Opinion
H044435
03-16-2018
THE PEOPLE, Plaintiff and Respondent, v. RYAN THOMAS GARDNER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 15CR01738)89
After moving unsuccessfully to withdraw his guilty plea through substitute counsel, Ryan Thomas Gardner was sentenced according to the terms of a negotiated disposition. He argues the trial court erred by failing to hold a hearing under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) when he indicated through his original counsel the desire to withdraw his plea based on ineffective assistance of counsel. Finding no prejudice from the error, we will affirm the judgment.
I. BACKGROUND
Defendant was charged by information with stalking (Pen. Code, § 646.9, subd. (a); count 1, a felony), false imprisonment (Pen. Code, § 236; count 2, a misdemeanor), interference with a wireless communication device (Pen. Code, § 591.5; count 3, a misdemeanor), battery (Pen. Code, § 243, subd. (e)(1); count 4, a misdemeanor), making annoying telephone calls (Pen. Code, § 653m, subd. (b); count 5, a misdemeanor), disobeying a domestic relations court order (Pen. Code, § 273.6, subd. (a); counts 6, 8, 10, 11, 12, 13, and 14, a misdemeanor), vandalism (Pen Code, § 594, subd. (a); count 7, a felony), and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 9, a misdemeanor). The charges apparently stemmed from a discordant breakup with a girlfriend.
Represented by appointed counsel and pursuant to a negotiated disposition, defendant pleaded guilty to counts 1, 2, and 6 in return for a grant of probation. Defendant and his appointed attorney signed a waiver of rights form which was presented to the court. Defendant initialed the form next to advisements that he would receive three years' probation including up to 365 days in county jail if he pleaded guilty to counts 1, 2, and 6; he was entering the plea freely and voluntarily; and he had "a full opportunity" to discuss with his attorney: "(1) The facts of my case; [¶] (2) The elements of the charged offenses, prior convictions, enhancements, and special allegations; [¶] (3) Any defenses that I may have; [¶] (4) My constitutional and statutory rights and waiver of those rights; [¶] (5) The consequences of the plea, including the immigration consequences; and [¶] (6) Anything else I think is important to my case." Defendant acknowledged his initials and signature on the waiver form at the change of the plea hearing, and he stated he understood the form and the rights he was giving up. The court accepted defendant's guilty plea, finding his waiver of rights to be knowing, intelligent, and voluntary.
At a status conference held three months later, defendant informed the court through his appointed attorney that he wished to withdraw his plea. His attorney explained what apparently had been discussed at sidebar: Separate counsel would be appointed to assess and possibly file a motion to withdraw the plea. If that attorney determined that a motion should not be brought, or brought an unsuccessful motion, the case would return to appointed counsel. Conflict counsel was present and accepted the limited purpose appointment.
Conflict counsel moved to withdraw the plea, arguing in part that appointed counsel had provided deficient representation by not adequately advising defendant of the rights he would waive by entering a plea, and by telling defendant there would be no jail term as a condition of probation. The motion alleged that appointed counsel had been deficient in failing to consider exculpatory evidence that would have impeached the complaining witness and provided a defense to the charges. Opposing the motion, the prosecutor cited defendant's initials on the advisement of rights form and the transcript of the change of plea hearing. The prosecutor also noted a timing discrepancy in defendant's alibi evidence related to the vandalism charge.
The trial court denied the motion, noting that it had read the court file, including the motion, the opposition, and the cases cited in those filings. The court expounded: "I can't find any showing of fraud or duress or mistake regarding your change of plea to guilty on the several counts. I do not find any showing of good cause to allow withdrawal [of] the plea. The assertion on your behalf that there may be alleged exculpatory evidence from the Court's perspective is not persuasive." Conflict counsel was relieved from representation at the end of the hearing.
Represented by his original attorney, defendant was sentenced consistent with the negotiated disposition. Imposition of sentence was suspended and defendant was placed on formal probation for three years, including the condition that he serve 365 days in county jail. Defendant was ordered to pay fines, fees, and victim restitution.
II. DISCUSSION
A. THE TRIAL COURT ERRED BY FAILING TO CONDUCT A MARSDEN HEARING
In People v. Sanchez (2011) 53 Cal.4th 80 (Sanchez), the trial court erred by delegating to a specially appointed attorney the court's job of evaluating the performance of a defendant's current attorney under Marsden. (Id. at p. 89.) The Supreme Court specifically disapproved the procedure followed here of appointing conflict counsel "solely to evaluate a defendant's complaint that his attorney acted incompetently with respect to advice regarding the entry of a guilty or no contest plea." (Id. at p. 84.) The trial court in Sanchez had appointed conflict counsel based on the defendant's representation that a different attorney was needed to explore a motion to withdraw his plea. (Id. at p. 85.) The conflict attorney later reported to the court that the defendant was adamant about withdrawing his plea, but the attorney found no legal basis for doing so. (Ibid.) No motion to withdraw the defendant's plea was filed, and the defendant was represented by his original attorney at sentencing. (Ibid.)
The Sanchez court explained that a trial court is obligated to conduct a Marsden hearing—"to give the defendant an opportunity to state any grounds for dissatisfaction with the current appointed attorney"—when a criminal defendant after conviction indicates a desire to withdraw his or her plea based on appointed counsel's ineffective assistance and there is " 'some clear indication' ... that the defendant 'wants a substitute attorney.' " (Sanchez, supra, 53 Cal.4th at pp. 89-90.) If the defendant makes a showing at that hearing "that his right to counsel has been ' " 'substantially impaired,' " ' [citation], substitute counsel must be appointed as attorney of record for all purposes." (Id. at p. 90.) If the trial court appoints substitute counsel under Marsden, the new attorney then determines whether grounds exist to pursue a motion to withdraw the plea. (Id. at p. 89.)
The Sanchez court could not conclude beyond a reasonable doubt that the failure to hold a hearing on the defendant's informal Marsden motion had not contributed to the defendant's conviction. (Sanchez, supra, 53 Cal.4th at p. 92.) It therefore remanded the matter for the trial court to hear the Marsden motion, and to appoint new counsel (and entertain any applications made by new counsel) if the trial court determined that failure to replace the original attorney would substantially impair the defendant's right to assistance of counsel. (Ibid.) The Sanchez court further directed the trial court to reinstate the judgment should new counsel make no motions, should any motions made by new counsel be denied, or should the defendant's Marsden motion be denied. (Id. at pp. 92-93.)
We agree with the parties that the trial court erred under Sanchez by failing to hold a Marsden hearing when defendant indicated through counsel that he wanted to have a new attorney and to withdraw his plea.
B. DEFENDANT HAS NOT SHOWN PREJUDICE
Defendant argues he was prejudiced because conflict counsel was not required to include all his complaints about his appointed counsel in the motion to withdraw his plea, and that our ability to determine whether the motion encompassed defendant's every concern is therefore foreclosed. He argues that had the trial court complied with Marsden's requirements, he might have conveyed information establishing the incompetence of his attorney.
Defendant's argument assumes that prejudice is to be determined solely on the trial court's failure to hold a Marsden hearing, without regard to other events that transpired after the trial court prematurely (and perhaps unnecessarily) appointed substitute counsel. His authorities likewise are inapposite, as they do not analyze prejudice where, as here, conflict counsel does move to withdraw a plea based on appointed counsel's alleged incompetence. (Compare Sanchez, supra, 53 Cal.4th at p. 85 [no motion to withdraw plea filed by conflict counsel appointed to investigate motion]; People v. Eastman (2007) 146 Cal.App.4th 688, 690-691 [same]; People v. Mendez (2008) 161 Cal.App.4th 1362, 1366 [no motion for new trial filed by conflict counsel appointed to investigate motion].) Defendant received the benefit of his substitute counsel's motion to withdraw the guilty pleas (a motion that apparently would not have been made had the trial court denied an informal Marsden request for substitute counsel). Unlike in Sanchez, where the reviewing court could not satisfactorily determine the effect of the failure to hold a Marsden hearing on the defendant's conviction, here the court heard and denied defendant's motion to withdraw his plea. We therefore can conclude beyond a reasonable doubt that the failure to hold a Marsden hearing did not contribute to defendant's conviction. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Marsden, supra, 2 Cal.3d at p. 126 [applying Chapman standard to determine whether trial court's failure to allow defendant to state reasons for requesting new appointed counsel contributed to the conviction].)
The only difference between what actually happened here and what would have happened had the court substituted counsel under Marsden is that under Marsden, new counsel would have been substituted to represent defendant for the duration of the proceedings. (Sanchez, supra, 53 Cal.4th at p. 90 [under Marsden, substitute counsel is appointed for all purposes].) On this record, we are satisfied beyond a reasonable doubt that defendant would not have received a more favorable disposition had substitute counsel represented defendant at sentencing. Defendant received the probation grant he had negotiated. He provided articulate comments at the hearing about why he should receive no jail time. A forensic psychologist testified that defendant did not have pro-criminal or antisocial attitudes, and recommended that the disposition emphasize therapy to address defendant's past relationships that had generated anger and resentment. The record also includes a four-page letter from defendant's mother explaining why her son should not go to jail.
After expressing that defendant's original attorney was a respected and outstanding advocate, the court stated: "There are actions and there are consequences and indeed the type of hurt and adverse impact you placed on Ms. [T] was clear to me -- when I met Ms. [T] it was clear to me ... [Y]ou, quote, unquote getting it at this point is not persuasive in terms of some type of sentence." Despite defendant's efforts, the record shows the trial court was resolved to require defendant to serve 365 days in jail as a condition of probation. It is clear to us beyond a reasonable doubt that substitute counsel appearing for all purposes would not have changed the outcome.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Premo, Acting P. J. /s/_________
Bamattre-Manoukian, J.