Opinion
G044330
09-09-2011
THE PEOPLE, Plaintiff and Respondent, v. JORGE LUIS VALLE, Defendant and Appellant.
Lewis A. Wenzell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Theodore M. Cropley and Peter Quon, Jr., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 08CF1111)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Robert R. Fitzgerald, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Lewis A. Wenzell, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Theodore M. Cropley and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
Jorge Luis Valle appeals his conviction after a guilty plea on the grounds the trial court erred in denying his motion to substitute counsel. We find his contentions lack merit and affirm the judgment.
I
In July 2008, the Orange County District Attorney filed an information charging Valle with three counts: attempted murder with premeditation and deliberation (count 1) (Pen. Code, §§ 664, subd. (a), 187, subd. (a)); shooting at an occupied vehicle at the direction of, and in association with, a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by members of that gang (count 2) (§§ 246, 186.22, subd. (b)(4)(B)); and street terrorism (count 3) (§ 186.22, subd. (a)). As to count 1, the information alleged two enhancements: committing the offense for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)), and personal discharge of a firearm (§ 12022.53, subd. (c)). The charges arose out of the 2008 gang-related shooting of Solomon Kaihewalu as he sat in his car in Orange, California.
All further statutory references are to the Penal Code.
Valle initially pled not guilty on all counts and denied all the special allegations. On March 4, 2010, pursuant to a plea bargain, Valle pled guilty to attempted murder without premeditation and misdemeanor street terrorism. He also admitted the special allegations with respect to the murder charge. The maximum sentence for these charges was 39 years. Under the terms of the plea bargain, Valle agreed to five years for attempted murder with a 20-year enhancement for the use of the firearm.
On July 30, 2010, Valle notified the court he wanted a Marsden hearing. The matter was trailed until August 13, 2010, to allow defense attorney Derek Bercher to be present for the hearing.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
The court held the Marsden hearing on August 13, 2010. The court informed Valle he would "have to make out a case that [Bercher] is either incompetent or inadequate" in order to be assigned a new attorney. The court then invited Valle to explain his problem with his attorney.
Valle made four specific complaints about Bercher. First, he felt Bercher was not representing him to the best of his ability. Second, Bercher did not provide him with a copy of the police report, which Valle had requested. Third, Bercher did not fully discuss with him the disposition of various motions. Fourth, Valle claimed he had been "tricked" into his guilty plea, and the following colloquy ensued:
"The court: How were you tricked into it?
"[Valle]: They had me thinking if I go to trial, I would get life.
"The court: What is your point?
"[Valle]: So I felt I had to take 25 if I wanted to get out again.
"The court: Looks like the top in your case that we told you about when you pled guilty was 39 years. [¶] . . . Bercher, was there a strike in this matter?
" . . . Bercher: There was a [premeditation and deliberation] allegation that was dismissed. It was sort of a hybrid plea to the court and [the prosecutor], and I believe the court 1385'd count 2 which would have been a life top. The court 1385'd the [premeditation and deliberation] allowing it to be a determinant offer.
Section 1385 empowers the court to order an action dismissed in furtherance of justice.
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"The court: I am having difficulty understanding what your complaint is, . . . Valle, because the court accommodated you and caused the life punishment that you were about to receive, should you have been convicted of everything, to go away. [¶] Then we negotiated the matter, and you stood up in court and waived all of your constitutional rights and accepted a minimum term on count 1 of five years with a mandatory weapons enhancement of 20. You are looking at 25, not to life, but a 25 determinant term should you be sentenced. [¶] What you were looking at before was a great many more years to life imprisonment. So the attorney hasn't misrepresented anything to you. He got you a favorable disposition with a certain term or sentencing should you ever be sentenced instead of you languishing in prison for perhaps the rest of your life. [¶] What else is it that you want to tell me about . . . Bercher? Is there anything else? [¶] You've been talking to the folks over at the jail about what has happened on your case? Is that what has caused you to have this disenchantment with what you are looking at? Of course it is.
"[Valle]: That is one of them.
"The court: Everybody is telling you that you are a fool because you are getting a lot of time. This crime is a 664/187(a) attempt murder, and gang allegations. This is not a walk in the park.
"[Valle]: I am not guilty for [sic] none of that.
"The court: There was also a gang allegation that was stricken along the way to get down to 25 years. Okay. [¶] Anything else you want to tell me, sir? "[Valle]: No.
"The court: From what the defendant has indicated . . . Bercher is neither inadequate nor incompetent, and there is nothing I can do by way of substituting counsel. . . . Bercher is your lawyer. Your request to substitute your attorney is denied. [¶] That concludes our Marsden proceeding."
The hearing concluded, and the court continued with the proceedings. Bercher stated he did not have legal grounds to withdraw the plea and therefore would not be making such a motion. However, after a short recess, Bercher expressed some discomfort with respect to his decision not to make a motion to withdraw the plea. The following exchange took place:
". . . Bercher: The court asked prior to [when the prosecutor] re-enter[ed] whether I would bring a motion to request to draw the plea. The first time I heard the allegation from . . . Valle that he was somehow tricked or pressured into pleading was this morning. [¶] Out of an abundance of caution I don't know if the court would want to reconsider. Obviously, that is not a claim that I can bring because it is not one that I believe to be true.
"The court: I am amenable to setting the sentencing matter over for you to take a good hard look at it if you wish. Even though you think there are no grounds, something may come to mind. So tell me what date you want.
". . . Bercher: The only problem I would have with that is if that is the allegation, it's not something that I would then be able to assert. In other words, if the assertion is somehow I positioned him or pressured him to take the deal, it would be something considered by another attorney, would be my guess, as far as the way these things go."
The court then identified an available conflict attorney and continued:
"The court: The court finds it's appropriate to advise this defendant on the issues that he believes should result in bringing a motion to withdraw the plea. The court appoints Roger Sheaks who is next on our conflict list. [¶] I am not relieving . . . Bercher on the case. I am simply appointing . . . Sheaks provisionally to advise the defendant and confer with current counsel and determine whether or not as a friend of the court he should recommend one way or the other on the issue of whether . . . Bercher should be relieved."
Almost two months later, on October 8, 2010, Sheaks made his report to the court. The court characterized the proceedings as "an adjunction to the Marsden" and asked the prosecutor to step out of the courtroom. After the courtroom was closed, the court again described the proceeding for the record, calling it "an adjunction of the prior Marsden order." The following exchange then occurred:
"[The court]: . . . Sheaks, have you had an opportunity to speak with the client and investigate the allegation?
". . . Sheaks: Yes, your Honor, I have.
"The court: Do you need to address the court on any issue?
". . . Sheaks: Your Honor, I have no basis under the law for withdrawal of plea in this matter.
"The court: Thank you for your assistance. I appreciate it. You are now discharged with the court's thanks."
". . . Sheaks: I did promise . . . Valle I would inquire of the court if the court would appoint a second counsel for the same purpose on the theory there is perhaps grounds there and I just missed them.
"The court: Say that again?
". . . Sheaks: . . . Valle would like the court to appoint another lawyer.
"The court: No. The court is disinclined to do that. I have already conducted a Marsden [hearing]. There is nothing additional that the court has heard today that should suggest that he is entitled to have me relieve counsel and appoint new counsel. [¶] It would be simple for me to simply appoint you, but I don't think the law allows me to do that. Thank you for that opportunity to try and avoid an appellate issue, but that is not my prerogative. The request is denied. . . . Bercher is counsel of record."
The court reopened the courtroom and told the prosecutor, "The court has denied all aspects of the Marsden request . . .," and prepared to move on to sentencing. Valle made one final attempt to change lawyers, requesting the opportunity to retain his own private attorney to review his concerns. The court denied the request.
The court sentenced Valle to a term of five years for attempted murder with a 20-year enhancement for the use of a firearm. The court struck the gang-related enhancement for sentencing purposes and stayed sentencing as to the street terrorism charge. The court granted the prosecutor's motion to strike the charge of shooting at an occupied vehicle.
II
Valle contends the trial court failed to conduct an adequate Marsden hearing because it assigned Sheaks to evaluate whether Valle had legal grounds to withdraw his plea. We disagree.
"[C]riminal defendants are entitled under the Constitution to the assistance of court-appointed counsel if they are unable to employ private counsel. However, the 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." (Marsden, supra, 2 Cal.3d at p. 123.) An exception is made "where the record clearly shows that the first appointed counsel is not adequately representing the accused." (Ibid.) The defendant may have a right to substitute counsel, "if it is shown . . . that failure to do so would substantially impair or deny the right [to assistance of counsel] . . . . [Citations.]" (Ibid.)
While the decision to grant or deny a request to substitute counsel is within the discretion of the court, "the trial court cannot thoughtfully exercise its discretion in this matter without listening to [the defendant's] reasons for requesting a change of attorneys." (Ibid.) Therefore, "Marsden and its progeny require that when a defendant complains about the adequacy of appointed counsel, the trial court permit the defendant to articulate his causes of dissatisfaction and, if any of them suggest ineffective assistance, to conduct an inquiry sufficient to ascertain whether counsel is in fact rendering effective assistance. [Citations.] If the defendant states facts sufficient to raise a question about counsel's effectiveness, the court must question counsel as necessary to ascertain their veracity. [Citations.]" (People v. Eastman (2007) 146 Cal.App.4th 688, 695.) "[I]t is error for the trial court to deny [the defendant's] motion [requesting new counsel] without giving him an opportunity to explain why he is receiving inadequate representation from his attorney." (People v. Wright (1977) 72 Cal.App.3d 328, 339.) Additionally, the court is required to "'make a record sufficient to show the nature of [a defendant's grievances and the court's response to them.' [Citation.]" (People v. Mendez (2008) 161 Cal.App.4th 1362, 1368, italics omitted.)
"[S]ubstitute 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 . . . 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]." (People v. Smith (1993) 6 Cal.4th 684, 696, italics added (Smith).) "The court should deny a request for new counsel . . . unless it is satisfied that the defendant has made the required showing." (Ibid.) "If the Marsden motion is denied, . . . the defendant is not entitled to another attorney who would act in effect as a watchdog over the first." (Id. at p. 695.) We review a court's ruling on a Marsden motion for an abuse of discretion. (Smith, supra, 6 Cal.4th at p. 696.)
Although Marsden motions and motions to withdraw a plea are distinct legal proceedings, they become related in certain, fact-specific situations. "Good cause to withdraw a plea is shown if the defendant did not exercise free judgment in entering into the plea. [Citation.] 'Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citations.]' [Citation.] . . . A plea also may be withdrawn if the plea was entered into as a result of what can be characterized as fraud or duress. [Citations.]" (People v. Eastman (2007) 146 Cal.App.4th 688, 697 (Eastman).)
Eastman illustrates how allegations of attorney misconduct can form the foundation for both a Marsden motion and a motion to withdraw a plea. In that case, defendant informed the trial court he had been induced to accept the plea bargain by misconduct on the part of his attorney and wished to withdraw his plea. (Eastman, supra, 146 Cal.App.4th at p. 691.) The trial court appointed a separate attorney to investigate possible grounds for withdrawal of the plea. (Id. at p. 692.) After the specially appointed attorney reported he found no misconduct on the part of the defense attorney and therefore no grounds to withdraw the plea, the trial court denied the motion to withdraw the plea and proceeded to sentencing. (Id. at pp. 692-695.) On review, the court held both that the defendant "stated facts that could constitute good cause to withdraw his plea" and that the trial court "erred in not holding a Marsden hearing and instead appointing a second attorney to investigate [the defendant's] claims." (Id. at p. 698.)
However, the Eastman court's disposition recognized the Marsden motion and motion to withdraw a plea are distinct and separate proceedings. The court remanded the case and ordered the trial court to hold a Marsden hearing. (Eastman, supra, 146 Cal.App.4th at p. 699.) If the defendant in that hearing was not able to "make[] a prima facie showing of ineffective assistance of counsel," the trial court would reinstate the original judgment. (Ibid.)If, on the other hand, the defendant demonstrated ineffective assistance of counsel, the trial court would assign new counsel. (Ibid.)At this point, the Marsden proceedings would be complete. The new counsel would then be free to make any new motions, including a motion to withdraw the plea, as appropriate. (Ibid.)
Like Eastman, Valle here contended he should be permitted to withdraw his plea on the grounds his attorney tricked him into accepting the plea offer. Unlike Eastman, however, the trial court here conducted a full and complete Marsden hearing. On August 13, 2010, the court allowed Valle to explain why he felt he was receiving inadequate representation. In response to Valle's claim he had been "tricked" into his guilty plea, the court conducted an inquiry, questioning Bercher and giving him the opportunity to respond to Valle's complaints. After considering what each party had to say, the court determined Bercher had not misrepresented anything to Valle. In fact, the court characterized the plea agreement as a "favorable disposition." The court properly recorded both Valle's grievance and its own reasoning for denying the motion for the record. Because there was evidence supporting the court's conclusion Bercher was neither inadequate nor incompetent, we hold the court did not abuse its discretion in denying the motion to substitute counsel.
However, what happened next was improper. When the court sought to confirm defense counsel's decision not to move to withdraw the plea, Bercher indicated he had no legal grounds to make such a motion. Bercher implied the only possible basis for a motion to withdraw the plea would be misconduct on his own part. He therefore suggested, "[o]ut of an abundance of caution," another attorney would need to consider whether or not a motion to withdraw based on misrepresentation could be made. The court appointed Sheaks to independently investigate whether grounds for a motion to withdraw the plea existed. The court had no authority under the law to appoint Sheaks for this purpose.
At this point, the court had already ruled Bercher was neither inadequate nor incompetent. Furthermore, it had specifically found Bercher had not misrepresented the terms of the plea agreement to Valle, impliedly also finding Bercher had not pressured or otherwise tricked Valle into entering into the plea agreement. Because the court had already ruled Bercher was adequately and competently representing him, Valle was entitled to neither substitute counsel (Smith, supra, 6 Cal.4th at p. 696), nor "another attorney who would act in effect as a watchdog over the first." (Id. at p. 695.) Therefore, the court erred in appointing Sheaks to conduct an independent investigation.
Valle contends the trial court's error in appointing Sheaks is prejudicial and requires remand. We disagree. While the requirement the court conduct an inquiry when a defendant requests a change in attorneys in designed to protect the defendant's right to a fair trial (Marsden, supra, 2 Cal.3d at p. 126), the prohibition against appointing an additional attorney after the denial of a Marsden motion is intended to protect the legal and judicial system. "Appointment of counsel for the purpose of arguing that previous counsel was incompetent, without an adequate showing by defendant, can have undesirable consequences. . . . The 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." (Smith, supra, 6 Cal.4th at p. 695.)
The court's error did not result in a different outcome for Valle. Had the court avoided the error by refusing to appoint new counsel to investigate whether grounds for withdrawing the plea existed, sentencing would have occurred on August 13, 2010. As a result of the error, sentencing did not occur until October 8, 2010. If anything, the appointment of Sheaks offered additional protection of Valle's rights above and beyond that to which he was not entitled.
Valle suggests both People v. Reed (2010) 183 Cal.App.4th 1137 (Reed), and People v. Mendez (2008) 161 Cal.App.4th 1362 (Mendez), are analogous and support reversal and remand. However, both those cases are distinguishable on the facts. In Reed, "[t]he trial court here made no inquiry at all" despite defendant's two separate motions to discharge his counsel. (Reed, supra, 183 Cal.App.4th at p. 1145.) InMendez, the trial court appointed new counsel to determine whether basis for a motion for new trial based on incompetency of counsel existed. Like Eastman, the Mendez court erred by relying on the new counsel's opinion rather than conducting its own inquiry. (Mendez, supra, 161 Cal.App.4th at p. 1367.) Unlike Reed or Mendez, the trial court here conducted its own inquiry into Valle's concerns about his representation. While the court's subsequent appointment of new counsel to determine whether grounds for a motion to withdraw the plea existed may have wasted both time and resources, it did not cause any prejudice to Valle.
III
The judgment is affirmed.
O'LEARY, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.