Opinion
E051358 Super.Ct.No. FVI017344
11-08-2011
THE PEOPLE, Plaintiff and Respondent, v. EDWARD KEVIN HENRY, Defendant and Appellant.
Edward J. Haggerty, 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, Lilia E. Garcia and Elizabeth A. Hartwig, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule
OPINION
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed.
Edward J. Haggerty, 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, Lilia E. Garcia and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant, Edward Kevin Henry, challenges his commercial burglary conviction after a guilty plea on the ground that the sentencing court failed to hold a Marsden hearing when he asked to withdraw the plea. As discussed below, the sentencing court was not required to inquire any further because defendant did not express dissatisfaction with defense counsel or ask that counsel be discharged.
People v. Marsden (1970) 2 Cal.3d.118 (Marsden).
FACTS AND PROCEDURE
On June 27, 2003, defendant attempted to obtain credit at an electronics store using a forged driver's license.
Defendant was initially arraigned, in custody, on July 1, 2003. At that arraignment, the public defender first mentioned that defendant was receiving cancer treatment for Hodgkin's lymphoma. The preliminary hearing was continued a number of times, at least once to allow defendant to receive medical treatment The preliminary hearing was held on November 20, 2003, and the trial court held defendant to answer. In an information filed on December 3, 2003, the People charged defendant with commercial burglary (Pen. Code, § 459) and possession of a forged driver's license (§ 470, subd. (b)). The People alleged that defendant had a prior "strike" conviction (§§ 667, subds. (b)-(i) and 1170.12, subds. (a)-(d)). On January 2, 2004, defendant pled guilty to commercial burglary and admitted the strike prior. Under the terms of the plea, defendant was to be sentenced to the middle term of two years for the burglary, doubled to four years for the strike prior. Defendant also signed a Cruz waiver, pursuant to which he was released on his own recognizance and agreed to appear for sentencing on March 12, 2004. The Cruz waiver in effect provided that, if defendant did not appear, the court would not be bound by the plea bargain and could sentence him to as many as six years.
All further statutory references are to the Penal Code unless otherwise indicated.
People v. Cruz (1988) 44 Cal.3d 1247.
Defendant failed to appear for the April 16, 2004 sentencing hearing, which had been continued from March 12 to allow him to undergo back surgery. The trial court issued a bench warrant, but held it to allow defendant to appear on or before April 23, 2004 and/or for defense counsel to provide the court with documentation showing that defendant was still hospitalized or recovering from surgery. Defendant failed to appear on April 23, and so the court issued the bench warrant.
The next time the record refers to defendant is in December 2009, when the People ask for and receive a court order to bring defendant from state prison to San Bernardino County to face the charges from 2003. At a December 28, 2009, hearing, defendant was arraigned on the 2004 bench warrant, the public defender was reappointed, and sentencing set for January 29, 2010.
In 2006 defendant was convicted of second degree robbery (§ 212.5, subd. (c)) in Los Angeles County and sentenced to 30 years in prison.
At the January 29, 2010, sentencing hearing, the public defender stated defendant was "going to request to withdraw his plea" as reflected in the probation report prepared for that hearing. The court appointed an attorney from the conflict panel so defendant could consult as to whether to move to withdraw his plea. The court commented that probation was recommending defendant still receive the four-year sentence he had bargained for (although he had violated the Cruz waiver), whereas defendant could potentially receive a six-year sentence if he was successful in withdrawing the plea. In reply, defendant stated: "I understand that, your Honor, but my problem is, really, this year the district attorney has a case from my prior past, BA-030156, a 246, and they said that that case is a strike, but I was just - - I had a codefendant on that case who admitted to all the gun enhancement charges on it. And so it wasn't a strike for me, it was a strike for him.
The probation officer states in the report, filed January 27, 2010, "The defendant stated at the time he signed his plea agreement in this matter, he was told he would not be able to continue his Chemotherapy sessions in custody. He signed the plea to remain out of custody and complete his Chemotherapy. He claims he signed the plea "under duress" and is planning on withdrawing his plea at sentencing. He also stated that his strike is not a strike pursuant to case law and he wants a Romero motion if he is not able to withdraw his plea."
Despite defendant's assertion, the 1991 conviction for discharging a firearm at an inhabited dwelling or vehicle (§ 246) was in fact a strike. In 1991, this crime was a strike felony only if the defendant personally used a firearm. (People v. Piper (1986) 42 Cal.3d 471, 476.) However, effective March 8, 2000, this crime was added to the list of strike felonies regardless of whether the defendant personally used a firearm (§ 1192.7, subd. (c)(33)). Because defendant committed the 2003 commercial burglary after March 8, 2000, the 1991 conviction was a strike felony regardless of whether he personally used a firearm. (People v. James (2001) 91 Cal.App.4th 1147, 1149-1150.)
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The court explained to defendant that he had admitted the strike as part of the 2004 plea bargain, and that he should consult with the conflict panel attorney to determine whether he should file a motion to withdraw the plea.
After several continuances, defendant filed a motion to withdraw his guilty plea on April 26, 2010. The motion was based on defendant's supporting declaration, which reported that defendant was under the effects of chemotherapy at the time he signed the plea. "He doesn't remember signing the plea or what he signed for. The medication he was on was also affecting this train-of-thought." The declaration also reported that defendant's public defender told him that "he needed to take the plea or else he would not be able to continue with his cancer treatment. [Defendant] was in fear of dying without these treatments. Based on what his attorney told him he felt pressured into taking the plea."
The People filed its opposition on May 18, 2010. The People argued that the court was not bound to believe defendant's statements, that it could take into account its own memory of defendant's physical and mental state at the plea hearing, and that defendant's "change of heart" was not a sufficient reason to allow him to withdraw his guilty plea.
The hearing on defendant's motion was held on June 29, 2010. Appointed defense counsel explained that " . . . on the last court date [June 15, 2010, defendant] had brought some case law to my attention regarding a prior strike, and that was to be looked into to see if his prior counsel was incompetent. [¶]After reviewing the case law and other cases related to that, there's no motion to be made as to the incompetency of the prior attorney." The trial court was eventually persuaded to allow defendant to testify as to why he violated the Cruz waiver: "In 2003, when I was taking chemotherapy, the original reasoning for me giving the Cruz waiver, your Honor made it adamant that he wasn't going to go beyond three months. I was still in the middle of chemotherapy, and I still had radiation to go through with surgery on my spine. [¶] CDC was losing one inmate a week in their medical. There was no guarantees that I could go into CDC because of security reasons, they said, and continue. They said it would be at least six months before I'd be able to continue my chemotherapy if that. So I chose to finish my chemotherapy and radiation and then go forward with the surgery on my spine. [¶] Then all the other stuff happened, and that's why I violated the waiver. It wasn't just because I was out there doing anything - - joyriding or doing anything wrong. It's because I chose to finish my chemotherapy then my radiation."
The court concluded that, even if it accepted as true defendant's testimony, this was not a good reason to allow him to withdraw his plea, and denied the motion. Sentencing was set for July 2, 2010. On that date, the court sentenced defendant to three years on the commercial burglary charge, doubled to six years for the strike prior. However, the court ordered the sentence to be served concurrent with the state sentence defendant was currently serving. This appeal followed.
DISCUSSION
Defendant argues the trial court erred when it failed to hold a Marsden hearing after defendant stated at the January 29, 2010 hearing that he wished to move to withdraw his plea. "By appointing conflict counsel upon learning that [defendant] wished to withdraw his plea, the trial court was put on notice that [defendant] was dissatisfied with his original counsel . . . . [Defendant] effectively asserted that his trial counsel had been ineffective in permitting him to admit a strike where none actually existed."
"When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance. [Citation.]" (People v. Crandell (1988) 46 Cal.3d 833, 854, abrogated on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365.)
However, "[t]he trial court is not obliged to initiate a Marsden inquiry sua sponte. [Citation.] The court's duty to conduct the inquiry arises 'only when the defendant asserts directly or by implication that counsel's performance has been so inadequate as to deny him his constitutional right to effective counsel.' [Citations.]" (People v. Lara (2001) 86 Cal.App.4th 139, 150-151.)
"Although a formal motion is not required, the trial court's duty to conduct an inquiry into the reasons the defendant believes his or her attorney is incompetent arises only when the defendant (or in some instances counsel) provides '"at least some clear indication"' that the defendant wishes to substitute counsel. [Citations.]" (People v. Martinez (2009) 47 Cal.4th 399, 418.)
Here, despite defendant's assertion otherwise, he never at any point during the January 29, 2010 hearing gave any indication at all, much less a "clear indication," that he sought to discharge his public defender. We have combed through the three pages of the reporter's transcript of that hearing and neither defendant nor his public defender ever stated or even implied that defendant was dissatisfied with his prior legal representation, felt it was less than competent, or wished to discharge the public defender's office. In fact defendant does not mention his 2003-2004 defense attorney at all. We acknowledge defendant's argument that his request to withdraw the guilty plea "effectively asserted" that he wanted the public defender removed, but we don't agree with it. The cases defendant cites in his opening brief each involve a criminal defendant who is demonstrably unhappy with defense counsel's performance. In People v. Mendez (2008) 161 Cal.App.4th 1362, 1365-1366, Mendez's trial attorney informed the trial court that her client was making a new trial motion "'based on competency of counsel,'" including failing to call witnesses and present exculpatory evidence. In People v. Eastman (2007) 146 Cal.App.4th, 688, 691-692, the defendant presented the court with a letter he had written to the Office of the District Attorney charging his defense counsel and the prosecutor with conspiring to mislead him and persuade him to accept the plea bargain. In Marsden, the defendant told the court that he did not feel he was being "competently or adequately" represented by counsel. In People v. Kelley (1997) 52 Cal.App.4th 568, 580, the defendant did not expressly ask to have his counsel discharged, but made specific complaints about his failures at trial. In contrast, defendant told the court that "my problem is" that the strike prior he had admitted was in fact not a strike and he had told the probation department both about the strike prior and that he had felt "under duress" in making the plea because he would not be able to continue his course of chemotherapy and radiation if he had to report immediately to prison. Neither of these grounds is a specific or even general complaint about his 2003-2004 defense counsel or implies that he wants to remove the public defender's office. Thus, the court did not err when it did not inquire further at the January 29, 2010 hearing.
DISPOSITION
The conviction is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
HOLLENHORST
J.
RICHLI
J.