the holdings in Lobaugh and Lovings based on cases permitting appellate review of a defendants claim that he was denied retained counsel of his choice (People v. Holland (1978) 23 Cal.3d 77, 85) and the right to represent himself (People v. Marlow (2004) 34 Cal.4th 131, 146-147). However, unlike those errors, failure to adequately inquire into the basis for a defendants Marsden motion has been deemed "non-structural constitutional error" (Schell v. Witek (9th Cir. 2000) 218 F.3d 1017, 1027), and is waived by an unconditional guilty plea (U.S. v. Foreman (9th Cir. 2003) 329 F.3d 1037, 1039; see U.S. v. Reyes-Platero (2000) 224 F.3d 1112, 1114 [unconditional guilty plea waives "`right to appeal all non-jurisdictional antecedent rulings and cures all antecedent constitutional defects"]). Under such circumstances, a defendant "may only attack the voluntary and intelligent character of the guilty plea." (Tollett v. Henderson (1973) 411 U.S. 258, 267 [36 L.Ed.2d 235, 243].) And "[f]ailure to substitute counsel does not by itself render a plea involuntary." (Foreman, at p. 1039.)
Furthermore, even if defendants claim was reviewable, we would reject it. It is true that a defendant is entitled to the appointment of new counsel if the courts Marsden inquiry reveals that the "defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result." (People v. Crandell (1988) 46 Cal.3d 833, 854, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) In defendants matter, the court made more than adequate inquiry to dispel this concern.
At defendants first Marsden hearing, he claimed his attorney and he had "a difficulty communicating." The trial court expressly queried defense counsel about the "success or failure of [his] communication with [defendant]." Defense counsel replied that he had communicated with defendant "extremely well," and that he "had no problem communicating with [defendant] before" their most recent meeting, at which he "spent as much time as [defendant] wanted with [him] to discuss any part of the case."
At the second Marsden hearing, defendant again complained that his attorney and he "c[ould]nt talk" and that his attorney walked out on him twice during discussions. Again, defendants trial attorney explained that defendant and he had talked at length about his defense, asserting "[defendant] certainly indicates to me when we talked about things that he understands the issues." Thus, contrary to defendants claim, the trial court adequately inquired into defendants statements concerning problems in his communication with his attorney.
Moreover, when defendant accepted a plea agreement one week later, defendants trial attorney informed the court that he had discussed the charges and defenses with defendant, as well as his rights, and defendant affirmed that he understood these matters. In addition, defendant affirmed that he was entering his plea freely and voluntarily. Thus, there is nothing in the record to suggest that defendants plea was affected by a breakdown in communication with his attorney.
DISPOSITION
The appeal is dismissed.
We concur:
DAVIS, Acting P.J.
HULL, J. --------------- Notes: People v. Marsden (1970) 2 Cal.3d 118.