Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR537091
Retired judge of the Superior Court of Marin County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant Kenneth Fuller, while represented by a deputy public defender, pled no contest to a felony charge of receiving stolen property. The trial court subsequently denied defendant’s postplea Marsden motion for substitution of counsel. The trial court did, however, appoint conflict counsel to advise defendant in connection with a motion to withdraw his plea. Defendant later waived his right to counsel under Faretta v. California (1975) 422 U.S. 806 (Faretta), and represented himself in connection with his motion to withdraw his plea, an accompanying motion to reduce the charge against him to a misdemeanor, and sentencing. On appeal, defendant claims the trial court erred in denying his Marsden motion, and that this ruling “le[ft] [defendant] to represent himself and impair[ed] presentation of his motion to withdraw the no contest plea.” We affirm.
People v. Marsden (1970) 2 Cal.3d 118.
I. Factual and Procedural Background
Our summary of the facts underlying the charges against defendant is based on the probation officer’s summary of the police arrest report. Defendant’s no contest plea was based on a stipulated factual basis reflected in the police report.
On June 2, 2008, at approximately 8:22 p.m., Sonoma County Sheriff’s deputies were dispatched to Pacheco’s Auto Body based on a report of a possible burglary. A white pickup truck was parked at the rear of the business. A window of the building was broken and tools had been taken from inside the building. After searching the building, a deputy inspected the pickup truck. The truck was registered to defendant, who had outstanding warrants for his arrest. The engine block was warm to the touch, suggesting the truck had been operated recently. The bed of the truck was filled with tools and scrap metal.
The deputies left the area of the business but continued watching the truck. About 15 minutes later, the deputies saw defendant driving the truck out of the driveway. The deputies stopped the truck and arrested defendant based on his outstanding warrants. During a subsequent search of the truck, the deputies found a checkbook and certificates of title for three vehicles; the checkbook and the certificates of title were all in the name of the victim of a commercial burglary in Lake County. The tools missing from Pacheco’s Auto Body were not recovered.
B. Proceedings
A felony complaint charged defendant with burglary (Pen. Code, § 459), and receiving stolen property (§ 496, subd. (a)). At a readiness conference on June 12, 2008, the public defender told the court that the parties were close to a disposition, and asked if the court would consider an early release to a drug treatment program if defendant were accepted into one. The court stated it would “consider any actual alternative you might have in the interim between now and the time of sentencing date,” but would not consider it before the plea or make it a condition of the plea.
All statutory references are to the Penal Code.
On June 16, 2008, defendant pled no contest to the charge of receiving stolen property, in exchange for dismissal of the burglary charge and a misdemeanor charge in another case. The court gave an indicated sentence of no initial state prison, subject to its consideration of the probation report. Defendant executed a change-of-plea form, in which he confirmed, among other things, that (1) he understood the maximum sentence he could receive as a result of the plea was three years’ imprisonment, (2) no promises or agreements had been made, other than those stated on the form or in open court, to induce his plea, and (3) he had had enough time to discuss with the public defender his constitutional rights, potential defenses, and the consequences of his plea.
On June 17, 2008, the day after entering his plea, defendant was denied admission to the TASC drug treatment program because of outstanding Solano County bench warrants.
A few weeks after entering his plea, defendant, purporting to act in propria persona, sent to the court a motion to withdraw his plea. Defendant asserted that he had not had sufficient time to discuss his case with the public defender; the charge against him should have been a misdemeanor; he was told his sentence would be limited to less than one year of “county time” and did not understand that a probation violation could result in a sentence of up to three years in state prison; he had numerous defenses that he waived because he believed he could get timely drug treatment; he did not discover until after pleading no contest that he was ineligible for a drug program because of his Solano County holds; and the public defender did not adequately investigate the case.
Defendant later filed a request for a Marsden hearing and an order replacing the public defender as his counsel. Defendant asserted that the public defender failed to investigate, failed to discuss the case sufficiently with defendant prior to his plea, failed to inform defendant that he would be ineligible for a drug program because of his Solano County holds, and failed to explain the potential prison sentence defendant would face. Defendant also stated that the public defender had refused to assist defendant in preparation of a motion to withdraw his plea.
The court held a closed Marsden hearing on July 25, 2008. At the conclusion of the closed hearing, the court denied the Marsden motion. After returning to open court, the court appointed conflict counsel to advise defendant in connection with a motion to withdraw his plea.
At a hearing on August 8, 2008, both conflict counsel and the public defender appeared with defendant. The court confirmed its appointment of conflict counsel in connection with defendant’s motion to withdraw his plea. At conflict counsel’s request, the court continued the matter to August 13.
On August 13, 2008, conflict counsel and the public defender again appeared with defendant. Conflict counsel stated that he had conferred with defendant, that defendant wished to proceed with his motion to withdraw his plea, and that defendant wished to waive his right to counsel under Faretta and represent himself. Defendant then waived his right to counsel, both orally and in writing; the court found that defendant’s waiver was voluntary and that defendant fully understood the disadvantages of self-representation. The court then accepted a copy of defendant’s motion to reduce the charge against him to a misdemeanor, as well as additional documents in support of defendant’s motion to withdraw his plea.
The court subsequently held a two-day evidentiary hearing on defendant’s motions to withdraw his plea and to reduce the felony charge to a misdemeanor. On September 2, 2008, at the conclusion of the second day of the hearing, the court denied both motions. The court found that defendant had entered his plea “knowingly, intelligently, voluntarily and freely.”
The court suspended imposition of the sentence and placed defendant on probation for three years, with a condition that he serve 10 months in jail (of which defendant had already served 139 days). The court ordered defendant to participate in residential drug treatment; the court stated that, if defendant were accepted into a residential drug treatment program, the court would entertain a motion to modify the incarceration condition of defendant’s probation so that defendant could begin the program immediately. The court also permitted defendant to serve his remaining jail time in Solano County so that he could attempt to resolve his outstanding warrants there.
Defendant, proceeding in propria persona, filed a timely notice of appeal, in which he stated he intended to challenge the plea, the Marsden ruling, the denial of the motion to withdraw the plea, and “the sentence or other matters occurring after the plea.” Defendant filed a request for a certificate of probable cause, which the trial court denied. Defendant is now represented by appointed counsel on appeal.
II. Discussion
A. The Need for a Certificate of Probable Cause
The Attorney General argues that we should not reach the merits of defendant’s appeal because he did not obtain a certificate of probable cause.
Under section 1237.5 and California Rules of Court, rule 8.304(b), a defendant seeking to appeal after entering a guilty or no contest plea generally must first obtain a certificate of probable cause. (§ 1237.5; rule 8.304(b); People v. Panizzon (1996) 13 Cal.4th 68, 74 (Panizzon).) However, rule 8.304(b)(4)(B) recognizes an exception to this rule—a defendant need not obtain a certificate of probable cause if the appeal is based on “[g]rounds that arose after entry of the plea and do not affect the plea’s validity.” (Rule 8.304(b)(4)(B).) Accordingly, the Supreme Court has held that a defendant who appeals after pleading guilty or no contest may, without obtaining a certificate, raise “issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed.” (Panizzon, at p. 74; accord, People v. Lloyd (1998) 17 Cal.4th 658, 663-664 (Lloyd).) In determining whether an appeal may proceed without a certificate of probable cause, courts “look to the substance of the appeal: ‘the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.’ [Citation.] Hence, the critical inquiry is whether a challenge... is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5.” (Panizzon, at p. 74.)
All references to rules are to the California Rules of Court.
When a defendant files a motion to withdraw his plea on grounds that challenge the validity of the plea (as defendant’s motion to withdraw did here), he may not appeal the denial of the motion without obtaining a certificate of probable cause. (People v. Ribero (1971) 4 Cal.3d 55, 63-64, superseded by statute on other grounds as stated in In re Chavez (2003) 30 Cal.4th 643, 655-656.) Accordingly, as defendant concedes, he may not appeal the trial court’s denial of his motion to withdraw his plea.
However, defendant argues that he does not need a certificate of probable cause to appeal the trial court’s ruling on his postplea Marsden motion. Defendant’s position is supported by People v. Vera (2004) 122 Cal.App.4th 970 (Vera). In Vera, the Sixth District Court of Appeal held that the defendant was not required to obtain a certificate of probable cause to appeal the trial court’s denial of his postplea Marsden motion, even though some of the defendant’s complaints related to his trial counsel’s preplea conduct. (Vera, at p. 978.) In reaching this conclusion, the Vera court noted that the “threshold issue” raised by the defendant’s postplea Marsden motion was whether the defendant “needed a new, substitute attorney in order to obtain effective representation.” (Vera, at p. 978.) The Vera court reasoned as follows: “In People v. Smith (1993) 6 Cal.4th 684... (Smith), the California Supreme Court stated, ‘It is the very nature of a Marsden motion, at whatever stage it is made, that the trial court must determine whether counsel has been providing competent representation. Whenever the motion is made, the inquiry is forward-looking in the sense that counsel would be substituted in order to provide effective assistance in the future. But the decision must always be based on what has happened in the past. The further one is in the process, the more counsel has done in the past that can be challenged, but that is a difference of degree, not kind.’ (Id. at pp. 694-695.) We regard the issue of whether defendant currently needed a new attorney as a postplea issue not essentially implicating the validity of the no contest plea.” (Vera, at p. 978.) Finally, the Vera court stated that reviewing the trial court’s Marsden ruling would not necessarily affect the defendant’s plea: “A determination that defendant is entitled to substitute counsel has no necessary implication for his no contest plea, which plea stands until a motion to withdraw it is made and granted.” (Vera, at p. 978.; see also People v. Earp (2008) 160 Cal.App.4th 1223, 1228 [Second Dist., Div. Four] [citing Vera, court held the defendant did not need certificate of probable cause to challenge postplea rulings on representation issues]; People v. Oglesby (2008) 158 Cal.App.4th 818, 826-828 [Fourth Dist., Div. Three] [after pleading guilty, the defendant did not challenge his plea but asked the trial court to suspend proceedings and hold a competency hearing to determine if he would be able to understand future sentencing proceedings; relying on Vera, the Court of Appeal held defendant’s request, like a Marsden motion, was forward-looking, so defendant did not need certificate of probable cause to challenge trial court’s denial of his request].)
The Attorney General urges us to reject Vera and hold that defendant needed a certificate of probable cause to appeal the postplea Marsden ruling because that ruling was not held “for the purpose of determining the degree of the crime and the penalty to be imposed.” (See Panizzon, supra, 13 Cal.4th at p. 74; Lloyd, supra, 17 Cal.4th at pp. 663-664.) The Attorney General states that at least some postplea Marsden rulings do fall within this exception to the certificate requirement, noting that: “[A]n erroneous denial of a postplea Marsden motion... may result in representation by conflicted counsel in sentencing or degree-reduction proceedings. Where that occurs, a postplea Marsden ruling is, in forward-looking fashion, conducted for the purpose of determining the degree of or the penalty for the crime.” The Attorney General argues, however, that the postplea Marsden ruling in this case (even if erroneous) did not affect defendant’s representation at subsequent degree-reduction and sentencing proceedings, because defendant, after the Marsden ruling, executed a Faretta waiver and represented himself at those subsequent proceedings. But courts have held that an erroneous Marsden ruling can render ineffective a subsequent Faretta waiver, because in that situation the defendant is forced to choose between counsel he has tried to replace and self-representation; courts have reasoned the defendant thus would be deprived of the right to counsel in subsequent proceedings. (People v. Hill (1983) 148 Cal.App.3d 744, 755-756.) Accordingly, if the court’s denial of defendant’s postplea Marsden ruling here was erroneous, then the ruling did, “in forward-looking fashion,” affect his representation at later proceedings relating to the degree of, and the penalty for, his crime.
The court’s appointment of conflict counsel, like defendant’s Faretta waiver, did not “moot” defendant’s Marsden claim or eliminate the effect of the Marsden ruling on defendant’s representation in later proceedings relating to degree and penalty. The court appointed conflict counsel only to advise or assist defendant in connection with the motion to withdraw the plea; the court did not appoint conflict counsel in connection with defendant’s degree-reduction motion or sentencing.
The Attorney General also argues that defendant should not be permitted to challenge the Marsden ruling here without a certificate because his Marsden motion was based on alleged preplea errors by his counsel that affect the plea’s validity. (See rule 8.304(b)(4)(B).) However, as the Supreme Court has noted, all Marsden motions are based on what has happened in the past, but are forward-looking because they determine whether the defendant will have different counsel in the future. (Smith, supra, 6 Cal.4th at pp. 694-695; see Vera, supra, 122 Cal.App.4th at p. 978.) Because postplea Marsden rulings are forward-looking and determine whether the defendant will have different counsel at future proceedings (including proceedings relating to degree and penalty), we agree with the holding in Vera that the denial of a postplea Marsden motion may be challenged on appeal without a certificate of probable cause, even when some of the defendant’s complaints relate to his trial counsel’s preplea conduct. (See Vera, at p. 978.)
It is true that, on appeal, defendant focuses on arguing that the denial of the Marsden motion impaired his presentation of his motion to withdraw his plea; defendant does not focus on the impact the Marsden ruling had on his presentation of his degree-reduction motion or on sentencing. And, defendant states in his opening brief that the alleged conflict with the public defender that he raised in his Marsden motion is “inextricably tied into” his motion to withdraw his plea. However, despite defendant’s focus on his motion to withdraw his plea, the specific ruling defendant directly challenges on this appeal is the denial of his postplea Marsden motion. Because the “threshold issue” raised by that motion was whether defendant “needed a new, substitute attorney in order to obtain effective representation” in future proceedings (which included degree-reduction and penalty proceedings, as well as the motion to withdraw the plea) (see Vera, supra, 122 Cal.App.4th at p. 978), we conclude that defendant was not required to obtain a certificate as a prerequisite to appealing the postplea Marsden ruling.
The cases cited by the Attorney General are distinguishable, as they do not address whether postplea Marsden rulings may be challenged on appeal without a certificate of probable cause. (See People v. Caravajal (2007) 157 Cal.App.4th 1483, 1487 [Court of Appeal declined to construe the defendant’s motion to withdraw his plea as a Marsden motion, and thus found Vera did not apply; defendant could not appeal without certificate of probable cause]; People v. Emery (2006) 140 Cal.App.4th 560, 564-565 [absent certificate of probable cause, the defendant could not appeal denial of motion for continuance to investigate a potential motion to withdraw plea; the appeal was, “in substance,” a challenge to the validity of the plea].)
The parties note that the Supreme Court has granted review in a case presenting the question whether a certificate of probable cause is a prerequisite to an appeal claiming ineffective assistance of counsel for failure to assist a client in a motion to withdraw a plea. (People v. Johnson, review granted Nov. 19, 2008, S166894.)
B. The Marsden Motion
1. Background
As noted above, defendant claimed in his written Marsden motion that the public defender: (1) failed to discuss the case sufficiently with defendant prior to his plea, including failing to inform defendant that he would be ineligible for a drug program because of his Solano County holds, and that defendant would face a maximum sentence of three years’ imprisonment; (2) failed to investigate the case adequately; and (3) did not assist defendant in preparation of a motion to withdraw his plea based on these grounds. Defendant later submitted an additional “statement of facts” expanding on these allegations. At the Marsden hearing, defendant reiterated his claim that the public defender had not adequately advised him, before entry of his plea, about the impact of his Solano County holds and about the maximum prison sentence he could face. Defendant stated that he would not have entered his plea if he had known his holds would render him ineligible for a drug program and that he faced a maximum sentence of three years. He also stated that the public defender pressured him not to seek to withdraw his plea.
In response, the public defender agreed that “there was a pretty short turnaround on this case,” which may have led defendant to “feel[] like maybe he was shorted or sleighted [sic] in some fashion.” The public defender stated that he was not able to meet with defendant at the jail due to the distance, but that he discussed the case with defendant on the telephone and in court. The public defender also stated that defendant, who had an extensive criminal record, had “been around” the legal system, understood the issues involved, and considered himself a “student of the law.” The public defender stated that he had discussed with defendant the ramifications of a plea, including discussing the need to take care of the Solano County holds. Specifically, the public defender told defendant he would ask the trial court to release defendant before sentencing so he could resolve the Solano County cases and then return to follow up on the trial court’s indication that it would allow defendant to participate in drug treatment rather than impose a prison sentence. The public defender concluded by stating that, although he believed his handling of the case was “maybe not the textbook sort of example of the way it should be done” (as a result of time constraints imposed by the volume of cases in the system), he was confident that defendant “knows the system, [and] was comfortable with this situation.”
Defendant replied by asserting that it was not until after entry of the plea that he and the public defender had come up with the potential solution of a release prior to sentencing to deal with the Solano County cases.
In later proceedings in connection with defendant’s motion to withdraw his plea, the public defender testified that he believed he and defendant had discussed this approach before defendant entered his plea. Defendant testified the discussion occurred after he entered his plea.
The trial court denied the Marsden motion, finding there was no “genuine conflict” between defendant and the public defender. As noted above, however, the court did appoint conflict counsel to advise defendant about whether to file a motion to withdraw his plea. The court also emphasized that it intended to follow through on its earlier agreement that defendant would not initially be sent to state prison, and would not go to prison at all if he complied with the terms of probation, “which ostensibly would include a drug treatment program.” The court stated that, although the case was complicated by defendant’s Solano County cases, neither the court nor the public defender had control over those cases; the Solano cases did not create any real conflict between defendant and the public defender.
2. Analysis
Under Marsden, a trial court should appoint substitute counsel “whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation].” (Smith, supra, 6 Cal.4th at p. 696.) This standard applies regardless of whether the Marsden motion is made before or after trial. (Smith, at p. 696.) We review the trial court’s denial of the Marsden motion for abuse of discretion. (Smith, at p. 696; Marsden, supra, 2 Cal.3d at p. 123.)
The trial court did not commit a “clear abuse” of discretion in denying defendant’s Marsden motion. (See Smith, supra, 6 Cal.4th at p. 696.) The court properly held a hearing, at which it permitted defendant to articulate his complaints about defense counsel and required counsel to respond. The court was entitled to discount defendant’s complaints about the adequacy of his preplea discussions with the public defender, especially since some of defendant’s assertions were contradicted by the express terms of the change-of-plea form he had executed. As noted above, when defendant signed the change-of-plea form, he confirmed that he understood the maximum sentence he could receive was three years’ imprisonment, that he had had enough time to discuss with the public defender any potential defenses and the consequences of his plea, and that no other promises or agreements had been made to induce his plea. In addition, the court, in evaluating defendant’s claim that he did not understand the ramifications of his plea, could consider the public defender’s statement that defendant was experienced and understood the system. As to defendant’s after-the-fact charge that the public defender conducted inadequate preplea investigation, the court could reasonably have concluded that defendant and the public defender made a reasonable decision to take an early, favorable plea agreement (including an indication of no initial prison time and possible drug treatment).
Finally, with regard to the impact of defendant’s Solano County holds on his eligibility for a drug treatment program, there was a dispute between defendant and the public defender as to whether they had discussed this issue before or after defendant entered his plea. To the extent there was a credibility dispute about this or other matters, the trial court was “ ‘entitled to accept counsel’s explanation.’ ” (Smith, supra, 6 Cal.4th at p. 696.) In any event, defendant did not establish that the public defender or the court promised that he would be able to participate in a drug program. To the contrary, prior to defendant’s plea, the court stated that it would consider sending him to a drug treatment program, but emphasized that it would not make that a condition of the plea.
For the foregoing reasons, we affirm the trial court’s denial of defendant’s postplea Marsden motion.
III. Disposition
The judgment is affirmed.
We concur: Marchiano, P. J., Margulies, J.