Opinion
H045605
09-17-2019
THE PEOPLE, Plaintiff and Respondent, v. ALEC BEVINGTON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1775112)
Following his plea of no contest to second degree burglary (Pen. Code, §§ 459/460, subd. (b)), defendant Alec Bevington's defense counsel informed the court that Bevington wished to withdraw his plea and requested a Marsden hearing. The court scheduled the hearing for the following day, but no Marsden hearing was held. Instead, the court considered and denied Bevington's request to withdraw his plea.
All further undesignated statutory references are to the Penal Code.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
On appeal, Bevington asserts that the trial court erred in failing to conduct a Marsden hearing following his request, and that he was denied his Sixth Amendment right to counsel because he was required to argue his motion to withdraw his plea without the assistance of defense counsel. Bevington also asserts that the abstract of judgment must be corrected to reflect the statutory basis for the penalty assessments the court imposed as part of his sentence.
We agree with Bevington that the court erred when it failed to conduct the Marsden hearing, and reverse and remand the matter for the limited purpose of conducting such hearing. If the judgment is reinstated following the Marsden hearing, the abstract of judgment shall be amended to add the statutory basis for the penalty assessments imposed.
I. STATEMENT OF THE CASE
The underlying facts of the case are omitted because they are not included in the record and are not relevant to the issues on appeal. --------
Bevington was charged with receiving a stolen motor vehicle with a prior conviction of unlawfully taking a vehicle (§§ 496d, 666.5; count 1) and making or altering a key to be used in committing a crime (§ 466; count 2). The complaint also alleged that Bevington had served two prison priors (§ 667.5, subd. (b)).
On October 19, 2017, pursuant to a negotiated disposition, count 1 was amended to second degree burglary (§§ 459/460, subd. (b)), Bevington pleaded no contest to the amended count, and the remaining count and allegations were scheduled to be dismissed at sentencing.
On January 18, 2018, defense counsel informed the court that Bevington wanted to withdraw his plea. On February 8, 2018, defense counsel informed the court that Bevington requested a Marsden hearing. The court stated: "Set it for tomorrow morning, February 9th, 9:00 o'clock, Department 39 for Marsden."
However, on February 9, 2018, the court did not conduct a Marsden hearing. Instead, the court immediately commenced a hearing regarding Bevington's motion to withdraw his plea. Counsel for Bevington and Bevington himself addressed the court at the hearing. The trial court denied Bevington's request to withdraw his plea. On February 15, 2018, the court sentenced Bevington to two years in county jail pursuant to section 1170, subdivision (h)(5)(a), and dismissed count 2. The court also imposed a $600 restitution fine, $40 court security fee, $30 criminal assessment fee, $129.75 criminal justice administrative fee, and a "$10 fine plus penalty assessment."
Bevington filed a timely notice of appeal, and the trial court subsequently granted Bevington's request for a certificate of probable cause.
II. DISCUSSION
A. Failure to Conduct Marsden Hearing
A trial court is required to conduct a Marsden hearing "when there is at least some clear indication by the defendant, either personally or through counsel, that the defendant wants a substitute attorney." (People v. Sanchez (2011) 53 Cal.4th 80, 84 (Sanchez).) "[A]t any time during criminal proceedings, if a defendant requests substitute counsel, the trial court is obligated . . . to give the defendant an opportunity to state any grounds for dissatisfaction with the current appointed attorney. [Citation.]" (Id. at p. 90, fn. omitted.)
If a defendant seeks new counsel on the basis that his appointed counsel is providing inadequate representation, "the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result." (People v. Smith (2003) 30 Cal.4th 581, 604.)
Bevington asserts that the trial court erred when it did not conduct a Marsden hearing prior to sentencing. We agree. Bevington unequivocally invoked his Marsden rights when his counsel informed the court on February 8, 2018, that he wished to have a Marsden hearing. In response to the request, the court expressly set the matter the following day for the Marsden hearing. Yet when the matter was called at the time it was set, the court did not ask if Bevington still wished to proceed with a Marsden hearing, did not conduct the hearing, and did not comment in any way on Bevington's request for the Marsden hearing. Instead, the trial court immediately proceeded to hear from Bevington's counsel, who stated, "Your Honor, Mr. Bevington has expressed to me his wish to withdraw his plea." We note that the court straight away addressed Bevington's motion to withdraw his plea, and did so at the prompting of defense counsel, rather than first inquiring about the status of Bevington's Marsden request. This is of concern as the purpose of the Marsden proceeding was to provide judicial review of any claim of inadequacy of that same counsel's representation of her client, or any assertion of irreconcilable conflict between counsel and Bevington. After counsel explained the basis for the motion to withdraw the plea, the trial court then further questioned Bevington regarding the basis for that request. The court did not at any time during the proceedings ask Bevington whether he wanted substitute counsel. Rather, Bevington's communication with the court solely addressed the issue of whether he would be allowed to withdraw his plea.
This exchange between the trial court and Bevington was not the functional equivalent of a Marsden hearing. Here, the trial court was obligated to ask about the status of Bevington's request to substitute counsel raised the day previous, allow Bevington to adequately state his complaints about his attorney, and conduct a Marsden hearing if Bevington still wished to proceed with that motion. (See Sanchez, supra, 53 Cal.4th at pp. 89-90; People v. Kelley (1997) 52 Cal.App.4th 568, 579-580.)
The denial of a defendant's right to a Marsden hearing requires reversal unless the error was harmless beyond a reasonable doubt. (People v. Hill (2013) 219 Cal.App.4th 646, 653 (Hill).) The Attorney General argues that the court's failure to conduct a Marsden hearing in this case was harmless because the record adequately shows the nature of Bevington's objections about the circumstances of the entry of his plea, and that these concerns lacked merit. The Attorney General asserts that Bevington's objection to the disposition he negotiated through his attorney represented no more than "buyer's remorse," and that any request to substitute counsel would have been denied.
In support of these arguments, the Attorney General cites People v. Washington (1994) 27 Cal.App.4th 940 (Washington), wherein the Court of Appeal found that the trial court's failure to address the defendant's requested Marsden motion was harmless beyond a reasonable doubt. The defendant had been convicted by a jury of charges that arose from his attack on a correctional officer in state prison, and was found to be sane at the time he committed the offense by that same jury. The jury then found the enhancing allegations to be true. The defendant made a request for substitution of appointed counsel at a motion for new trial; his request was continued to be heard by the trial judge who was unavailable at the time of the new trial hearing. Ultimately, the trial judge did not conduct a Marsden hearing, apparently because he was unaware that the request had been made by the defendant. However, the appellate court held that the defendant could not show "that [the] Marsden motion would have been granted had it been heard, or that a more favorable result would have been achieved had the motion in fact been granted." (Id. at p. 944.) The Court of Appeal noted that their own review of the trial proceedings established that "no grounds for claiming ineffective assistance of counsel exist. Washington was ably represented and the evidence against him was nothing less than overwhelming." (Ibid.) As the defendant's claims followed a jury trial, the court concluded ". . . [t]he fact that no Marsden motion was entertained does not preclude Washington from attacking the competency of his attorney. Indeed, we have reviewed counsel's actions...We cannot see how the appointment of a different attorney would have gained Washington a new trial, or could have any effect on the sentence imposed..." (Ibid.)
The Attorney General asserts that as in Washington, the trial court's failure to conduct the Marsden hearing had no effect on the outcome of this case because the record adequately reflects Bevington's objections to his counsel's performance, and he cannot show his motion would have been successful. We are not persuaded. The Court of Appeal itself in Washington was positioned to review the effectiveness of counsel because in the normal course of the appeal from the jury trial, the appellate court had direct evidence of counsel's apparently competent representation of the defendant. It was thus possible for the court of review to evaluate counsel's performance.
But here, Bevington requested the substitution of appointed counsel after entering a no contest plea. We have very little information regarding counsel's interactions with Bevington, which, in the context of a negotiated plea, would form the likely basis for a request for substitution of counsel under Marsden. We have no way to determine whether Bevington was properly advised by appointed counsel of his options and sentencing exposure in the course of the plea negotiations, or whether he indeed simply regretted his decision to plead guilty as the Attorney General asserts. Because the trial court never asked Bevington whether he wished to proceed with the scheduled Marsden hearing, or the basis of his request to substitute counsel, the silence of the record makes it impossible to conclude beyond a reasonable doubt that Bevington's Marsden challenge would have been denied or that, had it been granted, a substitute attorney would not have been successful asserting Bevington's claim to withdraw his plea.
Bevington did assert during the motion to withdraw his plea that his attorney did not perceive that he allegedly was experiencing the effects of withdrawing from heroin at the time he entered his plea. The Attorney General appears to ask us to infer that this complaint would have formed the sole basis of the Marsden motion Bevington had requested, and as the trial court found Bevington's assertion to be without credibility, any motion to substitute appointed counsel thus would have been denied. But in the context of a negotiated plea, we would be guessing that this complaint formed the only basis for Bevington's Marsden motion, when we have neither information about the circumstances surrounding his attorney's advisements with regard to the entry of the no contest plea, nor, in contrast to the court of review in Washington, any record on which to judge counsel's performance. We decline to speculate regarding what Bevington would have expressed had he been provided the opportunity to do so at a Marsden hearing. On this silent record, we cannot say the lack of a Marsden hearing was harmless. "Because defendant might have been able to demonstrate that his attorney was not affording him adequate representation, the court's failure to hold a hearing resulted in a record which precludes effective review." (Hill, supra, 219 Cal.App.4th at p. 653.)
The Attorney General also argues that this court's opinion in People v. Vera (2004) 122 Cal.App.4th 970 (Vera) is applicable to this case. In Vera, the defendant brought a Marsden motion after he entered his plea, expressing his belief that his attorney did not properly investigate the prior serious and/or violent felony convictions alleged against him, as well as the extent of the victim's injuries. (Id. at pp. 975-976.) The trial court denied the defendant's motion before he was able to finish his arguments, noting that the defendant's attorney should be given an opportunity to look into the defendant's concerns and possibly to bring a Romero motion or a motion to withdraw the defendant's plea. (Id. at p. 976.) The trial court told the defendant that his Marsden motion could be renewed at a later date; however, the defendant did not renew his motion. (Ibid.) On appeal, this court considered whether it was error for the trial court to limit the defendant's arguments at his Marsden hearing. This court concluded that the trial court must consider all of the defendant's reasons that his attorney should be disqualified, and that the trial court failed to do so when it concluded the hearing while the defendant was still asserting his claims. (Id. at p. 980.) However, this court found there was no error because the trial court gave the defendant another opportunity to state his arguments at a later date, and the defendant did not avail himself of that opportunity. (Id. at p. 981.)
Vera is distinguishable from the present case. In Vera, while the defendant's hearing was cut short by the trial court, the trial court in fact conducted a Marsden hearing, and the defendant was afforded the opportunity to state the reasons why he believed that his counsel was providing inadequate representation. The defendant was also explicitly informed that he could renew his request to continue or elaborate on his arguments supporting his request for substitute counsel. He did not avail himself of that option. But here, Bevington was never able to state his complaints about his attorney because Bevington's counsel immediately introduced the motion to withdraw Bevington's plea, and the trial court did not pause to address the status of Bevington's calendared Marsden hearing or to ask whether he wished to proceed with it. The trial court considered only the reasons Bevington wished to withdraw his plea, which as stated above, is not tantamount to a Marsden hearing.
As the trial court failed to conduct Bevington's Marsden hearing, and the record is insufficient to conclude that the error was harmless beyond a reasonable doubt, (see, Hill, supra, 219 Cal.App.4th at p. 653), we will reverse and remand the matter for the limited purpose of conducting a Marsden hearing.
B. Motion to Withdraw Plea
On February 9, 2018, the date set for Bevington's Marsden hearing and for sentencing, defense counsel informed the court: "Your Honor, Mr. Bevington has expressed to me his wish to withdraw his plea. . . . He has informed me, Your Honor, that at the time he entered his plea of no contest, he was coming down off of heroin. He says that he didn't fully understand that by filling out the waiver form, that his decision was final. . . . He tells me that he would like to withdraw his plea and move forward to trial." Following defense counsel's statements, Bevington elaborated on his reasons for wanting to withdraw his plea, including the fact that he felt ill at the time he entered his plea because of his heroin withdrawal, and that his mother had asked him to fight his case. He also stated that at the time he was arrested he was sleeping in the stolen car which was the target of the charged burglary. After defense counsel and Bevington made their statements, the court further questioned Bevington, and denied the motion.
Bevington argues that he was denied his Sixth Amendment right to counsel because he was forced to argue his motion to withdraw his plea by himself. In support of his argument, Bevington cites this court's opinion in People v. Brown (1986) 179 Cal.App.3d 207 (Brown), wherein we found that it was improper for a defendant to argue his own motion to withdraw his plea while he was represented by counsel. (Id. at pp. 214-215.) In Brown, the defendant pleaded no contest to two counts of lewd acts on a child pursuant to a negotiated disposition. At sentencing, defense counsel informed the trial court that the defendant wanted to withdraw his plea, but that she refused to file the motion for him, because she did not believe there was any legal basis for it. The court gave the defendant an opportunity to speak. (Id. at p. 211.) The defendant stated that he "wasn't in the right frame of mind" when he entered his plea and asked the trial court if he could withdraw it. (Ibid.) The court asked the district attorney and defense counsel for their position on the defendant's claims. Defense counsel again stated that she would not bring the motion on the defendant's behalf. The defendant then asked the court if he could "get another lawyer to represent" him. (Id. at p. 212.) The court denied the defendant's request for new counsel, and denied the defendant's motion to withdraw his plea. (Id. at p. 213.)
This court found that the defendant was "deprived of his right to make an effective motion to withdraw his plea of nolo contendere." (Brown, supra, 179 Cal.App.3d at p. 213.) We explained that it was "improper to permit defendant to bring his motion in pro per while he was still represented by counsel and had not waived his right to counsel." (Id. at pp. 214-215.) We further held that "[d]efendant was entitled to have the motion presented to the court by his attorney of record;" however, counsel was not required "to make a motion which, in counsel's good faith opinion, [was] frivolous or . . . would compromise accepted ethical standards." (Id. at p. 215.) We concluded that Brown's motion to withdraw his plea was not frivolous, and reversed and remanded the matter for him to bring the motion. (Id. at pp. 215-216.) We also directed the trial court to hold a Marsden hearing if defense counsel still refused to present the motion. (Ibid.)
We do not agree with Bevington that he was denied his right to counsel here. Unlike defense counsel in Brown, who refused to bring the defendant's requested motion, Bevington's attorney did present his motion to withdraw his plea by stating the grounds for it, specifically that Bevington represented that he was sick and experiencing heroin withdrawal symptoms at the time he entered his plea and did not fully understand the finality of the proceedings. Bevington added information for the court describing his physical symptoms and mental state at the time he entered the plea. Although he was not sworn as a witness, Bevington's statement was testimonial in nature, and the court treated him as a witness. The trial judge, who had personally taken Bevington's plea and had observed him in court at that time, asked questions to clarify Bevington's narrative and to probe his credibility. As the fact finder, it was the trial court's prerogative to do so. (See, e.g., Evid. Code, § 775; People v. Quesada (1991) 230 Cal.App.3d 525, 533.) However, counsel clearly stated the grounds on which the motion to withdraw was asserted, and presented the motion for the court's consideration. As the basis for the motion to withdraw the plea was reliant on Bevington's personal description of his experience at the time of its entry and the court's determination of his believability, his exchange with the court was supportive of the motion his attorney asserted on his behalf. On this record, we conclude that Bevington was not denied his Sixth Amendment right to counsel.
C. Correction of the Abstract of Judgment
Bevington argues and the Attorney General agrees that the abstract of judgment should be amended to reflect the statutory basis for the $31 in penalty assessments imposed on Bevington's $10 fine pursuant to section 1202.5. In this case, the trial court was required to specify the statutory basis for the penalty assessments it imposed. (People v. High (2004) 119 Cal.App.4th 1192, 1200.) Here, the court made a general order of $31 in penalty assessments, but the clerk did not specify the statutory basis for the assessments in the minute order or the abstract of judgment. Therefore, the abstract of judgment must be amended to specify the statutory basis for the $31 in penalty assessments imposed by the court. (See, id. at pp. 1200-1201.)
III. DISPOSITION
The judgment is reversed and the matter is remanded to the trial court with the following directions: (1) the court shall hold a hearing on Bevington's Marsden motion concerning his representation by counsel prior to the entry of his plea; (2) if the trial court finds that a failure to replace his appointed counsel would substantially impair his right to assistance of counsel, the court shall appoint new counsel to represent him and shall consider any applications newly appointed counsel may make; (3) if newly appointed counsel makes no motions, any motions made are denied, or Bevington's Marsden motion is denied, the trial court shall reinstate the judgment.
In the event the judgment is reinstated, the trial court shall prepare an amended abstract of judgment listing the statutory basis for the $31 penalty assessments imposed on the $10 fine pursuant to section 1202.5.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Premo, J. /s/_________
Elia, J.