P. v. Brown

Filed 1/30/07 P. v. Brown CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Pursuant to a plea bargain defendant entered a plea of no contest to two counts of committing a lewd act upon a child under the age of 14 (Pen. Code,  288, subd. (a)).[1] In accordance with the terms of the plea bargain, defendant was denied probation and sentenced to a term of five years in state prison. In this appeal he claims that the trial court erred by failing to hold a hearing on a request for substitution of counsel, and challenges the evidence to support the imposition of an order for AIDS testing.[2] We conclude that defendant did not make a motion for substitution of counsel, but agree with defendant and the Attorney General that the AIDS testing order is not supported by the evidence. We therefore reverse that part of the judgment that ordered defendant to submit to AIDS testing, but otherwise affirm the judgment.

STATEMENT OF FACTS[3]

The convictions are based upon acts committed upon a girl who is the daughter of a woman who was defendants friend. The victim testified that defendant often visited the house she occupied with her mother and brother in Napa. She met defendant when she was around seven.

According to the victim, the first acts of molestation were committed by defendant in a tent during a camping trip to Calistoga. Defendant touched her between her legs with his hands under her clothes. He also physically guided her hands to touch him between his legs under his clothes. She pulled her hand away when it touched defendants skin, and said, no. The acts caused the victim to feel very uncomfortable.

The victim described another incident that occurred on a subsequent camping trip with her mothers school. She testified that defendant touched her between the legs while she was lying on a hammock.

On another occasion, defendant was sleeping on the living room couch in their house when the victim came out to watch cartoons in the early morning. Defendant invited her under the covers with him, and she agreed because she was really cold. Again, defendant touched her between the legs and placed her hands between his legs.

The last act took place in the victims bedroom while defendant was reading the victim a story. Defendant touched her private parts between the legs and moved his hand around.

All of the acts were committed when the victim was between the ages of seven and nine this is, between 1996 and 1998.[4] The victims mother told defendant not to come around any more, when the victim was nine years old. The victim did not have any further contact with defendant thereafter. The victim did not disclose the acts to anyone until she told her aunt in the summer of 2004.

DISCUSSION

I. The Failure of the Trial Court to Consider a Motion for Substitution of Counsel.

Defendant argues that the trial court committed reversible error by failing to inquire into his specific reasons for his dissatisfaction with trial counsel, as required by People v. Marsden (1970) 2 Cal.3d 118, 123-124. Defendant claims that at the conclusion of the sentencing hearing his objection that counsel was not providing a defense constituted a motion to have counsel replaced, and triggered the duty on the part of the trial court under Marsden to conduct an inquiry into the reasons for requesting the substitution. He argues that the error is prejudicial per se, and requires reversal of the judgment.

The record shows that following the pronouncement of sentence defense counsel stated that defendant wanted to speak with the Court about sentencing or the financial hearing.[5] Defendant then protested to the court that since this whole thing started I havent been able to say one word in my defense. He asserted that he had maintained his innocence from the beginning, and only pled no contest because I cant contest the power of this city. He also stated to the court that all three of his attorneys only wanted to get a plea, and he had not from the beginning had a proper defense, no chance. And today I can only ask for mercy and sentencing because can I submit this to the Court? Its a letter that I wish you could read it and take about 30 seconds for you to read it. The court agreed to look at defendants letter and include it in the file, but did not modify the sentence previously pronounced. Defendant submits that his complaint with counsel obliged the court to initiate a Marsden inquiry.

When a criminal defendant seeks substitution of counsel on the ground that appointed counsel is providing inadequate representation, a trial court must give the defendant an opportunity to explain the reasons for the request. (People v. Mendoza (2000) 24 Cal.4th 130, 156-157.)  A judicial decision made without giving a party an opportunity to present argument or evidence in support of his contention is lacking in all the attributes of a judicial determination. [Citation.] [Citation.] (People v. Jones (2003) 29 Cal.4th 1229, 1244.)  [T]he trial court cannot thoughtfully exercise its discretion in this matter without listening to [the defendants] reasons for requesting a change of attorneys. [Citation.] Accordingly, When a defendant moves for substitution of appointed counsel, the court must consider any specific examples of counsels inadequate representation that the defendant wishes to enumerate. . . . [Citation.] (People v. Smith (1993) 6 Cal.4th 684, 690-691.)  [T]he inquiry is forward-looking in the sense that counsel would be substituted in order to provide effective assistance in the future. But the decision must always be based on what has happened in the past. [Citation.] (People v. Sharp (1994) 29 Cal.App.4th 1772, 1787, italics omitted.)  Thereafter, substitution is a matter of judicial discretion. Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would substantially impair the defendants right to assistance of counsel. [Citations.] [Citation.] (People v. Smith, supra, at pp. 690-691.)

The question here is one of the nature and degree of expression of dissatisfaction which triggers the duty of the trial court to inquire into the defendants reasons for desiring new counsel. (People v. Molina (1977) 74 Cal.App.3d 544, 549.) The trial court is not obliged to initiate a Marsden inquiry sua sponte. [Citation.] The courts duty to conduct the inquiry arises only when the defendant asserts directly or by implication that his counsels performance has been so inadequate as to deny him his constitutional right to effective counsel. [Citations.] The defendant is not entitled to claim that an irreconcilable conflict has arisen merely because of a disagreement with counsel over reasonable tactical decisions. (People v. Lara (2001) 86 Cal.App.4th 139, 150-151.)

The record before us fails to demonstrate that defendant made a Marsden motion for discharge of his attorney. Defendant objected to his inability to present a proper defense in the context of asserting his innocence and asking for mercy at the sentencing hearing. He did not associate his complaint with any suggestion that he wanted new counsel. Nor did he request to withdraw his plea. Mere grumbling about his entry of a plea upon counsels advice is insufficient to constitute a Marsden motion. (People v. Lee (2002) 95 Cal.App.4th 772, 780.) Although the defendant need not file a proper and formal legal motion he must express at least some clear indication . . . that he wants a substitution of attorney.  (Id., at p. 780.) We cannot imply a motion to substitute counsel from a mere complaint by defendant with the result of his entry of a nolo contendere plea coupled with a request for leniency. The trial court thus had no duty to conduct a Marsden inquiry. (People v. Lee, supra, at p. 780.)

II. The Order for AIDS Testing.

Defendant also argues that the trial court erred by ordering him to submit to AIDS testing pursuant to section 1202.1, which provides, in pertinent part, that upon conviction of certain specified sex offenses against minors, a defendant shall be ordered to submit to a blood . . . test for evidence of antibodies to the probable causative agent of acquired immune deficiency syndrome (AIDS) if the court finds that there is probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV [human immunodeficiency virus] has been transferred from the defendant to the victim: [] . . . [] For purposes of this paragraph, the court shall note its finding on the court docket and minute order if one is prepared. ( 1202.1, subds. (a), (e)(6)(A), (B).) Defendant argues that the evidence fails to show that blood, semen, or any other bodily fluid capable of transmitting HIV has been transferred to the victim, as section 1202.1 requires. He acknowledges that no objection was made to the order in the trial court, but claims that without supporting substantial evidence of bodily fluids having been transferred, an order for HIV testing must be reversed, even in the absence of an objection at the time of sentencing.

The Attorney General concedes that reversal of the AIDS testing order is required, despite the lack of an objection by defendant below, and we agree. [A] testing order is authorized under Penal Code section 1202.1, subdivision (e)(6)(A) upon specified conditions: conviction of an enumerated offense and a finding of probable cause. Under the terms of the statute, these prerequisites are equivalent in that both together define the substantive authority of the court to make the order. (People v. Butler (2003) 31 Cal.4th 1119, 1126 (Butler).) The California Supreme Court in Butler declared that because the terms of the statute condition imposition on the existence of probable cause, the appellate court can sustain the order only if it finds evidentiary support, which it can do simply from examining the record. Moreover, even if the prosecution could have established probable cause, in the absence of sufficient evidence in the record, the order is fatally compromised. (Id., at p. 1127, italics omitted.) The court also concluded that, Just as a defendant could appeal an HIV testing order, without prior objection, on the ground he had not been convicted of an enumerated offense [citations], he should be able to do so on the ground the record does not establish the other prerequisite, probable cause. (Id., at p. 1126; see also People v. Viray (2005) 134 Cal.App.4th 1186, 1217-1218; In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561.) [Q]uestions of sufficiency of the evidence are not subject to forfeiture. (Butler, supra, at p. 1128.)

Here, the record does not provide the necessary evidentiary support for a finding of probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV [human immunodeficiency virus] has been transferred from the defendant to the victim. The evidence indicates touching of private parts and brief digital manipulation, but nothing more. The AIDS testing order must therefore be reversed. The appropriate remedy under the circumstances is to remand the matter to grant the prosecution the opportunity to elect to offer additional evidence at further proceedings to establish the requisite probable cause. (Butler, supra, 31 Cal.4th 1119, 1128-1129.)

DISPOSITION

Accordingly, the AIDS testing order imposed pursuant to section 1202.1 is reversed, and the case is remanded to the trial court with directions to conduct further proceedings if elected by the prosecution at which evidence may be offered to establish probable cause to support the order. In all other respects the judgment is affirmed.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

[1] All further statutory references are to the Penal Code.

[2] In his opening brief defendant also argued that the judgment of conviction of counts 1 and 3 did not conform to the terms of the plea bargain. In his reply brief, he has properly abandoned that claim, and we do not address it on appeal.

[3] The facts are taken from the transcript of the preliminary examination.

[4] The victim was 16 years old when she testified at the preliminary hearing.

[5] Defendants ability to pay a restitution fine was still under consideration.