Opinion
A115799
4-17-2008
THE PEOPLE, Plaintiff and Respondent, v. DARNELL JOSEPH EARBY, Defendant and Appellant.
NOT TO BE PUBLISHED
Darnell Joseph Earby pleaded nolo contendere to one count of stalking while subject to a restraining order (Pen. Code, § 646.9, subd. (b)), two counts of making criminal threats (§ 422), and one count of misdemeanor vandalism (§ 594, subd. (b)(2)(a).) Defendant also admitted that he suffered a prior conviction within the meaning of section 1203, subdivision (e)(4), two prior convictions within the meaning of section 667.5, and that one of these convictions also qualified as a prior within the meaning of section 1170.12, subdivision (c)(1). The plea was open to the court. The court denied a motion to strike the section 1170.12, subdivision (c)(1) conviction, denied probation and sentenced defendant to five years four months in state prison.
All subsequent statutory references are to the Penal Code unless otherwise indicated.
Defendant filed a notice of appeal and obtained a certificate of probable cause. On appeal, he contends: (1) The court abused its discretion in denying defendants request for substitute counsel on the first day of trial, and at sentencing when counsel advised defendant he had no valid grounds for a motion to withdraw his plea; (2) he was deprived of his right to assistance of counsel at a critical stage, i.e., the making of a motion to withdraw his plea; and (3) his plea was not knowing or voluntary because the court failed to advise him that one of the consequences of admitting the section 1203.4, subdivision (e)(4) allegations was that he would be ineligible for probation absent a finding of unusual circumstances.
FACTS
September 19, 2006 Marsden hearing
People v. Marsden (1970) 2 Cal.3d 118.
On the first day of trial, just before jury selection, defendant asserted that he was not being adequately represented by his appointed counsel, and that defendant believed they did not have a working client-attorney relationship. The court cleared the courtroom and held a Marsden hearing.
Defendant told the court his appointed counsel had not given him a police report or preliminary transcripts, had not met with defendant to discuss the case, had only contacted one of the witnesses defendant had named, and was advising him to accept a negotiated plea instead of going to trial.
Defense counsel acknowledged that he and defendant had disagreed over whether defendant should accept the most recent plea offer, and both had lost their tempers. Defense counsel explained that after the pretrial conference defendant had wanted to accept an offer of 16 months or two years "right then and there." Defense counsel advised defendant to wait because the offer might get better on the day of the trial, especially because the victim might not testify. The day before trial was to begin defense counsel spoke with defendant and was "very impressed" with the great strides defendant was making in jail, and thought he could ask the court to "entertain a probationary sentence with a higher top." Defense counsel, in fact, did succeed in negotiating an offer from the prosecutor consisting of "4-years suspended if he got probation and so forth, and if not it was the 2 years we always talked about," but defendant did not want to accept it. Defense counsel understood that defendants refusal was based, in part, upon "a lack of confidence in whether the Court will grant him probation at any stage," and upon defendants continued belief that his wife, the victim, would recant her testimony. Yet defense counsel had informed defendant that he had talked with defendants grandmother the night before, and she said that the victim had told her she would come to testify in court. Counsel was trying to do his best for defendant, and advised him to take the plea because he was likely to be convicted and under the plea "he would receive two years in state prison at the very wors[t] if not probation," as compared with a minimum of eight years if he went to trial and was convicted.
Counsel stated: "The way we left it [on the date of the pretrial conference] . . . he was going to plea[d] to the 2 years or the 16 months[;] he hadnt decided. I was trying to tell him to plea[d] to the 2 years because thats a non strike offense, and the 422 even though it was . . . 16 months."
Defendant reiterated his concern that counsel did not prepare defendant, inform defendant of the evidence against him, or meet with him except in court for "five minutes." Defendant complained that counsel had never visited him in jail. The court stated, "I think [defense counsel] was under the impression . . . that you already agreed to enter into some kind of a plea bargain at the pretrial, so that kind of puts you in a different frame of mind." The court also noted that the police reports and transcripts were not essential because defendant had been present at the preliminary hearing, the primary evidence was the victims testimony, and he had heard the evidence.
The court asked defense counsel whether he had discussed the case with defendant. Defense counsel stated he had discussed the case with defendant "at length" at the pretrial conference, and had also consulted with him by telephone. Defendant confirmed that defense counsel had consulted with him by telephone, but defense counsel had also said he would visit defendant in jail, and had not done so. The court informed defendant he was placing too much importance on a jail visit. When defendant objected that out of seven names, defense counsel had only talked to defendants grandmother, and called one more, the court noted that they were character witnesses, and might not all be relevant, but that she would give defendant an opportunity to get whatever witnesses he needed.
The court concluded that defense counsel was representing defendant "much more than adequately," and denied the Marsden motion.
The Plea
On the second day of trial, after the victim testified about the threats and identified the tapes of threatening telephone calls she had received, defendant decided to change his plea. His signed declaration stated: "I have not been induced to plead guilty or nolo contendere by any promise or representation of a lesser sentence, probation, regard, immunity or anything else, except: [¶] Plea open to credit for time served to max. of 10 yrs. 8 mon., matter referred to probation department for report and recommendation." The declaration further stated that defendant understood, "that the matter of probation and sentence is to be determined solely by the Court and will not be decided until the report and recommendation by the Probation Department has been considered."
Before the court accepted the plea, defendant acknowledged that he read, understood, and signed the declaration. He affirmed that he understood he was giving up the rights noted on the form, and the court advised him of the maximum sentence, fines, and parole term. The court also asked defendant to confirm that he understood no promises had been made other than the following: "The plea will be open to arrange for either credit for time served up to the maximum of [10 years and 8 months]. [¶] . . . [¶] The matter will be referred to the probation department for a report and recommendation. [¶] So essentially what that means, Mr. Earby, so were all on the same page is that the plea is open to the court, so the range is from, as indicated on the form, . . . anything from probation and credit for time served all the way up to 10 years and 8 months." Defendant stated that he understood.
November 2, 2006 Marsden Hearing and Motion to Withdraw Plea
On November 2, 2006, the day set for sentencing, defendants counsel informed the court that a few days earlier defendant had expressed a desire to withdraw the plea. Counsel consulted with representatives of the Private Defender Program. He concluded that there were no grounds for withdrawal of the plea, and was advised that there was no reason to appoint another counsel. When defendant told the court the reason he wanted to withdraw his plea was based upon counsels inadequate representation, the court ordered the courtroom cleared for another Marsden hearing.
Defendant reiterated his prior complaints that he had had no visits from defense counsel and had not received a copy of the police report or preliminary hearing transcript prior to jury selection. Defendant added that, when accepting the plea, it was his "impression that [he] would receive probation based upon the probation report." Yet, during his probation interview, the probation officer informed defendant that there was only "a small chance of . . . even getting probation with the nature of the cases with the felonies." When defendant called his appointed counsel and told him he wanted to withdraw the plea, defense counsel told defendant he would not be able to represent him.
The court told defendant that "you have a very different recollection of events." The court reminded defendant that he entered the plea during trial, and that it was "an open plea, there were no promises whatsoever."
Defense counsel was sworn and testified. He summarized the terms of the initial plea offer, and the improved offer on the day of trial, noting that Judge Parsons had agreed that "even though Mr. Earby has a strike and even though there are . . . certain allegations and enhancements which could preclude . . . probation that [it was still] within the purview of the court to consider" probation. Defense counsel had therefore advised defendant that his best chance at probation was "to enter that plea in front of Judge Parsons," but defendant refused even after the assignment judge, the trial judge, defense counsel, and the prosecutor had explained it to defendant. After defendants wife testified, defendant "saw the handwriting on the wall" and decided "he didnt want to go forward with this process, it was too upsetting to him." He wanted to enter a plea despite the fact that "all bets were off . . . once the trial started. [¶] Now, certainly the court has . . . the discretion, slight though it may be[,] of . . . giving him probation—and thats why I told him his best chance at probation would [have] been to enter that plea in front of Judge Parsons." Defense counsel testified these were the circumstance under which defendant entered the plea, and "thats why I feel there arent any grounds for his withdrawal" of the plea.
Defendant asked the court whether defense counsel was correct "that a true finding about me being still open and optional for probation." The court responded, "I think what you are referring to is that there is a special allegation pursuant to Section 1203(e)(4) . . . which you admitted to which precludes you from probation. What [defense counsel] just said, is yes, I mean . . . certainly the Court has discretion to strike the strike and find the [unusual] circumstances which would allow you to have probation. The probation officer, however, was correct as well . . . that there is a slim chance of that. So thats the situation, and I have no doubt that [defense counsel] told you that all along [italics added] . . . ." When defendant reiterated that he was "under the impression" that he would be given probation, the court said, "I think you just believe what you want to believe." The court also stated it did not believe defendants assertion that defense counsel had "lied" to him about the chances of probation.
When defendant reverted to repeating the claims he made in the priorMarsden hearing, the court informed him that it had already heard those complaints. As for his current complaint, the court stated: "I just dont find your statements to be, Im not going to say credible, thats what you believe. I just dont share your beliefs." The court denied the Marsden motion. Back in the presence of the prosecutor, the court found no grounds were stated for a motion to withdraw the plea, and denied the motion.
DISCUSSION
I.
Failure to Advise of Statutory Presumption Against Probation.
Defendant contends that his plea was neither knowing nor voluntary because the court failed to advise him, at the time of the plea, that his admission of one of the prior conviction allegations rendered probation statutorily disfavored under section 1203, subdivision (e)(4). He argues that the failure of the court to so advise him violated his due process rights and requires reversal, with directions to permit him to withdraw his plea.
The trial court must advise the defendant of the direct consequences of his plea. (People v. Walker (1991) 54 Cal.3d 1013, 1022.) Where probation is prohibited by statute, that is a direct consequence of the plea, and defendant must be so advised. (People v. Caban (1983) 148 Cal.App.3d 706, 712.) However, section 1203, subdivision (e)(4) "does not remove any of the trial judges options in sentencing a defendant . . . . Such a defendant can be granted probation in the trial courts discretion, subject to the limitation that the case be an unusual one `where the interests of justice would best be served if the person is granted probation . . . . [Citations.]" (People v. Dorsch (1992) 3 Cal.App.4th 1346, 1350. )
The case upon which defendant relies, People v. Spears (1984) 153 Cal.App.3d 79 (Spears), is distinguishable. In Spears, the court advised one of the defendants that there was "a good likelihood" he would be sentenced to probation. (Id. at pp. 83-84, 87.) In fact, probation was statutorily disfavored, pursuant to section 1203, subdivision (e), based on the defendants offenses and enhancements. The court concluded that since the record demonstrated an atmosphere of real anticipation that probation was likely, the defendants were misled by the failure to advise them that in fact probation would be disfavored. (Id. at pp. 83, 87.) Accordingly, the Spears court reversed the judgment with directions to allow the defendants to withdraw their pleas. (Id. at p. 88.) Subsequently, in People v. Vento (1989) 208 Cal.App.3d 876 (Vento), the same court that decided Spears emphasized that its holding had been limited to the facts of that case. It clarified that where "the record does not show a climate of `real anticipation that probation" is likely, the trial court is not required to advise the defendant probation is statutorily disfavored. (Id. at pp. 879-880.)
We find nothing in the record to indicate that there was "real anticipation" that probation was likely. To the contrary, in both the written plea form and on the record before the court accepted the plea, defendant confirmed that he had not been induced to plead nolo contendere by any promises of probation. The court advised defendant that the "plea is open to the court [and] the range is from, as indicated on the form, anything from probation and credit for time served all the way up to 10 years and 8 months," and defendant confirmed that he understood these terms. The change of plea form further stated that defendant understood, "that the matter of probation and sentence is to be determined solely by the Court and will not be decided until the report and recommendation by the Probation Department has been considered." This record provides no basis to conclude that defendant was misled into believing it was likely that the court would grant probation. Therefore, the trial court was not required to advise him that probation was statutorily disfavored. (Spears, supra, 153 Cal.App.3d 79; Vento, supra, 208 Cal.App.3d at pp. 879-880.)
We note that the record and the trial courts findings at the Marsden hearing concerning the dispute over whether grounds existed to withdraw the plea further demonstrate that defendant was not, in fact, misled. The court credited counsels statement that he advised defendant the best chance he had for probation was to accept the plea that had been offered on the first day of trial, but that "all bets were off" when he decided to plead nolo contendere after the victim testified. In response to defendants query about the chances of probation, the court confirmed that under section 1203, subdivision (e)(4), it still had discretion to grant probation upon a finding of unusual circumstance, but the chances of that were "slim," and it also stated it had "no doubt that [defense counsel] told you that all along [italics added] . . . ."
II.
Denial of Marsden Motions
Defendant also contends that he was denied his right to effective assistance of counsel when the court denied his requests for substitute counsel on the first day of trial and on the day of sentencing. We shall conclude the court was well within its discretion to deny both motions.
When a defendant seeks appointment of substitute counsel, "the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorneys inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result." (People v. Memro (1995) 11 Cal.4th 786, 857, italics added (Memro).)
We review the denial of a Marsden motion under an abuse of discretion standard. (People v. Berryman (1993) 6 Cal.4th 1048, 1070, overruled on other grounds by People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) When there is an issue of credibility between defendant and counsel at the hearing, the trial court may resolve it by accepting counsels explanation. (People v. Jones (2003) 29 Cal.4th 1229, 1245 (Jones).) The mere assertion by a defendant of lack of trust in, or disagreement with, counsel does not require appointment of substitute counsel. "If a defendants claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment, and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law." (Id. at p. 1246.)
The record of the Marsden hearing on the first day of trial shows that the court listened to all of defendants concerns about the adequacy of representation, and the communication between him and his appointed counsel. Counsels failure to make a visit to defendant in jail alone does not demonstrate a total failure to communicate with defendant or to prepare for trial. The court was a free to and did accept defense counsels explanation that he had discussed the case with defendant "at length" at the pretrial conference, and also consulted with him by telephone, and that counsel had understood defendant intended to accept a plea offer. With respect to defendants expressed lack of trust in counsel based upon his perception that counsel was improvidently urging him to accept a plea, the court also accepted counsels explanation that he had lost his temper in frustration, but had actually dissuaded defendant from accepting a less favorable plea, had obtained a better offer, and was urging defendant to accept based only upon his judgment that the plea was in defendants interest. "Although clearly some heated words were spoken between client and attorney during the events preceding the guilty plea, that alone does not require a substitution of counsel absent an irreconcilable conflict." (People v. Smith (1993) 6 Cal.4th 684, 696 (Smith).) The court deemed it immaterial that defense counsel had not yet provided defendant with the preliminary hearing transcript or police report, since the main evidence against him would be the victims testimony, and defendant had heard it at the preliminary hearing. As for defendants complaint that, out of seven names, defense counsel had only talked to defendants grandmother and called one more witness, the court noted that they were character witnesses, and might not all be relevant, but that she would give defendant an opportunity to get whatever witnesses he needed. Based upon the foregoing, the court reasonably concluded that counsel was providing adequate representation, was prepared for trial, and that there was not the type of breakdown in the attorney-client relationship that would lead to ineffective assistance. (Memro, supra, 11 Cal.4th at p. 857.)
The Marsden hearing on the day of sentencing was based upon defendants complaint that he wanted to withdraw his plea, yet counsel had informed him that he had no valid grounds. Although criminal defendants are entitled to competent representation with respect to a motion to withdraw a plea, appointed counsel may properly decline "to make a motion which, in counsels good faith opinion, is frivolous or when to do so would compromise accepted ethical standards." (People v. Brown (1986) 179 Cal.App.3d 207, 216 (Brown).) If, however, defendant demonstrates that grounds do exist, then the court should appoint substitute counsel. (Smith, supra, 6 Cal.4th at pp. 695-696.)
After listening to defendant and his defense counsel, the court credited defense counsel and rejected defendants assertions that: (1) He had reasonably expected that he would get probation; (2) he was surprised to learn that by admitting the section 1203, subdivision (e)(4) allegation the court could grant probation only upon a finding of unusual circumstances; and (3) his counsel had lied to him about the chances of getting probation. In the context of a discussion of the section 1203, subdivision (e)(4) presumption against probation absent a finding of unusual circumstances, the court made it clear that it did not credit defendants assertion that he was unaware of the statutory presumption. It expressly stated: "I have no doubt that [defense counsel] told you that all along [italics added] . . . ." When defendant reiterated that he was "under the impression" that he would be given probation, the court responded, "I think you just believe what you want to believe." The court also explicitly stated it did not believe defendants assertion that defense counsel had "lied" to him about the chances of probation. These are all credibility determinations the court was free to make, and to which we, as the reviewing court, must defer. (Jones, supra, 29 Cal.4th at pp. 1245-1246.)
In the absence of any showing that counsel failed to advise defendant about the statutory presumption against probation or misrepresented his chances of getting probation, or that defendant had any other reasonable basis for mistakenly believing he would likely receive probation, defendant failed to demonstrate that adequate grounds existed for a motion to withdraw the plea. Defendant simply had changed his mind, which was not good cause for withdrawal of his no contest plea. (People v. Huricks) 1995) 32 Cal.App.4th 1201, 1208.) Buyers remorse is insufficient to compel a court to permit withdrawal of a plea. (People v. Knight (1987) 194 Cal.App.3d 337, 344.) The court therefore was within its discretion to deny appointment of substitute counsel based upon its findings, supported by the record, that counsel had performed competently and correctly advised defendant that he had no valid grounds for a motion to withdraw his plea.
III.
Denial of Right to Assistance of Counsel in Making Motion to Withdraw the Plea
Defendant contends that the denial of his request for appointment of substitute counsel at the sentencing hearing deprived him of the assistance of counsel at a critical stage of proceedings, i.e., in making a motion to withdraw the plea. (SeeSmith, supra, 6 Cal.4th at p. 695 ["A defendant is entitled to competent representation at all times, including presentation of a new trial motion or motion to withdraw a plea"].) He reasons that by refusing to appoint substitute counsel, the court deprived him of the right to assistance of counsel in making a motion to withdraw the plea.
The case upon which defendant relies—Brown, supra, 179 Cal.App.3d 207—is distinguishable because in that case the defendant had a colorable, or nonfrivolous, basis for a motion to withdraw the plea. In Brown, trial counsel informed the court at sentencing that the defendant wanted to withdraw his plea, but that she was not making the motion for him. (Id. at p. 211.) The defendant asked the trial court if he could withdraw his plea and obtain another attorney, but the trial court refused. (Id. at pp. 211-213.) The Court of Appeal determined that the defendants motion to withdraw his plea was not frivolous, and therefore counsel should not have refused to bring it. (Id. at p. 216.) The court further reasoned that "[i]t was improper to permit defendant to bring his motion in pro. per. while he was still represented by counsel and he had not waived his right to counsel." (Id. at pp. 214-215.) The court concluded that the defendant was "deprived of his right to make an effective motion to withdraw his plea" (id. at p. 213) and remanded the case with instructions for a Marsden hearing should counsel continue to refuse to bring the motion. (Id. at pp. 216-217.) In so holding, the court, however, also emphasized that it was not suggesting that counsel is required to make a frivolous motion. (Id. at p. 216.)
In People v. Osorio (1987) 194 Cal.App.3d 183 (Osorio), the court followed Brown, supra, 179 Cal.App.3d 207. In Osorio, the defendant stated at sentencing that he wanted to withdraw his plea. (Osorio, at pp. 185-186.) Trial counsel indicated there was good cause, but refused to bring the motion in "good conscience" because it would result in reinstatement of counts dropped under the plea bargain. (Id. at p. 186.) On appeal, the court determined that the case should be remanded to allow defendant to bring a motion to withdraw the plea. (Id. at pp. 188-189.)
Both Brown, supra, 179 Cal.App.3d 207, and Osorio, supra, 194 Cal.App.3d 183, therefore involved counsels refusal to bring a potentially meritorious motion to withdraw the defendants plea. Here, the asserted grounds for a motion to withdraw defendants plea were the same as defendants reasons for seeking appointment of substitute counsel, i.e., that he had entered the plea based upon the understanding that he had a good chance at probation and defendant had not been informed, did not understand, and was not advised that the admission of the section 1203, subdivision (e)(4) allegation rendered it unlikely that he would receive it. Unlike Brown or Osorio, the trial court evaluated defendants claims during a Marsden hearing, and found them to be without merit.
In Smith, supra, 6 Cal.4th at pp. 695-696, our Supreme Court held that a defendant is entitled to substitute counsel to "investigate a possible motion to withdraw the plea . . . based upon ineffective assistance of counsel" only "when a defendant satisfies the trial court that adequate grounds exist [italics added]." It follows from the trial courts Marsden findings, which we have upheld, that a motion to withdraw the plea based upon the same showing would be frivolous. Therefore defendant was not deprived of his right to assistance of counsel in making a motion to withdraw the plea.
We also note that the Brown court remanded the matter to allow the defendant to make a motion to withdraw his plea with the caveat that should defense counsel refuse to present the motion, the court should conduct a Marsden hearing to determine the basis of the conflict and whether to appoint substitute counsel to present the motion. (Brown, supra, 179 Cal.App.3d at p. 216.) In this case, the court conducted a Marsden hearing in which it allowed defendant to air his complaints against defense counsel, none of which it found warranted the appointment of new counsel. In this context the court also specifically considered the grounds defendant asserted for withdrawal of the plea, and determined that counsel had correctly advised his client that he did not have valid grounds to make such a motion.
CONCLUSION
The judgment is affirmed.
We concur:
MARCHIANO, P. J.
SWAGER, J.