Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 06CM3420. James LaPorte, Judge.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HARRIS, P.J.
INTRODUCTION
Appellant Ryan Fitzgerald Jones was convicted of committing five robberies at stores and businesses in Kings County, and received consecutive third strike terms for an aggregate sentence of 125 years to life plus 21 years. On appeal, he contends the court failed to properly advise him of his right to a court trial when he admitted the prior strike convictions and a prior prison term enhancement, the court failed to exercise its discretion to dismiss the prior strike convictions under Penal Code section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), and the consecutive third strike terms violated his federal and state constitutional rights against cruel and/or unusual punishment. He also contends the court should have granted his request at the sentencing hearing to make a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
All further statutory references are to the Penal Code unless otherwise indicated.
STATEMENT OF THE CASE
On November 13, 2006, an amended information was filed in the Superior Court of Kings County charging appellant with counts I through V, robbery (§ 211). As to each count, it was further alleged appellant personally used a firearm (§ 12022.5, subd. (a)(1), § 12022.53, subd. (b)), suffered two prior strike convictions (§ 667, subds. (b)-(i)), and served two prior prison terms (§ 667.5, subd. (b)). Appellant pleaded not guilty and denied the allegations. On the same day, the court bifurcated the prior conviction allegations and his jury trial began.
On November 14, 2006, appellant admitted the two prior strike convictions and one prior prison term enhancement, and the court took the second enhancement under submission. On November 15, 2006, appellant was convicted of counts I through V, and the handgun enhancements were found true for counts I, II, III and V, and not true for count IV.
On December 19, 2006, the court denied appellant’s requests for a Marsden hearing, to withdraw his admissions to the prior convictions, and to dismiss the prior strike convictions pursuant to section 1385 and Romero. The court imposed an aggregate third strike term of 125 to life plus 21 years as follows: as to count I, the third strike term of 25 years to life, plus consecutive terms of 10 years for the handgun enhancement and one year for the prior prison term enhancement. As to counts II, III, and V, the court imposed consecutive third strike terms of 25 years to life, plus three years four months (one-third the midterm) for the handgun enhancement, and as to count IV, another consecutive third strike term of 25 years to life. The court stayed the prior prison enhancements for counts II through V, and dismissed the second prior prison term enhancement.
On January 18, 2007, appellant filed a timely notice of appeal.
FACTS
Count I
On December 7, 2005, Gregory Deferrante was working at the front cash register at the Walgreen’s in Hanford. A man approached the counter; he was in his early 20’s. He was white or light-skinned, with red or blond hair, a mustache, sideburns, tall with a slender build, and weighed about 190 to 200 pounds. He was wearing dark jeans, a dark hooded sweatshirt, and a baseball cap.
Deferrante asked the man what he wanted, and the man told him to empty the cash register. Deferrante thought he was joking and asked what he really wanted. The man produced a black pistol and held it on the counter. Deferrante, who had served in the Gulf War and was familiar with guns, thought the weapon was a Glock. Deferrante became frightened when he saw the gun, told the man to hold on, and asked what he wanted. The man again told him to empty the register. Deferrante pulled out the cash drawer and tried to give it to the man. The man said no, and to just put the money in a bag. Deferrante placed the register’s contents—about $100 to $120—in a plastic bag. The man reached over the counter, took the bag, and walked out of the store.
Deferrante subsequently identified appellant from a photographic lineup as the robber, and said he had no doubt appellant was the man. At trial, the jury was shown the surveillance videotape of the robbery, and Deferrante again identified appellant as the robber.
Count II
Around 8:00 p.m. on February 2, 2006, David Mechtly was working at the Kentucky Fried Chicken restaurant in Hanford. A man approached the counter and Mechtly thought he was a customer. The man appeared to be a light-skinned Hispanic and about 30 years old. He was well groomed and nicely dressed. He was wearing blue jeans, a blue-and-white checkered shirt, and a white baseball cap. There were unfinished tattoos on his neck area. He was about six feet two or three inches tall, 200 pounds, and he had short hair and a thin mustache. He had sideburns which seemed to be pencilled-in and could have been fake.
Mechtly asked for the man’s order and he ordered a combo meal. Mechtly turned away from the counter and called out the order to an employee. When he turned back to the counter, the man said something but Mechtly could not understand him. Mechtly asked what he said, and the man lifted up his shirt and displayed a black gun. The man told Mechtly to give him the money. Mechtly testified the man never pointed the gun at him, but he was nervous when he saw the gun because there were other people in the restaurant. Mechtly emptied the register, which contained about $160. The man also asked for rolls of coins.
The police subsequently showed photographic lineups to Mechtly. Mechtly did not identify anyone from the first photographic array, but positively identified appellant as the robber from the second photographic lineup. He also identified appellant at trial. There were no videocameras at the store.
Count III
Around 6:00 p.m. on May 17, 2006, Alison Debem and Caroline Garcia were the only employees working at Pay Day Loan in Hanford. A man entered the office. He appeared to be light-skinned or part Hispanic. He was very clean cut and nicely dressed. He was wearing a white and red long-sleeved pinstriped shirt buttoned up to the neck, khaki pants, and white shoes. He wore a hat low over his face, and had a mustache and short hair. He was about five feet nine inches tall and 195 to 200 pounds.
The man stood in line, approached the counter, and asked Garcia for a pen to fill out a Western Union form. The man filled out the form and then approached Debem at the counter. Debem asked for his identification to process the Western Union order. The man said something and Debem looked at him. The man fumbled with his shirt and produced a black semi-automatic gun with a slide action. The man held the gun so Debem could see it. Debem was scared and could not believe that he had a gun. The man spoke in a very low, calm, and stern tone, and asked for all the money. Debem pulled out her cash drawer, which contained $218, and pushed it toward him. The man pushed back the cash drawer and acted like it was not enough money, and told Debem to lift up the drawer. Debem lifted up the drawer and said she did not have any more money.
Debem testified the man wanted more money and told her to open the door to the cage area around the counter. He told Debem and Garcia not to push the alarm buttons, and ordered them to walk to the back of the office and get on the floor. He then told Debem to return to the front of the store. The man ordered her to open the safe but she explained there was a 15-minute delay. The man became agitated and angry. He told her to open a box on the counter and apparently thought it contained cash, but she explained she could not open it. The man became angry and cursed at her, and said she “better F-ing open up the thing.” Debem retrieved the hidden key, opened the box, and the man saw that it only contained a videotape. Debem finally retrieved about $800 from Garcia’s cash drawer and gave it to him. The man felt Debem was not moving fast enough, ordered her to hurry up, and became more agitated.
After the man had the money, he ordered Debem and Garcia into the back office, and told them to get on the floor, put down their heads, and count to 100. Debem thought the man was going to kill them and hesitated to put down her head. The man became angry and told her “to put my F-ing head down.” The man started to leave, returned to make sure their heads were down, and then ran out the back door.
Debem subsequently identified appellant from a photographic lineup. Debem testified she looked at all the photographs and recognized appellant “the minute I looked” at his picture. At trial, Debem identified appellant as the robber. Debem testified: “I will never forget what he was wearing. I will never for get [sic] his face. I will never forget his eyes.”
Garcia also looked at a photographic lineup and said the robber could be one of two men in that lineup, but did not positively identify anyone. At trial, Garcia identified appellant as the robber and testified that seeing him in person confirmed her identification. The store’s surveillance videotape was played for the jury.
Count IV
On June 28, 2006, Michelle Harold was working at the Golden One Credit Union in Hanford. A man entered the business and approached the counter. He was young, between 20 to 25 years old, with a medium build, and about six feet tall. He was light-skinned and possibly Hispanic. The man was wearing a white baseball cap, a long-sleeve dress shirt with blue pinstripes, a round-necked T-shirt under the dress shirt, and shorts. The collar of the dress shirt was high and covered his neck. He wore sunglasses and had some type of makeup on his lips and face. Harold testified the man’s face “was real smooth like it had a cover up on it, make-up on it.” He had a “thuggish home boy style about him,” with “the slow little walk and the stroll and just the way he was.”
The man said something to Harold, but he mumbled and Harold could not understand him. Harold then realized the man told her to “give me all your large bills.” Harold hesitated because she did not think he meant it. He was nervous and repeated his order to give him the large bills. Another employee was moving around next to Harold, and the man said, “don’t move, I have a gun. I will hurt you[].” Harold testified the man’s hand was under his shirt and she saw a bulge. Harold believed he had a gun but she was not sure, and she never saw a weapon. Harold was not intimidated by the man, but he acted nervous and Harold decided to give him the money because she was worried for the safety of her coworkers. Harold gave him $1,200. The man leaned over the counter, gestured to another teller standing next to Harold, and said he also wanted her money. As the man left the office, he told everyone to raise their hands. He walked out of the office slowly “[l]ike no big deal.”
The jury found the firearm enhancement was not true as to this count.
Harold subsequently identified appellant from a photographic lineup, and told an officer she was positive about the identification. Harold noticed that appellant had tattoos in the photograph, and testified she did not see any tattoos during the robbery.
Count V
Around 11:15 p.m. on July 20, 2006, Christopher Melendrez and Christine Washington were working as the desk clerks at the Comfort Inn in Hanford. A man walked into the office and demanded money. The man was Hispanic and wearing a white hat, a long-sleeve flannel shirt or jacket, and jeans. He was about five feet nine inches and 190 pounds. The man crossed his arms and revealed that he was holding a black gun. The man asked for the location of the safe. Melendrez showed him but explained he could not open it. Melendrez gave him $200 from the cash drawer, and the man took Washington’s purse. The man told Melendrez to get on the floor, and he walked out. As soon as the man left the office, Melendrez rushed to the door and saw the man leave in a white or gray Honda.
A few days after the robbery, the police showed Melendrez a photographic lineup and he immediately identified appellant as the robber. At trial, Melendrez again identified appellant as the robber. Melendez testified appellant “look[ed] like” the robber, and explained “I’m not positive, but it looks like him.” Melendrez also testified: “I know it’s him.” The motel’s surveillance videotape was played for the jury.
The Investigation
Investigator Bryan Toppan of the Hanford Police Department received information from Victoria Martinez about appellant’s possible involvement in the robberies. The police compiled two photographic lineups, one which contained appellant’s picture, and showed them to the witnesses. All of the witnesses, with the exception of Caroline Garcia, positively identified appellant as the man who committed the various robberies.
On July 24, 2006, appellant was arrested. The booking sheet stated he was five feet eleven inches tall and weighed 165 pounds; that information was obtained from either appellant or another source, such as his driver’s license. Investigator Toppan testified appellant was about six feet tall, 175 to 190 pounds, relatively thin, with short hair, a goatee, and a light complexion.
The police obtained and executed a search warrant of appellant’s apartment, where he lived with his girlfriend and her children. The police found two white baseball caps, a black baseball cap, three pairs of sunglasses, a white and blue check button-up shirt, three pairs of white basketball shoes, a stainless steel toy handgun with a wooden plastic handle and an orange cap over the barrel, and two makeup kits.
Investigator Toppan advised appellant of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and appellant agreed to answer questions. Based on information he already obtained from his investigation, Toppan asked appellant why he had large sums of money at the coast one weekend. Appellant said his father owned McCloud Ford and gave him $2,200. Toppan advised appellant that he had been seen going into certain businesses, including Pay Day Loans, Golden One Credit Union, and Kentucky Fried Chicken, and walking out with things he should not have. Toppan testified he did not use the word “robbery” or accuse him of committing any robberies at those places. Appellant replied, “I didn’t do any robberies.” At trial, Ed Swearingen testified he was the owner of McCloud Ford in Riverside, he did not know appellant, and never gave him any money.
PROCEDURAL HISTORY
We now turn to the procedural history of the case because most of the appellate contentions—that he was not advised of his right to a court trial on the prior conviction allegations, the court’s denial of his Marsden motion at the sentencing hearing, and the court’s refusal to dismiss the prior strike convictions—are based on a series of hearings and necessarily connected with each other.
The Marsden Motion at the Preliminary Hearing
On July 24, 2006, appellant was arrested. On July 28, 2006, a complaint was filed which alleged seven counts of robbery, with firearm enhancements and two prior prison term enhancements. The complaint did not allege any prior strike convictions.
On September 6, 2006, appellant appeared for the preliminary hearing with appointed counsel, Michael Woodbury. Appellant asked to say something before the hearing started. The court asked if he talked to his attorney about it. Appellant replied that he did not want his attorney and wanted to dismiss him. The court cleared the courtroom and conducted a Marsden hearing.
In the course of this case, the court advised appellant that Kings County did not have a public defender’s office but instead had “private attorneys we contract with for that purpose.”
The court asked appellant why he wanted to dismiss his attorney. Appellant said his attorney was prejudiced against him, wanted him to take a deal for 16 years, and said he would not have a chance at trial. Appellant complained that it seemed “none of my discovery was even looked over,” and he found inconsistencies that his attorney had not addressed. Appellant complained he did not have a chance to subpoena any witnesses for the preliminary hearing and “[w]e’re having incompatible differences.” Appellant believed his attorney did not have his best interest in mind and “this is my life I’m looking at here.”
The court asked appellant if there were any specific witnesses who could raise affirmative defenses that he wanted to call at the preliminary hearing. Appellant replied “they did an illegal search” at his house and he wanted to call “Gabrielle.” The court explained the purpose for a preliminary hearing, and the prosecution did not have the burden to prove the offense beyond a reasonable doubt at that stage. The court also explained that while Mr. Woodbury’s “bedside manner sometimes lacks a lot of things, he is one of the most experienced trial attorneys and/or death penalty attorneys in this county and as far as this state.” The court stated that it would not dismiss Mr. Woodbury unless appellant could give a “legal reason as to why I should get rid of him and give you somebody that is probably not as adept at defending people in this matter ... because I know your case is a serious case in this matter.”
According to the probation report, appellant was living with Gabrielle Ceniceros when he was arrested.
Appellant asked if he could get “some motions filed” to suppress evidence because of an illegal search and seizure. The court asked Mr. Woodbury about the issue. Mr. Woodbury stated that appellant advised him that the search was conducted before the warrant was issued. Mr. Woodbury reviewed the record and determined the warrant was issued before his residence was searched. Mr. Woodbury also advised appellant that he had been identified by the witnesses and their descriptions of the robbery suspect were consistent with his physical build and the tattoos on his neck, but there were discrepancies in some of the descriptions and he intended to pursue those issues. Mr. Woodbury believed that two of the seven robbery charges could have been committed by someone else, based on the witness descriptions and the statements of the woman who talked to the police. Mr. Woodbury stated they had discussed calling appellant’s girlfriend, but he explained to appellant that the prosecution had the burden at the preliminary hearing, and it was better not to let the prosecution learn about their defense at this stage. In addition, he needed time to find and interview Gabrielle, and her appearance would not help appellant at the preliminary hearing.
The court found insufficient grounds to relieve Mr. Woodbury and denied appellant’s Marsden motion. Thereafter, the preliminary hearing was held on September 6 and 7, 2006. At the conclusion, the prosecutor conceded there was insufficient evidence to connect appellant to two of the seven robbery charges. The court held appellant to answer on five of the seven counts and dismissed the other two counts. Appellant interrupted and advised the court he was trying to file a motion about the search warrant but his attorney would not let him. The court advised appellant that another hearing was scheduled on September 21, 2006, at which time the prosecution would advise whether it was going to file a new information.
“[A]t that point in time they’re going to appoint another attorney for you other than Mr. Woodbury, a trial attorney, okay? And at that point if you want the Court, and it will be a different judge in all likelihood, you can either try and submit the motion to him or he will probably advise you to let your attorney look at it, your new attorney, and then if your new attorney doesn’t want to do it, then I’m sure that he will accept it from you at that point.”
Mr. Woodbury stated that he already advised appellant there was no evidence to challenge the legality of the search, and there was another issue appellant wanted to raise but “it would be stupid to educate the D.A. on an element of the defense he’s going to use in the trial.” The court replied that appellant was challenging counsel’s tactical decisions, and he could raise the issue at the next hearing.
The Pretrial Marsden Motion
On September 20, 2006, the information was filed which alleged five counts of robbery, with firearm enhancements and two prior prison term enhancements. It did not allege any prior strike convictions.
On September 21, 2006, appellant appeared at the arraignment and the court appointed James Oliver to represent him. On October 13, 2006, the pretrial hearing was held, and the prosecution stated its intent to file an amended information.
On November 9, 2006, appellant appeared for the trial confirmation hearing with Mr. Oliver, who advised the court that appellant wanted to make a Marsden motion. The court cleared the courtroom and conducted a Marsden hearing.
Appellant complained Mr. Oliver met with his mother and was disrespectful to his family, he failed to give him copies of everything in discovery, such as the police reports, and he was not “doing anything for me” except recommending that he accept a deal for 25 years to life. Appellant complained Mr. Oliver made disparaging remarks about him to his family, and the only thing “coming out of his mouth is 25, take 25, take 25.” “I don’t want him, you know what I mean? It’s not working. I don’t like him, I don’t want him ....”
Mr. Oliver stated he had not been disrespectful to appellant’s family. Appellant interrupted and asked whether his mother was lying. Mr. Oliver continued that he met with appellant’s mother and she was confused and did not understand certain things. Mr. Oliver explained things about three times and she still did not understand, and “I said, well, I’m sorry, I can’t explain it any better than that, I’m sorry you’re confused, but I don’t know how else to explain it.” Mr. Oliver thought appellant’s sister was also present, and appellant interrupted and said the other person was his wife. Mr. Oliver said appellant’s wife was disrespectful and insulting toward him because she accused him of not reading the police reports.
Mr. Oliver further stated that he gave the police reports to appellant, but did not give him the witness list with names and addresses “because it would require multiple blackouts ... and I explained that to him at the time.” Mr. Oliver said he never told appellant to take a plea offer of 25 years to life, but merely presented the prosecution’s offer “and said this is it and what my opinion was about the outcome of the trial. That’s the extent of it.” Mr. Oliver explained the prosecution previously offered 16 years, and appellant claimed Mr. Woodbury, his previous attorney, “just presented it and said virtually take it or leave it.” Mr. Oliver learned from the prosecutor that the story was not true, and that Mr. Woodbury had tried to persuade appellant to accept the 16-year offer because of the possible consequences if he was convicted of all the charges. The offer was rejected and withdrawn, the prosecution added two prior strike convictions in the amended complaint, and the minimum term would be 25 years to life.
Mr. Oliver further stated that according to appellant, his family contacted another attorney, Eric Hamilton, who said there were motions that should have been made to force the People to again extend the offer for 16 years. Mr. Oliver was unaware of any type of motion, aside from a motion to compel enforcement of an accepted plea offer, but appellant had refused the previous offer.
Mr. Oliver intended to explain to appellant that if he accepted the pending offer for 25 years to life, he would request the court to dismiss one prior strike to reduce the sentence to a doubled determinate term. But he had not been able to discuss the pending offer with appellant “because he just simply rejected the offer and wants the Court to consider the Marsden motion.”
Appellant stated he wanted to file a motion for the prosecution to reinstate the plea offer, so he could accept the prosecution’s initial offer of 16 years. The court replied it had never heard of such a motion and a defendant could not compel the prosecution to make an offer. The court also explained that a defense attorney was required to explain the prosecution’s pending plea offer to a defendant, to give him a chance to evaluate and decide what to do.
Appellant complained his trial was about to start but counsel only talked to him one time and did not tell him anything about the case or what would happen. Mr. Oliver replied he met with appellant and the defense investigator, he went over the facts of the case and the prosecution evidence, appellant said he told the police he did not commit the robberies, but appellant “has never once ... said I haven’t done this.” Appellant claimed to have “a bogus alibi” from “a retired judge,” but he never provided any further information to counsel. Mr. Oliver stated he would not “suggest defenses to somebody, but if he wasn’t there, if he wasn’t the person, there was a misidentification ... if there was any—any defense like well, I wasn’t there and I was here, he’s had every opportunity to give that, he has never stated that to us. And that’s what the real purpose of the visit was last week.”
Appellant interrupted:
“[APPELLANT]: Well, what kind of attorney are you, then?
“MR. OLIVER: Well, let me tell you what we don’t do. We don’t fabricate defenses.”
Appellant demanded to know when Mr. Oliver talked with him about the case. Mr. Oliver replied they had discussed matters.
“[APPELLANT]: When? You gave me my file my last court date, let me read it and you walked out, so don’t sit there and tell me you went over my case with me. You’re lying out your mother fucking mouth right now.”
The court explained that a defense attorney had two functions. Prior to trial, the attorney acted as an advisory to explain his possible sentence exposure and convey the prosecution’s plea offers. At trial, the defense attorney represents the client as best as he can. The prosecution had the burden of proof beyond a reasonable doubt, the defense attorney would cross-examine the witnesses and explore their veracity and credibility, and “unless a defendant has got some other evidence that, you know, says I was in Argentina at that time, or something of that kind, that’s the way the trial is going to have to go.” The court encouraged appellant to provide his defense attorney with any contrary evidence to help his case. The court stated Mr. Oliver was “a good trial lawyer. He’s done it for years,” and he had a lot of experience as a criminal defense attorney throughout the entire state.
The court continued:
“... [I]t’s unpleasant to hear certain things … from a lawyer … and ... I’m sure that your family is concerned about you. His job primarily, though—he could have told your family, look, you’re not my client, I don’t want to talk to you, good-bye. And that may have been, you know, somewhat disrespectful if that had occurred, but he’s within his right to do that.”
The court acknowledged Mr. Oliver tried to explain matters to appellant’s family, and sometimes people who were emotionally involved “just don’t comprehend in detail what a professional like a doctor or an attorney are explaining” to them. The court realized appellant’s family could have taken counsel’s statements in an adverse way, but he could have meant “that, you know, if you can’t understand, it’s my fault, I can’t explain it any better, you know, I’m sorry, I tried but I failed.”
“So I realize the sensitivities that people might have, but as far as the Marsden motion is concerned, I really don’t see the grounds for changing appointed lawyers at this time, so I’m going to deny that.”
The court advised appellant to give Mr. Oliver a chance to fully explain the prosecution’s pending plea offer.
Mr. Oliver advised the court that the prosecution was going to file an amended information which added two prior strike convictions to the other charges, and would increase the minimum term on any of the robbery charges to 25 years to life. Mr. Oliver stated that if appellant accepted the prosecution’s pending offer for 25 years to life, he intended to request the court to dismiss one strike. The court gave appellant and Mr. Oliver a few minutes to discuss things and briefly adjourned. When the court reconvened, the court and counsel acknowledged the prosecution was going to file an amended information.
Appellant’s Motion to Compel Reinstatement of the Plea Offer
On November 13, 2006, the amended information was filed which again charged appellant with five counts of robbery, with firearm enhancements and two prior prison term enhancements, but also alleged he suffered two prior strike convictions. On the same day, appellant’s jury trial began.
Prior to jury selection, Mr. Oliver advised the court that appellant requested him to make a motion “to enforce reinstatement of the offer that was made below.” Mr. Oliver explained to appellant that a motion existed which would compel enforcement of a previously accepted plea offer, but appellant never accepted the previous offer and there was no such motion to compel the prosecution to again extend an offer which had been rejected. However, appellant presented Mr. Oliver with points and authorities which purportedly were compiled by an attorney, and Mr. Oliver filed those with the court.
Mr. Oliver advised the court that the prosecution extended an offer on August 30, 2006, for appellant to plead guilty to two counts of robbery and admit the firearm enhancements that he would receive 16 years, appellant rejected the offer on September 5, 2006, and appellant now wanted to testify about why he rejected the offer. The prosecutor replied he was not aware of appellant’s prior strike convictions when the previous offer was extended, and the People did not receive documentation about the strikes until after the information was filed.
The court permitted Mr. Oliver to call appellant as a witness and conducted a brief hearing on appellant’s purported motion to reinstate the plea offer. Appellant testified Mr. Woodbury represented him at the preliminary hearing and told him about the plea offer for 16 years that he would receive credits at 85 percent, and the prosecution would dismiss the strike. Appellant testified he rejected the offer because “Mr. Woodbury stated there would be another offer” which “might be lower so I didn’t take the deal. He didn’t explain the full circumstances if [I] did accept the deal.” Appellant testified he did not explain that if the People alleged another strike, he could receive a minimum term of 25 years to life. Mr. Woodbury did not explain anything. “All he told me was 16 years and I rejected it and he told me it would be a lesser deal if I rejected it. That was the end of the conversation. He didn’t explain nothing further.”
At the preliminary hearing, appellant complained that Mr. Woodbury wanted him to take the plea offer for 16 years, whereas appellant wanted to go to trial and challenge the search of his apartment.
On cross-examination, the prosecutor asked if appellant was no longer denying the robbery charges since he wanted to accept a plea bargain. Appellant replied he was “denying all of it.” Appellant testified:
“I’m not looking for no plea bargain, first of all. I’m asking you on this reinstated plea bargain offer you guys were saying my last court date it was stipulated that everything was explained to me, which is false. [¶] You guys are saying you never heard of this motion. I brought this motion so you could see there was such a one. That’s the reason I brought it.”
On further examination by Mr. Oliver, appellant seemed to back away from a plea offer:
“Q. Are you saying that you don’t want the offer of 16 determinate years to be accepted, made and enforced at this point; is that correct?
“A. I don’t understand the question.
“Q. Well, you presented to me these points and authorities that might tend to support the reason for reinstatement of a previously made plea bargain, but by what you just said you don’t want any plea bargain, is that correct or do you want—are you trying to compel enforcement of the 16 years period that was previously made?
“A. I don’t know. Can I speak to you, Oliver?”
An off-the-record conversation occurred between appellant and Mr. Oliver, and then Mr. Oliver advised the court that appellant “does not want enforcement of that prior offer in any event. So I’d have to withdraw that motion on his behalf,” and he just wanted to go to trial. The court asked appellant if he wanted to withdraw the motion. Appellant said yes. Thereafter, appellant’s jury trial began on the robbery charges and the firearm enhancements, and the court bifurcated the prior conviction allegations.
Admission of the Prior Conviction Allegations
As noted ante, the amended information alleged five counts of robbery with firearm enhancements. It also alleged appellant suffered two prior strike convictions (§ 667, subds. (b)-(i)); and served two prior prison terms (§ 667.5, subd. (b)), based on prior convictions which occurred in Fresno County.
The two prior strike convictions were alleged to have occurred on April 11, 1994, in case No. 119576, and were:
(1) attempted robbery (§ § 664/211), and
(2) robbery (§ 211).
The two prior prison term enhancements were based on:
(1) felony escape (§ 4532, subd. (b)) on March 22, 1994, in case No. 501085-5; and
(2) attempted robbery on April 11, 1994, in case No. 119576.
On November 14, 2006, as the jury was deliberating on the substantive offenses, the court advised the parties that they needed to discuss the jury instructions as to the prior strikes and prior prison term enhancements, “or we need to have further discussions.” Defense counsel stated appellant was prepared “to admit those for the purpose of both the prison prior and admitting that there are two strike priors,” and that appellant understood those admissions would be used only if he was convicted of any of the substantive robbery offenses. Defense counsel further stated appellant understood the two prior prison term enhancements each carried a one-year term, and the two strikes would turn any felony conviction into an indeterminate life term of 25 years to life, with a possible term of 125 years to life if he was convicted of the five robbery charges in this case.
The court advised appellant that it was alleged he suffered prior convictions for attempted robbery, escape, and robbery, and advised appellant of his right to have the jury determine the truth of the prior conviction allegations, his right to confront and cross-examine witnesses, and his privilege against self-incrimination. The court gave the following advisement as to his jury rights:
“THE COURT: ... [You] have a constitutional right to have the issue of the truth or falsity of those prior convictions tried by the same jury that will determine whether you’re guilty or not guilty on the current charged crimes. Do you understand that?
“[APPELLANT]: Yes, sir.
“THE COURT: In addition, if you stand on your denial, the Court would [advise] the jury of the allegations of the prior convictions and has previously done so when we started this trial. I would advise them that you denied the allegations and they’d have to find whether the allegations were true or not true. [¶] On the other hand if you admit the allegations, then of course the jury will not be making that determination whether the allegations are true or not true. And instead that you would be admitting the truth of those allegations before this Court. Do you understand that procedure.
“[APPELLANT]: Yes, sir.”
In section I, post, we will address appellant’s contention that while the court properly advised him of the right to a jury trial on the prior conviction allegations, it never advised him that the court could determine whether the allegations were true or false, he did not know he had the right to a court trial on the special allegations, and his admissions were thus invalid.
Appellant stated he understood and waived his rights. The prosecutor introduced documentary exhibits as the factual basis for the admissions. Thereafter, appellant admitted he suffered the prior strike convictions for attempted robbery and robbery, which occurred in Fresno County on April 11, 1994.
The court turned to the prior prison term enhancements, and asked appellant if he admitted the convictions for attempted robbery and escape. Defense counsel stated appellant advised him the escape conviction was reduced to a misdemeanor and he never went to prison on that charge. Defense counsel stated it was not clear from the documentary exhibits whether appellant was sent to prison on the escape conviction. Defense counsel proposed that appellant “waive the jury trial as to that issue and submit it to the Court only,” and for the court to reserve ruling on that enhancement until the sentencing hearing so that counsel could obtain the entire record of the escape conviction. The prosecutor agreed there were inconsistent notations in the documentary exhibits as to whether appellant was sentenced to prison or placed on probation for the escape conviction.
The court agreed to take the enhancement based on the escape conviction under submission, but asked if there was a resolution as to the other prior prison term enhancement based on attempted robbery. Defense counsel stated appellant would admit that prior prison term enhancement. Thereafter, the court advised appellant of his constitutional rights to a jury trial, to confront and cross-examination witnesses, and his privilege against self-incrimination. As to his jury rights, the court advised as follows:
“THE COURT: I have a duty to advise you of your constitutional rights and have the issue of truth or falsity of that alleged prison prior tried by the same jury that will determine whether you’re guilty or not guilty of the crimes charged against you in the amended information. [¶] If you decide to stand on your current denial, the Court’s required to tell the jury of the allegations of the prison prior that you denied the truth of those allegations and that if you’re found guilty of the charge the jury would then make a further findings [sic] as to whether that allegation is true or not. [¶] As I understand it you instead want to admit that allegation before this Court and not have it tried by the jury; is that correct?
“[APPELLANT]: Yes, sir.”
Appellant stated he understood and waived those rights, and he admitted the prior prison term enhancement based on the attempted robbery conviction. The court found a factual basis for the admission based on the documentary exhibits.
Defense counsel returned to the issue of the second prior prison term enhancement:
“MR. OLIVER: ... [A]s to the second alleged prison prior, he would give a jury waiver as to that only and ask the Court to determine that. If there’s an acquittal it has no meaning. And—but if he’s convicted of one count or more, then we’d ask the Court to reserve its finding as to whether it’s true or not until the date of the sentence.”
The court asked if the prosecutor stipulated and he said yes. Mr. Oliver continued:
“MR. OLIVER: You understand what I just said? What I said is you’re going to give that up today and let the judge hear that and make that determination on the basis I just stated.
“[APPELLANT]: Yes, sir.”
On November 15, 2006, appellant was convicted of five counts of robbery, and the handgun enhancements were found true for counts I, II, III and V, and not true for count IV.
The Probation Report
The probation report listed appellant’s lengthy juvenile and adult record. When appellant (born 1975) was a juvenile, a petition for felony burglary (§ 459) was found true in November 1992. In July 1993, a petition for felony attempted auto theft (§ 664; Veh. Code, § 10851) was found true and he was adjudged a ward. In December 1993, a petition for receiving stolen property (§ 496) was found true, and he was again adjudged a ward.
As an adult, he was convicted of escape (§ 4532, subd. (b)) in 1994 and placed on probation for three years. Also in 1994, he was convicted of attempted second degree robbery while armed with a firearm (§§ 664/211, 12022.5), and robbery while armed and using a firearm (§§ 211, 12022, subds. (a), (b)), and sentenced to eight years four months in state prison. In December 1999, he was released on parole. In May 2000, he was returned to custody. In October 2000, he was again paroled, and in December 2000, he was again returned to custody. In April 2002, he was paroled, and in August 2002, he was returned to custody. In December 2003, he was paroled. In April 2004, he was returned to custody, and in May 2004, he was discharged from parole. In November 2004, he was sentenced to jail for misdemeanor domestic violence (§ 273.5, subd. (a)).
As we will discuss post, the court subsequently dismissed the second prior prison term enhancement that had been based on the escape conviction.
The probation report further stated that there was a current active warrant for appellant in Fresno County for a robbery of the Bank of America in Fowler on July 10, 2006, that appellant had been positively identified as the robbery suspect, and a dye pack discharged in his car.
As to the instant robbery convictions, the probation report stated that the police arrested Victoria Martinez for driving a stolen vehicle, and Martinez volunteered that she knew who had committed the recent robberies in Hanford. Martinez stated that she was visiting appellant’s girlfriend when he asked her to hot wire a car and said he needed someone to drive for his next robbery because his girlfriend did not want to. Martinez said she refused and appellant hit her in the mouth with the handle of his gun. Martinez agreed and drove him to a pawn shop, where he tried to commit another robbery.
The probation report contained additional details about appellant’s postarrest interview. Appellant said he had used heroin “for the last few years.” Appellant denied any involvement in robberies, said he was out of town, and claimed he had “‘an ex-judge as an alibi.’” Appellant also spoke to the probation officer and stated he had been employed by a construction contractor since September 2005 and earned an average weekly income of $600 at the time of his arrest. Appellant denied the use or addiction to alcohol. He admitted that he started using heroin when he was 29 years old, and last used heroin on the day of his arrest. Appellant said he injected heroin about three times a day. He also admitted to experimental use of crystal methamphetamine, marijuana, and cocaine. Appellant “readily” admitted a substance abuse problem, specifically as to heroin.
The probation report stated appellant was statutorily ineligible for probation. The report listed the following aggravating circumstances: that appellant induced others to participate in the crime, in that he coerced the assistance of Victoria Martinez to hot wire and drive a vehicle; he engaged in violent conduct which indicated a serious danger to society; his prior convictions as an adult and juvenile petitions were numerous or of increasing seriousness; and his prior performance on probation and parole was not satisfactory. There were no mitigating circumstances. The probation report also recommended consecutive third strike sentences because the robberies occurred on different times and dates, were independent of each other, and involved different victims.
The Sentencing Hearing
On December 15, 2006, appellant appeared with Mr. Oliver for the sentencing hearing. Mr. Oliver stated that appellant had just presented him with a motion that the court could not impose a third strike term because he did not receive separate prison sentences for the two prior strike convictions. Mr. Oliver did not agree with appellant’s legal point but requested a continuance to research the matter. The court noted that one prior prison term enhancement was still pending, and asked the prosecutor whether he was going to prove it. The prosecutor replied that he would not pursue that enhancement. The court continued the sentencing hearing.
Mr. Oliver’s reaction was correct. “[A] prior qualifying conviction need not have been brought and tried separately from another qualifying conviction in order to be counted as a separate strike.” (People v. Fuhrman (1997) 16 Cal.4th 930, 933.)
On December 19, 2006, appellant again appeared with Mr. Oliver for the sentencing hearing. Mr. Oliver advised the court that he checked appellant’s legal authorities as to why he should not receive a third strike sentence, and determined appellant’s points were contrary to the law. Appellant interrupted and asked to speak with Mr. Oliver because he had “a whole lot to talk about.” The court trailed the matter so they could consult.
When the hearing resumed, Mr. Oliver stated appellant provided additional authorities to him as to why the third strike sentence could not be imposed, but Mr. Oliver determined the cases were inapplicable because they predated the three strikes law and dealt with reducing a felony to a misdemeanor. Mr. Oliver stated he explained to appellant that he would request the court to dismiss the strikes pursuant to section 1385 and Romero. Mr. Oliver further stated the court had already “indicated that those considerations would not be appropriate.”
Mr. Oliver next advised the court that if the prior strikes were not dismissed, appellant stated his intent to withdraw his admissions to the prior strike convictions. However, Mr. Oliver said he did not know of any legal grounds to support appellant’s request to withdraw his admissions.
“[MR. OLIVER:] Now it’s his desire, if this is not supported, that he wants to withdraw his—his admission or pleas to those two strike priors as strike priors to be utilized in this case. I know of no grounds for that. If the Court wants to give that consideration, then I believe it would be my opinion that other counsel would have to represent him for that issue, even on with the sentencing. So if the Court wants to address that to see whether it’s even a preliminary consideration that he should be allowed to withdraw his admissions to those strike priors, then I would just submit that.” (Italics added.)
The prosecutor asserted appellant was properly advised of his constitutional rights and admitted the prior strike convictions, the documentary exhibits supported appellant’s admissions, and the court should not give any consideration to appellant’s request to withdraw his admissions. The prosecutor also stated that appellant’s proposed authorities were not on point as to the three strikes law, and the court could consider the Romero factors and find a third strike term was appropriate in this case given appellant’s lengthy criminal record.
The following exchange ensued:
“MR. OLIVER: Just in summary, too, I’ve—at his request, [appellant’s] request, I provided him a notice of appeal, and he has been advised that the issues that he believes he’s raising now can be addressed on the appeal. Again, it’s my opinion that there’s no meritorious support for his propositions, but that’s the essence of his position.
“[APPELLANT]: I asked you for a Marsden Hearing before I even begin [sic].
“MR. OLIVER: I mentioned that, if he’s going to consider that, he can consider appointing other counsel. [¶] Now he’s mentioning Marsden, so ...
“[APPELLANT]: I mentioned that to you when we went out there.
“MR. OLIVER: Do you want to have a Marsden Hearing on all this, that’s fine, too, your Honor.
“[APPELLANT]: Your Honor, I’m not comprehending what’s going on. I asked him and explained to him several times I’m not understanding what is going on. I’ve asked him for—for this to be understood or to explain it to me, he’s failed to do that. I’m asking for a Marsden Hearing, your Honor.
“MR. OLIVER: Well, the fact is I don’t think that’s the basis for Marsden. When you explain something and they can’t comprehend it, that’s the recipient’s problem. I’ve tried to explain it as simple as possible and I’ve restated it on the record here.”
The court replied:
“The Court’s not going to have a Marsden Hearing at this particular time. The Court is not going to grant the motion to withdraw the plea. The Court is disinclined to strike the prior strikes under Romero analysis. The current offenses for armed robbery are a repetition of the same criminal activity that [appellant] engaged in in Fresno County, which were attempted robbery and armed robbery.” (Italics added.)
As we will discuss, post, appellant now claims the court improperly denied his request for a Marsden hearing (section IV) and abused its discretion when it declined to dismiss his prior strike convictions (section II).
Appellant interrupted, and the court told him to wait until it was finished.
“[Appellant] has not learned from his prior experiences with the justice system under People versus Williams, 1998 case, 17 Cal 4th 148, 163 , that’s one of the bases for disallowing a Romero striking of the prior strikes. The new offenses are similar to the old offenses and were violent robberies. He has a long criminal history beginning as a juvenile in 1992 for burglary, and he’s had almost continuous convictions of serious felonies since except during the time he was imprisoned. He hasn’t changed his habitual criminal life-style under Romero. That case is generally cited, but it’s at page 531, discussion with reference to the failure to change criminal life-style, he seems to fit within the spirit of the Romero case—strike that—the Three Strikes case, and the Court will be disinclined to grant a request to strike his priors.”
The court reviewed the probation report and stated it was inclined to follow the recommendation for five consecutive third strike terms, with consecutive determinate terms for the firearm enhancements, for an aggregate term of 125 years to life with a determinate term of 21 years. Mr. Oliver stated “the rest of the sentence is rather perfunctory, there’s nothing to argue except the Court has stated its Romero considerations. So I’d just submit it.”
The prosecutor asked the court about the status of the second prior prison term enhancement. The court believed the prosecutor had dismissed the second enhancement. The clerk reminded the court that it took the matter under submission pending the sentencing hearing. The prosecutor replied that he would move to dismiss that enhancement and the court granted the motion under section 1385. The prosecutor submitted the rest of the sentencing issues.
Appellant stated that he had several cases which said that imposition of a life sentence was cruel and unusual punishment, and cited Rummel v. Estelle (1980) 445 U.S. 263, Solem v. Helm (1983) 463 U.S. 277, and Harmelin v. Michigan (1991) 501 U.S. 957. “I mean, giving me five consecutive life sentences, your Honor, I mean, one would do the same cause as opposed to five.”
In section III, post, we will address appellant’s claim that the third strike term constituted cruel and/or unusual punishment.
The court found appellant was statutorily ineligible for probation because of the prior strike convictions.
“… Even if he was eligible, the Court would be disinclined to grant probation in this case because he’s been convicted of at least four robberies at gunpoint and a fifth robbery in this case, he has two prior robberies, another burglary as a juvenile, the Court finds he’s a danger to society, he’s performed poorly on probation or parole, he was an active participant in all the second degree robberies here, he’s unlikely to successfully complete a grant of probation.
“With reference to the factors regarding aggravation versus mitigation, for the—if the Court was to utilize the provisions of the Three Strikes statute regarding the supplementing of the five year—or the two, three, five triad, the Court would find that the aggravating factors outweigh the nonexisting mitigating factors. The aggravating factors include inducing others to participate in these crimes, engaging in violent conduct, and the increasing seriousness of defendant’s offenses. There are no mitigating factors in this particular circumstance.”
The court intended to impose consecutive sentences because the robberies occurred at different dates, times, and locations and involved separate victims.
The court imposed an aggregate third strike term of 125 to life plus 21 years as follows: as to count I, the third strike term of 25 years to life, plus consecutive terms of 10 years for the handgun enhancement and one year for the prior prison term enhancement. As to counts II, III, and V, the court imposed the third strike terms of 25 years to life, plus three years four months (one-third the midterm) for the handgun enhancement, for each count, to run consecutive to count I. As to count IV, the court imposed a consecutive third strike term of 25 years to life.
Defense counsel objected to the court’s reliance on the aggravating factor that appellant induced others to commit the offenses, because that fact was not introduced or proved at trial. The prosecutor replied that information regarding Victoria Martinez’s involvement in the robberies was contained in the police report and properly included in the probation report. The court acknowledged it had cited that factor in imposing sentence, but decided to strike that factor and “just utilize the facts that he engaged in violent conduct and increasing seriousness” of his prior convictions.
Appellate Issues
On appeal, appellant contends the court did not properly advise him of his right to a court trial before he admitted the prior conviction allegations and his admissions were thus invalid, the court abused its discretion when it denied his request to dismiss the prior strike convictions, his third strike sentence constitutes cruel and/or unusual punishment, and the court should have granted his Marsden motion at the sentencing hearing.
DISCUSSION
I.
ADMISSIONS OF PRIOR CONVICTION ALLEGATIONS
Appellant contends that his admissions to the two prior strike convictions and one prior prison term enhancement were invalid because the court never advised him that he had a right to a court trial on the truth of the prior conviction allegations. Appellant concedes the court advised him of his rights to a jury trial, to confront and cross-examine witnesses, and his privilege against self-incrimination, but asserts these advisements were incomplete because the court never told him that he could submit the truth of the prior conviction allegations to the court instead of a jury, pursuant to Boykin v. Alabama (1969) 395 U.S. 238, In re Tahl (1969) 1 Cal.3d 122, and In re Yurko (1974) 10 Cal.3d 857.
Prior to accepting a criminal defendant’s admission of a prior conviction, a trial court “must advise the defendant and obtain waivers of (1) the right to a trial to determine the fact of the prior conviction, (2) the right to remain silent, and (3) the right to confront adverse witnesses. [Citation.] Proper advisement and waivers of these rights in the record establish a defendant’s voluntary and intelligent admission of the prior conviction. [Citations.]” (People v. Mosby (2004) 33 Cal.4th 353, 356 (Mosby).) A trial court’s failure to provide the defendant with the requisite admonitions does not require per se reversal. (Id. at p. 361.) “[I]f the transcript does not reveal complete advisements and waivers, the reviewing court must examine the record of ‘the entire proceeding’ to assess whether the defendant’s admission of the prior conviction was intelligent and voluntary in light of the totality of circumstances. [Citation.]” (Ibid.; see also People v. Hinton (2006) 37 Cal.4th 839, 875, fn. 12 (Hinton) [“the validity of the admission depends not on express admonitions and waivers but on whether the admission was ‘voluntary and intelligent under the totality of the circumstances’”].)
In Mosby, the defendant was charged with one count of selling cocaine with a prior felony conviction. (Mosby, supra, 33 Cal.4th at p. 356.) After the jury found him guilty of the substantive offense, the defendant admitted the prior felony conviction. (Id. at p. 357.) Prior to accepting the admission, the defendant was advised of, and waived, his right to trial by jury. However, the defendant was not advised of his rights against self-incrimination and to confrontation, he did not waive those rights, and he argued the admission was invalid. (Id. at pp. 357-359, 364.)
In Mosby, the court set forth the manner in which the entirety of the record should be reviewed to determine if a defendant’s admissions were intelligent and voluntary:
“For nearly two decades after our decision in In re Yurko, supra, 10 Cal.3d 857, lack of express advisement, and waiver, of all three Boykin-Tahl rights was viewed as error requiring automatic reversal. [Citations.] Then, in our 1992 decision in [People v.] Howard [(1992)] 1 Cal.4th 1132, we revisited the issue and came to a different conclusion. The pertinent inquiry, we said, was whether ‘the record affirmatively shows that [the admission] is voluntary and intelligent under the totality of the circumstances’ [citation, italics added], applying ‘the test used to determine the validity of guilty pleas under the federal Constitution.’ [Citation.] Howard explained: ‘[T]he weight of authority today makes it abundantly clear that “the California interpretation of Boykin announced in Tahl is not required by the federal Constitution ....” [Citations.]’ [Citation.] We also said that the United States Supreme Court ‘has never read Boykin as requiring explicit admonitions on each of the three constitutional rights,’ but instead looks to the test set out in North Carolina v. Alford, supra, 400 U.S. at page 32, which asks ‘“whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.”’ [Citation.]
“By adopting in Howard the federal constitutional test of whether under the totality of circumstances the defendant’s admission is intelligent and voluntary, we rejected the rule that ‘the absence of express admonitions and waivers requires reversal regardless of prejudice.’ [Citation.] In replacing the old rule, the focus was shifted from whether the defendant received express rights advisements, and expressly waived them, to whether the defendant’s admission was intelligent and voluntary because it was given with an understanding of the rights waived. After our Howard decision, an appellate court must go beyond the courtroom colloquy to assess a claim of Yurko error. [Citation.] Now, if the transcript does not reveal complete advisements and waivers, the reviewing court must examine the record of ‘the entire proceeding’ to assess whether the defendant’s admission of the prior conviction was intelligent and voluntary in light of the totality of circumstances. [Citation.] That approach—reviewing the whole record, instead of just the record of the plea colloquy—was recently endorsed by the United States Supreme Court in a case where a federal court failed, before accepting the defendant’s guilty plea, to advise the defendant of his right to counsel as required by rule 11 of the Federal Rules of Criminal Procedure. [Citations.]” (Mosby, supra, 33 Cal.4th at pp. 360-361.)
Mosby applied these principles and held the defendant therein voluntarily and intelligently admitted his prior conviction despite the incomplete advisement by the trial court. The court explained that the defendant admitted the prior conviction immediately after a jury found him guilty of the substantive offense, following a trial in which he was represented by counsel and did not testify. (Mosby, supra, 33 Cal.4th at p. 364.) “Thus, he not only would have known of, but had just exercised, his right to remain silent at trial, forcing the prosecution to prove he had sold cocaine. And, because he had, through counsel, confronted witnesses at that immediately concluded trial, he would have understood that at a trial he had the right of confrontation.” (Ibid.)
“A review of the entire record also sheds light on defendant’s understanding. For instance, ‘a defendant’s prior experience with the criminal justice system’ is, as the United States Supreme Court has concluded, ‘relevant to the question [of] whether he knowingly waived constitutional rights.’ [Citation.] That is so because previous experience in the criminal justice system is relevant to a recidivist’s ‘“knowledge and sophistication regarding his [legal] rights.”’ [Citations.] Here defendant’s prior conviction was based on a plea of guilty, at which he would have received Boykin-Tahl advisements. As the Court of Appeal here concluded: ‘[H]e knew he did not have to admit [the prior conviction] but could have had a jury or court trial, had just participated in a jury trial where he had confronted witnesses and remained silent, and had experience in pleading guilty in the past, namely, the very conviction that he was now admitting.’” (Mosby, supra, 33 Cal.4th at p. 365, fn. omitted.)
Mosby distinguished cases which involved incomplete advisements from those which were “truly silent-record cases ... that show no express advisement or waiver of the Boykin-Tahl rights before a defendant’s admission of a prior conviction. Citation.” (Mosby, supra, 33 Cal.4th at p. 361.) In a silent-record case, “in which the defendant was not advised of the right to have a trial on an alleged prior conviction, we cannot infer that in admitting the prior the defendant has knowingly and intelligently waived that right as well as the associated rights to silence and confrontation of witnesses.” (Id. at p. 362.) This is true even though “a jury trial on a substantive offense preceded the defendant’s admissions of prior convictions.” (Ibid.)
In Hinton, supra, 37 Cal.4th 839, the defendant admitted a prior-murder-conviction special circumstance prior to trial. On appeal, he argued the admission was not voluntary or intelligent because Boykin-Tahl admonitions were not given. (Id. at pp. 872-873, 875 & fn. 12.) The court relied on Howard and rejected appellant’s argument, and held “the validity of the admission depends not on express admonitions and waivers but on whether the admission was ‘voluntary and intelligent under the totality of the circumstances.’ [Citation.]” (Id. at p. 875, fn. 12.) The trial court’s failure to enumerate defendant’s rights did not present a “‘[t]ruly ... silent record’ [citation], inasmuch as defendant stated that he had discussed the matter with his attorney and understood ‘the effect and consequence of admitting that prior conviction.’ [Citation.]” (Ibid.) Hinton further concluded that “defendant was indisputably aware of his right to a jury trial, right to confront witnesses, and privilege against self-incrimination with respect to the three other special-circumstance allegations in the information, and was in fact about to exercise those rights.” (Ibid.)
In the instant case, appellant asserts his admissions to the prior conviction allegations are invalid because the trial court never advised him that he had the right to a court trial on the truth of the special allegations. Appellant concedes that express advisements and waivers are not required and Howard and Mosby are controlling authorities on this issue, but asserts the entirety of the record lacks any indication that he was aware of and waived his right to have the court determine the truth of the prior conviction allegations. In making this argument, appellant limits his citations to the portion of the record where the court gave the express advisements and obtained appellant’s admissions to two prior strike convictions and one prior prison term enhancement.
Mosby directs that “if the transcript does not reveal complete advisements and waivers, the reviewing court must examine the record of ‘the entire proceeding’ to assess whether the defendant’s admission of the prior conviction was intelligent and voluntary in light of the totality of circumstances. [Citation.]” (Mosby, supra, 33 Cal.4th at p. 361.) As in Hinton and Mosby, the instant case involves incomplete advisements rather than a silent record. (See Hinton, supra, 37 Cal.4th at p. 875, fn. 12; Mosby, supra, 33 Cal.4th at pp. 361-363.) As set forth ante, the court conducted the hearing on the special allegations while the jury was deliberating on the substantive robbery counts. At that hearing, appellant admitted the two prior strike convictions and one prior prison term enhancement alleged in the amended complaint. However, the parties realized the second alleged prior prison term enhancement, based on his underlying conviction for escape, might be invalid if he had been placed on probation and not sentenced to prison. The prosecutor conceded the documentary exhibits did not clarify the issue, and defense counsel, Mr. Oliver, asked for more time to obtain the superior court file for the escape conviction.
Thereafter, Mr. Oliver advised the court that appellant would “waive the jury trial as to [the second enhancement] and submit it to the Court only,” and for the court to reserve ruling on that enhancement until the sentencing hearing so that counsel could obtain the entire record of the escape conviction.
“MR. OLIVER: ... [A]s to the second alleged prison prior, he would give a jury waiver as to that only and ask the Court to determine that. If there’s an acquittal it has no meaning. And—but if he’s convicted of one count or more, then we’d ask the Court to reserve its finding as to whether it’s true or not until the date of the sentence.” (Italics added.)
The court asked if the prosecutor stipulated and he said yes. Mr. Oliver addressed his client:
“MR. OLIVER: You understand what I just said? What I said is you’re going to give that up today and let the judge hear that and make that determination on the basis I just stated.
“[APPELLANT]: Yes, sir.” (Italics added.)
Based on the entirety of the record, appellant was clearly apprised of his right to have the court to determine the truth of the special allegations, since he specifically requested the court to make that determination as to the second prior prison term enhancement. We conclude the totality of the circumstances presented in the record demonstrates appellant’s awareness that the court could determine the truth of a prior conviction allegation, and that appellant voluntarily and intelligently admitted the prior conviction allegations in this case.
II.
SECTION 1385 AND ROMERO
Appellant next contends the court failed to make an informed exercise of discretion when it declined to dismiss the prior strike convictions because it failed to consider his admitted drug addiction and that his prior strike convictions occurred in 1994.
Section 1385 permits the trial court to exercise its discretion and dismiss a prior strike conviction if the dismissal is in furtherance of justice. (§ 1385, subd. (a); see People v. Garcia (1999) 20 Cal.4th 490, 499, 502; People v. Williams (1998) 17 Cal.4th 148, 158 (Williams); Romero, supra, 13 Cal.4th 497, 529-530.) The trial court has broad discretion in making sentencing choices and its decisions will not be disturbed on appeal absent a showing of clear abuse. (People v. Carmony (2004) 33 Cal.4th 367, 376-377 (Carmony I).) We shall not find a trial court has abused its discretion unless its decision is so irrational or arbitrary that no reasonable person would agree with it. (Id. at p. 377.) The party objecting to the sentence bears the burden of showing the decision was irrational or arbitrary. (Id. at p. 376.)
As the California Supreme Court has explained, the trial court must find the defendant falls outside the “spirit” of the three strikes law to dismiss a prior strike conviction in furtherance of justice pursuant to section 1385 and Romero. (Williams, supra, 17 Cal.4th at p. 161; Romero, supra, 13 Cal.4th at pp. 530-531.)
“[T]he court in question must consider whether, in light of the nature and circumstances of [the defendant’s] 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.” (Williams, supra, 17 Cal.4th at p. 161, italics added.)
To show an abuse of discretion, the defendant must demonstrate the trial court’s decision “was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of [the] prior convictions.” (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.) When the record shows the trial court considered relevant factors and acted to achieve legitimate sentencing objectives, the decision will not be disturbed on appeal. (Id. at p. 310.)
Carmony I extensively discussed the nature of this deferential review as it applies to three strikes cases.
“[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.
“In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not ‘aware of its discretion’ to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation]. Moreover, ‘the sentencing norms [established by the Three Strikes law may, as a matter of law,] produce[] an “arbitrary, capricious or patently absurd” result’ under the specific facts of a particular case. [Citation.]
“But ‘[i]t is not enough to show that reasonable people might disagree about whether to strike one or more’ prior conviction allegations. [Citation.] Where the record is silent [citation ... ], or ‘[w]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance’ [citation]. Because the circumstances must be ‘extraordinary ... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. Of course, in such an extraordinary case—where the relevant factors described in Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ—the failure to strike would constitute an abuse of discretion.” (Carmony I, supra, 33 Cal.4th at p. 378.)
Thus, when the record shows the trial court considered relevant factors and acted to achieve legitimate sentencing objectives, the decision will not be disturbed on appeal. (People v. Myers, supra, 69 Cal.App.4th at pp. 309-310.)
Appellant asserts the court failed to act with informed discretion as to his particular circumstances when it declined to dismiss the prior strike convictions. The entirety of the record of the sentencing hearing, however, clearly reflects the court was well aware of its discretion under Romero and section 1385. Indeed, the court specifically cited Williams and found appellant’s lengthy criminal record and repeated commission of violent robberies demonstrated that he had not “changed his habitual criminal life-style under Romero” and that he “seems to fit” within “the spirit” of the three strikes law.
Appellant complains the court failed to consider that his strike convictions occurred in 1994 and were remote. To the contrary, however, the court specifically noted that appellant “had almost continuous convictions of serious felonies since except during the time he was imprisoned.” Appellant also complains the court failed to consider his admitted heroin addiction, as set forth in the probation report. However, “drug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment. [Citations.]” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1511.) For example, in People v. Gaston (1999) 74 Cal.App.4th 310 (Gaston), the defendant was convicted of violating Vehicle Code section 10851 with two prior strikes, but the trial court dismissed one prior strike conviction and imposed a doubled second strike term. The People appealed and Gaston found the trial court abused its discretion when it dismissed the prior strike conviction. (Id. at pp. 312-313.)
“[The defendant] is a 44-year-old homeless person who ‘has been unemployed for the past five years,’ has passed ‘most of the past eight years in state prison or on parole’ and ‘has spent most of his life on the street ....’ Although ‘drug use appears to be an underlying factor in [his] criminal behavior, and in fact may be the root cause thereof,’ the record is barren of any attempts by [him] to ‘root out’ such destructive drug dependency. Accordingly, his drug dependency does not fall into the category of mitigating circumstances. [Citations.]… [¶]...[¶] [H]e has committed an unending series of felonies, as well as other crimes, has been repeatedly punished for these crimes, including the service of four prior prison terms, and has failed to learn anything from the experience. [¶] Accordingly, [he] cannot reasonably be said to be outside the ‘spirit’ of the Three Strikes Law, in whole or in part.” (Gaston, supra, 74 Cal.App.4th at p. 322.)
As in Gaston, appellant has failed to “root out” his alleged dependency, committed an unending series of crimes, been repeatedly punished for these crimes, including probation and prior prison terms, and has failed to learn anything from the experience. There is nothing in appellant’s background, character, or prospects which sets him outside the spirit of the three strikes law to indicate that he should not be treated as though he had not been previously convicted of two prior serious and/or violent felony convictions, and the court’s findings were not irrational or arbitrary.
Appellant relies on People v. Bishop (1997) 56 Cal.App.4th 1245 (Bishop), in support of his argument that the court failed to realize it had discretion to dismiss the prior strike convictions in this case. In Bishop, the defendant was charged with petty theft with a prior theft-related conviction, based on his theft of six videocassettes from a drug store, and alleged to have suffered three prior strike convictions—one robbery conviction in 1969, and robbery and assault with a firearm in 1979. (Id. at pp. 1247-1248 & fn. 1.) The defendant was 50 years old when he committed the current offense, and “his lifetime of crime was directed toward supporting his drug use.” (Id. at p. 1248, fn. omitted.) Prior to trial, he requested the court to dismiss two prior strike convictions to receive a determinate term of 12 years, precluding his release until he was almost 60 years old. The defendant argued he deserved leniency because his prior convictions were remote and his current offense was petty. (Id. at p. 1248.) The trial court granted the motion, and found his strikes were “‘remote (17 to 20 years old) and the nature of the current crime is non-violent. Penalty of 12 years seems appropriate.’ The court further commented that the 12-year sentence would ‘stop the revolving door of this defendant because it will keep him in prison for a significant period of time ....’” (Id. at p. 1248.) The defendant then pleaded guilty and was sentenced to the second strike determinate term. (Id. at p. 1249.) The People filed an appeal, and argued the trial court abused its discretion in dismissing the strike convictions.
Bishop held the trial court did not abuse its discretion when it dismissed the strike convictions:
“[The defendant] is not a worthy member of society. But when his misdeeds are compared with those of the far too many violent recidivists in this state, he is not the worst we have seen. While the People and perhaps even this court may be of the opinion that Bishop appears undeserving of leniency, the paramount consideration is not what the prosecution, defense or appellate court might conclude. Rather, what counts is what the trial court in this case concluded, as expressed by the reasons it stated under section 1385, subdivision (a). On this record, we cannot say that the trial court’s decision to dismiss two of Bishop’s strikes in furtherance of justice constituted an abuse of discretion.” (Bishop, supra, 56 Cal.App.4th at p. 1251.)
Appellant’s reliance on Bishop is misplaced for several reasons. First, Bishop predates Williams, supra, 17 Cal.4th 148, and consequently did not apply the appropriate standard of whether the defendant should be deemed to fall outside the spirit of the three strikes law. Instead, Bishop indicated the nature of the present crime and the remoteness of the defendant’s prior violent offenses operated to mitigate his three strikes sentence. However, the three strikes law provides “[t]he length of time between the prior felony conviction and the current felony conviction shall not affect the imposition of sentence.” (§ 667, subd. (c)(3).) Thus, remoteness does not take a defendant outside the spirit of the very law that expressly rejects remoteness as a basis for avoiding the law.
Second, Bishop relied heavily on People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, for the scope of the trial court’s right to exercise its discretion. But Alvarez addressed a different issue with a different scope of discretion: the trial court’s unqualified discretion to determine whether to reduce a wobbler to a misdemeanor for purposes of the three strikes law. Alvarez contrasted that discretion with the qualified discretion under section 1385, subdivision (a), which, it acknowledged, was an example of a statute that “contain[ed] express qualifications delineating, and thereby restricting, the particular exercise of discretion.” (People v. Superior Court (Alvarez), supra, 14 Cal.4th at p. 977; see People v. Strong (2001) 87 Cal.App.4th 328, 342-343 (Strong).)
Finally, we note that Strong held that a trial court had abused its discretion under Romero when it concluded a career criminal was outside the spirit of the three strikes law.
“Although the trial court reasoned that defendant’s violent strike was ‘out of character,’ a defendant who falls squarely within the law’s letter does not take himself outside its spirit by the additional commission of a virtually uninterrupted series of nonviolent felonies and misdemeanors over a lengthy period. After all, the Three Strikes law was devised for the ‘revolving door’ career criminal, and was expressly intended ‘to ensure longer prison sentences ... for those who commit a felony’ as long as they were previously convicted of at least one strike. The fact that a defendant who qualifies for sentencing under the Three Strikes law is also a habitual offender can hardly act as mitigation so as to take him outside the spirit of that law. Likewise, middle age, considered alone, cannot take a defendant outside the spirit of the law; otherwise, the very factor that takes a defendant within the spirit of the law—a lengthy criminal career with at least one serious or violent felony—would have the inevitable consequence—age—that would purportedly take him outside it. Extraordinary must the circumstance be by which a career criminal can be deemed to fall outside the spirit of the very statutory scheme within which he squarely falls and whose continued criminal career the law was meant to attack.” (Strong, supra, 87 Cal.App.4th at pp. 331-332, fns. omitted.)
Strong rejected any reliance on Bishop because the defendant in that case had a shorter criminal record and his violent crimes were remote, Bishop predated Williams and “did not apply those distinguishable facts to the applicable standard under Williams, ” and Bishop “never addressed the overall question whether the defendant should be deemed to fall outside the scheme’s spirit.” (Strong, supra, 87 Cal.App.4th at p. 342.)
Our review of the record reflects the trial court herein carefully reviewed the entirety of appellant’s criminal record, the nature of the current offenses, and his prior performance on probation and parole, and acted to achieve legitimate sentencing objectives, after a thoughtful and conscientious assessment of all relevant factors. (See Williams, supra, 17 Cal.4th at pp. 161-164; see also Romero, supra, 13 Cal.4th at pp. 530-532.) Appellant has not carried his burden of demonstrating the court abused its discretion in evaluating and denying his request. (See Carmony I, supra, 33 Cal.4th at pp. 379-380.)
III.
CRUEL AND/OR UNUSUAL PUNISHMENT
Appellant asserts the court’s imposition of the third strike term of 125 years to life violates the federal and state constitutional prohibitions against cruel and/or unusual punishment. The purpose of the three strikes law is not to subject a criminal defendant to a life sentence merely on the basis of the latest offense. Rather, the purpose is to punish recidivist behavior. (People v. Diaz (1996) 41 Cal.App.4th 1424, 1431; People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630-1631.) Habitual offender statutes have withstood constitutional scrutiny based on assertions of cruel and unusual punishment, as well as claims of a disproportionate sentence. (See People v. Ayon (1996) 46 Cal.App.4th 385, 398-400, overruled on other grounds in People v. Deloza (1998) 18 Cal.4th 585, 593-595, 600.)
Appellant was not sentenced to a life term solely on the basis of the instant offenses, but because of his record as a recidivist offender previously convicted of numerous serious and/or violent felonies. As noted by the trial court, given the lengthy and serious nature of his prior record, appellant is precisely the type of offender from whom society seeks protection by use of recidivist statutes. In evaluating the factors set forth in In re Lynch (1972) 8 Cal.3d 410, appellant’s sentence is not so disproportionate to the crime that it shocks the consciousness, and it does not violate the state constitutional prohibition against cruel or unusual punishment. (See People v. Stone (1999) 75 Cal.App.4th 707, 715; People v. Martinez, supra, 71 Cal.App.4th at pp. 1509-1517; People v. Cooper (1996) 43 Cal.App.4th 815, 825-828; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136-1137; People v. Cline (1998) 60 Cal.App.4th 1327, 1337-1338.)
In addition, appellant cannot demonstrate that his sentence violates the probation against cruel and unusual punishment contained in the federal Constitution. (Lockyer v. Andrade (2003) 538 U.S. 63; Ewing v. California (2003) 538 U.S. 11; Harmelin v. Michigan, supra, 501 U.S. 957, 994-995; Rummel v. Estelle, supra, 445 U.S. 263, 284-285; People v. Cooper, supra, 43 Cal.App.4th at pp. 820-825.) In Ewing v. California, supra, 538 U.S. 11, the United States Supreme Court held that the cruel and unusual punishment clause of the federal Constitution contains a narrow proportionality principle that prohibits grossly disproportionate sentences. The court upheld a 25-year-to-life sentence under the three strikes law for a defendant with prior burglary and robbery convictions who shoplifted three golf clubs. (Ewing, supra, at pp. 20-21, 30-31; see also Lockyer v. Andrade, supra, 538 U.S. at p. 77 [two consecutive terms of 25 years to life for thefts of videotapes not grossly disproportionate].)
We acknowledge that in People v. Carmony (2005) 127 Cal.App.4th 1066 (Carmony II), the court addressed a situation where the defendant’s current offense was “so minor that it cannot trigger the imposition of a recidivist penalty without violating the cruel and/or unusual punishment prohibitions of the United States and California Constitutions.” (Id. at p. 1071.)
“Although defendant had registered his correct address as a sex offender with the police one month before his birthday, as required by law [citation], he failed to ‘update’ his registration with the same information within five working days of his birthday as also required by law. [Citation.] Defendant’s parole agent was aware defendant’s registration information had not changed and in fact arrested defendant at the address where he was registered.” (Carmony II, supra, 127 Cal.App.4th at p. 1071, fn. omitted.)
Carmony II noted that the probation report showed that prior to the current offense, the defendant was acting in a responsible manner, he had recently married, maintained a residence, participated in Alcoholics Anonymous, was seeking job training and placement, and was employed. (Carmony II, supra, 127 Cal.App.4th at pp. 1087-1088.) While the California Supreme Court had concluded it was an abuse of discretion to dismiss the prior strike convictions (Carmony I, supra, 33 Cal.4th at pp. 376-377), on remand the appellate court held that the third strike term should be reversed because of the constitutional violation. (Carmony II, supra, 127 Cal.App.4th at pp. 1072-1073.)
“It is a rare case that violates the prohibition against cruel and/or unusual punishment. However, there must be a bottom to that well. If the constitutional prohibition is to have a meaningful application it must prohibit the imposition of a recidivist penalty based on an offense that is no more than a harmless technical violation of a regulatory law. [¶] The state and federal prohibitions against cruel and/or unusual punishment require that the sentence be proportionate to the crime. Accordingly, the current offense must bear the weight of the recidivist penalty imposed. Although the Legislature may impose increased penalties on repeat offenders, recidivism remains a factor in aggravation and may not serve as the reason for imposing increased punishment where the predicate offense serves no rational purpose of the state.
“The purpose of the sex offender registration law is to require that the offender identify his present address to law enforcement authorities so that he or she is readily available for police surveillance. In this case the defendant did so one month prior to his birthday and was in fact present at his registered address when the arrest for the present violation was made. The stated purpose of the birthday registration requirement was (and still is) to ‘update’ the existing registration information. [Citation.]
“Here, there was no new information to update and the state was aware of that fact. Accordingly, the requirement that defendant reregister within five days of his birthday served no stated or rational purpose of the registration law and posed no danger or harm to anyone.
“Because a 25-year recidivist sentence imposed solely for failure to provide duplicate registration information is grossly disproportionate to the offense, shocks the conscience of the court and offends notions of human dignity, it constitutes cruel and unusual punishment under both the state and federal Constitutions. We shall remand the matter to the trial court for resentencing.” (Carmony II, supra, 127 Cal.App.4th at pp. 1072-1073, fns. omitted.)
The instant case is a far cry from the unique facts of Carmony II. Appellant did not commit a technical violation of a statute, but instead added new chapters to his long criminal history and committed five more robberies, displayed a firearm during four of the incidents, and repeatedly demanded more money when the victims tried to comply with his demands. Carmony II’s analysis is clearly inopposite to the facts of this case.
We cannot say that appellant’s sentence is grossly disproportionate to his criminal culpability. We find appellant’s case is not extraordinary, his sentence is not invalid under the gross disproportionality analysis, and it does not shock the consciousness given the nature and circumstances of his conviction and the special allegations found true in this case.
IV.
DENIAL OF MARSDEN MOTION AT SENTENCING HEARING
As set forth ante, appellant made Marsden motions at the preliminary hearing and the pretrial conference, the court conducted Marsden hearings and heard appellant’s complaints, and found appellant’s complaints did not justify the discharge of his appointed counsel. Appellant made another Marsden motion during the sentencing hearing and complained he did not understand what his attorney was saying, but the court summarily denied that motion without conducting a hearing. Appellant asserts the court should have heard and granted his Marsden motion at the sentencing hearing.
The resolution of this issue requires a review of Marsden motions made postconviction and prior to sentencing.
A. Postconviction Marsden Motions
A defendant represented by appointed counsel may request discharge of his attorney and substitution of a new attorney if the defendant’s right to counsel would be substantially impaired by continuing with the original attorney. (Marsden, supra, 2 Cal.3d at p. 123.) The trial court must give the defendant an opportunity to explain the reasons for requesting a new attorney. The court cannot thoughtfully exercise its discretion without listening to the defendant’s reasons for requesting a change of attorneys. (Id. at pp. 123-125.)
“When a defendant moves for substitution of appointed counsel, the court must consider any specific examples of counsel’s inadequate representation that the defendant wishes to enumerate. Thereafter, substitution is a matter of judicial discretion. Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would ‘substantially impair’ the defendant’s right to assistance of counsel. [Citations.]” (People v. Webster (1991) 54 Cal.3d 411, 435 (Webster).)
No formal motion is necessary to trigger the court’s obligations under Marsden, provided there is “‘at least some clear indication by defendant that he wants a substitute attorney.’ [Citation.]” (People v. Mendoza (2000) 24 Cal.4th 130, 157.)
“[T]he decision whether to permit a defendant to discharge his appointed counsel and substitute another attorney during the trial is within the discretion of the trial court, and a defendant has no absolute right to more than one appointed attorney. ‘A defendant’s right to a court-appointed counsel does not include the right to require the court to appoint more than one counsel, except in a situation where the record clearly shows that the first appointed counsel is not adequately representing the accused....’” (Marsden, supra, 2 Cal.3d at p. 123, italics added.)
A trial court’s ruling on a Marsden motion is reviewed for an abuse of discretion, and is not reversed unless the failure to grant the Marsden motion resulted in substantial impairment of the defendant’s right to effective assistance of counsel. (See Webster, supra, 54 Cal.3d at p. 435.)
In People v. Stewart (1985) 171 Cal.App.3d 388 (Stewart), the court addressed the potential for conflict between a defendant and defense counsel when the defendant raises ineffective assistance allegations in support of a new trial motion, and how the trial court should respond to such a new trial motion. The defendant asked his appointed defense counsel to file a motion for new trial based on counsel’s ineffectiveness. Defense counsel asked to be relieved and for the court to appoint another attorney to handle the new trial motion. The court declined and conducted a closed hearing and asked the defendant the reasons for counsel’s alleged ineffectiveness. The defendant complained counsel had not called three particular witnesses. The court denied the new trial motion and found it completely without merit, but acknowledged the potential conflict between the defendant and his attorney because of the defendant’s allegations of ineffective assistance. (Id. at pp. 393-394.)
Stewart relied on Marsden and addressed the procedures which the trial court should follow in addressing a defendant’s motion for new trial based on ineffective assistance. As a preliminary matter, the court should “elicit from the defendant, in open court or, when appropriate, at an in camera hearing, the reasons he believes he was inadequately represented at trial,” in order for the court to thoughtfully exercise its discretion under Marsden. (Stewart, supra, 171 Cal.App.3d at p. 395.) Once learning about the underlying facts, the court is in a position “to intelligently determine” whether it can rule on the defendant’s new trial motion, or “whether new counsel should be appointed to more fully develop the claim of inadequate representation.” (Id. at pp. 395-396.) Where the alleged incompetence relates to events which occurred at trial, such as failing to object or vigorously cross-examine a witness, the trial court is “uniquely equipped to determine whether the defendant’s claim has merit. In such circumstances it is unnecessary to appoint new counsel to assist in the motion for new trial, since observations necessarily made by the trial court during trial provide sufficient information to intelligently rule on the motion for new trial,” and the trial court is in a far better position to evaluate the defendant’s claim rather than a new attorney “who, unlike the judge, was not present at trial.” (Id. at p. 396.)
“If, on the other hand, the defendant’s claim of inadequate representation relates to something that did not occur within ‘the four corners of the courtroom’ [citation] or which cannot fairly be evaluated by what did occur at trial, then, in the sound exercise of its discretion, the court may appoint new counsel to better develop and explain the defendant’s assertion of inadequate representation. Substituted counsel should be provided in instances such as this when, after the trial court has made all inquiries of the defendant and of trial counsel that in the circumstances seem pertinent, it concludes that the defendant has made a colorable claim that he was denied his constitutional right to the effective assistance of counsel. A defendant has made such a colorable claim if he credibly establishes the possibility that his trial counsel failed to perform with reasonable competence and that, as a result, a determination more favorable to the defendant might have resulted in the absence of counsel’s failings. A claim of denial of the right to the effective assistance of counsel is not colorable, for example, if it is based in substantial part upon factual representations that are manifestly inconceivable, or upon the failure of trial counsel to produce exculpatory evidence that is legally inadmissible or, if not inadmissible, which would be merely cumulative of other evidence tending to exonerate the defendant that was adequately presented to the trier of fact.” (Stewart, supra, 171 Cal.App.3d at p. 396, italics added.)
Stewart thus summarized the trial court’s duties in addressing a new trial motion based on ineffective assistance:
“... [W]e conclude that in hearing a motion for new trial based on incompetence of trial counsel, the trial court must initially elicit and fully consider the defendant’s reasons for believing he was ineffectively assisted at trial. In so doing, the court must make such inquiries of the defendant and trial counsel as in the circumstances appear pertinent. If the claim is based upon acts or omissions that occurred at trial or the effect of which may be evaluated by what occurred at trial the court may rule on the motion for new trial without substituting new counsel. If, on the other hand, the claim of incompetence relates to acts or omissions that did not occur at trial and cannot fairly be evaluated by what occurred at trial, then, unless for other good and sufficient reason the court thereupon grants a new trial, the court must determine whether to substitute new counsel to develop the claim of incompetence. New counsel must be appointed when the defendant presents a colorable claim that he was ineffectively represented at trial; that is, if he credibly establishes to the satisfaction of the court the possibility that trial counsel failed to perform with reasonable diligence and that, as a result, a determination more favorable to the defendant might have resulted in the absence of counsel’s failings.” (Stewart, supra, 171 Cal.App.3d at pp. 396-397, italics added; accord, People v. Winbush (1988) 205 Cal.App.3d 987, 989-990; People v. Diaz (1992) 3 Cal.4th 495, 573-574.)
As applied to the facts of that case, Stewart found sufficient evidence in the record to conclude that defense counsel was not ineffective for failing to call one of the three witnesses requested by the defendant. As to the other two witnesses, however, the record was silent as to their proposed testimony. (Stewart, supra, 171 Cal.App.3d at p. 398.) “It has been held that failure to interview or call material witnesses may form the basis of a successful ineffective assistance attack. [Citations.]” (Id. at p. 398.) Stewart also noted that Marsden required a court to conduct an “active inquiry” into the defendant’s reasons for a conflict with defense counsel. (Ibid.) Stewart concluded the court’s failure to inquire into the substance of the witnesses’ expected testimony, and denial of the new trial motion without “endeavoring to learn whether the testimony might have been material or even crucial and without appointing new counsel to assist the court in this regard,” constituted error. (Ibid.) Stewart remanded the matter for the trial court to follow the appropriate procedures and “more fully inquire into the basis” for the defendant’s motion for new trial. (Ibid.)
In People v. Garcia (1991) 227 Cal.App.3d 1369 (Garcia), the court applied Marsden and Stewart to a defendant’s motion to withdraw a guilty plea based on ineffective assistance:
“[W]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 follow a procedure comparable to that specified in [Stewart].” (Garcia, supra, 227 Cal.App.3d at p. 1377.)
Garcia perceived a difference between the preconviction Marsden motion and the postconviction Stewart motion:
“… [T]he Marsden and Stewart inquiries do not stand on equal footing. In a Marsden inquiry, the trial court is required to order a substitution of attorney where the defendant makes ‘a substantial showing that failure to order substitution is likely to result in constitutionally inadequate representation.’ [Citation.] As noted above, however, a defendant need only make a colorable claim to be entitled to relief under the standard mandated by Stewart. [Citation.]” (Garcia, supra, 227 Cal.App.3d at p. 1378.)
In People v. Makabali (1993) 14 Cal.App.4th 847 (Makabali), the defendant appeared at his sentencing hearing and moved to withdraw his guilty plea because of defense counsel’s alleged ineffectiveness for failing to advise him about the immigration consequences of the plea; defense counsel informed the court that he gave such an advisement when they discussed the plea. At defense counsel’s request, the trial court declared a conflict and appointed separate counsel to investigate the defendant’s ineffective assistance claim, but did not discharge defense counsel. (Id. at p. 850.) At the next hearing, the conflict counsel did not file a motion to withdraw a plea, explained there was insufficient basis to file such a motion and, without an opportunity to further discuss the matter with the defendant and defense counsel, he did not have enough evidence to present a viable motion. The court found there had been sufficient time for conflict counsel to speak with the defendant and defense counsel, but left open the opportunity for defense counsel to again raise the issue. At the subsequent sentencing hearing, defense counsel represented the defendant and did not again raise the issue. (Id. at p. 850.)
Makabali held the trial court correctly followed the procedure set forth in Garcia and Stewart and appointed conflict counsel for the limited purpose of investigating a motion to withdraw based on ineffective assistance. The conflict counsel, however, indicated he did not uncover any information which would permit him to file a viable motion, and he was not required to do so. (Makabali, supra, 14 Cal.App.4th at pp. 851-852.) Makabali concluded that in light of the strong presumption that conflict counsel acted properly, the conflict counsel’s statements to the court represented his good faith opinion that a new trial motion based on ineffective assistance would have been frivolous. (Id. at p. 853.)
In People v. Smith (1993) 6 Cal.4th 684 (Smith), the California Supreme Court extensively addressed the interrelation between Marsden, Stewart, and Garcia, clarified Stewart, and disapproved of Makabali. Smith reviewed an appellate court ruling that a defendant who moved for new trial based on ineffective assistance “‘is in a far different position than a defendant seeking appointment of new counsel before he has been convicted. If there was any deficiency in his attorney’s performance, the defendant needs effective assistance in demonstrating that deficiency and its bearing on the conviction or plea. If the attorney was ineffective in the preconviction stage, counsel’s ability to effectively pursue the postconviction motion is suspect. And, one can hardly expect the attorney whose performance is being directly challenged to assist the defendant in making the challenge. In such a case the attorney has an inherent conflict.’” (Id. at p. 692.)
Smith disapproved of the appellate court’s conclusion that the Stewart/Garcia line of authority employed “‘a much reduced standard of proof from that used in preconviction Marsden motions.’” (Smith, supra, 6 Cal.4th at p. 692.) “This holding necessarily implies that the trial court has less discretion to deny substitute counsel postconviction than preconviction. Herein lies the precise issue of this case.” (Ibid.)
Smith clarified the crucial relationship of Marsden to Stewart and Garcia, and posed the following question:
“... When is a defendant entitled to the substitution of new counsel after conviction for future representation, including arguing, if appropriate, that the previous attorney was ineffective? The question is complicated by the obvious conflicts defense attorneys have in defending themselves from claims of incompetence by the very clients they are supposed to represent, and in arguing that their clients are entitled to some sort of relief—such as a new trial or withdrawal of a guilty plea—because of their own ineffectiveness.” (Smith, supra, 6 Cal.4th at p. 690.)
Smith reviewed Marsden, the “seminal case” regarding the appointment of substitute counsel, and noted that Marsden held “‘a defendant has no absolute right to more than one appointed attorney.’” (Smith, supra, 6 Cal.4th at p. 690, quoting Marsden, supra, 2 Cal.3d at p. 123.) Smith noted that “Marsden and the early cases interpreting it arose in the context of a pretrial motion for substitute counsel,” but that Stewart was the first case “applying Marsden posttrial.” (Smith, supra, 6 Cal.4th at p. 691.) Smith also reviewed Garcia, particularly Garcia’s interpretation that “‘a defendant need only make a colorable claim to be entitled to relief under the standard mandated by Stewart.’” (Smith, supra, 6 Cal.4th at p. 692, quoting Garcia, supra, 227 Cal.App.3d at p. 1378.)
“The italicized word ‘only’ in the [Garcia] quotation suggests that the defendant has a reduced burden to obtain appointment of substitute counsel posttrial (or, as in Garcia and here, post-guilty plea) than pretrial.” (Smith, supra, 6 Cal.4th at p. 692.)
Smith rejected the existence of any differences between pre- and postconviction requests for substitute counsel:
“… [T]he differences between the two situations are more illusory than real. On balance, we see no reason to have two standards. When the court in Stewart ... referred to the defendant making a ‘colorable claim,’ it did not state a lesser standard than in Marsden, or create a new and different right than that stated in Marsden; it merely applied the Marsden rule to a particular factual situation, and employed somewhat different language. Therefore, contrary to the implication of [Garcia] ... and the holding of the Court of Appeal in this case, we conclude that the standard expressed in Marsden and its progeny applies equally preconviction and postconviction. Any suggestion that the use of different language in Stewart ... implies a different rule than that of Marsden is disapproved. A defendant has no greater right to substitute counsel at the later stage than the earlier.” (Smith, supra, 6 Cal.4th at pp. 693-694.)
Smith acknowledged a defense attorney is “placed in an awkward position” and the “potential for conflict is obvious” when the defendant raises a posttrial claim of ineffective assistance and seeks substitute counsel. (Smith, supra, 6 Cal.4th at p. 694.) “But the same potential for conflict exists before trial as well. And the conflict is unavoidable.” (Ibid.)
“Unless we hold that a defendant may never obtain substitute trial counsel, and must instead await whatever appellate or habeas corpus remedy may be available, or that a defendant may obtain substitute counsel on demand—both of which extremes were rejected in Marsden—then it is inevitable that counsel will be placed in a conflict position when a defendant requests substitute counsel, whether the request is before or after conviction. The court must allow the defendant to express any specific complaints about the attorney and the attorney to respond accordingly. This is one of the reasons that Marsden motions are often, as here, heard outside the presence of the prosecutor, where counsel and client may speak more freely.
“Similarly, it is difficult for counsel to argue his or her own incompetence. However, the possibility that the defense might benefit from such an argument can arise at any stage of the proceedings. Critical defenses may be forfeited even before trial begins as a result of ineffective assistance. For example, before trial a defendant might seek new counsel, claiming that current counsel was ineffective in presenting a motion to dismiss the charges on speedy trial grounds, in arguing an in limine motion to suppress a confession, in failing to investigate properly, or because of any of a host of other grounds. If the claim has merit, the trial court might well grant defendant a remedy, such as allowing substitute counsel the opportunity to relitigate a motion that had been ineffectively presented, or granting a continuance for further investigation.
“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.” (Smith, supra, 6 Cal.4th at pp. 694-695, fn. omitted.)
Smith also addressed the possible appointment of multiple attorneys to represent a defendant at the same time. Smith cited to Makabali as an example of the “undesirable consequences” which flow from the appointment of an attorney to argue “that previous counsel was incompetent, without an adequate showing by defendant....” (Smith, supra, 6 Cal.4th at p. 695.) Smith noted that in Makibali, “[t]he spectacle of a series of attorneys appointed at public expense whose sole job, or at least a major portion of whose job, is to claim the previous attorney was, or previous attorneys were, incompetent discredits the legal profession and judicial system, often with little benefit in protecting a defendant’s legitimate interests.” (Ibid.) Smith found another problem in Makabali:
“[T]he original attorney was apparently not relieved of further representation of the defendant. He represented the defendant at sentencing, after the second attorney did not move to withdraw the plea. [Citation.] We are unaware of any authority supporting the appointment of simultaneous and independent, but potentially rival, attorneys to represent defendant.” (Smith, supra, 6 Cal.4th at p. 695, italics added; see also People v. Hines (1997) 15 Cal.4th 997, 1024-1026.)
Smith held the appointment of substitute counsel depends upon whether the trial court grants the defendant’s posttrial Marsden motion:
“... When a Marsden motion is granted, new counsel is substituted for all purposes in place of the original attorney, who is then relieved of further representation. If the Marsden motion is denied, at whatever stage of the proceeding, the defendant is not entitled to another attorney who would act in effect as a watchdog over the first.
“We stress, therefore, that the trial court should appoint substitute counsel when a proper showing has been made at any stage. A defendant is entitled to competent representation at all times, including presentation of a new trial motion or motion to withdraw a plea. ... [J]ustice is expedited when the issue of counsel’s effectiveness can be resolved promptly at the trial level. In those cases in which counsel was ineffective, this is best determined early. Thus, when a defendant satisfies the trial court that adequate grounds exist, substitute counsel should be appointed. Substitute counsel could then investigate a possible motion to withdraw the plea or a motion for new trial based upon alleged ineffective assistance of counsel. Whether, after such appointment, any particular motion should actually be made will, of course, be determined by the new attorney.
“We stress equally, however, that new counsel should not be appointed without a proper showing. A series of attorneys presenting groundless claims of incompetence at public expense, often causing delays to allow substitute counsel to become acquainted with the case, benefits no one. The court should deny a request for new counsel at any stage unless it is satisfied that the defendant has made the required showing. This lies within the exercise of the trial court’s discretion, which will not be overturned on appeal absent a clear abuse of that discretion.” (Smith, supra, 6 Cal.4th at pp. 695-696.)
Smith disapproved any implication in Stewart and Garcia that there was a “shifting standard” for the court to apply when considering a posttrial motion for substitute counsel. (Smith, supra, 6 Cal.4th at p. 696.)
“We thus hold that substitute counsel should be appointed when, and only when, necessary under the Marsden standard, that is 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]. This is true whenever the motion for substitute counsel is made.” (Smith, supra, 6 Cal.4th at p. 696.)
In People v. Barnett (1998) 17 Cal.4th 1044 (Barnett), the defendant moved for a new trial based on ineffective assistance, and argued he was entitled to appointment of another attorney to assist in presenting the motion. Barnett relied upon Marsden and Smith, and acknowledged that a defendant “may seek and obtain (upon a proper showing) substitute counsel at any stage of the proceeding in trial court [citation], a defendant is not entitled to simultaneous representation by two attorneys, one of whom is challenging the other’s competence [citation]. The court did not err in refusing appointment of separate counsel for that limited purpose.” (Id. at p. 1112.) The defendant relied on Stewart and argued new counsel must be provided when a new trial motion is based on ineffective assistance and a defendant has made a colorable claim involving counsel’s conduct outside the courtroom. Barnett cited Smith’s extensive analysis of Stewart and postconviction new trial motions based on ineffective assistance, and held that “the burden for obtaining appointment of substitute counsel, as expressed in Marsden and its progeny [citations], applies equally preconviction and postconviction,” and that Smith “rejected the notion” that Stewart’s “‘colorable claim’ language supports either a greater right to substitute counsel or a reduced burden of proof at the postconviction stage than at any earlier point. [Citations.]” (Ibid.) Barnett applied the Marsden standard and determined the trial court did not err in denying any separate request for substitute counsel. (Id. at pp. 1112-1113.)
These issues were again addressed in People v. Bolin (1998) 18 Cal.4th 297, where the defendant requested appointment of new counsel after the penalty phase of a capital case. The defendant had not expressed any dissatisfaction with Cater, who represented him at the trial and penalty phase, but wanted to file a new trial motion based on ineffective assistance because of inadequacies in the investigative agency hired by Soria, another attorney who represented him prior to trial. The trial court conducted a Marsden hearing, acknowledged the standard in Stewart, and denied the defendant’s request because he did not present a colorable claim that another attorney was needed to prepare a new trial motion. (Id. at pp. 346-347.)
Bolin held the court did not abuse its discretion in denying the defendant’s request for another attorney:
“On this record, we find no abuse of discretion in the trial court’s refusal to appoint new counsel to prepare and present a new trial motion. The court originally concluded, and later reiterated, that Soria’s representation was not inadequate. Because it was able to observe his trial performance, we defer to that assessment absent contrary evidence. [Citation.] With respect to Cater’s concern about the adequacy of penalty phase investigation, the record contains no colorable claim that it was in fact deficient. At best, he offered only speculation based on hearsay reports, and defendant added nothing to substantiate the allegation. Accordingly, the trial court properly declined to replace Cater for a new trial motion. [Citation.] The court also properly refused to appoint additional counsel for that purpose. As we have noted before, no authority supports the appointment of ‘simultaneous and independent, but potentially rival, attorneys to represent defendant.’ [Citation.]” (People v. Bolin, supra, 18 Cal.4th at p. 347, citing Smith, supra, 6 Cal.4th at p. 695.)
B. Analysis
In the instant case, appellant made two prior Marsden motions and the court conducted hearings on those motions. Just before the preliminary hearing began, he complained that his then-attorney, Mr. Woodbury, failed to investigate his case or challenge the validity of the search, and only urged him to accept the prosecution’s plea offer of 16 years. The court heard and considered appellant’s complaints and denied the Marsden motion. At the pretrial conference, appellant complained that his new attorney, Mr. Oliver, had been disrespectful to his family, failed to meet with him about the case, and refused to make a motion to force the prosecutor to again offer the previously-refused plea bargain of 16 years. The court again heard and denied the Marsden motion.
At the sentencing hearing, Mr. Oliver advised the court that appellant wanted the court to dismiss the prior strike convictions. If the court declined, appellant wanted to withdraw his admissions to the prior conviction allegations, but Mr. Oliver added that he did not know of any legal grounds for appellant to withdraw his admissions.
“[MR. OLIVER:] Now, it’s his desire, if this is not supported, that he wants to withdraw his—his admission or pleas to those two strike priors as strike priors to be utilized in this case. I know of no grounds for that. If the Court wants to give that consideration, then I believe it would be my opinion that other counsel would have to represent him for that issue, even on with the sentencing. So if the Court wants to address that to see whether it’s even a preliminary consideration that he should be allowed to withdraw his admissions to those strike priors, then I would just submit that.” (Italics added.)
After the prosecutor objected to any motion to withdraw appellant’s admissions to the prior conviction allegations, Mr. Oliver again advised the court:
“MR. OLIVER: Just in summary, too, I’ve—at his request, [appellant’s] request, I provided him a notice of appeal, and he has been advised that the issues that he believes he’s raising now can be addressed on the appeal. Again, it’s my opinion that there’s no meritorious support for his propositions, but that’s the essence of his position.
“[APPELLANT]: I asked you for a Marsden Hearing before I even begin [sic].
“MR. OLIVER: I mentioned that, if he’s going to consider that, he can consider appointing other counsel. [¶] Now he’s mentioning Marsden, so ...
“[APPELLANT]: I mentioned that to you when we went out there.
“MR. OLIVER: Do you want to have a Marsden Hearing on all this, that’s fine, too, your Honor.
“[APPELLANT]: Your Honor, I’m not comprehending what’s going on. I asked him and explained to him several times I’m not understanding what is going on. I’ve asked him for—for this to be understood or to explain it to me, he’s failed to do that. I’m asking for a Marsden Hearing, your Honor.
“MR. OLIVER: Well, the fact is I don’t think that’s the basis for Marsden. When you explain something and they can’t comprehend it, that’s the recipient’s problem. I’ve tried to explain it as simple as possible and I’ve restated it on the record here.” (Italics added.)
The court replied:
“The Court’s not going to have a Marsden Hearing at this particular time. The Court is not going to grant the motion to withdraw the plea. The Court is disinclined to strike the prior strikes under Romero analysis. The current offenses for armed robbery are a repetition of the same criminal activity that [appellant] engaged in in Fresno County, which were attempted robbery and armed robbery.” (Italics added.)
The court then set forth the reasons as to why it would not dismiss any prior strike convictions under Romero and Williams.
Respondent asserts that while the court did not conduct a Marsden hearing, any error is not prejudicial because appellant was given an opportunity to fully state his grievances against Mr. Oliver. Appellant contends that he was never given an opportunity to explain why he was confused and wanted to withdraw his admissions to the prior conviction allegations. The record herein strongly suggests the court acted improperly when it summarily denied appellant’s postconviction request to conduct a Marsden hearing. Instead, appellant was left with Mr. Oliver’s advice to file a notice of appeal. While appellant had already made two Marsden motions, one motion involved another attorney and both motions involved completely different issues. Appellant’s complaints at the sentencing hearing appeared entirely unrelated to his earlier objections. Even Mr. Oliver conceded that it might be appropriate to appoint another attorney. While the record herein did not necessarily support such an option, the court summarily rejected appellant’s complaints without even hearing his reasons for trying to withdraw his admissions or his complaints against Mr. Oliver. The statements from appellant and Mr. Oliver plainly triggered the court’s duty under Stewart and Smith to conduct a postconviction Marsden hearing to determine whether Mr. Oliver should be relieved and another attorney appointed to represent appellant.
Respondent concedes that if this court finds the trial court failed to properly address appellant’s postconviction Marsden motion, the matter should receive a limited remand to conduct the appropriate Marsden hearing. We will reverse appellant’s conviction and sentence, and remand the matter for the limited purpose of the trial court conducting a postconviction Marsden motion, as repeatedly and timely requested by appellant. The trial court shall follow Smith, Barnett, and Bolin in reviewing appellant’s contentions at the Marsden hearing. If the court grants the Marsden motion, it shall relieve Mr. Oliver and appoint another attorney to represent appellant, and that attorney shall determine whether a new trial motion should be filed. If the new attorney files a new trial motion and the court grants that motion, appellant will receive a new trial.
However, the judgment will be reinstated if, after the court conducts the Marsden hearing, it either (1) denies the Marsden motion; (2) grants the Marsden motion but the new attorney declines to file a new trial motion; or (3) grants the Marsden motion, the new attorney files the new trial motion, and the court denies that motion.
DISPOSITION
The judgment is reversed and the matter remanded for the court to conduct a postconviction Marsden hearing pursuant to People v. Smith, supra, 6 Cal.4th 684, as discussed, ante. If the court grants the Marsden motion, a new trial motion is filed, and the new trial motion is granted, appellant shall receive a new trial. If the court denies the Marsden motion, or a new trial motion is not filed, or a new trial motion is filed and denied, the court shall reinstate the judgment of conviction and sentence previously imposed.
WE CONCUR: WISEMAN, J., KANE, J.