Opinion
F049531
5-16-2007
THE PEOPLE, Plaintiff and Respondent, v. PETER MUNOZ GARNICA, Defendant and Appellant.
John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Wanda Hill Rouzan, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Wiseman, Acting P.J., Levy, J., and Hill, J.
Peter Munoz Garnica filed his appeal after pleading no contest to one charge of knowingly receiving stolen property. (Pen. Code, § 496, subd. (a).) He additionally pled no contest (in response to a separate complaint) to charges of grand theft auto. (§ 487d.) On appeal, Garnica contends that the trial court committed Marsden error (People v. Marsden (1970) 2 Cal.3d 118) by failing to inquire into his complaint that defense counsel refused to file a motion to withdraw his guilty plea. Garnica argues that the courts Marsden inquiry was "inadequate" and as such the trial court erred in denying his motion for substitute counsel. We find the courts Marsden inquiry sufficient and affirm the judgment.
Subsequent statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL HISTORIES
On February 28, 2005, the California Highway Patrol arrived at the residence of Garnicas mother in response to an ongoing investigation concerning stolen vehicle parts. Garnica provided officers with verbal consent to search the exterior of the home, and officers found an automobile engine from a previously recovered stolen vehicle. Garnica stated that he knew the engine was stolen when he purchased it for $150. On June 20, 2005, Garnica entered a plea of no contest (case No. SF12547A) to knowingly receiving stolen property (§ 496, subd. (a)) and admitted a prior strike (§§ 667, subds. (c)-(j) and 1170.12, subds. (a)-(e)). A second count was dismissed.
On September 21, 2005, in an unrelated case (case No. SF12829A), Garnica was charged with five separate offenses, including grand theft auto (§ 487d); possession of ammunition by a person prohibited from owning or possessing a firearm (§ 12316, subd. (b)(1)); obstructing or resisting officers in performing their duties (§ 69); resisting arrest (§ 148, subd. (a)(1)); and trespassing (§ 647, subd. (h)). It was also alleged that Garnica had suffered a prior strike (§§ 667, subds. (c)-(j) and 1170.12, subds. (a)-(e)).
On the same date, Garnica moved to replace appointed counsel. In a closed hearing, Garnica explained that he wanted to file a motion to withdraw his no-contest plea in case No. SF12547A, but counsel had said she was "not available to help" and that there were no legal grounds on which to bring the motion. The trial court denied the motion. Following the hearing, Garnica entered a plea of no contest to grand theft auto and admitted the prior strike. The remaining counts were dismissed.
Garnica was sentenced in case No. SF12547A (receiving stolen property) to the lower term of 16 months, doubled for the prior strike. In case No. SF12829A (grand theft auto), the court imposed the lower term of eight months, doubled for the prior strike, to be served consecutively with the sentence imposed in case No. SF12547A, for a total prison term of 48 months.
DISCUSSION
On appeal, Garnica contends that the courts Marsden inquiry was inadequate. He argues that his attorney should have been substituted because she failed to file a motion to withdraw his plea in the first case, No. SF12547A. He further contends that there were possible grounds to withdraw his plea because police did not obtain consent from his mother to conduct a warrantless search of the exterior of her residence. We find Garnicas claims without merit and affirm.
The trial court conducted an appropriate Marsden inquiry according to well-settled procedures. Under Marsden, when a defendant in some manner moves to discharge current counsel, the trial courts duty is to inquire as to the reasons for the dissatisfaction and exercise its discretion in deciding whether to replace counsel. (People v. Marsden, supra, 2 Cal.3d at p. 124; People v. Lucky (1988) 45 Cal.3d 259, 281.) A defendant is entitled to relief if he can show inadequate representation or that the attorney-client relationship has irreparably broken down. (People v. Smith (1993) 6 Cal.4th 684, 696; People v. Crandell (1988) 46 Cal.3d 833, 854.) The trial court should appoint new counsel only when a proper showing under Marsden has been made. (People v. Smith, supra, at p. 696.)
A defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense. (See People v. Hamilton (1989) 48 Cal.3d 1142, 1162.) "Tactical disagreements between the defendant and his attorney do not by themselves constitute an `irreconcilable conflict. `When a defendant chooses to be represented by professional counsel, that counsel is "captain of the ship" and can make all but a few fundamental decisions for the defendant." (People v. Welch (1999) 20 Cal.4th 701, 728-729; People v. Carpenter (1997) 15 Cal.4th 312, 376.)
At the Marsden hearing, the court asked Garnica why he wanted new counsel appointed. The only reason Garnica gave was that counsel refused to file a motion to withdraw his plea in case No. SF12547A. The court asked, "Did she tell you she didnt think ... there [were] any legal grounds to do that?" Garnica answered yes. The court ascertained that Garnica disagreed with counsels assessment and verified that no other reasons existed for Garnicas displeasure with his representation. The court then specifically asked Garnicas counsel whether she believed that grounds existed to withdraw Garnicas earlier plea and whether counsels conclusion was based on a full examination of the transcript of the plea and the circumstances of the plea.
It is clear from these discussions that there was disagreement over whether to move to withdraw Garnicas earlier plea. But this disagreement alone is not adequate grounds to establish inadequate representation or reason for further inquiry into the reasons for counsels belief that no legal grounds existed for the motion. (People v. Turner (1992) 7 Cal.App.4th 1214, 1219 [during Marsden inquiry, once court ascertains counsels belief that there are no grounds for motion, no further inquiry on that complaint is necessary]; People v. Webster (1991) 54 Cal.3d 411, 435-436 [trial court entitled to accept counsels explanation where defendants single ground for dissatisfaction was counsels handling of pretrial writs].)
Finally, we reject Garnicas contention that there may have been possible grounds for a motion to withdraw the plea because his attorney failed to file a suppression motion challenging the warrantless search of the exterior of his mothers residence. First, this was not a stated ground for dissatisfaction of trial counsels representation (that she failed to bring the motion to suppress). Second, Garnica consented to the search. According to the arrest report, Garnica resided at the residence. The motion would have been denied on this ground. (See People v. Garrison (1989) 47 Cal.3d 746, 784 [trial counsel cannot be faulted for failing to move for suppression of items obtained by consent].) "Counsel has no duty to make his client happy by interposing useless suppression motions. [Citations.]" (People v. Turner, supra, 7 Cal.App.4th at p. 1219.)
There is no Marsden error.
DISPOSITION
The judgment is affirmed.