Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC770445
ELIA, J.Pursuant to a negotiated disposition, appellant pleaded no contest to one count of making criminal threats in violation of Penal Code section 422 and the trial court placed him on formal probation. Following the revocation of his probation, appellant was sentenced to six years and four months in state prison. Appellant contends that the trial court erred in failing to conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118, and in imposing a restitution fine. We modify the judgment to strike the restitution fine and affirm.
Background
In September 2007, appellant was charged by information with two counts of making criminal threats with allegations that appellant had a prior strike conviction, a prior serious felony conviction, and had served a prior prison term. (Pen. Code §§ 422, 667, subds. (a), (b)-(i), 667.5, subd. (b).) The victim, who was pregnant with appellant's child, told police officers that appellant was angry at her refusal to terminate the pregnancy and had made threatening telephone calls to her, some of which were recorded. In these calls appellant "told [the victim] he did not want the baby, so she better abort or he would do 'whatever [he] had to do to get rid of it.' " Appellant pleaded no contest to one count and admitted the prior conviction allegations with the understanding that the second count would be dismissed and that appellant would bring a motion to dismiss the prior strike conviction allegation. The probation report prepared for sentencing recommended that appellant be committed to state prison for nine years, in part because of appellant's "history of assaultive behavior, domestic violence, repeated credible threats to the victim in the present matter, and history of parole violations." At sentencing, the trial court granted the motion to dismiss the prior strike conviction allegation and placed appellant on probation under various terms and conditions including a county jail sentence and a peaceful contact order between appellant and the victim. The trial court retained jurisdiction over the matter.
In January 2008, the victim called the police and reported that appellant, who had completed his county jail sentence, had called her and said, "I'm out now. I'm gonna finish what I said I was going to do. I don't want anything to do with the baby." On March 20, 2008, appellant appeared with a deputy public defender and the matter was set for a formal probation violation hearing. On April 3, 2008, with the same deputy public defender appearing for appellant, the court held a contested hearing on whether appellant had violated the terms of his probation by disobeying the peaceful contact order. The victim testified that she took appellant's statement about doing what he had said he was going to do as a reference to a statement he had made in June that "he was going to hang [her] upside down and cut [her] stomach open." She said that she told him to leave her alone and not call her again. She testified that he continued to call her but that she did not answer her phone. On cross-examination, the victim admitted that she was married to someone else when she became pregnant with appellant's child, that she had a protective order against her husband, that she had applied for a restraining order against appellant because she did not want him to have contact with their child, and that appellant was seeking parental rights to the child. The prosecutor had two officers available to testify but did not call them as witnesses.
Appellant testified and admitted having telephone contact with the victim but denied making any threats. He said, "Extent of the conversation was I called her and I told her you know if the baby was born and congratulated her and told her that if she needed anything for the baby she could get a hold of me through my dad." He testified, "She said, okay, don't call me no more. I said, fine, and she hung up." The prosecutor and defense counsel presented lengthy arguments.
The trial court found that a violation of the peaceful contact probation condition had been proved by a preponderance of evidence. Counsel discussed with the court the amount of credit appellant was due. Defense counsel argued that appellant was making progress while on probation and was living in a sober living environment and looking for employment. The court agreed with defense counsel that a mitigated term was appropriate and said that appellant was committed to the Department of Corrections. At this point, appellant said that he would "like to say something." He said, "I was doing good. I did not make these calls." The court said, "I'm going to advise you of your appellate rights at the end of this process." Appellant said, "What was my fair right? I was going to get convicted of preponderance of evidence regardless? What was, I didn't even have a chance to defend myself right, your Honor. I asked him, I asked my attorney for, for my witnesses. He didn't have time. He barely saw me today, before, before we came here and stuff, you know. I mean where's all this, where's the justice, not to convict but the just? How can you believe in someone that hearsay that there isn't even proof. I didn't do that." Appellant went on for some time to describe the progress he had made on probation and the respect that he had for other decisions that the court had made during the case. He concluded by saying, "Please, I'm begging you for the courts to, please, that's a harsh, a harsh sentence for something I didn't even do. You know, please, just you know I don't know what to do, I'm throwing myself the mercy of the court." The trial court committed appellant to state prison for six years and four months.
Failure to Conduct Marsden Hearing
Appellant contends, "The trial court committed reversible error when it failed to conduct a [People v.] Marsden [supra, 2 Cal.3d 118] hearing." He argues that "the [trial] court failed to treat appellant's protestations as to his counsel's failure to investigate adequately, as a Marsden motion. (See People v. Minor (1980) 104 Cal.App.3d 194, 200.) The net effect was to deny appellant the opportunity to freely and openly address the court regarding the deficiencies he perceived in defense counsel's representation."
In Minor, supra, the defendant moved at his arraignment in superior court to have the public defender relieved and another attorney appointed to represent him. The trial court summarily denied the request.
When a defendant complains about the adequacy of appointed counsel, the trial court must permit the defendant to articulate the basis for his concerns so that the court can determine if they have merit and, if necessary, appoint new counsel. (Marsden, supra, 2 Cal.3d at pp. 123-124; accord, People v. Smith (1993) 6 Cal.4th 684, 691.) The rule requiring a Marsden hearing applies equally posttrial. "[T]he trial court should appoint substitute counsel when a proper showing [pursuant to Marsden ] has been made at any stage [of the proceedings]. A defendant is entitled to competent representation at all times . . . ." (People v. Smith, supra, 6 Cal.4th at p. 695.)
"The trial court is not obliged to initiate a Marsden inquiry sua sponte. [Citation.] The court's duty to conduct the inquiry arises 'only when the defendant asserts directly or by implication that his counsel's performance has been so inadequate as to deny him his constitutional right to effective counsel.' [Citations.]" (People v. Lara (2001) 86 Cal.App.4th 139, 150-151.) "[A] trial court's duty to permit a defendant to state his reasons for dissatisfaction with his attorney arises when the defendant in some manner moves to discharge his current counsel. The mere fact that there appears to be a difference of opinion between a defendant and his attorney over trial tactics does not place a court under a duty to hold a Marsden hearing." (People v. Lucky (1988) 45 Cal.3d 259, 281, fn. omitted.) "[A] proper and formal legal motion" is not required, but the defendant must provide "at least some clear indication . . . that he wants a substitute attorney." (Id. at p. 281, fn. 8.) "Mere grumbling" about counsel's failures is insufficient to invoke a Marsden hearing. (People v. Lee (2002) 95 Cal.App.4th 772, 780.)
Respondent argues, "The duty to conduct a Marsden inquiry was never triggered because appellant never asked the court to appoint substitute counsel."Respondent cites People v. Gay (1990) 221 Cal.App.3d 1065. In Gay, the defendant filed a pro per nine-page, hand-written motion for a new trial detailing various ways in which his counsel had failed to provide an adequate defense. The defendant did not expressly or implicitly ask for new counsel to assist him. On appeal, the court rejected the defendant's contention that his assertion of inadequate representation required the trial court to conduct a Marsden hearing. The court reasoned that "[a] trial judge should not be obligated to take steps toward appointing new counsel where defendant does not even seek such relief." (Id. at p. 1070.)
Appellant acknowledges this holding in Gay, but argues, "While not expressly overruled, more recent decisions have required Marsden hearings be held when the defendant states facts sufficient to raise a question about counsel's effectiveness." Appellant cites People v. Eastman (2007) 146 Cal.App.4th 688 . In Eastman, the defendant pleaded no contest for a stipulated sentence. At the time of sentencing, defense counsel told the court that the defendant wanted to withdraw his plea and requested that the court refer the matter for appointment of counsel. The trial court appointed conflict counsel to investigate the defendant's claims against counsel. When conflict counsel reported no grounds existed, the defendant provided the court with letters asking to withdraw his plea and claiming that his attorney had engaged in misconduct, been ineffective, and failed to pursue evidence. The defendant proceeded to sentencing with his original attorney. On appeal, the Eastman court said that the trial court had delegated its duty by appointing conflict counsel to investigate defendant's claims against counsel. The court said, "Although Eastman did not expressly ask to have his attorney replaced, the letter did request that Eastman receive an 'adequate defense' and his complaints set forth an arguable case that a fundamental breakdown had occurred in the attorney-client relationship that required replacement of counsel. The court was obliged to make a record that this complaint had been adequately aired and considered." (Id. at pp. 695-696.)
Appellant also relies on People v. Mendez (2008)161 Cal.App.4th 1362 . In Mendez, at the sentencing hearing, counsel informed the court that the defendant was making a new trial motion "based on competency of counsel." (Id. at p. 1365.) The defendant then raised numerous concerns regarding counsel's performance. Instead of conducting a Marsden hearing, the trial court appointed substitute counsel to investigate whether there were grounds for a new trial. Substitute counsel reported that it was not appropriate to proceed with such a motion at that time. On appeal, the Mendez court concluded that the defendant had complained about counsel's performance and the trial court erred in failing to conduct a Marsden hearing. The court said that the trial court's appointment of substitute counsel to investigate whether there was grounds for a motion for new trial did not relieve the trial court of its obligation to hold a Marsden hearing. (Id. at pp. 1367-1368.)
In Eastman, the defendant sought to withdraw his plea and his complaints included a description of misconduct by defense counsel and a specific request that the court investigate the misconduct. In Mendez, the defendant had been convicted at a jury trial and sought a new trial motion. His complaints to the court included the names of witnesses and a reference to a particular piece of evidence. Here, appellant's remarks could be classified as "mere grumbling." (People v. Lee, supra, 95 Cal.App.4th at p. 780.) Appellant had testified earlier, and, although he later spoke at length to the court about his unhappiness with the result of the hearing, his comments about counsel could reasonably be construed as reflecting a disagreement about tactics, rather than a request for substitute counsel or a genuine assertion of ineffective assistance. Furthermore, we note that a trial court always retains discretion to deny a Marsden motion as untimely. (People v. Whitt (1990) 51 Cal.3d 620, 659.) "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." (People v. Smith, supra, 6 Cal.4th at p. 695.) By the time of appellant's remarks, the court had heard the evidence, found the violation of probation, assessed credits, and said that it was sending appellant to prison. Even if the trial court had heard and had granted a request for appointment of new counsel, what would have remained for any new counsel to do would have been the filing of a notice of appeal, which defense counsel did. The trial court did not err in completing the proceeding without holding a Marsden hearing.
Restitution Fund Fine
When the trial court placed appellant on probation in November 2007, the court imposed a $220 restitution fine pursuant to Penal Code sections 1202.4 and 1202.45. When the trial court revoked probation and sentenced appellant to state prison, the court imposed a $1,200 restitution fine pursuant to the same sections. Appellant contends, relying on People v. Chambers (1998) 65 Cal.App.4th 819, 823, that the trial court lacked the authority to impose this second restitution fine. Chambers held that the imposition of a restitution fine at the time of conviction and granting of probation survives subsequent probation revocation. Respondent acknowledges Chambers and concedes that "the court here was without statutory authority to impose the $1200 restitution fine at the time of the revocation of appellant's probation." We accept this concession as appropriate.
Disposition
The $1,200 restitution fine is stricken. The judgment is modified to reflect the $200 fine originally imposed in this case. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment in accordance with this disposition and to deliver it to the Department of Corrections.
WE CONCUR: RUSHING, P. J., PREMO, J.