Opinion
F040514
7-21-2003
THE PEOPLE, Plaintiff and Respondent, v. MACK LUCAS, JR., Defendant and Appellant.
Oliver J. Northup, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, J. Robert Jibson and Janine R. Busch, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE FACTS AND CASE
The facts of this case are not at issue.
On September 21, 2001, Mack Lucas, Jr., (appellant) was charged with two counts of pandering (Pen. Code, § 266i, subds. (a)(1) &(a)(3)), one count of pimping (§ 266h), and one count of attempting to dissuade a witness (§ 136.1, subd. (a)(2)). It was further alleged appellant had two prior serious felony convictions (§ 667, subds. (b)-(i)) and five prior prison terms (§ 667.5, subd. (b)). Appellant pleaded not guilty to the charges and denied the allegations.
All further statutory references are to the Penal Code unless otherwise stated.
On November 16, 2001, appellant entered a negotiated disposition in which he pleaded guilty to one count of section 266e, admitted the two strike priors, and admitted three of the five prior prison term allegations in exchange for a maximum term of nine years in state prison. The People also agreed not to file another case against appellant in which he spat upon his previous appointed counsel, Ron Perring.
This implied a promise to strike one of the two strike priors.
On March 1, 2002, one strike prior conviction allegation was stricken, and appellant was sentenced to a total term of nine years in state prison: the upper prison term of three years, doubled pursuant to the three strikes law, with an additional three years for the prior prison term allegation.
This appeal follows.
DISCUSSION
DID THE TRIAL COURT ERR IN FAILING TO GRANT APPELLANT A MARSDEN HEARING AT THE TIME OF SENTENCING?
At one point during the course of appellants sentencing hearing, he mentioned a "conflict of interest," claiming "the threatened charge against me was represented." Appellant contends this statement was sufficient to grant him a Marsden hearing, which the trial court did not do. We disagree.
People v. Marsden (1970) 2 Cal.3d 118, 84 Cal. Rptr. 156, 465 P.2d 44.
In order to understand appellants argument, we need to look at the chronology of events. At the hearing on November 16, 2001, the terms of the plea bargain were outlined, based on a violation of section 266e. The court stated it understood that there would be a "nine-year lid" and the following discussion took place between the court and appellant:
"THE COURT: ... Grant Romero relief to at least one strike. This would be under People versus West, and it also reads, D.A. will not file the case regarding Ron Perring who is the victim. [P] Is that your understanding, [appellant]?
"[APPELLANT]: Yes, sir.
"THE COURT: Okay, [appellant], before I can take your plea, sir, I need to go over some things with you. [P] Sir, did you go over this form with your attorney?
"[APPELLANT]: Yes, I did.
"THE COURT: Did you initial and sign the form?
"[APPELLANT]: Yes, I did.
"THE COURT: As to all of those parts of the form that youve initialed, [appellant], do you fully understand what is contained on those parts of the form?
"[APPELLANT]: Yes, I do."
The trial court went over appellants rights and appellant pleaded no contest to the negotiated charge. The trial court stated it would continue the hearing until November 19, 2001, and at that time would "either refer you to the probation department or vacate your plea and completely set it aside and we11 proceed to trial on that day."
Earlier in the proceeding, it was explained that appellants plea could be vacated the following week if the prosecutor decided to proceed to trial against all three defendants, but would stand if the prosecutor proceeded to trial only against the two remaining defendants.
At the following hearing, November 19, 2001, the People dismissed the case against the codefendants and confirmed appellants plea. Defense counsel reaffirmed the intention of the People not to file another case against appellant, involving the allegation that appellant spit on his public defender, Ron Perring, at an earlier date.
A month later, on December 19, 2001, at the time appellant was to be sentenced, he stated that he wanted to withdraw his plea because it had been brought to his attention that the Peoples witness informed the prosecutor that she had lied and refused to testify. Appellant stated:
"Im not guilty of the charges that I was coerced into taking due to the threat that I - that it was said that if I didnt take this deal that the other charges of me assaulting the counsel or whatever would be brought against me, and that it was guaranteed that if I didnt take a deal that it was eventually guaranteed that I wouldnt win the case, so I was coerced and I still maintain my innocence. I am not guilty of any of the charges that I pled to."
The trial court asked appellant several times if he wanted to talk to his attorney to discuss the issue for advice, and that he would need to file a motion if he wished to proceed to trial. The trial court asked appellant if he wished to waive time. The following colloquy took place:
"[APPELLANT]: Im compelled to waive time until [January] the 11th.
"THE COURT: Im not compelling you to do anything. If you want to be sentenced today, I can sentence you today.
"[APPELLANT]: I dont wish to be sentenced. I want to withdraw my plea.
"THE COURT: You need to file a written notice of motion. Thats what Im telling you. [P] So do you want to waive time until the 11th so your attorney can talk to you, file the motion, and subpoena witnesses for the hearing?
"[APPELLANT]: If I have to, if its mandated, I dont - what witnesses?
"MS. CALVERT: If we have to
"THE COURT: If shes withdrawing her statement and the district attorney lied, you need to be able to prove that up.
"MS. CALVERT: Right. The burden on us is to prove that you have a legal basis to withdraw you plea, so we are the moving parties. We have to file documents. We have to bring witnesses, file affidavits, whatever it is. Its - the burden is on us to prove that you have a legal cause to withdraw your plea. We have to do that with a noticed motion, and I have to prepare the legal documents with the Points and Authorities and with any witness statements that we can get, including your own, about why you want to withdraw the plea, but we have to do that with notice to him, the D.A., and notice to the Court.
"[APPELLANT]: That includes coercion from separate charges that didnt ... [P] have anything to do with my original charges?
"MS. CALVERT: Uh-huh."
The trial court then continued the matter until January 11, 2002.
After a continuance, the trial court reconvened on January 25, 2002, at which time the following took place:
"MS. CALVERT: [Appellant] advises me that he is - will be withdrawing his request for me to file a motion to withdraw the plea and just wants to proceed with Romero and sentencing, but not today. [P] I didnt file a Romero motion because I was working on his motion to withdraw his plea first, so if we could, hes - is that right, [appellant], you dont want to withdraw your plea at this time?
"[APPELLANT]: No.
"THE COURT: That is right, you do not want to withdraw your plea?
"[APPELLANT]: Yeah. I withdraw my plea withdrawal.
"THE COURT: Okay. Okay. And you want to file a
"MS. CALVERT: A written Romero motion, so I would like two weeks for that."
At the March 1, 2002, sentencing hearing, the trial court calculated credits and then heard argument from defense counsel. Appellant made a lengthy statement to the trial court in which he once again denied responsibility for the crimes and asked that the trial court not give him prison time. The trial court detailed the facts of the crime and challenged appellants account of the events. Appellant continued to interrupt the trial court and talked at length about his innocence. When the trial court imposed a total term of nine years, appellant stated again that he had been tricked and he was under the impression he was going to get less than nine years. Appellant stated he had wanted to withdraw his plea, but his attorney failed to write a motion. The trial court reminded appellant that the decision to withdraw the plea had been his. Appellant again argued he had been coerced and guaranteed a 25-year-to-life sentence if he did not plead. He stated he had never been informed "the case itself was a wobbler," referring to the assault charge, and that "there was a chance I wouldnt get a 25." Finally, at the end of the hearing, appellant stated:
"Im filing a conflict of interest because my attorney at the time was a representative of the office that - the threatened charge against me was represented. That in itself was a conflict and she should not have been allowed to have to be present in my case on making that deal."
Appellant contends the trial court should have been alerted, by statements he made, that he was requesting a Marsden hearing to determine if there should be a substitution of counsel for the purpose of pursuing a motion to withdraw his plea. We disagree.
A defendant represented by appointed counsel may request that the trial court discharge the attorney and appoint new counsel when the defendants right to effective representation would be substantially impaired by continuing with the original attorney. (People v. Marsden, supra, 2 Cal.3d at p. 123.) The trial judge may not summarily deny a Marsden motion but must conduct an inquiry into the circumstances underlying the request. (Id. at pp. 124-125.) " "A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations]." [Citations.] [Citation.]" (People v. Memro (1995) 11 Cal.4th 786, 857, 905 P.2d 1305.) Appellant is correct in his assertion that substitute counsel can be appointed at any stage of a trial, as long as the proper showing has been made. (People v. Smith (1993) 6 Cal.4th 684, 695-696, 863 P.2d 192.)
A trial courts duty to hold a Marsden hearing arises when the defendant moves "in some manner" to discharge counsel. (People v. Lucky (1988) 45 Cal.3d 259, 281, 247 Cal. Rptr. 1, 753 P.2d 1052.) A formal legal motion to substitute counsel is not required, but the defendant must at least make some clear indication that he wants a substitute attorney. (Id. at p. 281, fn. 8.)
In People v. Wright (1990) 52 Cal.3d 367, 276 Cal. Rptr. 731, 802 P.2d 221, the defendant claimed the trial court failed to conduct a proper Marsden hearing. The court in Wright disagreed. It noted that the trial court patiently listened to defendants complaints about counsel, asked defendant for his side of the story, resolved defendants question about whether public defenders were "real" attorneys, and explained that counsels suggestion to defendant that he plead guilty was an honest appraisal of the strength of the Peoples case. The record showed defendant never directly requested appointment of substitute counsel, but rather expressed some general unhappiness with certain aspects of counsels handling of the case. The court found, "On this record no Marsden error is established." (52 Cal.3d at p. 410, fns. omitted.)
So too, here, appellant never directly requested appointment of substitute counsel. The only unhappiness he directed toward defense counsel was his last statement that he thought counsel had a conflict of interest, apparently since she worked in the same office as the person appellant allegedly spat upon. Generally, appellant seemed most unhappy with the prosecution and the trial court, claiming he was tricked into accepting a plea bargain and that he was innocent. The court patiently and repeatedly allowed appellant to voice his concerns at a variety of different hearings. The court was also aware that, although appellant claimed defense counsel did not file a motion to withdraw his plea, appellant, on the record, acknowledged that he no longer wished to do so.
On this record, no Marsden error occurred.
DISPOSITION
The judgment is affirmed.