Opinion
E066364 E066677
02-23-2018
THE PEOPLE, Plaintiff and Respondent, v. CORIN ROY JACKSON, SR., Defendant and Appellant.
D. Inder Comar, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Eric A. Swenson, Lynne G. McGinnis, and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. BAF1400741, RIF1403938) OPINION APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed in part, reversed in part, and remanded for resentencing. D. Inder Comar, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Eric A. Swenson, Lynne G. McGinnis, and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Corin Roy Jackson, Sr. was charged in one case with crimes arising out of his physical attacks on his wife and children. He was also charged in a separate case with a crime arising out of his physical attack on a fellow inmate in jail.
Defendant pleaded guilty to all charges and admitted all enhancements. At sentencing, however, he made a Marsden motion (see People v. Marsden (1970) 2 Cal.3d 118), seeking to have new counsel appointed for the purpose of filing a motion to withdraw the plea; he asserted that his current counsel had rendered ineffective assistance by, among other things, giving him bad advice in connection with the plea. The trial court denied the motion and proceeded with sentencing.
Defendant now contends that the trial court erred by:
1. Denying defendant's Marsden motion.
2. Allowing defendant to present his motion to withdraw the plea in propria persona.
3. Imposing full-strength terms on the great bodily injury enhancements, when they should have been reduced to one-third the midterm because they were attached to subordinate terms.
The People concede that the trial court erred by failing to reduce the great bodily injury terms. Otherwise, we find no error. Hence, we will remand for resentencing.
I
PROCEDURAL BACKGROUND
In case No. RIF1403938 (domestic violence case), defendant pleaded guilty to three counts of spousal battery (Pen. Code, § 273.5, subd. (f)(1)), three counts of child endangerment (Pen. Code, § 273 a, subd. (a)), and one count of resisting an officer (Pen. Code, § 148, subd. (a)(1)). In connection with one child endangerment count, he admitted an enhancement for the personal infliction of great bodily injury on a child under five. (Pen. Code, § 12022.7, subd. (d).) He also admitted four prison priors. (Pen. Code, § 667.5, subd. (b).)
In case No. BAF1400741 (assault case), defendant pleaded guilty to assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)), with an enhancement for the personal infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)). He also admitted the same four prison priors.
He was sentenced to a total of 17 years 4 months in prison.
II
DEFENDANT'S POSTCONVICTION MARSDEN MOTION
A. Additional Factual and Procedural Background.
1. First Marsden Motion.
On May 23, 2016, the case was called in the Master Calendar department, preparatory to being assigned out for trial. Defendant made a Marsden motion, which the trial court denied.
Defendant decided to plead guilty. The trial court took his guilty plea. It then set a date for sentencing.
2. Second Marsden Motion.
On July 7, 2016, the trial court held a sentencing hearing. At the beginning of the hearing, defendant made another Marsden motion, seeking new appointed counsel for the purpose of filing a motion to withdraw his plea. As grounds for the motion, he indicated that:
The trial court characterized the motion as "a Marsden/Sanchez motion." In People v. Sanchez (2011) 53 Cal.4th 80, the Supreme Court held that a defendant who has pleaded guilty can bring a Marsden motion to obtain new counsel for the purpose of filing a motion to withdraw the plea based on ineffective assistance.
1. He had obtained letters from friends and family members that were relevant to sentencing, but defense counsel had failed to submit these letters to the probation officer or to the court.
2. Defense counsel had promised to file "an immediate appeal" based on the denial of defendant's first Marsden motion. Defense counsel told him, "[D]on't worry about the time they are giving you. You're going to be right back . . . ." Defendant understood this to mean that he would "be back in 30 or 40 days." He accepted the plea bargain only because he believed the conviction would soon be reversed. He claimed that he felt "coerced" into taking the plea bargain.
Defendant's appellate counsel comments that defendant "seemed to think that an appeal could be filed immediately after pleading guilty, but before sentencing . . . ." (Italics omitted.) At times, defendant was unclear about exactly when he expected defense counsel to file the appeal. However, defense counsel said he had told defendant, "Once he has been sentenced, I will on his behalf file a notice of appeal"; defendant agreed, "He did say that." (Italics added.) Defendant also claimed that defense counsel said, "[A]fter they give you this time, I will file an immediate appeal . . . ." (Italics added.)
In response to defendant's first point, defense counsel said that he had the letters for the court to review. The trial court said it would be "glad" to consider the letters, and it did, in fact, read and consider them before sentencing.
In response to defendant's second point, defense counsel stated: "Mr. Jackson, and I don't use this term lightly, is lying." He had told defendant that he would file a notice of appeal, but he had never said that the appeal would be successful or that defendant would be "right back." In his opinion, there was no basis for an appeal.
Defendant complained, "I don't feel comfortable going to trial with [defense counsel]. I feel personally he is working hand in hand with the district attorney."
The trial court denied the motion. It then proceeded to sentence defendant.
The trial court granted a certificate of probable cause. (Pen. Code, § 1237.5; see People v. Johnson (2009) 47 Cal.4th 668, 679-685 [claim that defense counsel rendered ineffective assistance in connection with defendant's request to withdraw guilty plea requires certificate].)
B. The Trial Court Properly Denied Defendant's Second Marsden Motion.
Defendant contends that the trial court erred by denying his second Marsden motion.
"[T]here is no absolute right to substitute counsel. [Citation.]" (People v. Gutierrez (2009) 45 Cal.4th 789, 803.) Rather, "'[a] defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. [Citations.]' [Citation.]" (People v. Dickey (2005) 35 Cal.4th 884, 917.)
"'We review the denial of a Marsden motion for abuse of discretion.' [Citation.] 'Denial is not an abuse of discretion "unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel."' [Citation.]" (People v. Streeter (2012) 54 Cal.4th 205, 230.)
Defendant did not show any ineffective assistance with respect to the letters that he wanted to submit. Evidently they had not been submitted to the probation officer. However, as the trial court observed, the important thing was that they be submitted to the trial court itself. And they were. Defense counsel had them with him and submitted them to the trial court at the sentencing hearing. While he could have filed them earlier, good lawyering did not require him to do so.
Earlier, the trial court had stated: "[T]he probation report will make a recommendation, but, truthfully, I don't so much read their report for their recommendation . . . [¶] . . . [¶] . . . because it's my decision, but I read it for all the information it has in it . . . ."
At one point, defendant asserts that defense counsel "knew the court directed [defendant] to have the support letters sent to probation prior to the sentencing hearing." (Italics added.) This makes it sound as if defense counsel ignored a trial court order. That is not the case. Rather, when defendant pleaded guilty, there was this exchange:
"THE DEFENDANT: . . . So probation is going to come see me, right?
"THE COURT: Yes. And they'll prepare a report for me. And anything you want to submit to them, letters, if you want them to call people to ask about you, anything like that, you give them all that information when they come interview you." (Italics added.)
Thus, it is apparent that the trial court merely advised defendant that he would have the option to submit letters to the probation officer; it did not "direct" him to submit them.
Likewise, defendant did not show that defense counsel misadvised him concerning the timing of an appeal or the impact of an appeal on the plea bargain. Defense counsel flatly denied defendant's account. "'[T]o the extent there was a credibility question between defendant and counsel at the hearing, the court was "entitled to accept counsel's explanation."' [Citation.]" (People v. Rices (2017) 4 Cal.5th 49, 69.) Even assuming that defendant was not lying but genuinely misunderstood his attorney's advice, "this misunderstanding, although unfortunate, did not justify defense counsel's discharge." (People v. Alfaro (2007) 41 Cal.4th 1277, 1321.)
Defendant emphasizes the "irreconcilable conflict" element of the Marsden test. He argues that he did not trust his attorney and suspected him of "working hand in hand with the district attorney." However, he must show more than an irreconcilable conflict; he must show "'such an irreconcilable conflict that ineffective representation is likely to result.'" (People v. Dickey, supra, 35 Cal.4th at p. 917, italics added.) "'Nothing in the record here shows that [defense counsel] was incompetent or would not provide adequate representation if he received defendant's cooperation.' [Citation.]" (People v. Cole (2004) 33 Cal.4th 1158, 1192.)
"Defendant cannot simply refuse to cooperate with his appointed attorney and thereby compel the court to remove that attorney. '"[I]f a defendant's 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."' [Citation.]" (People v. Michaels (2002) 28 Cal.4th 486, 523.)
In short, "[d]efendant did not show that defense counsel did anything to cause any breakdown in their relationship." (People v. Smith (2003) 30 Cal.4th 581, 606.)
Defendant suggests that the very fact that his attorney accused him of lying created an irreconcilable conflict. However, "the trial court did not err in soliciting a response from defense counsel to defendant's complaints, nor was counsel 'arguing' against him when he did so. Inquiring of counsel is necessary for the trial court to evaluate the defendant's request and for appellate review. [Citations.]" (People v. Panah (2005) 35 Cal.4th 395, 432.) If defendant's position were accepted, a defendant could obtain substitute counsel simply by lying, forcing his counsel to correct him, and thus creating a "irreconcilable conflict."
In support of his position — that an irreconcilable conflict, standing alone, requires the appointment of substitute counsel — defendant cites two Ninth Circuit cases, United States v. Moore (9th Cir. 1998) 159 F.3d 1154 and Brown v. Craven (9th Cir. 1970) 424 F.2d 1166. In both of those cases, however, the decision was based, in part, on the fact that the trial court failed to make an adequate inquiry into the reasons for the defendant's dissatisfaction with existing counsel. (United States v. Moore, supra, at pp. 1160-1161; Brown v. Craven, supra, at p. 1170.) Marsden itself, of course, held that a trial court errs by failing to make such an inquiry. (People v. Marsden, supra, 2 Cal.3d at pp. 123-126.) Here, by contrast, the trial court did make an adequate inquiry into defendant's claims; indeed, defendant does not argue otherwise.
Finally, defendant rehashes some of the complaints that he raised in his first Marsden motion. (AOB 8-9; ARB 2, 3, fn. 3} Rather pointedly, however, he does not claim that the trial court erred in denying the first Marsden motion. Moreover, he did not reiterate these complaints in connection with his second Marsden motion. We therefore do not discuss them further.
We conclude that the trial court properly denied defendant's second Marsden motion.
C. Defendant Was Not Entitled to Have a Motion to Withdraw the Plea Argued by an Attorney.
Defendant contends that the trial court violated his right to counsel by permitting him to present his motion to withdraw the plea in propria persona.
Defendant relies on People v. Brown (1986) 179 Cal.App.3d 207. There, defense counsel notified the trial court that the defendant wanted to move to withdraw his nolo contendere plea. However, she also stated, "I am not making that motion on his behalf. I don't believe there is any legal basis at this time for him to move the court to withdraw his plea." (Id. at p. 211.) The defendant then presented the motion himself, and the trial court denied it. (Id. at pp. 212-213.)
The Sixth District held that "that the defendant was deprived of his right to make an effective motion to withdraw his plea . . . ." (People v. Brown, supra, 179 Cal.App.3d at p. 213.) "We view the decision to seek withdrawal of a plea of guilty, just as the decision to enter such plea, as one which the defendant is entitled to make. [Citations.] The defendant's attorney may, and when appropriate, should advise against the decision, but the defendant should have the final word on whether to seek withdrawal." (Id. at p. 215.) Moreover, "[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. [Citation.]" (Id. at pp. 214-215.) The court cautioned, however: "We do not suggest that counsel is compelled to make a motion which, in counsel's good faith opinion, is frivolous or when to do so would compromise accepted ethical standards. [Citation.]" (Id. at p. 216.)
In People v. Garcia (1991) 227 Cal.App.3d 1369, disapproved on other grounds in People v. Smith (1993) 6 Cal.4th 684, 694, 696, however, the Sixth District placed a significant limitation on Brown. It stated that when "the gravamen of the motion for withdrawal rested on allegations which are properly characterized as claims of ineffective representation . . . we believe there should be a limited exception to the general rule articulated in Brown. To hold otherwise would place the attorney in an intolerable position, requiring him to assert his own incompetence and thereby creating a conflict of interest between the client's interests and that of the attorney.
"Thus, where, as here, a defendant seeks to withdraw a plea on the ground that his attorney of record has not provided adequate representation, we believe that the trial court . . . should first elicit and consider the defendant's reasons for believing he has been ineffectively represented, making such inquiries of the defendant and trial counsel as appear necessary in open court or, if the trial court deems necessary, at an in camera hearing. [Citation.] If the defendant 'presents a colorable claim that he was ineffectively represented,' the trial court should appoint new counsel 'to fully investigate and present the motion.' [Citation.] . . . If the defendant does not present a colorable claim, the court may deny the motion without providing for new counsel. [Citation.]" (People v. Garcia, supra, 227 Cal.App.3d at p. 1377, fn. omitted.)
In sum, then, Garcia held that, when a motion to withdraw a guilty plea is based on ineffective assistance of counsel, it should be treated as an implicit Marsden motion. Here, before making his motion to withdraw his guilty plea, defendant made an explicit Marsden motion. The trial court, however, denied the Marsden motion; in part II.B, ante, we upheld that denial. It follows that, under Garcia, the trial court also properly denied the motion to withdraw the plea without appointing new counsel.
III
FULL-STRENGTH ENHANCEMENTS ON SUBORDINATE TERMS
Defendant contends that the trial court erred by imposing full-strength sentences on the great bodily injury enhancements, when it should have reduced them to one-third the midterm. The People concede the error.
A. Additional Factual and Procedural Background.
In the domestic violence case, the trial court selected count 1 (spousal battery) as the principal term; on that count, it imposed five years, the upper term. On count 2 (child endangerment), it imposed one year four months (one-third the midterm), plus five years (the full midterm) on the great bodily injury enhancement, to be served consecutively.
In the assault case, the trial court imposed one year (one-third the midterm) for assault with force likely to produce great bodily injury, plus three years (the full fixed term) on the great bodily injury enhancement.
B. Discussion.
When the trial court runs a subordinate determinate term consecutively, it can only impose one-third the midterm; moreover, it can only impose one-third the term for any "specific" enhancements. (Pen. Code, § 1170.1, subd. (a); People v. Moody (2002) 96 Cal.App.4th 987, 990-994.) A great bodily injury enhancement is a specific enhancement. (Pen. Code, § 1170.11.) Thus, the trial court erred. Both sides agree that the appropriate appellate remedy is to remand for resentencing. We will do so.
Defendant asserts that, on remand, the trial court cannot impose a greater aggregate sentence. The People dispute this. We decline to decide this issue. Unless and until the trial court does, in fact, impose a greater aggregate sentence, any expression of our opinion on this issue would be premature. (People v. Zermeno (1999) 21 Cal.4th 927, 933, fn. 3; People v. Swain (1996) 12 Cal.4th 593, 610.)
Under the same heading, defendant briefly contends that the trial court erred by selecting count 1, rather than count 2, as the principal term. As we are reversing the sentence, this contention is moot. We could discuss it for the guidance of the trial court on remand, but we decline to do so, because defendant has not raised it under an appropriate heading, as required. (Cal. Rules of Court, rules 8.204(a)(1)(B), 8.360(a); Consolidated Irr. Dist. v. City of Selma (2012) 204 Cal.App.4th 187, 201.) We leave it up to the trial court to consider this issue in the first instance on remand.
IV
DISPOSITION
The judgment with respect to the conviction is affirmed. The judgment with respect to the sentence is reversed and the matter is remanded for resentencing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. MILLER
J.