P. v. Espinoza

Filed 7/31/07 P. v. Espinoza CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Pursuant to a plea agreement, defendant Michael Peter Espinoza pleaded no contest to the felony of threatening to commit a crime resulting in death or great bodily injury (Pen. Code,  422) and to the misdemeanor of brandishing a knife (id.,  417, subd. (a)(1)). A felony complaint had charged him with committing misdemeanor criminal threats and also with assault with a deadly weapon or by means of force likely to cause great bodily injury (id.,  245, subd. (a)(1)). Defendant was sentenced to two years in prison.

Counsel for defendant has filed an opening brief that states the case and facts but raises no issues. We notified defendant of his right to submit written argument on his own behalf. Defendant has filed a supplemental letter brief in which he raises a number of claims. We have reviewed the entire record pursuant to People v. Wende (1979) 25 Cal.3d 436. We will affirm the judgment.

FACTS

Defendant had an argument with Deanna Williams, his former girlfriend, over money. Defendant took Williamss wallet and started to drive away in his automobile. Williams threw a flower pot at defendants vehicle; defendant responded by driving his car into Williams. Williams landed on the hood and rolled onto the ground, suffering minor injuries. A neighbor witnessed these events. Defendant threatened to get a gun and shoot both Williams and the neighbor, whose surname was also Williams, but who was unrelated to the victim.

DISCUSSION

In his supplemental letter brief, dated May 3, 2007, defendant raises several claims.

First, defendant claims that the trial court erred in not granting his motion, made by letter dated December 28, 2006, under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) to replace his counsel, deputy public defender Bichara Endrawos, on the grounds that, as defendant contends, he did not have my best interest in mind when he recommended me to take the plea bargain offered. Defendant contends that after I told him I was innocent of the charges he told me Mike[,] hundreds of innocent people go to prison every day. 

In the hearing on the motion, defendant detailed his frustrations with the lack of alacrity and diligence he asserted the public defenders office was exercising in investigating the facts of his case. He also asserted that although his attorney managed to get the aggravated assault charge dropped, he failed to persuade the district attorney to accept anything less than a felony conviction for criminal threats constituting a strike under the three-strikes law and two years in prison, whereas other jail inmates had told defendant they had committed crimes of a similar nature with more serious facts and did not receive punishment that severe. Defendant wanted counsel to impeach the victim witness with evidence that she was a prostitute. He was hoping that counsel would question the witness on the stand about prostituting, she would deny being involved in it, and counsel would then impeach her with Internet advertisements in which defendant believed she advertised her services. Defendant admitted that once counsel warned him that the district attorney would prosecute his case more vigorously if he did not accept the plea agreement, he acquiesced in it. The next day he thought better of it, and told counsel he wanted to withdraw his plea on the ground that he had lacked sufficient time to contemplate the plea agreement, but counsel demurred that there were no legal grounds to do so.

Counsel responded that statements by prosecution witnesses, namely the victim and the neighbor, had placed defendant in jeopardy of being convicted of various crimes. The victims statements were largely consistent and, according to counsel, by using them the district attorney could prove that defendant was guilty of aggravated assault, the charge the district attorneys office had agreed to drop as part of the plea agreement, and of other criminal conduct.

Counsel also responded by outlining his offices investigative and legal work on defendants case. He described an effort that was more than perfunctory or indifferent to defendants interests.

The court complimented defendant on the quality of the letter he wrote in support of his Marsden motion and acknowledged that there may be frustrations with the public defenders office. It found, however, that they did a diligent job and ruled that in any event there was no prejudice in light of the evidence. The court explained to defendant that sometimes people who believe that theyre not guilty . . . would be found guilty by a jury, and that was the advice given to you and the advice you chose to follow although you have clearly some buyers remorse at this point. The court denied the motion.

The legal principles governing Marsden motions are well settled. When a defendant seeks new counsel on the basis that his appointed counsel is providing inadequate representationi.e., makes what is commonly called a Marsden motion [citation]the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. Substitution of counsel lies within the courts discretion. The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendants right to assistance of counsel. (People v. Smith (2003) 30 Cal.4th 581, 604.)

If it were true that defendants counsel neglected his case because even though he knew defendant was innocent it was too much trouble to investigate and try it, it would raise serious legal questions. We do not so read the record, however. Assuming the accuracy of defendants account, it is evident from his own various descriptions that counsel was not telling defendant that it was too difficult or bothersome to seek an acquittal even though counsel thought he was innocent. Rather, counsel was explaining to defendant that the justice system is imperfect and subject to uncertain outcomes, that in the worst cases these uncertainties result in the conviction of the innocent, and that in the case of defendant, counsel recommended that defendant accept the certainty of a lesser punishment via a plea agreement rather than risk greater punishment following a trial.

In light of the arguments presented to the trial court during the Marsden hearing, we cannot say that the court abused its discretion. The court necessarily found that defendant did not establish inadequate representation or an irreconcilable conflict. Plainly its ruling on the first point was reasonable in light of counsels and defendants statements during the hearing: counsel adequately represented defendant. Regarding the second point, at the time of the Marsden hearing defendant was exercised about the result in his case, but in the crucible of negotiation defendant and defense counsel were aligned in the goal of obtaining a suitable plea arrangement for defendant in light of the prosecutions evidence. They were not embroiled in an irreconcilable conflict when it mattered.

Second, defendant claims in his letter brief that against his wishes defense counsel shared critical information about his case with the district attorney, an action dev[a]stating to my defense. We understand this to be a claim of ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution or possibly a violation of a duty defendant perceives for counsel to have followed his instructions strictly.

A claim of ineffective assistance of counsel in violation of the Sixth Amendment entails deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of an adverse effect on the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.) The Strickland standards also apply to defendants claim under article I, section 15 of the California Constitution. (E.g., People v. Waidla (2000) 22 Cal.4th 690, 718.) Although defendant maintains that counsels action was dev[a]stating to my defense as this was a he said, she said case, he does not explain the nature of the information counsel revealed, so we cannot assess his claim. The claim is better raised in any event in a habeas corpus petition. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

On the question of counsels duty to do exactly as defendant wished, we disagree that he bore such a duty. [C]ounsel, as captain of the ship, maintains complete control of defense tactics and strategies, except that the defendant retains a few fundamental personal rights. (People v. Cook (2007) 40 Cal.4th 1334, 1343.) Defendant does not make any assertion that would lead us to conclude that counsels action, if defendant has accurately described it, infringed on defendants residual right to decide certain fundamental personal matters.

Third, defendant argues that the trial court abused its discretion in refusing to let him withdraw his no-contest plea.

On January 17, 2007, before entry of judgment, defendant moved to withdraw his plea on the ground that he had not been given sufficient time to decide whether or not to enter it. The trial court denied the motion, explaining: Its denied because I conduct a voir dire of defendants that is fairly thorough, and I am very sensitive about the fact that people entering pleas of guilty are putting themselves in a position to be very quickly punished. And, as a consequence of that, if there are any issues that are unresolved on a plea of guilty or no contest, the court would extend latitude during the plea process to continue it.

A defendant may move the trial court to set aside a guilty plea for good cause at any time before the entry of judgment. [Citation.] Good cause means mistake, ignorance, fraud, duress or any other factor that overcomes the exercise of free judgment and must be shown by clear and convincing evidence. [Citation.] The grant or denial of such a withdrawal motion is within the sound discretion of the trial court and must be upheld unless an abuse thereof is clearly demonstrated. [Citation.] We are required to accept all factual findings of the trial court that are supported by substantial evidence. [Citation.] (People v. Ravaux (2006) 142 Cal.App.4th 914, 917.)

 [A] valid guilty plea presuppose[s] a voluntary and intelligent waiver of the defendants constitutional trial rights, which include the privilege against self-incrimination, the right to trial by jury, and the right to confront ones accusers. [Citation.] The reviewing court must determine whether the record affirmatively demonstrates that the plea was voluntary and intelligent under the totality of the circumstances. (People v. Marlow (2004) 34 Cal.4th 131, 147.) Unlike the admonition of constitutional rights, . . . advisement as to the consequences of a plea is not constitutionally mandated. Rather, the rule compelling such advisement is a judicially declared rule of criminal procedure.  (People v. Walker (1991) 54 Cal.3d 1013, 1022.) Defendant must show prejudice in setting aside a plea on these state law grounds. (Id. at pp. 1022-1023.)  A showing of prejudice requires the appellant to demonstrate that it is reasonably probable he would not have entered his plea  (ibid.) if he had been properly informed of the consequences.

The trial court did not abuse its discretion in denying defendants motion. At the plea hearing, defendant stated at the outset that he wanted to accept the plea agreement. Following that, the court said, I want to make sure that youre going into this with an open mind and understanding [of] whats going on here, a clear head. And the reason why is I dont want . . . to have you turn around and when you come back for sentencing say I want to withdraw my plea; okay? Defendant agreed. Thereafter defendant stated he was satisfied with counsels advice to him. At one point as the court was taking defendants waiver of his constitutional rights under Boykin v. Alabama (1969) 395 U.S. 238, 242-243, and In re Tahl (1969) 1 Cal.3d 122, 132-133, and advising him of the consequences of his plea as required by state law, defendant lucidly asked for clarification on one of the possible consequences, and received it to his satisfaction. We discern no abuse of discretion by the court in denying defendants motion to withdraw his plea. A trial court abuses its discretion when its ruling falls outside the bounds of reason. (People v. Benavides (2005) 35 Cal.4th 69, 88.) In light of the record before us we cannot say that the courts decision was unreasonable. The record shows a voluntary and intelligent acceptance by defendant of the constitutionally based portions of the plea agreement, and he does not show any prejudice that arose with regard to the consequential advisements required by state law.

Finally, our own review of the whole record before us discloses no other arguable issue on appeal.

DISPOSITION

The judgment is affirmed.

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Duffy, J.

WE CONCUR.

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Bamattre-Manoukian, Acting P. J.

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Mihara, J.

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