Opinion
F062178
02-09-2012
THE PEOPLE, Plaintiff and Respondent, v. KEVIN DALE SNOW, Defendant and Appellant.
Allen E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. Nos. 1427233 & 1418266)
OPINION
THE COURT
Before Gomes, Acting P.J., Dawson, J., and Detjen, J.
APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T. Steffen, Judge.
Allen E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
On September 24, 2010, in Stanislaus County Superior Court case No. 1418266, appellant, Kevin Dale Snow, pursuant to a plea agreement, pled no contest to possession of methamphetamine for purposes of sale, in violation of Health and Safety Code section 11378 (section 11378). In that same proceeding, the court suspended imposition of sentence and placed appellant on three years' probation.
On January 21, 2011, in Stanislaus County Superior Court case No. 1427233, appellant pled no contest to a second violation of section 11378. In that same proceeding, appellant admitted a violation of probation in the prior case, and the court imposed a prison term of three years eight months, consisting of the three-year upper term in the instant case and a consecutive eight-month term in the prior case. On January 31, the court recalled appellant's sentence in the prior case and terminated probation. Appellant thus stands sentenced to three years in prison in the instant case.
Further references to dates of events are to dates in January 2011.
Hereafter, we refer to Stanislaus County Superior Court case Nos. 1418266 and 1427233 as, respectively, the prior case and the instant case.
On appeal, appellant contends the court erred in failing to conduct a Marsden hearing when, at a hearing on January 26, appellant expressed his desire that the court appoint substitute counsel. We affirm.
In People v. Marsden (1970) 2 Cal.3d 118 (Marsden), the California Supreme Court held that when a criminal defendant requests a new appointed attorney, a trial court must conduct a proceeding in which it gives the defendant an opportunity to explain the basis for the contention that counsel is not providing adequate representation. (Id. at pp. 123-125.) A motion for the appointment of substitute counsel on the ground that the current appointed counsel is providing inadequate representation, and the hearing on that motion, are commonly called, respectively, a Marsden motion and a Marsden hearing.
PROCEDURAL BACKGROUND
In the instant case, at the outset of the proceeding on January 21, appellant's appointed counsel, Brian Lafferty, informed the court that appellant was going to plead no contest to the charge of violating section 11378 and admit an enhancement allegation that he committed that offense while released on bail, in exchange for a prison sentence of four years in the instant case and a concurrent two-year term in the prior case. Lafferty stated he was "not sure of [appellant's] credits"; the court proposed that it would take appellant's plea/admission and set a hearing for "a couple of days" later to give the probation department the opportunity to calculate appellant's presentence credits; and Lafferty agreed. A few moments later, appellant confirmed that he "wish[ed] to be sentenced [that day] without a formal presentence probation report."
The court proceeded to take appellant's plea to the substantive offense, but before appellant could admit the out-on-bail enhancement, the prosecutor called to the court's attention a problem with the enhancement, and the court noted that it appeared the enhancement was "invalid." An off-the-record discussion ensued, after which the court addressed appellant as follows: "[B]ecause there's no out-on-bail enhancement we've had to take a look at the proposed sentence. The way I understand it is the sentence now will be, in [the instant case], the aggravated term of three years, and then eight months consecutive on the [prior] case for a total of three years eight months. Is that your understanding, sir?" Appellant confirmed the new agreement, and indicated he understood that under the agreement, he would admit he violated probation in the prior case and he would be sentenced to a prison term of three years eight months, consisting of three years in the instant case and a consecutive eight-month term in the prior case. Shortly thereafter, the court imposed the agreed-upon prison term and set a hearing for January 26, "for Probation to determine credits."
On January 26, at the outset of the hearing, attorney Lafferty informed the court, "[Appellant] is asking for something out of the Court's purview." The court asked appellant if he was "concerned about [his] sentencing," and there ensued a discussion regarding the sentence, at the conclusion of which appellant asserted that the court told him in the previous hearing that the sentence was three years four months. At that point, the following colloquy took place:
"THE COURT: ... I'm sorry if I misspoke. I apologize. The total is three years, eight months, period.
"[Appellant]: I still want to withdraw it.
"THE COURT: All right. I don't know that there is grounds, but you'll need to make a motion.
"MR. LAFFERTY: Actually, I believe there has to be a [Marsden hearing] if he's talking about ineffective assistance of counsel. I don't know what the ground is.
"THE COURT: Well, you need to talk to him about that. You still represent him. If he wants to make a motion to withdraw the plea, we'll postpone sentencing.
"MR. LAFFERTY: We can pass on this then. I'll talk to him."
After a recess, Lafferty told the court: "We weren't on the record earlier about credits which was the only other issue we had in this case and [appellant] expresses concerns about his sentence. I've talked to him. I've explained a number of things to him about the sentence and about the charges and the way things were pled, and I don't see any motion to withdraw plea."
At that point, the court noted that the agreed-upon sentence was three years eight months and that the matter had been put over "to determine what [appellant's] credits are," and asked appellant, "What do you wish to do, sir?" Appellant responded, "Withdraw my plea." The following colloquy ensued:
"THE COURT: Okay. You'll need to talk to Mr. Lafferty about grounds for that. There will need to be a written motion so we can give the People notice.
"MR. LAFFERTY: I talked
"[Appellant]: I want another attorney. I can't even get a copy of the discovery or nothing else.
"MR. LAFFERTY: If I may, Your Honor, I don't see any probable cause to file a withdrawal of plea. I spoke to him about his concerns, he expressed them to me. I don't believe there is one.
"[Appellant]: Didn't tell me nothing about aggravated either."
Lafferty asked for a short break, presumably to discuss the matter further with appellant, but the court set a hearing for January 31, to "give [Lafferty] and [appellant] some time to talk," and stated, "we'll see how we need to proceed after this. [¶] ... [¶] ... We'll put this on for determination of credits on [January 31 at 8:30 a.m.] if we could, please, for now. All right. [¶] [Appellant], I'm mindful of your issues and we'll give that some thought next time you're back how to proceed." Appellant responded, "Okay."
On January 31, appellant appeared in court, represented by attorney Mary Ellen Hertle. Hertle stated the sentence in the prior case should be recalled, and provided the court with "updated" credits "as determined by [the probation officer]." The court stated it had discussed the matter with counsel and agreed that the sentence in the prior case would be recalled. Following a discussion of appellant's credits, the court terminated probation in the prior case, noted that because it had recalled the sentence in that case, the eight months previously imposed "will be dropped," stated that "the sentence in this case will be three years," and awarded presentence credits. Appellant did not speak at the hearing and no mention was made of a Marsden motion or a motion to withdraw appellant's plea.
The record suggests Hertle and Lafferty are members of the same law firm, and that that firm was appointed as conflict counsel.
DISCUSSION
Appellant contends the court erred in failing to conduct a Marsden hearing when appellant, at the January 26 hearing, expressed both his dissatisfaction with trial counsel and a desire to withdraw his plea, and told the court, "I want another attorney."
Under Marsden, "'"When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations]." [Citations.]'" (People v. Hart (1999) 20 Cal.4th 546, 603.) "[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." (People v. Lucky (1988) 45 Cal.3d 259, 281.) Although there must be "'"'at least some clear indication by defendant that he wants a substitute attorney'"'" (People v. Dickey (2005) 35 Cal.4th 884, 920 (Dickey)) in order to trigger a trial court's duty to conduct a Marsden hearing, "'"no formal motion is necessary"'" (Dickey, at p. 920), and the "semantics employed by a lay person in asserting a constitutional right should not be given undue weight in determining the protection to be accorded that right" (Marsden, supra, 2 Cal.3d at p. 124).
As the People do not dispute, appellant, in telling the court that he "want[ed] another attorney," gave a "'"'clear indication'"'" (Dickey, supra, 35 Cal.4th at p. 920) that he wanted the court to appoint a substitute attorney. We conclude, however, that appellant forfeited his claim of Marsden error.
A defendant who makes a timely Marsden motion may, by his postmotion conduct, abandon his request for a Marsden hearing. (People v. Vera (2004) 122 Cal.App.4th 970, 981-982 (Vera).) In Vera, the defendant orally made a Marsden motion and began listing some of the reasons he believed his counsel was ineffective. The trial court heard several of the defendant's concerns, but then interrupted the defendant because a jury in another matter was waiting to enter the courtroom. The defendant stated that he was not finished, and the trial court explained that the Marsden motion was denied without prejudice, and could be renewed at a later time. (Vera, at pp. 975-976.) However, the defendant failed to renew his Marsden motion at a later hearing. (Vera, at pp. 981-982.) On appeal, the court held that the defendant had abandoned his Marsden motion by failing to further present his complaints at the later hearing. (Vera, at p. 982.) The court reasoned, "In this case, the trial court offered [the] defendant the opportunity for a further hearing. [The] [d]efendant's failure to take advantage of this offer can only be interpreted as an abandonment of his unstated complaints. [Citation.] While we are aware of no precedent finding abandonment of a Marsden motion, it is established that a defendant's conduct may amount to abandonment of a request to represent himself under Faretta v. California (1975) 422 U.S. 806. [Citations.] If a defendant can abandon his request to substitute himself for counsel, a defendant can abandon his request to substitute another counsel. We conclude that [the] defendant abandoned his unstated complaints about counsel by not accepting the court's invitation to present them at a later hearing." (Vera, at pp. 981-982.)
Here, as indicated above, on January 26, after appellant stated he wanted a different attorney, the court stated it wanted to give appellant and his counsel some time to discuss the matter, told appellant that the court was "mindful of [appellant's] issues," set a hearing for January 31, and, in stating "we'll give that some thought next time you're back how to proceed," indicated that appellant could raise those issues at the upcoming hearing. However, despite the court's invitation, at the hearing five days later, appellant did not remind the court of the invitation extended five days earlier, express dissatisfaction with counsel or ask for the appointment of substitute counsel. Instead, appellant silently accepted the assistance of counsel throughout the hearing, as appellant's sentence was reduced by eight months and his credits were determined. Because appellant had the opportunity to follow up on his Marsden motion but failed to do so, as in Vera, he is deemed to have abandoned the motion.
Because we affirm the judgment on the basis discussed above, we need not address respondent's contentions that appellant's Marsden motion was untimely, his claim of error is not cognizable on appeal, and any error was harmless.
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DISPOSITION
The judgment is affirmed.