Opinion
B227025
11-29-2011
THE PEOPLE, Plaintiff and Respondent, v. CARLOS AGUIRRE, Defendant and Appellant.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Steven D. Matthews, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. NA080567)
APPEAL from a judgment of the Superior Court of Los Angeles County, Joan Comparet-Cassani, Judge. Affirmed in part, vacated and remanded with directions in part.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.
Carlos Aguirre appeals from the judgment entered after a jury convicted him of multiple counts of forcible sexual abuse of three girls ranging in age from 10 to 16 years old. Aguirre contends the trial court erred in denying his motion to represent himself under Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562] (Faretta)and refusing to accept a proposed plea agreement. Aguirre also contends the court improperly denied his motion to substitute retained counsel for his court-appointed counsel for the purpose of a new trial motion and sentencing. We affirm Aguirre's convictions but vacate the sentence imposed and remand for further proceedings after Aguirre is given an opportunity to substitute retained counsel.
FACTUAL AND PROCEDURAL BACKGROUND
1. Aguirre's History of Sexual Misconduct
The evidence at trial, the sufficiency of which Aguirre does not challenge on appeal, overwhelmingly established that Aguirre perpetrated prolonged sexual abuse on several young victims through explicit and implicit threats of harm, alcohol, drugs and his own physical strength. Aguirre, who was born in 1985 and was 23 years old when he was arrested in December 2008, began molesting his younger relatives, Stephanie M. and Esmeralda J., when he was 10 years old. Sometime in 1995 Aguirre was caught urinating on his five-year-old niece Stephanie, the daughter of his brother, Luis M., while Stephanie's underwear was pulled down. The incident was handled as a family matter.
A year or so later Aguirre got on top of Stephanie and, while rubbing his penis against her genitals, accidentally penetrated her. Later that evening Luis's girlfriend, Thelma Montoya, saw blood on Stephanie's underpants but accepted her explanation she had cut her finger. A year later Aguirre forced Stephanie to orally copulate him. Sometime during this period, Stephanie first told a friend, Rachel P., her uncle was touching her.
When Aguirre's cousin Esmeralda came to live with Stephanie's family, he began molesting both girls, together and separately. In September 1999 Montoya saw blood on Esmeralda's clothes and thighs and suspected Aguirre was abusing her. Nevertheless, no one would take Esmeralda to a doctor. When Esmeralda's mother visited in November 1999, she was told of the suspicions of abuse; she took Esmeralda to a doctor, who confirmed the girl had been sexually penetrated. Esmeralda returned to live with her mother, and her family reported Aguirre's abuse to the Los Angeles Police Department. Aguirre, then age 15, confessed to the abuse of Esmeralda, was removed from his family and sent to a juvenile camp.
Although Stephanie was not allowed to be around Aguirre after he returned home from the camp, he continued to abuse girls. In November 2002 he tried to rape his classmate, Ilene G., after giving her liquor to make her drowsy and weak.
In June 2004, at the age of 19, Aguirre again forced Stephanie, then 14, to have sexual intercourse with him. He forcibly raped her again sometime in the fall of 2004. Meanwhile, on October 22, 2004 Aguirre raped Kimberly O. after she blacked out from heavy drinking with him and Stephanie.
On February 12, 2005 Aguirre gave alcohol to Stephanie, Rachel P., a 14-year-old friend of Stephanie's, and Robert, age 12. After Rachel lay down on Aguirre's bed because she was "beyond drunk," Robert raped her, followed by Aguirre. Aguirre and Robert then took turns raping Rachel repeatedly. Aguirre filmed the sexual assaults committed against Rachel, and the 18-minute videotape was played for the jury. Photographs created from the video showed blood around Rachel's genitals and thighs and on the bed sheet. Two days later Aguirre aided Robert in having sexual intercourse with Stephanie. Aguirre himself raped Stephanie on several occasions through the remainder of 2005 and raped her repeatedly during 2006. He raped her again in December 2007.
On May 8, 2008 Stephanie, then 18 years old, reported to a high school counselor that her uncle had sexually assaulted and raped her since the age of six. The counselor contacted Stephanie's mother and notified the local sheriff's department. Stephanie was interviewed by a sheriff's deputy but did not disclose details of the abuse. She was told the crimes were not within the sheriff's jurisdiction.
Five months later, on October 24, 2008, Stephanie filed a report with the Los Angeles Police Department accusing Aguirre of sexually molesting and raping her. Esmeralda accompanied Stephanie to the police station and told the investigating detective she too had been sexually molested by Aguirre when she was nine years old, a report the detective corroborated through Aguirre's juvenile record. Within the next few weeks Esmeralda's half-brother Alex reported that Aguirre had threatened him with grenades in order to force him to participate in sexually molesting Esmeralda and Stephanie, and Kimberly reported Aguirre had raped her.
In December 2008 Aguirre was arrested and search warrants were executed for his residence, business, automobile and other personal locations. Police recovered a gun, brass knuckles, a large amount of cash in small denominations, hundreds of ecstasy pills, marijuana (both growing and harvested) and more than 100 videotapes, most of which depicted child pornography. After news of Aguirre's arrest was broadcast, both Ilene and Rachel reported they, too, had been raped by Aguirre.
2. The Charges and Trial Proceedings
Aguirre was initially represented by private counsel. The original information, filed November 10, 2009, contained seven felony counts, including five charges of forcible rape and rape by use of drugs identifying Stephanie, Kimberly and Rachel as the victims. On January 12, 2010 the information was amended to add a Penal Code section 667.61, subdivision (b), allegation as to the four forcible rape counts. Trial was set for February 18, 2010.
Statutory references are to the Penal Code unless otherwise indicated.
The first amended information charged Aguirre with four counts of forcible rape (§ 261, subd. (a)(2)), one count of rape by use of drugs (§ 261, subd. (a)(3)), one count of possession for sale of ecstasy (Health & Saf. Code, § 11378) and one count of possession of child pornography (§ 311.11, subd. (a)). On each of the four forcible rape counts, he was charged with an enhancement based on the molestation of multiple victims (§ 667.61, subd. (b)).
On February 8, 2010 the court granted the motion of Aguirre's retained counsel to withdraw. Counsel identified a conflict of interest based on the failure to complete a plea agreement. On February 18, 2010 the court appointed the public defender's office to represent Aguirre. The case was continued in part to allow his newly appointed counsel to prepare for trial and then because the prosecutor was twice replaced. The case was trailed through the first two weeks of June 2010.
On June 15, 2010 the court inquired whether Aguirre intended to accept the prosecution's current plea offer, which included a 19-year prison term. Aguirre's counsel responded he had anticipated a disposition that day, but the proposed plea agreement had been rejected by Aguirre. Aguirre then requested a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden)to replace his court-appointed counsel. After the court denied Aguirre's Marsden motion, he immediately moved to represent himself under Faretta, supra, 422 U.S. 806. The court denied this motion, as well. Trial was set for June 25, 2010.
Aguirre again requested substitution of new counsel on June 21, 2010. The motion was denied.
At the request of the prosecutor, a hearing was held on June 21, 2010 to once again explore the possibility of a plea agreement. During the hearing Aguirre stated he did not want to go to trial with his current counsel. The court rejected the request to change counsel, which it construed as a delay tactic, and confirmed trial would begin on June 25, 2010. Aguirre told the court he wanted to accept the proffered plea. However, he then equivocated about the decision. After a protracted discussion, the court refused to accept the plea on the ground Aguirre was not entering it "voluntarily and freely." The jury panel was summoned and sworn.
On June 25, 2010, the first day of trial, the People again amended the information to charge an additional sexual abuse offense and to revise another count. In connection with the amended information, the People withdrew its previous offer of a state prison term of 19 years and instead offered a term of 30 years. Aguirre declined to accept the offer. Voir dire began and was completed that same day, and testimony began on June 28, 2010. Twice during the trial the People amended the information to include additional sex crimes and to revise previous charges. Stephanie, Kimberly, Rachel, Ilene and Montoya all testified against Aguirre. Esmeralda and Luis testified as defense witnesses. Aguirre did not testify.
The jury received the case on July 7, 2010 and, within three hours, returned guilty verdicts on all counts. Aguirre was convicted of 10 felony sex crimes: With respect to Stephanie, three counts of forcible rape; Kimberly, one count of forcible rape, two counts of rape by use of drugs and two counts of rape of an unconscious person; and Rachel, one count of rape by use of drugs and one count of rape of an unconscious person. Aguirre was also convicted of one count of possession of child pornography and one count of possession of ecstasy for purposes of sale. The jury found true the section 667.61, subdivision (b), allegations on the four forcible rape counts.
Sentencing was set for August 24, 2010. On August 17, 2010, the first court day following the trial judge's return from a vacation, Aguirre's newly retained counsel, Leonard Levine, appeared and moved to substitute in as Aguirre's counsel for purposes of posttrial/presentencing matters and sentencing. The court denied the motion. On August 24, 2010 Levine again appeared and moved for reconsideration of the motion to substitute in as Aguirre's counsel. The court summarily denied the motion and sentenced Aguirre to an aggregate state prison term of 96 years to life.
Aguirre contends, and the People concede, the abstract of judgment does not accurately reflect the details of his sentence. The issue is moot in light of the need to vacate the sentence imposed to permit Aguirre to be represented at sentencing by retained counsel.
DISCUSSION
1. The Trial Court Did Not Err in Denying Aguirre's Request To Represent Himself
a. Governing law
A criminal defendant has the right under the Sixth and Fourteenth Amendments to the United States Constitution to waive his or her right to counsel and to represent himself or herself. (Faretta, supra, 422 U.S. 806, 819 ["[t]he Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense"]; People v. Koontz (2002) 27 Cal.4th 1041, 1069 ["'A defendant in a criminal case possesses two constitutional rights with respect to representation that are mutually exclusive. A defendant has the right to be represented by counsel at all critical stages of a criminal prosecution. [Citations.] At the same time . . . because the Sixth Amendment grants to the accused personally the right to present a defense, a defendant possesses the right to represent himself or herself.'"].)
The right to represent oneself, however, is not absolute. "'To invoke the constitutional right to self-representation, a criminal defendant must make an unequivocal assertion of that right in a timely manner. [Citation.] "The court faced with a motion for self-representation should evaluate not only whether the defendant has stated the motion clearly, but also the defendant's conduct and other words. Because the court should draw every reasonable inference against waiver of the right to counsel, the defendant's conduct or words reflecting ambivalence about self-representation may support the court's decision to deny the defendant's motion. A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied."'"(People v. Roldan (2005) 35 Cal.4th 646, 683, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) "Faretta motions must be both timely and unequivocal. Otherwise, defendants could plant reversible error in the record. [Citations.] Equivocation of the right of self-representation may occur where the defendant tries to manipulate the proceedings by switching between requests for counsel and for self-representation, or where such actions are the product of whim or frustration." (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1001-1002.)
A trial court properly considers the totality of the circumstances in ruling on the timeliness of a Faretta motion. (People v. Lynch (2010) 50 Cal.4th 693, 726.) Relevant factors include "the time between the motion and the scheduled trial date," "whether trial counsel is ready to proceed to trial, the number of witnesses and the reluctance or availability of crucial trial witnesses, the complexity of the case, any ongoing pretrial proceedings, and whether the defendant had earlier opportunities to assert his right of self-representation." (Ibid.; see also People v. Valdez (2004) 32 Cal.4th 73, 103 [trial court should consider factors such as "'"'the quality of counsel's representation of the defendant, the defendant's prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion"''"].)
b. The court properly denied Aguirre's request
Aguirre contends his motion to represent himself was improperly denied simply because it followed an unsuccessful Marsden motion. (See People v. Michaels (2002) 28 Cal.4th 486, 524 [mere fact a Faretta request follows an unsuccessful Marsden motion does not make request for self-representation "equivocal"].) Under the totality of the circumstances in this case, however, which includes the timing of Aguirre's request and his conduct in the courtroom, the court's ruling was well within its discretion.
Originally scheduled for trial in February 2010, Aguirre did not seek to represent himself until June 15, 2010. As discussed, as the proceedings began, the court inquired about plea negotiations. Defense counsel advised the court Aguirre would not agree to the People's current offer and was considering a Faretta/Marsden motion. After closing the courtroom and entertaining the Marsden motion, the court denied it. At the conclusion of the closed hearing, Aguirre stated, "I invoke my Faretta rights." When the court asked why, Aguirre replied, "I feel like I need to go a little bit more in depth in the case and analyze a couple other parameters." The court asked, "Can you be ready in three days?" Aguirre answered he could not, and the court denied the motion.
After the hearing was reopened, Aguirre protested he was fighting "a life case," but the court interrupted and stated, "You are not going pro. per. You have to be ready in three days. There is no way you can be. . . . We can start this afternoon or tomorrow." Defense counsel then advised the court he and the prosecutor had agreed to put the trial over for several weeks to coordinate witnesses and resolve "loose ends." The court stated a firm date was required and suggested 10 days. Aguirre then said he would be "ready in three days with my Faretta rights. I'll do my best." The court answered, "I don't believe you. I believe you are asserting [your Faretta rights] because you want to, you are disappointed with the Marsden ruling. There is no way you can be ready in three days. It is impossible." At this point, Aguirre asked for additional time, noting counsel had requested 10 days. The court answered, "No. The only reason you are asking is you are disappointed with the Marsden [request] and that's not an unequivocal request. I'm denying that."
On June 21, 2010 counsel and the court renewed their efforts to persuade Aguirre to accept the proffered plea. Aguirre, however, declined to speak. Defense counsel conferred with Aguirre, who stated aloud, "I don't want to go to trial with you, Mr. Russ." Aguirre then attempted to address the court but was unintelligible. The court indicated it would not agree to substitute new counsel and characterized Aguirre's request as "a delay tactic." The court allowed defense counsel another opportunity to confer with Aguirre privately and stated on the record: "The defendant is not present. He has been hysterical. . . . The reporter couldn't take down what he was saying because nobody could understand." The court reviewed the case's lengthy history, referred to the waiting 75-person jury panel and, citing People v. Keshishian (2008) 162 Cal.App.4th 425, stated new counsel would not be appointed because it would disrupt the orderly process of justice and opined Aguirre's hysterical conduct had been intended to force a continuance of the trial.
The record reveals an apparently distraught young man who could not accept the gravity of the charges against him and the inevitability of a lengthy prison sentence. Aguirre was not able to identify any legitimate basis for the removal of his court-appointed counsel, and the evidence amply supports the court's conclusion he invoked his Faretta rights because he wanted to delay trial. There was no abuse of discretion.
2. The Trial Court Did Not Improperly Reject Aguirre's Guilty Plea
A plea agreement is a three-part contract that requires the consent of the defendant, the People and the trial court. (In re Kenneth H. (2000) 80 Cal.App.4th 143, 148.) Before accepting a negotiated guilty or no contest plea in a felony case, section 1192.5 requires the trial court to "cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea." A guilty plea is valid as long as the record affirmatively shows it is voluntary and intelligent under the totality of circumstances. (People v. Mosby (2004) 33 Cal.4th 353, 361; People v. Howard (1992) 1 Cal.4th 1132, 1177 ["'the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily'"].) A guilty plea is voluntary and intelligent when (1) it is made with the advice of competent counsel; (2) the defendant was made aware of the nature of the charges against him; (3) the plea was not induced by harassment, improper threats of physical harm, coercion, or misrepresentations; and (4) there is nothing to show the defendant was incompetent or otherwise not in control of his mental faculties. (Brady v. United States (1970) 397 U.S. 742, 750-756 [90 S.Ct. 1463, 25 L.Ed.2d 747].) It is not an abuse of discretion for a court to refuse to accept a defendant's guilty plea when it determines it is not freely and voluntarily made. (People v. Snyder (1989) 208 Cal.App.3d 1141, 1146-1147.)
a. The effort to obtain Aguirre's plea
On June 24, 2010, after several earlier court sessions during which Aguirre had refused the People's proposed plea agreement, Aguirre asked for an opportunity to enter a plea of guilty. However, he also stated he wanted to ask the prosecutor some questions before he entered the plea. When the court asked for a waiver of appellate rights, Aguirre asked the prosecutor to explain those rights. After a discussion of which counts would be included in the plea agreement, the prosecutor explained Aguirre would be losing his right of appeal from the judgment. The court asked, "Do you understand what she has told you?" Aguirre answered, "I can't appeal." He answered twice more that he understood his waiver of appellate rights. The court then asked if he wanted to go forward with the plea. Aguirre answered, "Yeah; I want to still hear what [the prosecutor] has to say. . . . She said she had things to tell me. I want to hear them all. The criteria and everything. I haven't been informed of everything that goes along with the plea."
As the prosecutor again attempted to explain the consequences of a guilty plea, Aguirre asked whether she intended to file additional charges related to another victim. When the prosecutor initially declined to commit, Aguirre stated he could not accept the plea. The prosecutor then agreed not to pursue other charges, a commitment she had previously made to defense counsel. Aguirre then raised yet another question relating to whether he would be designated as a sexually violent predator, which the court acknowledged was likely though not certain. After a further discussion of which counts would be included in the plea, the prosecutor again asked Aguirre if he would be willing to relinquish his right of appeal. Aguirre answered, "You are saying I have to." The prosecutor confirmed he had to waive his right to appeal if he wanted the proposed deal. Aguirre then stated, "I don't know how willing this is. I have no choice." The court interjected, "No. That is not true. You have a choice. You don't have to do this. You don't have to waive it at all. You have every right not to."
After a further colloquy, the prosecutor tried again, "You are willing to give up your right to appeal?" Aguirre answered, "Yes, ma'am." The court inquired, "Is that freely and voluntarily?" "As free as I am right now," Aguirre answered. The court stated, "I don't accept that. . . . I have misgivings. I have great misgivings." Asked by defense counsel whether anyone was forcing him to accept the deal, Aguirre answered, "No. Besides what you stated, no." At that response, the court asked, "What does that mean 'besides what we stated?' We get these little statements thrown in that bother me and make me very concerned he is not doing this voluntarily and freely. I have the feeling that Mr. Aguirre is being pushed into a corner; isn't that right, Mr. Aguirre? Answer me, sir." Aguirre agreed: "In your words, yes, ma'am. . . . I want the deal because I want to get out of here." The court answered, "No, sir. . . . We can't do it that way."
In response to the prosecutor's renewed attempt to explain the deal, Aguirre agreed he wanted to have "all the consequences and everything explained to me as I don't understand all that." The court, however, found that proposition disturbing: "He just said, 'I don't understand all that' after Mr. Russ has met with you at least on 10 occasions and explained everything to you . . . . You are claiming you still don't understand?" Aguirre reversed course and insisted he did understand, but the court remained uncomfortable and addressed defense counsel: "I am concerned he is not doing this freely and voluntarily. That is my concern and that is his constitutional right. My job is to make sure that his rights are protected as well as the People, and I get the feeling he is not doing this freely and voluntarily. . . . A lot of people have talked to him. You have asked me to talk to him. [His prior counsel] had me talk to him. I did at that time and we are almost . . . back to square one." Aguirre's counsel answered he was "100 percent convinced" the only pressure exerted on Aguirre was the knowledge and fear of what would happen at trial and that the plea was in Aguirre's best interests.
Aguirre, however, would not answer the court's questions in a straightforward manner. Asked again whether his plea was completely free and voluntary, Aguirre responded, "Best for everybody, ma'am." The court pointed out, "I'm talking about you right now. I'm concerned about you. What about you?" Aguirre paused before answering he was entering the plea freely and voluntarily and asked for the court's patience, explaining "This happened when I was 19. . . . You want to give me 19. . . . I want to go and get this over with, ma'am. I don't want to lose my life. I understand there is a lot, a lot stacked against me. I understand that. That we need to move forward because time is running out and either I take the deal now or go to trial. I understand all of these things, your Honor. I need a little, things I'm not clear about. I'm sorry."
The court again walked him through the elements of the deal and asked if he understood. Aguirre answered, "I am a little bit in a bind. I understand I have to take it." Again, the court reminded Aguirre he did not have to accept the deal and could go to trial. Finally, Aguirre appeared to agree he wanted to take the deal. But when asked again whether he was doing so freely, he answered, "Free but I don't understand how anyone can do this freely when they are in handcuffs, ma'am. It doesn't make sense to me." At that response the court directed the prosecutor to "get the jury." Aguirre interrupted and insisted he was taking it freely but "I don't know what my appellate rights are. I haven't had time to investigate. [My counsel] did not explain to me what my appellate rights were. I didn't know I could appeal for inadequate counsel." When the court directed the bailiff to remove Aguirre from the courtroom, Aguirre pleaded, "I'll take the deal, ma'am. Please, please."
Nonetheless, the court rejected the deal, explaining to Aguirre's counsel, "He doesn't want to. It is obvious." "I cannot validly take a plea when it is not done voluntarily and freely. He is not doing it voluntarily and freely. I'm sorry. . . . We are going to [bring] the [jury] panel down . . . ." After discussing logistics with counsel, the court reviewed the lengthy pretrial proceedings to demonstrate the repeated opportunities made available to Aguirre to enter into a plea agreement. Addressing defense counsel, the court stated in conclusion, "You have made numerous efforts. You have gone down to the jail. Talked to him here. You have had me talk to him. I've talked to him as many times as requested. That's where we are today. So that the frustration of dealing with Mr. Aguirre is based on this unbelievably long and tortuous record. So I'm sorry, Sir. We are going to go to trial . . . ."
b. Aguirre failed to demonstrate an abuse of discretion by the court
Aguirre contends the court erred in concluding his plea was not made freely because there was no evidence presented of any improper governmental coercion. According to Aguirre, the requirement of a voluntary plea is satisfied if the plea did not result from force, threats or promises other than those contained in the actual agreement. (See, e.g., People v. Collins (2001) 26 Cal.4th 297, 305 ["[a]s with the waiver required of several other constitutional rights that long have been recognized as fundamental, a defendant's waiver of the right to jury trial may not be accepted by the court unless it is knowing and intelligent, that is, '"'made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it,'"' as well as voluntary '"'in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception'"'"].)
The cases cited by Aguirre, however, arose in the context of a defendant seeking to vacate a plea agreement allegedly resulting from coercion, not to reverse a court's decision to reject a plea on the ground the plea was not freely or voluntarily accepted by the defendant. For instance, in North Carolina v. Alford (1970) 400 U.S. 25, 38, fn. 11 [91 S.Ct. 160, 27 L.Ed.2d 162] the Supreme Court distinguished the decision of the trial court to reject a guilty plea simply because the defendant wishes to plead guilty: "A criminal defendant does not have an absolute right under the Constitution to have his guilty plea accepted by the court, [citation], although the States may by statute or otherwise confer such a right. Likewise, the States may bar their courts from accepting guilty pleas from any defendants who assert their innocence. [Citation.] We need not now delineate the scope of that discretion."
Gonzalez v. United States (2008) 553 U.S. 242, 247 [128 S.Ct. 1765, 170 L.Ed.2d 616], which Aguirre also cites to support this argument, does not even address the issue of voluntariness, let alone the scope of the court's discretion to evaluate whether a defendant has freely and voluntarily agreed to enter a guilty plea. The Supreme Court in Gonzalez held only that express consent by counsel is sufficient to permit a federal magistrate judge to preside over voir dire and jury selection; the defendant's personal consent is not required.
Predictably, there is little authority on "the scope of that discretion." Certainly, the experienced trial judge in this case was well aware of the limits on its power to induce Aguirre to plead guilty (see, e.g., People v. Segura (2008) 44 Cal.4th 921, 931-932 ["in the context of a negotiated plea the trial court may approve or reject the parties' agreement, but the court may not attempt to secure such a plea by stepping into the role of the prosecutor . . . ."].) But we have found nothing (and Aguirre has pointed to little relevant authority) that circumscribes a court's discretion to reject a plea agreement it finds inadequate under section 1192.5. (See People v. Stringham (1988) 206 Cal.App.3d 184, 195 [characterizing court's power to retract approval of plea agreement under section 1192.5 as "near-plenary"].) In the end, our review on appeal can only evaluate whether substantial evidence supported the court's finding Aguirre's equivocating and contradictory statements about pleading guilty never amounted to a free and voluntary plea.
We have repeated the lengthy exchange among Aguirre, counsel and the court to demonstrate the significant efforts of the court and counsel to record a legitimate waiver of rights from Aguirre, sufficient to support the proposed plea agreement. Every person in the courtroom knew the plea was in Aguirre's best interests. Every person, moreover, attempted to make it possible for Aguirre to enter the plea with an agreed-upon prison sentence of 19 years, rather than face the very real possibility of multiple life sentences. Aguirre's disruptive conduct and contradictory statements, however, created substantial ambiguity as to whether he ever really agreed to the proposal, let alone whether his consent was voluntarily or freely given. The court was under no obligation to delay trial to accommodate Aguirre's vacillation. The decision to halt the efforts to secure Aguirre's consent to the plea and move the case to trial was entirely within the court's broad discretion.
3. The Trial Court Improperly Denied Aguirre's Request To Substitute Privately Retained Counsel for Posttrial Proceedings, Including Sentencing
"The Sixth Amendment provides that '[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.' . . . [A]n element of this right is the right of a defendant who does not require appointed counsel to choose who will represent him." (United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 144 [126 S.Ct. 2557, 165 L.Ed.2d 409]; accord, People v. Ramirez (2006) 39 Cal.4th 398, 422 [quoting Gonzalez-Lopez]; People v. Gzikowski (1982) 32 Cal.3d 580, 587 ["[t]he right to effective assistance of counsel [citations] encompasses the right to retain counsel of one's choice"].)
A criminal defendant's constitutional right to counsel of his or her choice includes the right to discharge privately retained counsel at any time with or without cause—that is, without the showing of irreconcilable conflict or inadequate representation required before appointed counsel may be replaced under People v. Marsden, supra, 2 Cal.3d 118. (People v. Ortiz (1990) 51 Cal.3d 975, 983; People v. Munoz (2006) 138 Cal.App.4th 860, 866.) When, as here, the request is to replace court-appointed counsel with retained counsel, economic status does not dictate a different result. (See Ortiz, at p. 984; People v. Courts (1985) 37 Cal.3d 784 [trial court erred in denying requested continuance to allow defendant to replace appointed counsel with retained counsel].) The Ortiz standard, not the Marsden standard, applies whether the defendant is seeking to substitute retained counsel for pretrial or, as here, for postverdict proceedings. (Munoz, at pp. 867-869.)
The "right to discharge his retained counsel, however, is not absolute. The trial court, in its discretion, may deny such a motion if discharge will result in 'significant prejudice' to the defendant [citation], or if it is not timely, i.e., if it will result in 'disruption of the orderly processes of justice.'" (People v. Ortiz, supra, 51 Cal.3d at p. 983.) Specifically as it relates to the case at bar, the court may deny the request if it would require a continuance of the trial or posttrial proceedings and the defendant has been "'unjustifiably dilatory' in obtaining counsel, or 'if he arbitrarily chooses to substitute counsel at the time of trial.'" (People v. Courts, supra, 37 Cal.3d at pp. 790-791; see United States v. Gonzalez-Lopez, supra, 548 U.S. at p. 152 [trial court has "wide latitude in balancing the right to counsel of choice against the needs of fairness" and "against the demands of its calendar"].) In deciding whether the trial court's denial of a continuance was so arbitrary as to deny due process, this court "looks to the circumstances of each case, '"particularly in the reasons presented to the trial judge at the time the request [was] denied."'" (Courts, at p. 791.)
After the jury returned its verdict on July 7, 2010, Aguirre's family promptly retained private counsel to prepare a new trial motion and to represent him with respect to sentencing, which had been scheduled for August 24, 2010. On August 17, 2010, apparently the first court day in which an appearance was possible, his newly retained counsel sought permission to substitute in and to postpone sentencing to allow time for preparation of a new trial motion on the ground Aguirre had been incompetently represented during the plea negotiations. The prosecutor opposed the request because of the effect of a delay on the victims, who intended to appear at the scheduled date for sentencing and were anxious for the case to conclude. The court rejected the request because of the likely delay and lack of showing Aguirre's appointed trial counsel had been incompetent.
Responding to the request to continue the sentencing hearing 30 days, the court explained, "I do not believe that 30 days is all that you are going to require. I find that to be an incorrect assumption of time and that you would, in order to do an adequate job, have to review all the trial transcripts in order to make a proper showing of requests at sentencing."
To the extent the trial court denied Aguirre's motion to replace his counsel because the proffered basis for a new trial motion lacked merit (ineffective assistance of appointed counsel in connection with the proposed plea agreement), the court improperly applied the Marsden standard requiring a demonstration of cause for the substitution of counsel. The only other ground for denying the motion and the accompanying request for a continuance of the sentencing hearing was the court's belief that new counsel would require more than the 30 additional days he had requested. The court may have been correct in its assessment, but, even assuming a 60-to-90-day delay, permitting Aguirre to retain counsel of his choice would not have led to "an unreasonable disruption of the orderly processes of justice." (People v. Ortiz, supra, 51 Cal.3d at p. 979.)
Although the court did not expressly refer to Marsden, there can be little doubt the court improperly applied that standard in denying the motion to substitute retained counsel. In addressing Aguirre's newly retained counsel it stated, "I have to evaluate your request. It isn't an issue of prejudging. I have to evaluate your request in determining your right to come in as counsel of record. So that is the issue I'm addressing, not prejudging any issue, but evaluating your request to come in as counsel of record." "[T]he fact that he just wants private counsel is not sufficient under the law. There is no showing that counsel of record, Mr. Russ, has done anything improper or incompetent."
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Aguirre was in custody. Although the prosecutor's concern for the victims' desire for closure was appropriate, she did not indicate any of them would be unavailable as a witness or seriously inconvenienced if the sentencing hearing occurred in September or even later in the year, rather than on August 24, as then scheduled. Moreover, whatever we may think of Aguirre's conduct in connection with the pretrial plea hearings, the record is devoid of even a suggestion his family was dilatory in seeking new counsel or his request for retained counsel was simply intended to delay the proceedings.
In sum, the trial court misunderstood the scope of its discretion and violated Aguirre's Sixth Amendment right to effective assistance of counsel by denying his motion to replace his appointed counsel with retained counsel. (See People v. Ortiz, supra, 51 Cal.3d at p. 984 [the trial court "must exercise its discretion reasonably: 'a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality'"]; cf. Menefield v. Borg (9th Cir. 1989) 881 F.2d 696, 700-701 [holding defendant who validly waived right to appointed counsel prior to trial is entitled to have counsel appointed for postverdict proceedings absent showing of bad faith, notwithstanding need for continuance of the proceedings; "[t]here is, however, a substantial practical distinction between delay on the eve of trial and delay at the time of a posttrial hearing. [Citation.] Delay immediately prior to trial engenders a significant potential for disruption of court and witness scheduling. . . . Conversely, it is unlikely that a continuance after verdict will substantially interfere with the court's or the parties' schedules. . . . [A]t least in the absence of extraordinary circumstances, an accused who requests an attorney at the time of a motion for a new trial is entitled to have one appointed, unless the government can show that the request is made for a bad faith purpose."].)
Denial of a defendant's constitutional right to be represented by retained counsel of his or her choice is "structural error" requiring reversal without any showing of prejudice. (United States v. Gonzalez-Lopez, supra, 548 U.S. at p. 150 ["erroneous deprivation of the right to counsel of choice, 'with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as "structural error"'"]; People v. Ortiz, supra, 51 Cal.3d at p. 988 ["[r]eversal is automatic, however, when a defendant has been deprived of his right to defend with counsel of his choice"].) Aguirre is entitled to be represented by retained counsel in all posttrial proceedings, including a new sentencing hearing. (See People v. Munoz, supra, 138 Cal.App.4th at p. 871 ["[o]nce new counsel is appointed, the case shall proceed anew from the point defendant originally sought to discharge his attorney"].)
DISPOSITION
The convictions are affirmed. The trial court's decision denying Aguirre's motion to substitute privately retained counsel is reversed, and the sentence imposed in the matter vacated. The matter is remanded for further proceedings not inconsistent with this opinion.
PERLUSS, P. J. We concur:
WOODS, J.
JACKSON, J.