Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Fresno County, No. F08903707, Carlos A. Cabrera, Judge.
Tara K. Hoveland, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
Before, Vartabedian Acting P.J., Kane, J., and Poochigian, J.
STATEMENT OF THE CASE
Allegations
On September 25, 2008, appellant, Ronald Joseph Wallace, was charged in a first amended information with corporal injury to a spouse occurring within seven years of a prior conviction for the same offense (Pen. Code, § 273.5, subd. (e), count one), assault with a deadly weapon (§ 245, subd. (a)(1), count two), attempting to dissuade a witness (§ 136.1, subd. (a)(2), count three), and three counts of cruelty to a child by endangering the child’s health (§ 273a, subd. (b), counts four, five & six). The information alleged two prior prison term enhancements, a prior serious felony conviction in 2001 within the meaning of the three strikes law for spousal abuse (§ 273.5) resulting in great bodily injury (§ 12022.7, subd. (e)), and an enhancement for a prior serious felony conviction (§ 667, subd. (a)(1)).
Unless otherwise indicated, all statutory references are to the Penal Code.
Qualifying prior felony convictions under the three strikes law are governed by those offenses listed in sections 667.5, subdivision (c) and 1192.7, subdivision (c). Any felony causing great bodily injury constitutes a serious prior felony conviction. (§§ 667.5, subd. (c)(8) & 1192.7, subd. (c)(8).)
Change of Counsel
Appellant’s original counsel was relieved due to a conflict on June 5, 2008. Appellant was then represented by Mark Siegel of Ciummo and Associates. On July 31, 2008, the court held a Marsden hearing after appellant specifically asked “for a Marsden motion.” The court did not find counsel’s representation inadequate but found an irreconcilable breakdown in the attorney-client relationship and relieved Mr. Siegel and Ciummo and Associates as appellant’s counsel and appointed Daniel Martin.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
Plea Bargain
On September 30, 2008, appellant entered into a plea agreement in which he would admit felony dissuasion of a witness, the prior serious felony conviction alleged as a strike, and an enhancement for a prior serious felony conviction in exchange for a stipulated prison term of seven years eight months. The stipulated sentence consisted of the mitigated term of 16 months doubled by operation of the three strikes law plus 5 years for the prior serious felony enhancement. The remaining allegations would be dismissed. Appellant executed a felony advisement, waiver of rights, and plea form, acknowledging the terms of the agreement. Appellant also acknowledged and waived his constitutional rights pursuant to Boykin/Tahl.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
The hearing on appellant’s change of plea occurred just as a jury panel was being summoned for voir dire. The court established that appellant discussed the matter with his attorney and understood the terms of the plea agreement. The parties stipulated that the factual basis for the plea could be established from police reports and the preliminary hearing transcript. Appellant pled guilty to dissuading a witness. He admitted the prior serious felony conviction as a strike and as a prior serious felony enhancement. The court granted the prosecutor’s motion to dismiss the remaining counts and allegations.
The prosecutor offered the same plea bargain five days earlier, but rejected defense counsel’s counter offer of a stipulated term of four years.
Appellant was initially scheduled to be sentenced on November 3, 2008. At that hearing, however, appellant’s counsel requested sentencing be stayed and explained appellant sought separate counsel to be appointed to investigate possible grounds for him to withdraw his plea. The court granted appellant’s requests and appointed attorney Curtis Sok.
Mr. Sok reported on February 6, 2009, that there was no basis for appellant to withdraw his plea. The court proceeded to sentence appellant to prison for seven years eight months according to the terms of the plea agreement.
Issues on Appeal
Appellant obtained a certificate of probable cause and filed a timely notice of appeal. Appellant contends the trial court erred in failing to conduct a Marsden hearing at the sentencing hearing. Appellant further contends, and respondent concedes, the trial court erred in imposing and staying prior prison term enhancements that were not part of the plea agreement and not admitted by appellant.
Because the only issues on appeal concern appellant’s counsel and a sentencing error, we do not recount the facts of his offense.
Sentencing Hearing
On February 6, 2009, Sok and Martin appeared on behalf of appellant. Sok reviewed the preliminary hearing transcript and other records and concluded appellant’s plea was knowing, intelligent and voluntary. Sok noted the court stated specifically what appellant’s sentence would be and appellant knew what he was admitting. Sok spoke to Martin and the prosecutor. After doing so, Sok concluded there was no legitimate or legal ground for appellant to file a motion to withdraw his plea.
Sok, however, discovered that a three strikes allegation for the offense appellant committed in 2001 was for a 1994 assault with a deadly weapon, an offense that is not automatically a strike offense. According to Sok, appellant’s attorney in 2001 and the prosecutor proceeded as if the conviction in 1994 was a strike. When Sok looked at the sentencing records in 2001, the trial court granted a Romero request in that case. Sok thought there was error in the old case that could be reviewed by a writ proceeding. Sok reiterated his conclusion there was no basis to file a motion to withdraw the plea in this action but wanted to note that appellant was not fairly treated in 2001.
The 2001 conviction was appellant’s conviction for spousal abuse causing great bodily injury. According to the probation report, appellant was not sentenced to prison in 2001 but was placed on probation.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
Martin agreed with Sok’s analysis. Concerning this case, Martin thought there was nothing else he could do. Martin observed the 2001 case involved a collateral matter. Appellant did raise the issue of his 2001 conviction with Martin, who explained to appellant that it was collateral to the instant action.
Sok added that appellant complained to him there was no investigation in this case. Martin explained there was relatively little to do because the case had initially been handled by Ciummo and Associates. Martin investigated an allegation that the victim made a false police report in a prior domestic violence matter. The victim was convicted for filing a false police report. When Martin attempted to question the victim’s son, he was unable to contact him despite attempts to do so.
Appellant complained that he was lied to in 2001. Appellant believed it was unfair because his five-year enhancement came from the 2001 conviction. Appellant stated he did not understand because he brought the issue to the attention of four different attorneys and no one did anything. Appellant felt it was very unfair. Appellant asserted that for the first 120 days, he was facing life sentence because the prosecutor was threatening to allege a second prior strike conviction.
The criminal complaint in this case only alleged the prior serious felony conviction with great bodily injury from appellant’s 2001 conviction. There was no allegation in the complaint concerning appellant’s 1994 conviction.
The court noted that the 1994 conviction was not used to enhance his sentence in any way here. Appellant replied that when he asked his attorney if he should take the plea bargain, his counsel told him it beat 22 years in prison. Appellant complained everything was wrong, his bail was wrong, the time they were offering him was wrong, and this was unfair and unjust. Appellant added, “I mean if you guys can’t see it that way just tell me … and I’ll take my time and go.” The court explained appellant was misunderstanding the issue as it applies to this case. When appellant asked the court if he had been treated unfairly, the court replied, “No.”
The court excused Sok. Martin represented appellant through the remainder of the sentencing hearing.
MARSDEN HEARING
Appellant contends the trial court erred at the sentencing hearing when it appointed a second attorney to investigate a potential motion to withdraw his plea without holding a Marsden hearing and relieving attorney Martin. Appellant also contends the court had a duty to appoint a new attorney to file a motion to withdraw his plea when Sok refused to do so, or permit appellant to proceed pro se. The respondent argues appellant failed to clearly challenge the adequacy of his counsel’s representation. Respondent argues appellant is not challenging that his plea was knowing and intelligent and this contention is, therefore, waived.
Turning first to the question of waiver, we note appellant obtained a certificate of probable cause. Respondent argues that appellant’s challenge to his counsel does not affect the validity of his plea and that his Marsden challenge is barred notwithstanding the certificate of probable cause. (See People v. Lovings (2004) 118 Cal.App.4th 1305, 1311-1312 (Lovings); People v. Lobaugh (1987) 188 Cal.App.3d 780, 786.) The Lovings court found that a defendant’s Marsden motions did not taint or affect his change of plea and the defendant failed to argue his plea was not knowing and intelligent. (People v. Lovings, supra, 118 Cal.App.4th at p. 1311-1312.) Although appellant is in a similar procedural posture to the defendant in the Lovings case, in People v. Eastman (2007) 146 Cal.App.4th 688, 691 (Eastman), we reviewed a post-plea challenge based on Marsden and a potential motion to withdraw the plea. On the procedural issue raised by respondent, we find Eastman controlling over Lovings and address the merits of appellant’s contention.
A formal motion is not necessary to place a court on notice that it must conduct a Marsden hearing. There must still be at least some clear indication by a defendant that he or she wants a substitute attorney. (People v. Dickey (2005) 35 Cal.4th 884, 920 (Dickey).) Here, there was never a request by appellant for substitute counsel.
At the sentencing hearing on February 6, 2009, appellant did not make a motion to withdraw his plea or request that Martin be substituted as his counsel. Appellant did not make a Marsden motion formally or informally. The record establishes appellant knew how to make a Marsden motion because he did so when he had Siegel and Ciummo and Associates relieved as his counsel earlier in the proceedings when appellant, not his attorney, specifically said he wanted a Marsden motion.
Appellant’s protestation that what happened to him was unfair was directed at the observations of Sok and Martin that appellant was charged with a strike offense in 2001 that may or may not have been a qualifying offense under the three strikes law. The 1994 conviction was not alleged in the criminal complaint or any information filed in this case and had no bearing on the plea agreement.
A violation of section 245, subdivision (a)(1) is only a serious felony under the three strikes law if the prosecution pleads and proves the defendant personally inflicted great bodily injury on someone other than an accomplice or personally used a deadly or dangerous weapon. (People v. Leng (1999) 71 Cal.App.4th 1, 9.) The only record we have of appellant’s prior offenses is in the probation report, which indicates that the victim of appellant’s assault with a deadly weapon in 1994 died as the result of an attack by appellant and two others. According to the probation report, appellant and his accomplices repeatedly beat the victim, who was attempting to purchase drugs, after knocking him to the ground. If the facts set forth in the probation report are accurate, appellant’s assault with a deadly weapon leading to the victim’s death would qualify as a prior serious felony conviction.
Appellant relies on People v. Eastman, supra, 146 Cal.App.4th 688 for the propositions that the trial court here erred in failing to conduct a Marsden hearing at the sentencing hearing and the trial court erred in appointing a second attorney to investigate whether there were grounds for the appellant to file a motion to withdraw his plea. In Eastman, the defendant submitted a letter to the court. Although the letter did not expressly request that the defendant’s counsel be replaced, the appellant asked that he receive an “‘adequate defense.’” Other complaints by the defendant indicated the potential for a fundamental breakdown in the attorney-client relationship. (Eastman, supra, 146 Cal.App.4th at pp. 695-696.) Here, no comment by the appellant could be construed as inadequate representation by Martin or Sok. Appellant made no complaint indicating a breakdown in the attorney-client relationship. Appellant’s comments to the trial court constituted mere grumbling and were not sufficient to trigger a Marsden inquiry by the trial court. (People v. Lee (2002) 95 Cal.App.4th 772, 780.)
Eastman further questioned the practice of appointing a second attorney to investigate a possible motion to withdraw a guilty plea. Where there is Marsden error, the proper procedure is to relieve the responsible attorney and to appoint a new one. (Eastman, supra, 146 Cal.App.4th at pp. 697-698.) Here, unlike Eastman, there was no basis for the court to conduct a Marsden hearing at the sentencing hearing.
Because appellant did not clearly indicate he wanted substitute counsel and his desire to investigate grounds for a motion to withdraw his plea were honored with the appointment of Sok, he has no grounds for complaint on appeal. (Dickey, supra, 35 Cal.4th at pp. 920-921.) Furthermore, it appears from the record that a Marsden motion here would have been baseless. (Dickey, supra, 35 Cal.4th at p. 921.) Even if the trial court erred in appointing a second attorney here, the error was harmless.
Finally, appellant argues that when Sok refused to file a motion for him to withdraw his plea, he was entitled to new counsel to withdraw his plea. We disagree. In People v. Brown (1986) 179 Cal.App.3d 207, 216 (Brown) the defendant had non-frivolous grounds to withdraw his plea but his trial counsel would not file the motion. In People v. Osorio (1987) 194 Cal.App.3d 183, 188, (Osorio) (overruled on another point in People v. Johnson (Nov. 23, 2009, S166894) ___ Cal.4th ___, [2009 WL 4017172]), defense counsel conceded the defendant had good grounds to file a motion to withdraw his plea but counsel in good conscience refused to do so. In Osorio, we held that counsel has a duty to bring a motion to withdraw a defendant’s plea where there is “a colorable basis for the motion.” If counsel refuses to do so, new counsel should be appointed. (Osorio, supra, 194 Cal.App.3d at p. 189.)
Here, there was no colorable basis for appellant to make a motion to withdraw his plea. His only arguable contention involved a prior serious felony conviction that was not alleged in this case. Sok found no basis to file a motion for appellant to withdraw his plea and explained his investigation and reasoning to the trial court in detail. The holdings of Brown and Osorio are inapposite to this case. Attorneys are not expected to engage in tactics or to file motions which are futile. (People v. Maury (2003) 30 Cal.4th 342, 390; also see People v. Mendoza (2000) 24 Cal.4th 130, 166.) Counsel was not ineffective for failing to file a frivolous motion.
SENTENCING ERROR
Appellant contends, and respondent concedes, that the trial court erred in imposing, and then staying, sentence on two prior prison term enhancements because they were not part of the plea agreement and should have been dismissed. Appellant’s counsel brought this issue to the attention of the trial court by letter in July 2009. On July 10, 2009, an amended abstract of judgment was filed in this court deleting the two prior prison term enhancements. The document was forwarded to the California Department of Corrections. The error has been corrected by the trial court.
DISPOSITION
The judgment is affirmed.