Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FWV903170, Michael R. Libutti, Judge.
Raymond M. DiGuiseppe, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, J.
I. INTRODUCTION
Defendant Frelima F. Rabb Sample appeals from her conviction of identity theft (Pen. Code, § 530.5, subd. (a)), counterfeiting a registered trademark (§ 350, subd. (a)(2)), and failure to disclose the origin of a recording or audiovisual work (§ 653w, subds. (a) &(b)(1)) following the entry of a guilty plea. She contends (1) the trial court erred in failing to conduct a hearing under Marsden and Ortiz, and (2) the trial court erred in entering a restitution order. We find no error, and we affirm.
All further statutory references are to the Penal Code.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
People v. Ortiz (1990) 51 Cal.3d 975 (Ortiz).
II. FACTS AND PROCEDURAL BACKGROUND
The parties stipulated to the police report as the factual basis for defendant’s plea; our statement of facts is based on that report.
In December 2009, defendant was observed attempting to make purchases at a department store using credit and gift cards of other people. When the police contacted her in the store’s parking lot, she denied having any illegally-purchased merchandise in her car, and she said she had thrown away the credit card she had used. She said the only things “illegal” in the car were DVD discs (DVDs) she was selling.
The officers searched her car and found “fraudulent” credit cards and a backpack that contained hundreds of pirated DVDs and compact discs (CDs). Merchandise that defendant had purchased in the store was found in the trunk of her car, along with one of the gift cards she had used. Defendant waived her Miranda rights and acknowledged having used the credit cards and gift cards that someone else had given her. She also stated she had been burning and selling DVDs and CDs for a long time. A search of her residence revealed property that had been purchased fraudulently, computers for making DVDs and CDs, and additional pirated DVDs and CDs.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Defendant was charged with burglary (§ 459), three counts of identity theft (§ 530.5, subd. (a)); grand theft (§ 484g, subd. (a)); two counts of counterfeiting a registered trademark (§ 350, subd. (a)(2)); and two counts of failing to disclose the origin of a recording or audiovisual work (§ 653w, subds. (a) & (b)(1)). The complaint further alleged she had suffered four prison prior felony convictions (§ 667.5, subd. (b)).
On January 5, 2010, Defendant entered a plea of guilty to one count each of identity theft (§ 530.5, subd. (a)), counterfeiting a registered trademark (§ 350, subd. (a)(2)), and failure to disclose the origin of a recording or audiovisual work (§ 653w, subds. (a) & (b)(1)). In exchange, the remaining charges and allegations were dismissed. The parties stipulated to a sentence of five years in prison.
Defendant moved on March 19, 2010, to withdraw her guilty plea. The trial court denied the motion. She filed another motion to vacate her plea, and the trial court again denied the motion. The trial court then sentenced defendant to five years in prison and ordered her to pay $2,105.33 in restitution to the Recording Industry Association of America (RIAA), among other things.
Additional facts are set forth in the discussion of the issues to which they pertain.
III. DISCUSSION
A. Request for Marsden/Ortiz Hearing
Defendant contends the trial court erred in failing to conduct a hearing under Marsden and Ortiz.
1. Additional Background
At her arraignment on December 30, 2009, and at the entry of her guilty plea on January 5, 2010, defendant was represented by a deputy public defender. Thereafter, she discharged the public defender’s office and retained Attorney Leon Arakelian to represent her.
On March 19, 2010, Arakelian filed a motion to withdraw defendant’s guilty plea on the grounds that (1) she did not know that to obtain a conviction for a violation of section 350, subdivision (a)(2), the prosecutor had to prove she had the specific intent to possess the items for purpose of sale; (2) she was unaware of penalty provisions accompanying the other counts; (3) she was not informed of the maximum parole period she would have to serve; and (4) she could have moved to suppress items found during the searches of her car and home. The prosecutor opposed the motion on the ground that defendant’s allegations were contradicted by the terms of the plea agreement she had signed and by her admissions in open court. Following a hearing, the trial court denied the motion, finding there had been no unfairness, and the plea had been voluntary, knowing, free, and intelligent.
On May 10, 2010, Arakelian filed a motion to vacate the guilty plea on the grounds that (1) no one had informed defendant of her right against self-incrimination, and (2) the trial court had erroneously taken her plea along with that of another defendant. The prosecutor opposed the motion on the ground that defendant’s claims were directly refuted by the record and were unsupported by case law. Following a hearing, the trial court denied the motion.
The trial court then asked counsel if there was any legal cause why judgment should not be pronounced. Arakelian replied there was not. Defendant asked to address the court, and the court told her she should speak through her attorney. The trial court granted defendant’s request for a recess to confer with counsel. When the hearing resumed, Arakelian asked the court to explain the charges to defendant. He noted she was complaining about the representation she had received from the public defender, and he asked if defendant could address the court. The trial court again responded that defendant should speak through her attorney. Arakelian then stated, “We are going to—I mean, the situation is such that I believe a Marsden motion is perhaps what we need to do to get this squared off because ineffective assistance of counsel, especially for the plea, it’s something that shouldn’t be taken lightly. And what was represented to her, especially for Count 8, is not what the code section states.” The trial court asked whether defendant was requesting a new attorney for sentencing, and Arakelian replied, “No, not really.” The trial court stated, “Then there’s no Marsden given that answer, ” and proceeded to sentencing.
2. Analysis
Marsden procedures do not apply to retained counsel, because a defendant may discharge retained counsel for any reason. (Ortiz, supra, 51 Cal.3d at pp. 984-985.) And a trial court may deny a motion to discharge retained counsel if such discharge will result in significant prejudice to the defendant or if it is untimely, such that its granting will result in “‘disruption of the orderly processes of justice.’” (Id. at p. 983.)
The court in People v. Keshishian (2008) 162 Cal.App.4th 425, 429, stated, “Because the right to discharge retained counsel is broader than the right to discharge appointed counsel, a Marsden-type hearing at which the court determines whether counsel is providing adequate representation or is tangled in irreconcilable differences with the defendant is ‘“[an] inappropriate vehicle in which to consider [the defendant’s] complaints against his retained counsel.”’ [Citations.] Instead, under the applicable test for retained counsel, the court should ‘balance the defendant’s interest in new counsel against the disruption, if any, flowing from the substitution.’ [Citation.] In so doing, the court ‘must exercise its discretion reasonably: “a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.”’ [Citations.]”
However, under Marsden, and by analogy, under Ortiz, a trial court’s duty to inquire is not triggered unless the defendant makes a clear indication he or she wants a new attorney. (People v. Dickey (2005) 35 Cal.4th 884, 920.) As the court explained in People v. Martinez (2009) 47 Cal.4th 399, “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 seek substitute counsel. [Citations.]” (Id. at p. 418.) Here, although Arakelian asked for a Marsden hearing, he explained that the basis for the request was that defendant had been dissatisfied with the representation she had previously received by the public defender in connection with her guilty plea. The trial court asked if she wanted a new attorney for sentencing, and Arakelian replied, “No, not really.” On this record, there was no indication whatever that defendant wanted a new attorney. The trial court did not err in failing to conduct a hearing on the issue.
B. Restitution Order
Defendant contends the trial court erred in ordering her to pay $2,105.33 in restitution to the RIAA because RIAA cannot be deemed a direct victim of the crimes of which she was convicted.
1. Additional Background
Defendant’s plea agreement contained the following language: “I waive and give up any right to appeal from any motion I may have brought or could bring and from the conviction in my case since I am getting the benefit of my plea bargain.” In paragraph 9 of the plea bargain, defendant agreed to pay “[r]estitution to all victims.” In making the plea, defendant confirmed she had agreed to “restitution to all victims on all counts.”
Defendant stipulated that the factual basis for the plea was “contained in the police reports, ” which identified RIAA as a victim of a violation of section 653w, subdivision (a). The probation report also identified RIAA as a victim. The probation officer stated he had spoken with Steven Lopez from the RIAA regarding damages. Lopez confirmed the DVDs found in defendant’s possession were pirated. The probation officer stated he had sent Lopez a victim letter, and the RIAA sent a response with accompanying documentation, identifying the loss to RIAA as $2,105.33, based on 251 pirated CDs at $7.19 each; seven pirated DVDs at $9.18 each, and investigative costs of $236.38. Defendant raised no objection at sentencing to the restitution order.
The documentation is not part of the record on appeal.
2. Analysis
Defendant based her argument primarily on this court’s recent opinion in People v. Kelly (2010) 189 Cal.App.4th 73, 77 (Kelly) [Fourth Dist., Div. 2].) In Kelly, we held that under a predecessor version of section 1202.4, the RIAA was not a direct victim for purposes of restitution in a case in which a defendant was convicted of violating section 653w, subdivision (a). (Kelly, supra, at pp. 77-79.) We further noted that the statute had since been amended to include entities such as the RIAA, but even under the amended statute, the record did “not sufficiently establish that RIAA was acting on behalf of the owner or lawful producer of the subject recordings. The compact discs and their owners or producers were not known or identified in the lower court.” (Id. at p. 80.)
At the time of defendant’s crime and sentencing, section 1202.4, subdivision (r) stated that the court “shall” order a defendant convicted of a violation of section 653w, among other offenses, “to make restitution to any owner or lawful producer, or trade association acting on behalf of the owner or lawful producer” of listed items. (Italics added.)
The People contend, however, that because defendant agreed to waive her rights of appeal and stipulated to the police report, which identified RIAA as one of the victims, she has forfeited her right to challenge restitution to RIAA. We agree, and we find Kelly distinguishable on the basis that defendant agreed RIAA was a victim.
We will affirm the trial court’s determination of restitution if we find a factual or rational basis for the amount ordered. (Kelly, supra, 189 Cal.App.4th at p. 76.) Here, defendant’s admission that RIAA was a victim provided such a basis. We will therefore affirm the restitution award.
Defendant further claims there is a mathematical error of $7.19 in the calculation of RIAA’s damages. She bases that claim on an assertion that only 250 CDs were pirated; however, the probation report states that 251 CDs were pirated. We therefore find no error in the calculation.
IV. DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P.J., MCKINSTER, J.