P. v. Eastman

Filed 10/24/07 P. v. Eastman CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Merced County. Frank Dougherty, Judge.

Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

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Appellant, Jeffrey Todd Eastman, Jr., stands convicted of two counts of committing a lewd or lascivious act upon a child under the age of 14 (Pen. Code, 288, subd. (a))^[1], following his negotiated plea of no contest to both counts. He appealed, and in People v. Eastman (2007) 146 Cal.App.4th 688 (Eastman I), this court reversed the judgment and ordered, inter alia, that the trial court hold a hearing on appellants Marsden motion, i.e., his motion for appointment of substitute counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden)^[2]. (Eastman I, supra, 146 Cal.App.4th at p. 699.)

On February 16, 2007, the court conducted a hearing on appellants Marsden motion, denied the motion, and reinstated the judgment. The instant appeal followed.

Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (Peoplev.Wende (1979) 25 Cal.3d 436.) Appellant has not responded to this courts invitation to submit additional briefing.

BACKGROUND

As indicated above, appellant entered a negotiated plea of no contest to two counts of violating section 288, subdivision (a). (Eastman I, supra, 146 Cal.App.4th at p. 690.) The plea agreement called for a 10-year stipulated sentence. (Ibid.) At sentencing, appellants attorney, Marc Garcia, informed the court appellant wanted to move to withdraw his plea, and requested the court refer the matter for appointment of counsel. (Id. at p. 691.) The court appointed a second attorney for the specific grounds of determining [the] motion to withdraw. (Id. at p. 690.) After investigating the matter, the second attorney concluded there was no legal or factual basis upon which to file a motion to withdraw the plea and informed the court he would not be filing a motion on appellants behalf. (Id. at pp. 690-691.) Appellant then presented the court with his own handwritten letter requesting the court allow him to withdraw his plea and stating the grounds for the request. (Id. at p. 691.) The court declined to rule on appellants request and imposed the 10-year stipulated sentence. (Ibid.)

In Eastman I, this court held the trial court erred in failing to hold a Marsden hearing when at the initial sentencing appellants counsel stated appellant wanted to withdraw his plea and appellant provided the court with a letter detailing his attorneys alleged misconduct. (Eastman I, supra, 146 Cal.App.4th at p. 695.) The court reversed the judgment and remanded the matter with the following directions: (1) the court shall hold a hearing on Eastmans Marsden motion concerning Mr. Garcia; (2) if Eastman makes a prima facie showing of ineffective assistance of counsel, the court shall appoint new counsel to assist him for this purpose and shall entertain such applications as newly appointed counsel may make; and (3) if newly appointed counsel does not make any motions, any motions made are denied, or Eastmans Marsden motion is denied, the court shall reinstate the judgment. (Id. at p. 699.)

On remand, on February 16, 2007, the court conducted a Marsden hearing. At that hearing, appellant told the court, as best we can determine, the following: he wanted to go to trial but Mr. Garcia told him No, [you are] not ready and No, you [should not] go to trial, because you could get life; appellant gave Mr. Garcia the names of several persons who could testify as to appellants whereabouts throughout the period of slightly over two months during which the instant offenses were alleged to have occurred, but Mr. Garcia failed to contact these potential witnesses; the prosecutor, Rita Carlson, threatened appellants mother, April Eastman, with arrest unless Ms. Eastman testified against appellant; Mr. Garcia told appellant, falsely, that appellants mother would testify against him; Mr. Garcia told appellant, All I have is their word against yours, and did not prepare a defense; and Mr. Garcia visited him in jail only once or twice out of every two or three months to discuss the case.

When given an opportunity to respond, Mr. Garcia told the court the following: both the other attorneys in his office previously assigned to the case and investigators in his office did a thorough job of investigating the case; Mr. Garcia performed additional investigation; he had a very clear understanding of the allegations against [appellant] and a very clear understanding about what [appellants] version and what his defense would be; he told appellant the bulk of the prosecutions case would be the testimony of prosecution witnesses; he believed, and told appellant, that unless the witnesses who could testify as to appellants whereabouts could account for appellants presence throughout the period during which the charged offenses were alleged to have occurred, those witnesses were really of no value; Appellants account of the frequency of Mr. Garcias visits was accurate; Mr. Garcias practice was to not visit appellant unless he (Mr. Garcia) had new information he needed to discuss with appellant; he told appellant he would present a vigorous defense which would center around trying to [at]tack the credibility of the [prosecution] witnesses; the prosecutor had informed Mr. Garcia that April Eastman was present at a meeting also attended by the pastor of appellants church and the mother of one of the alleged victims, at which time Ms. Eastman heard appellant make certain incriminating statements; when Mr. Garcia asked Ms. Eastman about this, she repeatedly stated she was going to tell the truth and eventually walked away; [h]er body language, the inflection in her voice and the statement itself, led [Mr. Garcia] to believe that Ms. Eastman was going to testify as to the incriminating statements appellant reportedly made; such testimony would have been devastating; Mr. Garcia communicated this to appellant; and Mr. Garcia told appellant in no uncertain terms that appellant should accept the offer, viz., a prison sentence of 10 years, because he was looking at life in prison, rather than risk a life sentence.

Prosecutor, Rita Carlson, was excluded from the courtroom during the portion of the hearing summarized above. Appellant requested that she be brought into court to respond to appellants claim that she threatened his mother. Thereafter, Ms. Carlson told the court the following. She did not threaten Ms. Eastman with incarceration if she would not testify against appellant. Ms. Carlson had information that Ms. Eastman was present at a meeting at which appellant admitted he had done what he had been accused of doing to [one of the alleged victims].

Appellant declined the opportunity to question Mr. Carlson.

The court concluded as follows: Mr. Garcia acted reasonably [at] all times in providing [appellant] with a defense; there was no misconduct or threatening or intimidation of the witnesses; and appellant made a conscious decision, based upon a discussion with Mr. Garcia regarding the facts and the law, to accept[] ten years, rather than tak[e] a chance on being convicted and receiving more time .

DISCUSSION

Although, as indicated above, appellant has not responded to this courts invitation to submit supplemental briefing, his counsel informs us that appellant has personally requested that this court address the issue of whether the court erred in denying his Marsden motion.

Following independent review of the record, we have concluded that the court did not err in denying appellants Marsden motion, and that no reasonably arguable legal or factual issues exist.

DISPOSITION

The judgment is affirmed.

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^*Before Gomes, Acting P.J., Hill, J., Kane, J.

^[1] Unless noted otherwise, all further statutory references are to the Penal Code.

^[2]The seminal case regarding the appointment of substitute counsel is [Marsden] which gave birth to the term of art, a Marsden motion. (People v. Smith (1993) 6 Cal.4th 684, 690.)