Opinion
C096130
03-22-2023
THE PEOPLE, Plaintiff and Respondent, v. ANGELA JOE BALLEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 21CF04132
Duarte, J.
The prosecution charged defendant Angela Joe Ballez with 13 counts that together carried a maximum sentence of 22 years in prison. Defendant agreed to plead no contest to four counts, reducing the maximum sentence to 10 years in prison. Six months after entering her plea, she was found unsuitable for mental health diversion and asked the trial court to replace her appointed counsel, claiming he had not properly advised her of the consequences of the plea agreement. The trial court denied the request and sentenced defendant to eight years in prison.
On appeal, defendant contends the trial court abused its discretion by declining to replace her counsel despite an irreconcilable conflict. The Attorney General contends defendant waived her right to appeal this issue as part of her plea agreement and, in any event, the court did not abuse its discretion.
We reach the merits and see no abuse of discretion. Accordingly, we affirm the judgment.
FACTS AND PROCEEDINGS
The prosecution charged defendant with 11 counts of acquiring or retaining identifying information with intent to defraud and with a prior conviction for the same offense (Pen. Code, § 530.5, subd. (c)(2)) and two counts of forging a check valued at more than $950 (§ 470, subd. (d)). The prosecution also alleged defendant had previously been convicted of a prior violent felony (§ 667, subd. (d)) and a prior serious felony (§ 1170.12, subd. (b)).
Undesignated statutory references are to the Penal Code.
On September 22, 2021, defendant pleaded no contest to four counts of acquiring or retaining identifying information and admitted the prior violent felony conviction, in return for the prosecution dismissing the remaining counts and the court striking the prior serious felony conviction. Defendant initialed several relevant sections of her plea agreement, which indicated: (1) the maximum sentence for these convictions would be 10 years in prison; (2) defendant had not been induced to enter the plea by anything other than the dismissal of nine counts and the striking of the prior serious felony; and (3) she understood she "must actually serve 80% of any sentence imposed before [she] become[s] eligible for Parole/Post-Release Community Supervision." The plea agreement indicated the trial court would only grant probation if it found this to be an unusual case, but did not indicate defendant was statutorily ineligible for probation. Defendant signed the plea agreement declaring, under penalty of perjury, that she had read and understood each initialed section.
At the sentencing hearing held on March 23, 2022, defendant learned that an evaluator had found her unsuitable for mental health diversion. She then requested the trial court hold a hearing to determine whether to replace her appointed counsel, Matthew Bently, pursuant to People v. Marsden (1970) 2 Cal.3d 118. The trial court held a Marsden hearing that afternoon.
The trial court asked defendant to explain why she believed her counsel had not properly represented her. Defendant testified that Bently was not "aware of [her] background" and told her that "he could get me probation and all this stuff." Defendant claimed she was not aware that Bently was not "aware of [her] background" when she signed the plea agreement limiting her maximum sentence to 10 years in prison. Nor was she aware that she would be required to serve 80 percent of her sentence. Defendant testified that Bently told her he could get a "10-year stayed sentence, suspended, go to a program." Defendant would never have signed the plea agreement if she knew she would go back to prison because she was very sick, her mother was very sick, and her daughter was sick. Defendant explained that she had been reading about sentencing and did not think she should be sentenced to consecutive sentences for each of her offenses. Defendant also claimed she had just been released from the hospital when she signed the plea agreement and "did not understand what was going on" or "know[] what was happening, really." Defendant added, "I was told I would get fought for if I signed [the plea agreement], and I would get probation. I thought I could get a dual commitment or something on coal [sic]."
The trial court then asked Bently to describe his criminal defense background and detail his representation of defendant. Bently explained that he had taken over the case when defendant's prior attorney, Nicole Diamond, took maternity leave. He reviewed discovery, analyzed the legal issues in the case, assisted defendant in entering a not guilty plea and setting a preliminary hearing, and conferred with defendant's mother about the case. After receiving a plea offer from the prosecution, Bently met with defendant to review discovery, her criminal history, and his legal analysis of the case. They then reviewed and discussed the plea offer. Defendant wanted to try for probation or the low term, but Bently explained defendant was ineligible for probation because of her prior convictions. Defendant asked if she could be released into a drug treatment program or some form of rehabilitation, and Bently told her it was possible.
Bently related that, at the first scheduled sentencing hearing after defendant signed the plea agreement, held in October 2021, she told him she wanted to withdraw her plea because he had not properly informed her of all the consequences of the agreement. The trial court continued that hearing, and then Diamond returned from maternity leave. Defendant also informed Diamond that she wanted to withdraw her plea. Diamond discussed the case with defendant, filed a petition for mental health diversion, and made a few other appearances while the parties waited for an evaluation of defendant's eligibility for diversion.
The case was then reassigned to Bently due to a judicial appointment that required shifting assignments. Defendant again informed Bently she wanted to withdraw her plea due to his ineffective assistance in advising her about the consequences. Defendant stated she would tell the trial court that she was under the influence of drugs obtained in jail when she signed the plea agreement. Bently met with defendant to explain the process for trying to withdraw her plea and the potential ramifications. Bently and defendant also discussed her sentencing brief, which defendant wanted to include her medical history, her need for a pacemaker, and the age of her prior violent and serious felony convictions. Ultimately, on the day of the hearing, Bently received the report that defendant was not suitable for mental health diversion.
The trial court then asked defendant whether she had anything else to add. Defendant responded, "If you would have told me that I wasn't eligible for nothing, I would have never signed the plea.... [¶] His exact words were I will throw anything that might stick. He even said he might be able to get me a 90 day off."
The trial court found that Bently had "properly represented [defendant] based upon his consistent representation of her and his consistent meeting and discussing this matter with [her]." Accordingly, the court denied defendant's motion.
The trial court then sentenced defendant to the middle term of two years in prison for the first count and consecutive terms of eight months in prison for each of the other three counts, all doubled due to the prior violent felony conviction, for a total of eight years in prison.
Defendant timely appealed; she requested and received a certificate of probable cause. After multiple granted requests for extension of time by both parties, the case was fully briefed on January 23, 2023, and assigned to this panel shortly thereafter.
DISCUSSION
Defendant contends the trial court prejudicially erred by denying her request, made during her sentencing hearing, to replace her appointed counsel. The Attorney General responds that defendant waived this issue as part of her plea agreement and the trial court did not abuse its discretion in denying the request.
The basis for the Attorney General's waiver argument is that defendant initialed a term of the plea agreement stating, "I understand as a term and condition of this plea that I waive any direct appeal I may have, absent any appeal to [sic] sentencing error." Given the nature of defendant's argument, we will reach the merits of her appellate claim of error in the denial of her Marsden motion, brought after the plea was entered prior to sentencing and alleging error by counsel in advising her on her plea.
" 'A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.'" (People v. Panah (2005) 35 Cal.4th 395, 431.) We review the denial of a Marsden motion for abuse of discretion. (People v. Streeter (2012) 54 Cal.4th 205, 230.) "Denial is not an abuse of discretion 'unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel.'" (People v. Taylor (2010) 48 Cal.4th 574, 599.)
The plea agreement reduced defendant's exposure from 22 years in prison to only 10, Bently tried multiple avenues to have defendant diverted into a program that could help her avoid prison, and the trial court eventually sentenced defendant to only eight years in prison, approximately one-third of her initial exposure and two years below the agreement's cap.
Defendant argues the trial court erred in denying her Marsden motion because she demonstrated a "breakdown in the attorney-client relationship," arguing she had an "antagonistic," "quarrelsome" relationship with Bently. But defendant did not make these points at the Marsden hearing, and none of her allegations support this position. To the contrary, defendant discussed the substance of the plea deal, her alleged misunderstanding the potential consequences, and her disappointment with the outcome. Defendant did not discuss her relationship with Bently at all or claim she could not work with him; as but one example, she did not dispute that she continued to work with him to prepare a sentencing brief even after she expressed interest in withdrawing her plea due to his allegedly ineffective advice. Perhaps most tellingly, despite discussing a motion to withdraw her plea with both Diamond and Bently, defendant did not claim either attorney had refused to make such a motion on her behalf. Although accusing her attorneys of misadvising her, she never articulated a clear claim of conflict or an inability to work together. Nor does the record reflect any such conflict.
Defendant's testimony stands in stark contrast to the cases she cites as examples of irreconcilable conflict. In United States v. Adelzo-Gonzalez (9th Cir. 2001) 268 F.3d 772, 778, "there were clear indications of serious discord and friction between Adelzo-Gonzalez and his attorney." For example, "Adelzo-Gonzalez expressly stated that he and the appointed counsel were not getting along, that the appointed counsel did not pay attention to him and had used bad language, and that the appointed counsel had threatened 'to sink me for 105 years so that I wouldn't be able to see my wife and children.'" (Ibid.) In United States v. Williams (9th Cir. 1979) 594 F.2d 1258 the defendant represented that "he and the counsel were totally incompatible so far as preparation for trial was concerned" (id. at p. 1259) and "the response of counsel tended to confirm that the course of the client-attorney relationship had been a stormy one with quarrels, bad language, threats, and counter-threats" (id. at p. 1260). Unlike these cases, defendant offered no evidence of friction or discord at the hearing, and none was evident.
This lack of any evidence of a breakdown in the attorney-client relationship also defeats defendant's contention that the trial court did not sufficiently inquire into her complaints. A Marsden inquiry is adequate where, as here, the defendant is allowed to fully state her complaints, her attorney is asked in the defendant's presence to summarize his experience in criminal law and to address defendant's complaints, and the defendant is then permitted to respond. (People v. Barnett (1998) 17 Cal.4th 1044, 1091.) That happened here. There were no "striking signs of a serious conflict" and no "compelling reasons here to delve deeper into the nature of [defendant]'s relationship with the appointed counsel." (See United States v. Adelzo-Gonzalez, supra, 268 F.3d at p. 778.) The trial court properly focused on counsel's performance because defendant complained only about counsel's performance. On appeal, defendant does not allege ineffective assistance of counsel, but argues only "a distrustful relationship and irreconcilable conflict."
Because defendant failed to adequately raise--let alone offer any evidence of--an irreconcilable conflict likely to result in ineffective assistance of counsel in the trial court, that court did not abuse its discretion by denying defendant's request to replace her counsel. (People v. Fierro (1991) 1 Cal.4th 173, 204-207.)
DISPOSITION
The judgment is affirmed.
We concur: Robie, Acting P. J., Earl, J.