Opinion
NOT TO BE PUBLISHED
Superior Court of Santa Barbara County No. 1185153 James F. Rigali, Judge.
Robert D. Peterson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Eric J. Kohm, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
COFFEE, J.
Homero Garcia Gomez appeals from a judgment following his conviction, after a jury trial, of second degree burglary, receiving stolen property, and resisting and obstructing a peace officer. (Pen. Code, §§ 459, 496, subd. (a)); 148, subd. (a)(1).) The court found that the prior serious felony conviction and four prior prison term allegations were true (§§ 667, subds. (d)(1) & (e)(1); 1170.12, subds. (b)(1) & (c)(1); 1192.7, subd. (c); 667.5, subd. (b)), denied appellant's motion to strike his prior serious felony conviction, and sentenced him to eight years in prison. Appellant contends that the court erred in denying his motions to substitute appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), and his motion to strike his prior serious felony conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We affirm.
All statutory references are to the Penal Code.
Appellant's sentence includes four years for burglary (a two-year midterm, doubled under § 667, subd. (b)); four years for his prior prison terms; and a concurrent 90-day term for resisting an officer. The court selected a four-year sentence for receiving stolen property (a two-year midterm, doubled under § 667, subd. (b)) and stayed that sentence pursuant to section 654.
BACKGROUND
On July 30, 2006, after 9:00 p.m., Rogelio Martinez and Helen Ramos were walking in Santa Maria. They saw appellant try to enter the wireless telephone and furniture store on Main Street. Appellant broke the store's glass door, entered and left quickly. Martinez called the police from a nearby liquor store.
Shortly after 9:20 p.m., Officer Jesus G. Garcia of the Santa Maria Police Department saw appellant on Main Street. Appellant looked at Garcia twice and ran. Garcia stopped appellant as he left a laundromat near Main Street. While patting him down, Garcia found a "brand new cell phone" in appellant's clothing. Police also found a used cell phone on the ground behind the laundromat, and a leather cell phone case on top of the laundromat's trash can. A laundromat employee found a new Samsung cell phone inside the laundromat, behind a washing machine.
The police took the new cell phones recovered from the laundromat and appellant's clothing to the telephone store owner. He confirmed that they were stolen from the store's display stand on July 30.
DISCUSSION
Marsden Motions
In November 2006, before the preliminary hearing, appellant moved to replace his appointed public defender with other appointed counsel. (Marsden, supra, 2 Cal.3d 118.) The court denied that motion and a subsequent Marsden motion. We reject appellant's contention that the court erred in denying those motions.
We review the court's denial of a Marsden motion for abuse of discretion; we cannot find such abuse unless the denial substantially impaired appellant's right to effective assistance of counsel. (People v. Abilez (2007) 41 Cal.4th 472, 488 (Abilez).) Marsden imposes several requirements upon the trial court when the defendant complains about the adequacy of appointed counsel. First, the court must allow the defendant to explain the basis of his or her complaint and relate specific instances of counsel's inadequate performance, and allow counsel to respond accordingly. (Id. at pp. 487-488.) "If the defendant states facts sufficient to raise a question about counsel's effectiveness, the court must question counsel as necessary to ascertain their veracity. [Citations.]" (People v. Eastman (2007) 146 Cal.App.4th 688, 695 (Eastman).) The court must also "make a record sufficient to show the nature of [a defendant's] grievances and the court's response to them." (Id. at p. 696.)
A defendant is entitled to relief of appointed counsel if the record demonstrates 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.'" [Citation.]" (Abilez, supra, 41 Cal.4th at p. 488.) Tactical disagreements do not, by themselves, constitute irreconcilable conflict. (People v. Alfaro (2007) 41 Cal.4th 1277, 1319.)
Here, appellant made his first Marsden motion on November 8, 2006, before the preliminary hearing. The court asked why appellant wanted to fire his appointed counsel, Brian Carroll. It added, "Actually, you don't get to fire him, but he's been appointed and he's working at the taxpayers' expense to defend you." Appellant asserts that such comments show that the court "started from the position that appellant was not allowed to change his attorney." The court's subsequent actions, described below, indicate otherwise.
Appellant explained that he wished to obtain substitute counsel because Carroll gave false information to Stephen Anderson, a "potential" private attorney. Appellant understood that Carroll advised Anderson that appellant had been carrying several cell phones when officers apprehended him. He said that this false information "spooked" Anderson, resulting in his refusal to help him. As required, the court asked Carroll to respond. Carroll recalled discussing the case with Anderson but did not recall telling him that appellant was carrying several cell phones. The court continued the Marsden motion for a week after it ordered Carroll to speak with Anderson, and "investigate . . . [via] phone call from one officer of the court to another and make sure there is no legitimacy to it . . . ."
A week later, at the Marsden proceedings, Carroll told the court: "I spoke with Mr. Anderson . . ., and he advised that I had told him that there were multiple phones involved in the case, multiple cell phones, but I had not stated directly that [appellant] was in possession of the three phones . . . ." Carroll added: "I had not advised Mr. Anderson . . . that [appellant] was directly in possession of three cell phones. [¶] We simply discussed . . . the case, and there was no . . . misrepresentation." The court relied on Anderson's recollection, as reported by Carroll, and denied appellant's motion.
Relying in large part upon People v. Mendez (2008) 161 Cal.App.4th 1362, 1365-1367 (Mendez), appellant argues that the court committed Marsden error because it did not investigate the alleged misconduct "beyond [its] mere inquiry to [Carroll]" to determine whether counsel had misrepresented appellant's case to Anderson. We disagree.
In Mendez, the trial court did not conduct Marsden proceedings when the defendant moved for a new trial based on ineffective assistance of counsel. Instead, it heard some of the defendant's complaints in open court and appointed new counsel for the sole purpose of examining the issues raised by the defendant for a possible ineffective assistance of counsel claim. (People v. Mendez, supra,161 Cal.App.4th at pp. 1366-1367.) After his "'review of the file,'" new counsel advised the court that "'those issues' were not 'appropriate at this time for a motion . . . on that basis' [and] 'would be more properly addressed if and when an appeal is filed in this matter . . . .'" (Id. at p. 1366.) The trial court then reassigned the case to defendant's trial attorney. (Ibid.)
Contrary to the record below, in Mendez there was no record of the '"acts and events'" for the court to conclude beyond a reasonable doubt that the '". . . denial of the effective assistance of counsel did not contribute to the defendant's conviction.' [Citation.]" (Mendez, supra, 161 Cal.App.4th at p. 1368.) Here the record reflects that the court heard and considered the basis for appellant's dissatisfaction, allowed counsel to respond, ordered counsel to investigate the matter, and continued the matter to await the results of that investigation before assessing appellant's claim. Given the nature of appellant's complaint, the court took reasonable action to determine its legitimacy.
Near the end of appellant's Marsden hearing, appellant added that Carroll was "not giving [him] his full attention," and offered the court some notes. The court declined the notes, in the belief that it could not "receive communications" from appellant, unless his attorney gave them to the court, and "to the other side." Appellant respondent, "All right," and the court concluded the Marsden proceeding. Appellant claims that by refusing to accept the proffered notes, the court did not allow him to explain the basis of his complaint and relate specific instances of counsel's inadequate performance. (See Abilez, supra, 41 Cal.4th at pp. 487-488.)
Viewed in isolation, the court's refusal to accept appellant's notes might seem questionable. It is unclear whether the notes were relevant to the Marsden motion. Assuming they were, nothing prevented appellant from orally describing their content to the court. He certainly had the ability to do so, as the record demonstrates. Further, the court assured appellant that he need not "be worried about wasting time." In addition, appellant later demonstrated an ability to present a very decipherable written Marsden motion before trial on July 9, 2007. As we explain below, the court properly heard and decided that motion. In this case, the court's failure to accept appellant's notes during his first Marsden hearing did not substantially impair his right to effective assistance of counsel. (See Abilez, supra, 41 Cal.4th at p. 488.)
In his second Marsden hearing, appellant complained that his "case should have been solved a long time ago" and that Carroll had done nothing but "deliver messages from the D.A." and say that he would lose. Appellant felt that he and Carroll were not "in good standing," and explained that he had complained to the State Bar about him. He told the court he was "not new to the system," and that he was "being sold out . . ., just because [he had] a criminal history." Appellant added that the statements he was hearing made him feel "uncomfortable."
The court then asked counsel: "Well, Mr. Carroll, in the totality of the situation, should I give him a different lawyer? It doesn't appear as though, based on the record from what I can see, that there's any reason why you're not to be his lawyer. I'm giving you the out just because you broke your shoulder." Carroll responded that he was ready to go forward with the case and that he had not provided appellant good news because the news was not good. He had communicated the prosecution's settlement offers to appellant and the offers had increased from four years before the preliminary hearing to six years after the preliminary hearing, and months later, to eight years.
Later, appellant claimed that another attorney, who had filled in for Carroll, told him something that made him wonder about Carroll. (He could not recall the attorney's name.) According to appellant, this "fill-in" attorney whispered the following comments in his ear: "'You know what, Mr. Gomez?' . . . 'You've got this case beat. You have to sit tight.'" This confused appellant and made him ask, "So what does this lawyer see that my lawyer doesn't?" Appellant did not further discuss this incident after the court provided the name of the "fill-in" attorney.
The court closed the hearing with the following statements: "Your lawyer just got hurt. He could always go over to the D.A. and say, "Hey, look, you know, how about this offer? I really don't want to try the case. I just got hurt. But I don't know what you're going to do to settle your case. But this is your lawyer. Good luck to you."
It is unclear why the court below asked counsel if it "should give appellant a different lawyer" Nonetheless, it took the necessary steps to decide the Marsden motion. Before ruling, it considered appellant's written and verbal bases for his request to obtain substitute counsel, gave counsel an opportunity to respond, and made a record of the proceedings. The court ultimately concluded, correctly, that appellant failed to state facts sufficient to raise a question about counsel's effectiveness. It did not abuse its discretion in denying appellant's second Marsden motion.
We reject appellants' related argument that the court's criticism of counsel during trial supports his Marsden claim because the court "independently identified one of the exact issues that appellant was trying to show during the Marsden hearings . . . ." That criticism bore no significant relationship to the matters raised in the Marsden proceedings.
Romero Motion
The trial court sentenced appellant to state prison after denying his motion to strike his prior qualifying strike conviction pursuant to section 1385 and Romero. Appellant contends that the trial court abused its discretion in refusing to dismiss his prior strike offense. We disagree.
A trial court has limited discretion under section 1385 to strike prior convictions in Three Strikes cases. (Romero, supra, 13 Cal.4th at p. 530.) In determining whether to exercise that discretion, the court must consider "whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) We review the denial of a section 1385 motion under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 373-374.)
Here, appellant asked the court to strike a 17-year-old prior burglary conviction and reduce his newest felony convictions to misdemeanors. He now challenges the court's denial to strike the burglary. Appellant urged the court to grant his motion, among other reasons, because he was a suitable candidate for a rehabilitation program and his strike offense − a residential burglary − was approximately 17 years old. Appellant's criminal record spans more than 20 years and consists of multiple offenses, including the residential burglary, petty theft, resisting arrest, a misdemeanor domestic violence offense, misdemeanor battery, and parole violations.
The court acknowledged that appellant "might have good success" in the rehabilitation program but stated that it also had no problem "sending him to prison for 10 years." The prosecutor urged the court to deny the motion to strike appellant's prior convictions because he had a lengthy record and had not demonstrated any willingness "to turn his life around."
The court reviewed the letters presented on appellant's behalf, the probation reports, a doctor's report, and counsels' written motions. It considered appellant's criminal history, his background, his character, and prospects. It listened to counsels' arguments, asked questions, and considered relevant factors in making its ruling. The court did not abuse its discretion in denying appellant's Romero motion.
The judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.