Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM016529
OPINION ON REHEARING
ROBIE, J.
Defendant Lawrence Duane Huber pled no contest to a charge he fondled his 10-year-old daughter’s breasts. Initially granted probation and ordered to participate in sex offender therapy, defendant was ultimately sentenced to prison for the midterm of six years and ordered to pay various fines and fees.
On appeal, defendant contends the trial court committed reversible error in not treating a letter he wrote to the court as a Marsden motion and erred in imposing various fines. The People concede the trial court erred in imposing three fines.
People v. Marsden (1970) 2 Cal.3d 118.
We find no Marsden error, but shall strike the fines we conclude were erroneously imposed and will affirm the judgment as modified.
As the substantive facts of defendant’s offense are not relevant to the issues posed on appeal, we recite only those facts relevant to defendant’s contentions under their respective Discussion headings, post.
DISCUSSION
I
The Trial Court Did Not Err In Failing
To Conduct A Marsden Hearing
After defendant was found to have violated his probation, the court referred defendant to a Department of Corrections and Rehabilitation diagnostic facility for presentence evaluation. (Pen. Code, § 1203.03.) While defendant was serving the 90-day diagnostic commitment, he wrote the following letter to the court:
“I am Lawrence Huber Case # CM16529.
“I have questions which my attorney Mr. M. Stapleton isn’t helpful. He refuses contact with me.
“We all have heard one can create a fire by rubbing two sticks together. When somebody shows us how to rub them to create fire, we learn.
“I am at a crossroads. I am in a prison for a Psychiatric Evaluation. It was supposed to be a 120 day jail term. People are saying one thing, yet doing the opposite. I am confused.
“My purpose for this letter is for guidance and help. I hunger and thirst for knowledge, yet I don’t want prison influence.
“During my time here, I’ve talked to Five Doctors. Two were Psychologists and three were Psychiatrists. Three of these Doctors sent reports to your court. In them, I am requesting Therapy from New Beginnings. This is coun[sel]ling which will explain things to me what I need to and how to make these changes. This has satisfied certain Probation Officers before, why can’t I be allowed to change and grow?
“I want help, but I also need someone who will explain how to grow. This clinic does that.
“I have brain trauma and PTSD, post traumatic stress disorder. I am also emotional. I work hard at understanding others. I often times feel stupid because I ask for clarifications. But I understand better. I am in your court because my Therapist Dawn [H.] didn’t have time to help. All I could do was ask. I did.
“Sir, I understand certain things about the law and how it works. I don’t want more confusion. I ask for help. I implore your wisdom.
“I’ve reached out for help and it was refused, I am suffering but mostly my victim. I can’t return time and redo anything, but I can make a difference now. Who can I turn to for proper instructions. I ask for an opportunity for proper training.
“I had asked Probation for a new Therapist, but to no avail.
“I am pleading sir, I need coun[sel]ling to help me grow into a positive person. Post traumatic stress retards growth, since I have learned I have it, . . . I have sought help.
“If allowed New Beginnings, I also would like a new Therapist . . . . But in order to afford both of these treatments, I would need to keep and live on my mother’s property.
“If possible, I would gratify [sic] probation as well as grow personally. New Beginnings can help [the therapist’s] progress.
“Sir, a proper opportunity awaits. All I ask is for you to allow me the growth.
“Thank you for the time. Now, my time is yours.”
After his diagnostic commitment, defendant’s next court appearance was for sentencing. At the sentencing hearing, defense counsel urged the court to allow defendant to continue sex offender treatment. Defendant made no mention of his letter to the court, expressed no dissatisfaction with counsel, and did not indicate he wished to have new counsel.
Defendant contends the trial court erred in failing to treat his letter as a Marsden motion and to conduct a hearing. In Marsden, the Supreme Court explained that a defendant has the right to have appointed counsel discharged and other counsel appointed if the trial court decides, after hearing defendant’s reasons for requesting different counsel, that defendant’s right to assistance of counsel would be substantially impaired if the request were not granted. (People v. Marsden, supra, 2 Cal.3d at pp. 123-126.) While a defendant need not file a formal motion to initiate the Marsden inquiry, he “must express ‘at least some clear indication . . . that he wants a substitution of attorney.’” (People v. Lee (2002) 95 Cal.App.4th 772, 780.) Mere grumbling about counsel’s performance is not enough. (Ibid.)
Defendant’s letter to the court fails to express any indication, much less a “clear” one, that he wanted new counsel. (People v. Lee, supra,95 Cal.App.4th at p. 780.)
Defendant does not contend to the contrary. Instead, he relies upon cases which state the rule that a trial court’s duty to conduct a Marsden inquiry arises “when the defendant asserts directly or by implication that his counsel’s performance has been so inadequate as to deny him his constitutional right to effective counsel.” (People v. Molina (1977) 74 Cal.App.3d 544, 549; see also People v. Kelley (1997) 52 Cal.App.4th 568, 579-580, People v. Leonard (2000) 78 Cal.App.4th 776, 787-788.) But only one of these cases actually found error in the trial court’s failure to conduct a Marsden inquiry. In Kelley,the defendant filed a written motion for a new trial and claimed under penalty of perjury that his attorney refused to let him testify, and failed to subpoena or call several material witnesses, the materiality of which he set forth in detail; his complaints of counsel’s deficiencies was held sufficient to warrant a Marsden hearing. (People v. Kelley, supra, 52 Cal.App.4th at pp. 579-580; cf. People v. Molina, supra, 74 Cal.App.3d at p. 549 [no Marsden hearing was required after defendant stated he wished to substitute private counsel in place of the public defender and criticized the scope of an limine motion]; People v. Leonard, supra,78 Cal.App.4th at pp. 787-788 [defendant’s displeasure after the lawyer reported finding possible weapon in defendant’s bag not based on attorney’s professional competence, so no Marsden inquiry necessary].)
Defendant reasons that his report to the court that counsel had “refuse[d] contact” and was not “helpful” constitutes a claim of ineffective assistance of counsel sufficient to justify counsel’s substitution, and the trial court’s failure to inquire as to the alleged incompetency was error.
For support, he relies on three Ninth Circuit cases in which courts found inadequate defense counsel’s limited pretrial consultation with the defendant. In Turner v. Duncan (9th Cir. 1998) 158 F.3d 449, the Ninth Circuit found counsel’s performance in a first degree murder trial generally deficient, including “that he spent at most forty-five minutes with [the defendant] prior to trial demonstrates deficient performance[,]” a “cursory consultation [that] is especially shocking in light of the seriousness of the charges against [the defendant], the fact that the entire defense hinged on [the defendant]’s intent and mental state, and that [the defendant] testified in a manner that suggests he was wholly unprepared to answer questions on cross-examination.” (Id. at p. 457.) In United States v. Tucker (9th Cir. 1993) 716 F.2d 576, the court emphasized that defense counsel’s pretrial “consultation should be sufficient to determine all legally relevant information known to the defendant” (id. at p. 582), and devoting “no more than 20 hours discussing the case with [defendant]” (ibid.) was inadequate in a case in which the government intended to call 80 witnesses during its case-in-chief, and pretrial discovery materials exceeded 13,000 pages, including over 3,000 pages of sworn testimony by prospective witnesses (Id. at p. 581). Finally, in Correll v. Ryan (9th Cir. 2006) 465 F.3d 1006, the court’s conclusion that defense counsel in that capital case performed inadequately rested partly on evidence counsel met with the defendant only once, briefly, between the trial and penalty phases and demonstrated “an almost complete failure to investigate” potentially mitigating evidence to present during the penalty phase. (Id. at pp. 1010-1012.)
Viewed in context of the proceedings here, none of these cases are remotely helpful to defendant. First, a defendant’s complaint that counsel had refused to contact him, without more, does not constitute a claim of ineffective assistance of counsel. (E.g., People v. Smith (2005) 135 Cal.App.4th 914, 926 [the defendant’s “contention his communication with his counsel was ‘down to zero’ failed to show inadequate representation;” Marsden motion properly denied]; see also People v. Cole (2004) 33 Cal.4th 1158, 1192 [“‘the number of times one sees his attorney, and the way in which one relates with his attorney, does not sufficiently establish incompetence.’”].)
Nor is there any suggestion here that defense counsel failed to communicate with him at any time other than while he was undergoing psychiatric evaluation. Indeed, the record shows defense counsel had previously had significant contact with his client: on the plea form, counsel averred he had answered all defendant’s questions regarding the plea; discussed the content, substance and meaning of all items in that document; discussed the facts of the case with defendant; and explained to him possible consequences, legal elements of the offenses and defenses.
In fact, reading defendant’s two-line report about his attorney in the context of his entire two-page letter, it appears defendant was bemoaning a state of generalized confusion (“People are saying one thing, yet doing the opposite. I am confused”; “Sir, I understand certain things about the law and how I works. I don’t want more confusion”) and posing rhetorical questions (“why can’t I be allowed to change and grow”; “[w]ho can I turn to for proper instructions?”) Taken as a whole, defendant’s letter appears to focus on availability of counseling, rather than legal assistance or advice (counseling “which will explain things to me [that] I need to and how to make these changes.”) And defense counsel was not the only person who defendant claimed was unhelpful: he also complained his therapist “didn’t have time to help.”
The trial court was entitled to consider defendant’s brief criticism of counsel in the context of his entire letter and to conclude that he did not intend to request new counsel, particularly after defendant failed thereafter either to request new counsel or to make any further complaint about his attorney.
II
The Trial Court Erred In Imposing Certain Fines
In a supplemental probation report filed in September 2003, the probation officer offered proposed terms and conditions of probation in the event the court chose to grant defendant probation. The proposed financial terms and conditions included a $200 fine for “Count 1”; a $200 “State Restitution Fund Fine” pursuant to Penal Code section 1202.4, subdivision (b); a $200 “Sex offender fine” pursuant to Penal Code section 290.3; and a $500 “Child Molestation Fine” under subdivision (e) of Penal Code section 288. The $200 fine for “Count 1” and the $200 “Sex offender fine” were both increased to $680 with various additional penalties and assessments, including a $40 “Court Surcharge” pursuant to Penal Code section 1465.7 and $100 “State Court Facilities Construction Fund” penalty pursuant to subdivision (a) of Government Code section 70372.
In granting defendant probation, the trial court imposed all of the financial terms and conditions the probation officer had recommended.
Four years later, after defendant was found to have twice violated his probation, he was sentenced to prison for the midterm of six years. The court imposed a $200 restitution fine pursuant to Penal Code section 1202.4, subdivision (b) (plus a corresponding parole revocation fine in the same amount under Penal Code section 1202.45), and a fine of $680, imposed “per PC290.3.”
On appeal, defendant challenges as “illegal” various components of the fines and fees imposed and seeks clarification as to whether the fines the trial court purported to impose when sentencing him to prison in 2007 were in addition to those the court imposed when granting him probation in 2003, or just reiterations of some (but not all) of the fines previously imposed.
A
Fines Imposed Pursuant To Penal Code Section 1465.7 And Government Code Section 70372
Defendant contends the trial court erred in imposing penalties under Penal Code section 1465.7, subdivision (a) ($40), and the former version of Government Code section 70372 ($100), as the statutes were not operative until after the date of his offense.
The People properly concede this point.
Defendant was charged with fondling his daughter on or about July 14, 1999. Penal Code section 1465.7, subdivision (a) became operative on September 30, 2002 (Stats. 2002, ch. 1124, § 46); Government Code section 70372 became effective on January 1, 2003 (Stats. 2002, ch. 1082, § 4). As we have previously held, it violates the prohibition against ex post facto laws to impose fines under Penal Code section 1465.7 and Government Code section 70372 on offenses committed prior to their enactment. (People v. High (2004) 119 Cal.App.4th 1192, 1197-1199.) We will strike these penalties.
B
Child Molestation Fine And Penal Code Section 290.3 Fine
With reference to the three fines the trial court imposed in 2003 when granting him probation (excluding the restitution fund fine, to which defendant raises no objection), defendant contends only two fines are authorized by California law when a defendant is convicted of a single count of committing a lewd act on a child: a mandatory $200 fine under Penal Code section 290.3 and a discretionary fine of up to $10,000 under subdivision (e) of Penal Code section 288. Based on this, he contends “that either the $500 fine or one of the $200 fines was illegal.”
The People concede that one of the $200 fines -- specifically, the one imposed for “Count 1” (which the People identify as the “fine under section 288, subdivision (a)”) -- was improper and should be stricken.
We agree with the People; the $200 “Sex offender fine” pursuant to Penal Code section 290.3 was proper, as was the $500 “Child Molestation Fine” under subdivision (e) of Penal Code section 288; the additional $200 fine for “Count 1,” for which the trial court identified no other authority, was not.
C
Fines Imposed In 2003 And 2007
The question that remains is whether the fines the trial court purported to impose in 2007 were in addition to the fines the court previously imposed in 2003. Defendant contends that “if the court intended to impose a second set of fines, then the $200 restitution fine was duplicative, since ‘a restitution fine imposed at the time of probation is granted survives the revocation of probation.’” He further contends that if the trial court was merely reiterating fines previously imposed, this raises a question about the continuing validity of fines previously imposed in 2003 but not expressly mentioned again in 2007.
Because a trial court does not have the authority to impose a second restitution fine under Penal Code section 1202.4, subdivision (b) for the same conviction at the time probation is revoked (People v. Chambers (1998) 65 Cal.App.4th 819), we construe the $200 restitution fine the court purported to impose in 2007 as merely a reiteration of the $200 restitution fine previously imposed in 2003. We reach the same conclusion with respect to the $200 fine (increased to $680 by various additional penalties and assessments) that the court purported to impose in 2007 under Penal Code section 290.3. Because the triggering event for a fine under Penal Code section 290.3 -- just like the triggering event for a restitution fine under Penal Code section 1202.4 -- is conviction (see Pen. Code, § 290.3, subd. (a); People v. Chambers, supra, 65 Cal.App.4th at p. 822), it does not appear the trial court has the authority to impose a second fine under section 290.3 at the time probation is revoked. Accordingly, we construe the $200 fine the court purported to impose in 2007 under Penal Code section 290.3 as merely a reiteration of the $200 “Sex offender fine” the court imposed under that statute in 2003.
As to the $500 “Child Molestation Fine” under subdivision (e) of Penal Code section 288 that the trial court imposed in 2003 but did not mention again in 2007, that fine remains in place as a fine properly imposed based on defendant’s “conviction,” which occurred in 2003. (See Pen. Code, § 288, subd. (e).) The trial court’s failure to mention that fine again in 2007 did not eliminate it.
In summary, we conclude that the following fines must be stricken: the $200 fine (increased to $680 with various additional penalties and assessments) on “Count 1”; the $40 court surcharge imposed under Penal Code section 1465.7 with respect to the $200 “Sex offender fine”; and the $100 state court facilities construction fund fine imposed under former Government Code section 70372 with respect to the $200 “Sex offender fine.” Because the abstract of judgment includes reference to a fine of “$680 per PC290.3” and does not include reference to the $500 fine under subdivision (e) of Penal Code section 288, we will direct the trial court to correct the abstract to properly reflect only the fines we have determined were validly imposed in this case.
DISPOSITION
The judgment is modified by striking the $200 fine imposed on “Count 1,” along with its attendant penalties and assessments, and by striking the fines imposed under Penal Code section 1465.7, subdivision (a) ($40) and former Government Code section 70372 ($100) with respect to the $200 “Sex offender fine.” As modified, the judgment is affirmed. The trial court is directed to correct the abstract of judgment accordingly and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: DAVIS, Acting P.J., NICHOLSON, J.