James E. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F15907638)
APPEAL from a judgment of the Superior Court of Fresno County. James A. Kelley, Judge. James E. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Christopher Joel Coats entered a no contest plea to a misdemeanor charge for making criminal threats (Pen. Code, § 422) and a felony charge for assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)). Before the trial court accepted the plea, the parties stipulated the police report provided a factual basis for it. The trial court accepted the plea and sentenced defendant to two years of probation.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends: the trial court abused its discretion in accepting the factual basis for his plea; the trial court's order requiring him to permit a search of his financial and electronic records with or without a warrant as a condition of his probation was unreasonable and unconstitutionally overbroad; he was afforded ineffective assistance of counsel; and the trial court erred by conducting an insufficient inquiry as to the basis for his motion made under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) and abused its discretion by failing to dismiss trial counsel.
We strike the probation condition and remand for the trial court to tailor the condition more narrowly. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2015, the victim received a voicemail from a blocked number. The caller seemed to be using a fake Irish accent and sounded intoxicated because his speech was slurred. In the message, the caller repeatedly threatened to kill the victim, stating he would put a bullet through his brain.
The police traced the blocked number to defendant. Defendant admitted the blocked phone number belonged to him and he was the only one who used it. He could not recall if he was intoxicated the night the call was made, but he denied calling the victim or leaving him a message. The victim had previously obtained a protective order against defendant.
Defendant was arrested and initially charged with a felony violation of section 422 for making criminal threats and the misdemeanor offense of violating a court order pursuant to section 166, subdivision (a)(4). The trial court held a plea hearing in May 2016. During the hearing, the prosecutor reduced count 1 (making criminal threats) to a misdemeanor violation and amended count 2 (violation of a court order) to felony assault by means likely to produce great bodily injury charge in violation of section 245, subdivision (a)(4).
Thereafter, defendant pleaded no contest to both counts in exchange for an agreement by the prosecution that there would be no initial prison sentence and the charges in an additional case, No. 16-418, would not be filed. The defense and prosecution stipulated a review of the police reports in the case provided a factual basis for the plea. The trial court then accepted defendant's plea, finding he entered it freely, voluntarily, knowingly, and intelligently, and expressly waived his constitutional rights, and there was a factual basis for the plea.
In June 2016, the court held an initial sentencing hearing during which it noted it did not "see where the 245(a)(4) [felony assault charge] comes in on the facts set forth on page 2" of the probation report. The court asked the parties whether they had anything further to add to the facts because "[t]hose facts talk about a phone call. I don't think you can get a 245 out of a phone call." Neither party offered additional facts. Defendant then denied making the threatening phone call. He stated his phone was hacked and he wanted to retract his plea. The trial court reset the sentencing hearing to permit defendant time to file a motion.
A month later, the court held a subsequent hearing during which defense counsel reported he did not find grounds for a motion to withdraw defendant's plea; accordingly, defendant wanted him removed as counsel. Following a Marsden hearing, the court denied defendant's request to remove his counsel.
The court then suspended imposition of a sentence and granted defendant two years' formal probation and 30 days in jail, with credit for four days' time served and the remaining 26 days to be served in the adult offender work program. The court also imposed various fines and fees related to the proceedings and defendant's supervision. In August 2016, approximately a month after the trial court sentenced defendant, defendant's counsel set a hearing and reported that defendant "was interested in withdrawing his plea." Accordingly, defendant's counsel asked the court to relieve him and to appoint conflict counsel. However, following an off-the-record discussion, defendant withdrew his request to withdraw his plea. Defendant obtained a certificate of probable cause and this appeal followed.
I. Challenge to Factual Basis of Plea
Defendant first contends the trial court abused its discretion in accepting the factual basis for his plea.
A. Standard of Review and Applicable Law
When a defendant changes his or her plea to guilty or no contest, the plea is deemed to constitute a judicial admission of every element of the offense charged. (See People v. Voit (2011) 200 Cal.App.4th 1353, 1363.) "'[I]t serves as a stipulation that the People need introduce no proof whatever to support the accusation: the plea ipso facto supplies both evidence and verdict.'" (Id. at p. 1363.)
"When taking a conditional plea of guilty or nolo contendere ... to an accusatory pleading charging a felony, a trial court is required by ... section 1192.5 to 'cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea.'" (People v. Holmes (2004) 32 Cal.4th 432, 435, fn. omitted.) "'While there is no federal constitutional requirement for this factual basis inquiry, the statutory mandate of section 1192.5 helps ensure that the "constitutional standards of voluntariness and intelligence are met." [Citation.]'" (People v. Voit, supra, 200 Cal.App.4th at p. 1365.) "The inquiry also protects against an innocent person entering a guilty plea and creates a record against possible appellate or collateral attack. [Citation.]" (Ibid.)
"Section 1192.5 requires a factual inquiry by the trial court, not by the appellate court." (People v. Voit, supra, 200 Cal.App.4th at p. 1366.) "Particularly where a defendant not only personally pleads guilty or no contest but also personally or through counsel concedes the existence of a factual basis for his or her pleas, that defendant should not be allowed to create an appellate issue by simply changing his or her mind about the existence of a factual basis for the plea, without also establishing that this concession resulted from a mistake." (Ibid.)
"Under section 1237.5, a defendant may appeal from a conviction on a plea of guilty or no contest only on grounds going to the legality of the proceedings; such a plea precludes appellate consideration of issues related to guilt or innocence, including the sufficiency of the evidence ...." (People v. Palmer (2013) 58 Cal.4th 110, 114 (Palmer); accord, People v. Voit, 200 Cal.App.4th at p. 1365 ["[A] plea of guilty or no contest waives an appellate claim of the nature 'there is insufficient evidence supporting my plea'" or "'there is no factual basis for my plea'"].) "'[A] trial court possesses wide discretion in determining whether a sufficient factual basis exists for a guilty plea.'" (Palmer, supra, at p. 118.) "'The trial court's acceptance of the guilty plea, after pursuing an inquiry to satisfy itself that there is a factual basis for the plea, will be reversed only for abuse of discretion.' [Citation.]" (Id. at pp. 118-119.)
Defendant argues the trial court abused its discretion in accepting the parties' stipulation that the police report supported the factual basis for his plea. In support, defendant cites the trial court's inquiry, after it had accepted defendant's plea, into whether the alleged facts regarding the phone call could support a felony assault claim. The People respond that by pleading no contest to felony assault by means likely to produce great bodily injury, defendant "admitted that he had committed each element of this offense" and "he may not now claim that his plea lacks a factual basis."
"[T]he trial court may satisfy its statutory duty [to make an inquiry into whether there is a factual basis for a plea] by accepting a stipulation from counsel that a factual basis for the plea exists without also requiring counsel to recite facts or refer to a document in the record where ... the plea colloquy reveals that the defendant has discussed the elements of the crime and any defenses with his or her counsel and is satisfied with counsel's advice." (Palmer, supra, 58 Cal.4th at p. 118.) "Stipulations obviate the need for proof and are independently sufficient to resolve the matter at issue in the stipulation." (Ibid.)
In Palmer, the defense counsel and prosecutor stipulated to a factual basis for the defendant's plea. (Palmer, supra, 58 Cal.4th at p. 113.) The defendant also affirmed during voir dire that he had discussed the elements of the crime with his counsel, he was satisfied with his counsel's advice, and at no time did defendant protest his factual innocence. (Ibid.) The California Supreme Court held that on such a record, the trial court acted within its discretion in accepting the defendant's plea. (Id. at p. 114.)
Here, during the plea hearing, the following exchange took place:
"THE COURT: Back on the record in the matter of [defendant]. Both counsel are still present. [Defendant] is present. [¶] I have a tan colored advisement, waiver of rights and plea form where you would be entering a no contest plea to a misdemeanor charge of PC 422, criminal threats, and the felony assault charge, 245(a)(4). And the People's offer, again, is felony probation, which could include some local jail time and a term of probation. [¶] Do you understand the offer now, sir?
"THE DEFENDANT: I do understand.
"THE COURT: You understood it before. It wasn't maybe written up correctly. [¶] This tan colored form—let me ask you, do you agree to the terms of the offer as well?
"THE DEFENDANT: Yes.
"THE COURT: The tan colored form here has your name and case number on it.· Did you review this with your attorney?
"THE DEFENDANT: I did.
"THE COURT: Did you read and understand everything on the form?
"THE DEFENDANT: I did.
"THE COURT: Did you initial the boxes and sign the back of the form?
"THE DEFENDANT: Yes, I did.
"THE COURT: The front of this form lists four constitutional rights. They include your right to a speedy and public trial before a court or a jury; your right to see, hear, and question any witnesses who would testify against you; your right to remain silent; and your right to present witnesses and evidence on your own behalf. Court would assist you in getting witnesses here at no cost to you. [¶] Do you understand each of those rights?
"THE DEFENDANT: I do.
"THE COURT: Do you agree to give up those rights in order to enter into this plea?
"THE DEFENDANT: Yes.
"THE COURT: There's a section labeled consequences of your plea. Did you read and understand each of those?
"THE DEFENDANT: Yes, I did.
"THE COURT: Those do include that if you're currently on probation or parole for any other case, that this plea could be used to find you in violation. [¶] If you're not a citizen of the United States, this plea could be used to deport you, exclude you from admission or deny your naturalization. [¶] Also, this offense includes up to four years in state prison; however, you would be given probation. But you need to understand that if you come back on a probation violation, you are looking at up to four years in state prison.· Do you understand?
"THE DEFENDANT: Yes, I do. [¶] ... [¶]
"THE COURT: Count Two alleges that you violated section 245(a)(4) ... as a felony. The People allege that on or about November 17th, 2015, in
the county of Fresno, you did willfully and unlawfully commit an assault by means likely to result in great bodily injury to [the victim].· How do you plead to that felony charge?
"THE DEFENDANT: No contest.
"THE COURT: Do you understand that I will treat your no contest plea the same as a guilty plea for purposes of sentencing?
"THE DEFENDANT: Yes, sir.
"THE COURT: Do the parties stipulate that if I were to review the police reports in this case, that they would reveal a factual basis for the plea?
"[DEFENSE COUNSEL]: By the defense pursuant to People versus West.
"[PROSECUTOR]: By the People.
"THE COURT: The Court accepts the plea entered by the defendant.· I find that he did so freely and voluntarily and that he knowingly, intelligently, and expressly waived his constitutional rights and that there's a factual basis for the plea."
Defendant and his counsel also signed a "Felony Advisement, Waiver of Rights, and Plea Form" listing the charges to which defendant was pleading, waiving certain constitutional rights, stating the consequences of the plea, and affirming that defense counsel discussed the facts of the case with defendant and explained the consequences of the plea, elements of the offenses, and possible defenses.
As in Palmer, the trial court accepted defendant's plea only after defense counsel and the prosecutor stipulated to the existence of a factual basis for defendant's plea grounded in the police report. The parties' stipulation obviated the need for proof and was independently sufficient to provide a factual basis for defendant's plea. (See Palmer, supra, 58 Cal.4th at p. 118.) Defendant confirmed his understanding of the charges against him and pleaded no contest; and defense counsel affirmed that he discussed the elements of the crime with defendant. Defendant also did not protest his factual innocence at any time during the initial plea hearing. On this record, the trial court acted within its discretion in accepting defendant's plea. (See Palmer, supra, at pp. 118-119.)
II. Challenges to Search Parameters as Condition of Probation
Defendant next challenges the condition of his probation requiring him to "submit [his] person, property, vehicle and home, including financial and electronic records to search and seizure day or night by any law enforcement officer with or without a warrant."
A. Reasonableness of Search Condition
1. Standard of review and applicable law
We review the imposition of any condition of probation for an abuse of discretion. (People v. Snow (2012) 205 Cal.App.4th 932, 940.) A trial court has broad discretion to impose reasonable conditions of probation in order to promote the rehabilitation of the probationer. (§ 1203.1, subd. (j); see People v. Olguin (2008) 45 Cal.4th 375, 379.) A trial court does not abuse its discretion unless its determination is arbitrary or capricious or "'"exceeds the bounds of reason, all of the circumstances being considered."'" (People v. Welch (1993) 5 Cal.4th 228, 234.)
Under Lent, a probation condition is invalid if it "'(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality ....'" (Lent, supra, 15 Cal.3d at p. 486.) All three prongs must be met to invalidate a probation condition. (People v. Olguin, supra, 45 Cal.4th at p. 379; see Lent, supra, at p. 486, fn. 1.) "As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality." (Olguin, supra, at pp. 379-380.)
Defendant failed to object to any of the probation conditions imposed at the sentencing hearing. So, the trial court did not have an opportunity to address his challenge to the validity of the search condition considering his specific circumstances. Accordingly, defendant waived his challenge to the reasonableness of the search condition under Lent. (Accord, People v. Welch, supra, 5 Cal.4th at p. 237 ["failure to timely challenge a probation condition on 'Bushman/Lent' grounds in the trial court waives the claim on appeal"].)
Nevertheless, even assuming arguendo this issue was adequately preserved, the imposed search condition was valid under Lent. Defendant contacted the victim by phone, despite a protective order against him. Thus, an electronic device played a direct role in defendant's current offense. And though communicating electronically is not in itself criminal, making criminal threats and communicating with an individual in violation of a protective order is illegal.
Additionally, the search condition reasonably relates to preventing future criminality. Defendant is subject to a criminal protective order, and the conditions of his probation prohibit him from contacting the victim in any way, including electronically. Given defendant's contact with the victim from a blocked number despite a protective order, it was reasonable for the court to believe he might attempt to contact the victim again in the future. The search condition enables the probation officer to monitor defendant's compliance with the protective order and his probation conditions. It allows the probation officer to review any efforts by defendant to contact the protected victim, cover up forbidden communications, or engage in other illegal activity, i.e., blocked phone calls or purchases of alternate methods of communication. Accordingly, this search condition was reasonable under the circumstances, and the trial court did not abuse its discretion in imposing it. (See People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1176-1177 [finding similar electronic search condition reasonably related to future criminality because it enabled probation officer to monitor defendant's gang associations and activities].)
B. Constitutionality of Search Condition
Defendant also argues the condition authorizing a warrantless search of all of his electronic and financial records is constitutionally overbroad.
1. Standard of review and applicable law
A person has a constitutional right to privacy in the contents of his or her electronic devices, which are protected from search by the Fourth Amendment. (Riley v. California (2014) ___ U.S. ___, ___ [134 S.Ct. 2473, 2485] [law enforcement officers generally must secure a warrant before searching the digital content of a cell phone incident to an arrest]; People v. Appleton (2016) 245 Cal.App.4th 717, 724 ["It is well established that individuals retain a constitutionally protected expectation of privacy in the contents of their own computers"; "[m]uch of the reasoning in Riley—which recognized how the immense storage capacity of modern cell phones allows users to carry large volumes of data—would apply to other modern electronic devices"].)
"[A]dult probationers, in preference to incarceration, validly may consent to limitations upon their constitutional rights—as, for example, when they agree to warrantless search conditions." (People v. Olguin, supra, 45 Cal.4th at p. 384.) However, "[a] probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad." (In re Sheena K. (2007) 40 Cal.4th 875, 890.) Specifically, the issue is "whether the condition is closely tailored to achieve its legitimate purpose." (Olguin, at p. 384.) "It is not enough to show the government's ends are compelling; the means must be carefully tailored to achieve those ends." (People v. Harrisson (2005) 134 Cal.App.4th 637, 641.) "The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
"[W]hile we generally review the imposition of probation conditions for abuse of discretion, we review constitutional challenges to probation conditions de novo." (People v. Appleton, supra, 245 Cal.App.4th at p. 723; see In re Malik J. (2015) 240 Cal.App.4th 896, 901 [constitutional challenges to probation conditions are reviewed de novo].)
Defendant's constitutional challenge to the probation search condition is preserved despite a failure to object if it is a "pure question of law" that amounts to a "facial challenge" that does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts. (See In re Sheena K., supra, 40 Cal.4th at p. 885 [concluding defendant's challenge to probation condition as facially vague and overbroad presented pure question of law, easily remediable on appeal by modification of condition].) Regardless, "an appellate court may review a forfeited claim—and '[w]hether or not it should do so is entrusted to its discretion.'" (Id. at p. 887, fn. 7, quoting People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.) Thus, even if defendant's constitutional claim was technically forfeited, we may exercise our discretion in reviewing it.
We have already concluded that permitting a warrantless search of defendant's electronic and financial records is reasonably related to his current offense and future criminality because it allows officers to determine whether he is complying with his probation conditions, such as avoiding contact with the victim. But we do not believe this justifies monitoring all of defendant's electronic and financial data.
In People v. Appleton, supra, 245 Cal.App.4th 717, the court concluded the electronic search condition was overbroad because it "would allow for searches of vast amounts of personal information unrelated to defendant's criminal conduct or his potential for future criminality." (Id. at p. 727.) "[A] search of defendant's mobile electronic devices could potentially expose a large volume of documents or data, much of which may have nothing to do with illegal activity. These could include, for example, medical records, financial records, personal diaries, and intimate correspondence with family and friends." (Id. at p. 725.) The court ordered that the electronic search condition be stricken as overbroad, and it remanded the matter to the trial court to consider whether it could "impose a valid condition more narrowly tailored to the state's interests." (Id. at p. 727.)
Here, we agree that, as in People v. Appleton, the probation condition permitting a warrantless search of defendant's "financial and electronic records" is overbroad. Such a condition could permit searches of defendant's personal information that is unrelated to defendant's current offense or future criminality. Additionally, we see no evidence of a connection between defendant's financial records and the instant offense or protecting the public. Accordingly, we strike the search condition and remand to the trial court to fashion a more tailored condition related to defendant's current offense and preventing defendant's future criminality, such as modifying the condition to clarify the meaning of the term "records" and to permit a search of only those financial and electronic records that reasonably could relate to communications or contact between defendant and the protected victim or defendant's compliance with his probation terms.
There are several cases pending before the California Supreme Court regarding the reasonableness and constitutionality of electronic search conditions, and there is a split of authority in those cases regarding the validity of such conditions. (See, e.g., People v. Trujillo (2017) 15 Cal.App.5th 574, review granted Nov. 29, 2017, S244650; In re R.S. (2017) 11 Cal.App.5th 239, review granted July 26, 2017, S242387; People v. Bryant (2017) 10 Cal.App.5th 396, review granted June 28, 2017, S241937; People v. Nachbar (2016) 3 Cal.App.5th 1122, review granted Dec. 14, 2016, S238210; In re J.E. (2016) 1 Cal.App.5th 795, review granted Oct. 12, 2016, S236628; In re A.S. (2016) 245 Cal.App.4th 758, review granted May 25, 2016, S233932; In re Mark C. (2016) 244 Cal.App.4th 520, review granted Apr. 13, 2016, S232849; In re Alejandro R. (2015) 243 Cal.App.4th 556, review granted Mar. 9, 2016, S232240; In re Ricardo P. (2015) 241 Cal.App.4th 676, review granted Feb. 17, 2016, S230923; In re Patrick F. (2015) 242 Cal.App.4th 104, review granted Feb. 17, 2016, S231428.) --------
III. Ineffective Assistance of Counsel
Defendant next argues he received ineffective assistance of counsel.
A. Standard of Review and Applicable Law
A defendant claiming ineffective assistance of counsel must satisfy Strickland's two-part test requiring a showing of counsel's deficient performance and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) As to deficient performance, a defendant "must show that counsel's representation fell below an objective standard of reasonableness" measured against "prevailing professional norms." (Id. at p. 688.) The prejudice prong requires a defendant to establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, at p. 694.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Ibid.)
In evaluating trial counsel's actions, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (Strickland, supra, 466 U.S. at p. 689; see People v. Dennis (1998) 17 Cal.4th 468, 541.) Thus, a defendant must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances. (Ibid.) "The constitutional standard of performance by counsel is 'reasonableness,' viewed from counsel's perspective at the time of his challenged act or omission. [Citations.]" (People v. Gonzalez (1990) 51 Cal.3d 1179, 1243-1244.)
"Plea bargaining and pleading are critical stages in the criminal process at which a defendant is entitled, under both the Sixth Amendment to the federal Constitution and article I, section 15 of the California Constitution, to the effective assistance of legal counsel. [Citations.] 'It is well settled that where ineffective assistance of counsel results in the defendant's decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty
plea.' [Citations.]" (In re Resendiz (2001) 25 Cal.4th 230, 239, abrogated on another ground in Padilla v. Kentucky (2010) 559 U.S. 356, 370; see In re Alvernaz (1992) 2 Cal.4th 924, 933-934.)
Defendant argues his counsel was ineffective because he encouraged him "to enter a plea to a crime that he did not commit." He asserts his counsel also erred by stipulating, rather than objecting, to the factual basis for the assault charge. He further contends his counsel was ineffective by failing to object to the probation condition that permits warrantless searches of his financial and electronic records. Defendant does not contend there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Instead, he contends that should he violate his probation, based on the sentencing triad for felony assault, "he would be facing an additional eight months on the low term, and an extra year on the mid-term and upper [sentencing periods], all of which is more than if [he had] entered a plea to the original charges."
"'Tactical errors are generally not deemed reversible; and counsel's decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation ...."'" (People v. Hart (1999) 20 Cal.4th 546, 623-624.) Here, each of defense counsel's alleged errors relate to tactical decisions. To demonstrate ineffective assistance of counsel, then, defendant's arguments must be "evaluated in the context of the available facts" regarding his decision to plead no contest. (Id. at p. 623.)
The record before us does not indicate defense counsel's performance fell below an objective standard of reasonableness or prejudiced defendant. The record does not reflect (1) whether defense counsel recommended defendant accept the plea; (2) the reasons for such a recommendation, if it was made; (3) the investigation conducted by defense counsel before defendant entered the plea; (4) why defense counsel stipulated to the factual basis for the plea; or (5) why defendant entered the plea. Rather, it evidences that defendant confirmed his understanding of the charges against him and waived his right to a trial both orally and in writing.
Furthermore, pursuant to the plea bargain, the People reduced count 1 (making criminal threats), which would have been a strike felony offense, to a misdemeanor violation and amended count 2 (violation of a court order) to a nonstrike felony assault by means likely to produce great bodily injury charge. (See People v. Moore (2004) 118 Cal.App.4th 74, 75 [defendant's prior conviction for making criminal threats qualified as serious felony under three strikes law]; People v. Banuelos (2005) 130 Cal.App.4th 601, 604-605 [assault by means of force likely to produce great bodily injury is not serious felony unless it also involves use of deadly weapon or results in personal infliction of great bodily injury].) Defense counsel could have reasonably negotiated and recommended that defendant accept the plea because a conviction of the originally charged offense (felony violation of § 422 for making criminal threats) would have resulted in a strike under the three strikes law. Similarly, defense counsel could have strategically decided to stipulate to the factual basis for this charge for the same reason—to avoid defendant having to plead guilty to (or ultimately being convicted of) a strike offense. Accordingly, we cannot conclude defendant has overcome the strong presumption that counsel's acts were within the wide range of reasonable professional assistance.
Additionally, we have already concluded the search condition of defendant's probation is reasonable under Lent and addressed the merits of defendant's constitutional challenge and remand on that basis. Thus, we cannot conclude that defendant was prejudiced by his counsel's failure to object to this probation condition below. IV. Challenges to Marsden Proceeding
Defendant further contends the trial court "failed to make sufficient inquiry as to why [he] had concerns about his plea" during the Marsden hearing and abused its discretion in failing to remove defense counsel.
A. Procedural History
The trial court continued the sentencing hearing to permit defendant time to file a motion to withdraw his no contest plea. At the next hearing, defense counsel stated he did not find grounds for the motion to withdraw defendant's plea; thus, defendant wanted him removed as counsel.
The trial court held a Marsden hearing and asked defendant why he wanted his counsel removed. Defendant stated he wanted to withdraw his plea, but his attorney refused to do so. He continued: "I don't understand why there's no grounds because I feel like I've done what I've done and I don't see—" The court explained there must be a legal reason to withdraw the plea, and defense counsel did not believe there was one. Defendant confirmed that the only reason he wanted his counsel removed was because he would not file a motion to withdraw the plea.
Defendant's counsel responded that, contrary to what defendant told him, he did not pressure defendant to take the plea. Counsel referred the court to the record of continuances as evidence defendant took time to consider the plea agreement and that they discussed the offer before he entered his plea. After counsel's comments, defendant responded that he had nothing further to add. The trial court denied defendant's Marsden motion, concluding "that there's an insufficient reason for the Court to replace appointed counsel."
B. Standard of Review and Applicable Law
Under Marsden, when a defendant in some manner moves to discharge current counsel, the trial court's duty is to inquire as to the reasons for the dissatisfaction and exercise its discretion in deciding whether to replace counsel. (See People v. Lucky (1988) 45 Cal.3d 259, 281; Marsden, supra, 2 Cal.3d at p. 124.) "[T]he trial court cannot thoughtfully exercise its discretion in this matter without listening to [the defendant's] reasons for requesting a change of attorneys." (Marsden, at p. 123.) "'[T]he court must consider any specific examples of counsel's inadequate representation that the defendant wishes to enumerate. Thereafter, substitution is a matter of judicial discretion. Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would "substantially impair" the defendant's right to assistance of counsel. [Citations.]'" (People v. Smith (1993) 6 Cal.4th 684, 690-691.)
"[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 that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if 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, supra, 6 Cal.4th at p. 696.)
The court conducted an appropriate Marsden inquiry according to well-settled procedures. It inquired into the reasons for defendant's dissatisfaction with his counsel, considered counsel's response, and then exercised its discretion in deciding that replacement of defense counsel was not justified. (Accord, People v. Taylor (2010) 48 Cal.4th 574, 599-600 [trial court's inquiry at Marsden hearing was sufficient where defendant had "opportunity to air his complaints" and after considering counsel's responses to grievances, "trial court was entitled to credit counsel's explanations and to conclude that defendant's complaints were unfounded"]; People v. Smith, supra, 6 Cal.4th at pp. 696-697 [finding no error in denying motion to substitute counsel where court fully allowed defendant to state his complaints, then carefully inquired into them]; see Marsden, supra, 2 Cal.3d at p. 124.)
The trial court also did not abuse its discretion by not dismissing defense counsel. Defendant failed to identify any instance in which counsel's performance was inadequate, or an irreconcilable conflict that had arisen such that new counsel was warranted. Defendant asked the trial court to remove his counsel solely because his counsel would not file a motion to withdraw the plea. But counsel had the authority to decide what motions to make and was not obligated to bring a meritless motion at defendant's request. (People v. Brown (2009) 175 Cal.App.4th 1469, 1472 ["Although criminal defendants are entitled to competent representation in the presentation of a motion to withdraw a plea, appointed counsel may properly decline to bring a meritless motion"]; see People v. Crandell (1988) 46 Cal.3d 833, 860-861, abrogated on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365.)
To withdraw a guilty plea, the defendant must establish by clear and convincing evidence good cause that mistake or ignorance or another factor overcame his exercise of free judgment in entering the plea. (See People v. Patterson (2017) 2 Cal.5th 885, 894; People v. Cruz (1974) 12 Cal.3d 562, 566.) Here, the Marsden transcript reflects the only alleged basis for defendant to withdraw his plea was an allegation that defense counsel pressured him into entering it. Defense counsel denied pressuring defendant into accepting the plea. "To the extent there was a credibility question between defendant and counsel at the hearing, the court was 'entitled to accept counsel's explanation.' [Citation.]" (People v. Smith, supra, 6 Cal.4th at p. 696.)
Moreover, we have already concluded the record does not establish counsel's representation was inadequate or that he unlawfully coerced defendant to enter the plea. Rather, it reflects counsel negotiated a favorable disposition and defendant confirmed he wanted to proceed with the deal and knowingly, intelligently, and voluntarily waived his rights. Defendant's disagreement with his counsel regarding the motion to withdraw alone was insufficient to establish inadequate representation or to prompt further inquiry into the reasons for counsel's belief that no legal grounds existed for the motion. (See People v. Turner (1992) 7 Cal.App.4th 1214, 1219 [during Marsden inquiry, once court ascertains counsel's belief there are no grounds for motion, no further inquiry on that complaint is necessary and "a disagreement as to which motions should be filed is not sufficient reason to require substitution of counsel"]; see also People v. Welch (1999) 20 Cal.4th 701, 728-729, overruled in part on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 91 ["Tactical disagreements between the defendant and his attorney do not by themselves constitute an 'irreconcilable conflict.' 'When a defendant chooses to be represented by professional counsel, that counsel is "captain of the ship" and can make all but a few fundamental decisions for the defendant'"].) Therefore, we conclude the trial court acted within its discretion in denying defendant's request to remove his counsel.
The portion of the probation condition requiring defendant to submit his "person, property, vehicle and home, including financial and electronic records to search and seizure day or night by any law enforcement officer with or without a warrant" is stricken. The matter is remanded to the trial court with directions to tailor the financial and electronic records search condition more narrowly. In all other respects, the judgment is affirmed.
PEÑA, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________