Opinion
H046229
10-01-2019
THE PEOPLE, Plaintiff and Respondent, v. AARON MARTINEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1511416)
I. INTRODUCTION
Defendant Aaron Martinez pleaded no contest to unlawful possession of ammunition (Pen. Code, § 30305, subd. (a)(1)), misdemeanor driving on a suspended or revoked license (Veh. Code, 14601.1, subd. (a)), and misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code, § 11364), and admitted he had a prior "strike" conviction (§§ 667, subds. (b)-(i), 1170.12) and had served a prior prison term (§ 667.5, subd. (b)). The trial court granted defendant's Romero motion and placed him on probation for three years under various terms and conditions.
All further statutory references are to the Penal Code unless otherwise specified.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Defendant twice violated the terms of his probation. At sentencing on his second probation violation, defendant made a Marsden motion that the trial court denied without hearing. The court then ordered defendant removed from the courtroom due to his repeated disruptions of the proceedings and postponed sentencing. The trial court subsequently sentenced defendant to two years in prison.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
On appeal, defendant contends that the trial court erred when it failed to hold a hearing on his Marsden motion.
For reasons that we will explain, we will conditionally reverse the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the probation report.
At approximately 6:00 a.m. on May 15, 2015, San Jose police responded to a report of a vehicle stopped in the middle of an intersection with its engine running and its lights on. The vehicle's two occupants were asleep. Officers contacted defendant in the driver's seat. Defendant was confused and had red, watery eyes and fluttering eyelids. A records check revealed that defendant's driver's license had been suspended.
Defendant consented to a search of his vehicle. Officers located a pellet gun, two knives, six boxes of shotgun ammunition, and a glass methamphetamine pipe. Defendant admitted that all of the items were his.
B. Procedural Background
Defendant was charged with unlawful possession of ammunition (§ 30305, subd. (a)(1)), misdemeanor driving on a suspended or revoked license (Veh. Code, § 14601.1, subd. (a)), and misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code, § 11364). It was also alleged that defendant had suffered a strike conviction (§§ 667, subds. (b)-(i), 1170.12) and had served two prior prison terms (§ 667.5, subd. (b)).
A preliminary hearing was held on December 8, 2015, during which defendant made the first of three Marsden motions. The Marsden motion was denied after it was heard by the magistrate.
On February 22, 2016, defendant pleaded no contest to the charges and admitted the prior strike allegation and one of the prior prison term allegations. The trial court struck the remaining prior prison term allegation at the prosecution's request.
On April 25, 2016, the trial court granted defendant's Romero motion and struck defendant's prior strike conviction pursuant to section 1385. The court placed defendant on probation for three years under various terms and conditions, including that he serve one year in county jail, which was credit for time served.
On October 20, 2016, probation was revoked and a bench warrant was issued for defendant's arrest. The probation department filed a petition for modification of probation, indicating that defendant had committed misdemeanor trespass (§ 602, subd. (m)) and had failed to appear for arraignment, committed misdemeanor infliction of corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)), and had failed to report for scheduled probation appointments, provide proof of employment or schooling, make himself available for search and testing, and provide proof of enrollment in a substance abuse program. On December 5, 2016, defendant admitted the violation and the trial court modified and reinstated defendant's probation, ordering him to serve seven months in county jail.
The December 5, 2016 minute order indicates that defendant admitted the probation violation "as amended." The record on appeal does not include a transcript of the proceeding or details of the amendment.
On March 14, 2018, probation was again revoked and a bench warrant issued for defendant's arrest. The probation department filed another petition for modification of probation, stating that defendant had failed to report for scheduled probation appointments, provide proof of employment or schooling, make himself available for search and testing, and provide proof of enrollment/participation in a substance abuse program.
A contested probation violation hearing was held on July 9, 2018, and the trial court found defendant in violation. When the court asked whether time was waived for sentencing, defendant interjected, "Marsden motion. Marsden motion, your honor." The court continued the matter for hearing on the Marsden motion to July 16, 2018. At the hearing, defendant withdrew the motion and the case was continued to July 19, 2018 for sentencing.
The trial court began the July 19, 2018 sentencing hearing by having counsel approach the bench for an unreported discussion. The court then asked defendant's attorney whether there was any legal cause why sentence should not be imposed and whether defendant waived formal arraignment for judgment and sentence. Counsel stated there was no legal cause for delay and that formal arraignment was waived.
Immediately thereafter, with no argument from counsel, the trial court began imposing sentence. While the court was explaining why it had selected the midterm sentence of two years, defendant interjected, "Marsden motion. Sorry. Marsden motion, Your Honor." (Italics added.) The court responded, "That motion is denied." The court attempted to resume sentencing, but defendant interrupted, stating that he would not "tak[e] another two years in prison" and asking for probation. The court told defendant not to interrupt again, but defendant stated that two years was cruel and unusual punishment. The court warned defendant that he would be removed if he continued to disrupt the proceedings. When defendant interjected again by stating that two years in prison was "crazy," the court ordered him removed from the courtroom. The court continued the matter until July 24 for sentencing and withdrew all of its previous orders.
On July 24, 2018, the trial court ordered probation to remain revoked and sentenced defendant to two years. Defendant did not renew his Marsden motion.
III. DISCUSSION
Defendant contends that the trial court's summary denial of his Marsden motion at the July 19, 2018 sentencing hearing violated his state and federal rights to due process and assistance of counsel. Defendant argues that the trial court's failure to hold a hearing on his Marsden motion is reversible per se and requests this court to conditionally reverse the judgment and remand the matter for hearing on defendant's motion. The Attorney General counters that defendant's Marsden motion was untimely because it occurred when the trial court was sentencing defendant and "there was nothing left for counsel to do." The Attorney General also argues that the trial court could reasonably determine that defendant had abandoned the motion because he failed to renew it at the July 24, 2018 sentencing hearing.
In Marsden, the California Supreme Court held that when a defendant wishes to discharge his or her appointed counsel and substitute another attorney, the trial court must give the defendant an opportunity to explain the reasons for the request. (Marsden, supra, 2 Cal.3d at pp. 123-125.) Our high court has repeatedly upheld that rule, which applies "at any time during criminal proceedings, if a defendant requests substitute counsel." (People v. Sanchez (2011) 53 Cal.4th 80, 90 (Sanchez).) "When a defendant seeks new counsel on the basis that his [or her] appointed counsel is providing inadequate representation—i.e., makes what is commonly called a Marsden motion [citation]—the trial court must permit the defendant to explain the basis of his [or her] contention and to relate specific instances of inadequate performance." (People v. Smith (2003) 30 Cal.4th 581, 604 (Smith).)
"A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. Substitution of counsel lies within the [trial] court's discretion. The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel." (Smith, supra, 30 Cal.4th at p. 604.)
"Generally, a trial court's refusal to listen to a defendant's reasons for requesting a substitution of counsel does not comport with the standards set forth in Marsden." (People v. Clark (1992) 3 Cal.4th 41, 104 (Clark), overruled on other grounds in People v. Pearson (2013) 56 Cal.4th 393, 462.) The defendant must be given an opportunity "to enumerate specific instances of inadequate representation, in order to permit a proper exercise of discretion [citation], as well as to afford appellate review [citation]." (Clark, supra, at p. 104.)
However, "Marsden does not establish a rule of per se reversible error. [Citation.]" (People v. Washington (1994) 27 Cal.App.4th 940, 944.) Reversal is not required if the record shows beyond a reasonable doubt that the defendant was not prejudiced by the trial court's failure to hold a Marsden hearing. (See People v. Reed (2010) 183 Cal.App.4th 1137, 1148 (Reed); see also Marsden, supra, 2 Cal.3d at p. 126.)
Here, defendant's interruption of the July 19, 2018 sentencing hearing by stating, "Marsden motion. . . . Marsden motion, Your Honor," (italics added) obligated the trial court "to give [him] an opportunity to state any grounds for dissatisfaction with [his] current appointed attorney." (Sanchez, supra, 53 Cal.4th at p. 90; see also People v. Lucky (1988) 45 Cal.3d 259, 281, fn. omitted ["a trial court's duty to permit a defendant to state his [or her] reasons for dissatisfaction with his [or her] attorney arises when the defendant in some manner moves to discharge his [or her] current counsel"].) The court's failure to do so was error. (See Clark, supra, 3 Cal.4th at p. 104; Reed, supra, 183 Cal.App.4th at p. 1145 [the trial court's failure to make any "inquiry at all" constituted reversible error].)
The Attorney General contends that the Marsden motion was untimely because it occurred while the trial court was sentencing defendant and "[t]here was no danger that failing to hear the motion would leave [defendant] with an attorney who would be ineffective, because at that point there was nothing left for counsel to do." The Attorney General provides no authority for this argument, which is directly at odds with the California Supreme Court's determination that a trial court must give a defendant an opportunity to be heard if he or she requests substitute counsel "at any time during criminal proceedings." (Sanchez, supra, 53 Cal.4th at p. 90.) "Indeed, since there is always the potential of ineffective representation at any stage during trial court proceedings, there is no reason why defendant may not make a Marsden-type motion posttrial, either for the purpose of sentencing or of making a new trial motion." (People v. Winbush (1988) 205 Cal.App.3d 987, 991 (Winbush).) A criminal defendant is, of course, entitled to the effective assistance of counsel during the entirety of sentencing proceedings. (See Gardner v. Florida (1977) 430 U.S. 349, 358.)
Citing People v. Jones (2012) 210 Cal.App.4th 355 (Jones) and People v. Vera (2004) 122 Cal.App.4th 970 (Vera), the Attorney General argues that because defendant did not renew his Marsden motion at the subsequent sentencing hearing on July 24, 2018, the trial court "could reasonably view this as an abandonment of the Marsden motion." We are not persuaded.
In Jones, the trial court set the defendant's Marsden motion for hearing, but the parties subsequently stipulated to a later hearing date and a date for jury trial, both of which were then continued. (Jones, supra, 210 Cal.App.4th at p. 360.) Several more continuance requests were granted by the trial court while defendant was present. (Ibid.) At some point, the court's minute orders ceased referring to the Marsden motion and solely referred to the jury trial. (Jones, supra, at p. 360.) When the trial court finally heard pretrial motions months later, no one raised the Marsden motion. (Jones, supra, at pp. 360-361.) The Court of Appeal determined that "[t]he trial court's failure to conduct a hearing on the [Marsden] motion appears to have been the inadvertent result of the repeated continuances" and the defendant's "failure to raise the issue before the matter proceeded to trial constituted abandonment of his claim." (Id. at p. 362.) In doing so, the court discussed People v. Braxton (2004) 34 Cal.4th 798, 813-814, where the California Supreme Court "stated the general rule that 'a party may not challenge on appeal a procedural error or omission if the party acquiesced by failing to object or protest under circumstances indicating that the error or omission was probably inadvertent. [Citations.]' " (Jones, supra, at p. 361.)
In Vera, this court held that "while a trial court is required by Marsden to inquire into all of a defendant's complaints about his [or her] appointed counsel, the inquiry need not occur at a single hearing. . . . When a trial court runs out of time to continue hearing a defendant's complaints, the court may deny substitution of counsel based on the stated complaints so long as the defendant is afforded a later opportunity to articulate his yet-unstated complaints." (Vera, supra, 122 Cal.App.4th at p. 981.) Importantly, the trial court in Vera had conducted a hearing on defendant's motion, but had to conclude the hearing before the defendant had expressed all of his concerns. (Id. at pp. 975-976.) The trial court denied the defendant's motion without prejudice and told the defendant the motion could be renewed. (Id. at p. 976.) This court determined that because the trial court "offered [the] defendant the opportunity for a further hearing," the defendant's failure to take advantage of the trial court's offer constituted "an abandonment of his unstated complaints." (Id. at p. 981.)
Here, the trial court denied defendant's Marsden motion without hearing. Its failure to hear the motion was not inadvertence, as in Jones, nor did the court partially hear defendant's motion, deny it without prejudice, and inform defendant the motion could be renewed, as in Vera. Rather, as we stated above, the trial court failed "to give . . . defendant an opportunity to state any grounds for dissatisfaction with [his] current appointed attorney" (Sanchez, supra, 53 Cal.4th at p. 90), and the court's failure to do so was error (see Clark, supra, 3 Cal.4th at p. 104).
"Reversal is required unless the record shows beyond a reasonable doubt that [defendant] was not prejudiced." (Reed, supra, 183 Cal.App.4th at p. 1148.) In Marsden, the defendant made an oral motion to replace his attorney but was not given the opportunity to state his reasons. (Marsden, supra, 2 Cal.3d at pp. 120-122.) The California Supreme Court held that the error was prejudicial: "On this record we cannot ascertain that defendant had a meritorious claim, but that is not the test. Because the defendant might have catalogued acts and events beyond the observations of the trial judge to establish the incompetence of his counsel, the trial judge's denial of the motion without giving defendant an opportunity to do so denied him a fair trial. We cannot conclude beyond a reasonable doubt that this denial of the effective assistance of counsel did not contribute to the defendant's conviction. [Cititation.]" (Id. at p. 126.)
Here, we are confronted with a silent record, making it "impossible" to determine that the error was harmless beyond a reasonable doubt. (Reed, supra, 183 Cal.App.4th at p. 1149.) Although defendant made the Marsden motion during sentencing after he had already been found in violation of probation, we "cannot speculate upon the basis of a silent record that the trial court, after listening to defendant's reasons, would decide the appointment of new counsel was unnecessary." (Winbush, supra, 205 Cal.App.3d at p. 991.) Defendant's counsel did not make an argument at the sentencing hearing regarding the appropriate sentence, and the petition for modification of probation did not recommend a sentence. The petition did include handwritten notes, however, that reflected that defendant could have been sentenced either to state prison or to county jail with an extension of the probationary period. Based on his statements after the trial court denied his Marsden motion, defendant clearly believed a two-year prison sentence was inappropriate, and we cannot presume that defendant had inadequate justification for his substitution of counsel request. (See Winbush, supra, at p. 991.)
The Attorney General does not contend that the error was harmless beyond a reasonable doubt. Instead, he argues that "remand for a Marsden hearing[] would be an idle act, and therefore would not be appropriate." The Attorney General fails to provide a reason why conditionally reversing the judgment and remanding the matter for a Marsden hearing would be an "idle act."
The appellate record does not identify the author of the handwritten notes.
For these reasons, we must conclude that the trial court committed reversible error when it failed to give defendant an opportunity to explain the basis for his Marsden motion. (See Marsden, supra, 2 Cal.3d at pp. 123-125.)
IV. DISPOSITION
The judgment is conditionally reversed and the matter is remanded to the trial court with directions to conduct a hearing at which defendant shall have a full opportunity to state his reasons for desiring the appointment of new counsel for sentencing. The court shall redetermine the application for new counsel in the light of People v. Marsden (1970) 2 Cal.3d 118. If the court determines that good cause for appointment of new counsel has been shown, the court shall appoint new counsel and set the case for resentencing. If the court determines that good cause has not been shown, it shall reinstate the judgment.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
GREENWOOD, P.J. /s/_________
ELIA, J.