P. v. Levine

Filed 7/24/07 P. v. Levine CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Butte)

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After the jury was sworn, defendant pleaded no contest to making criminal threats (Pen. Code, 422) and misdemeanor vandalism (Pen. Code, 594).^[1]

On appeal, defendant contends the trial court erred in failing to conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) prior to sentencing. Under the circumstances, we find the denial of a hearing harmless beyond a reasonable doubt, and shall affirm the judgment.

Background

At the start of his sentencing hearing, the defendant interrupted proceedings with a request for a Marsden hearing:

The Court: The court has read and considered the report of the probation department in this matter. Although eligible for probation, the Court does not feel that probation is appropriate in this case considering the defendants record and what I regard as his lack of ability to comply with the instructions of probation and the reasonable terms and conditions.

The Defendant: Your Honor, I want a Marsden hearing. Objection. I want a Marsden hearing. Im experiencing ineffective assistance of counsel.

The Court: Also the prior performance on probation or parole has been less than satisfactory. The Court feels that because of the circumstances of the offense that the low term, however, would be appropriate. []  Is the matter submitted, Mr. Willis [defense counsel]?

Mr. Willis: Your Honor, I believe the Court had access to the preliminary hearing transcript in this case?

The Court: Also I began the trial.

Mr. Willis: I realize that. The court at that time had an opportunity to reduce this case pursuant to [Penal Code section 17[, subdivision ](b) and declined. I believe this Court indicated prior to the Court picking a jury in this case that it was inclined to give him a terminal county jail sentence, which would have the same effect of it not being a strike and reducing it to a misdemeanor. []  . . . And so Id ask the Court to either give him a terminal county jail sentence or, as a condition of court probation, give him a year in the county jail and reduce it pursuant to [Penal Code section 17[, subdivision ](b).

The Court: In light of his prior [Penal Code section] 459 felony and the conduct in this case, which I regard as felony conduct, I dont think thats appropriate. I think that the defendant is dangerous. His conduct is impulsive. Hes not able to control himself. Hes not aware of the effects of his behavior on others. And the low term would -- the ensuing parole would be adequate to protect society from him in the future.

The court did not hold a Marsden hearing, and defendant did not mention the subject again. The court found defendant not to be a suitable candidate for probation, found he had not performed satisfactorily in the past on probation and parole, and sentenced him to the low prison term of one year four months on his conviction of making criminal threats.

Discussion

On appeal, defendant contends the trial court abused its discretion in failing to respond to his request for a Marsden hearing. The People agree defendant was entitled to a hearing, but assert that the error does not require reversal of the judgment or sentence.

We agree with the People.

In Marsden, the California Supreme Court held that when a defendant seeks to substitute attorneys, the trial court must give the defendant an opportunity to present evidence and argument in support of his motion. (Marsden, supra, 2 Cal.3d at p. 124.) When a request for substitution is made, the trial court must permit a defendant to explain his reasons before exercising judicial discretion in granting or denying the request. (Ibid.)

However, Marsden does not establish a rule of per se reversible error; reversal is not required if the error was harmless beyond a reasonable doubt. (People v. Chavez (1980) 26 Cal.3d 334, 348-349; People v. Leonard (2000) 78 Cal.App.4th 776, 787.)

A Marsden motion is prospective in nature; one made after trial raises the issue of whether the counsel can no longer provide effective representation, either for the purpose of sentencing or of making a motion for new trial based on incompetency of counsel. (People v. Dennis (1986) 177 Cal.App.3d 863, 871.) At the time defendant first sought a substitute for attorney Willis, all that remained in this case was sentencing.

The facts of this case are similar to People v. Washington (1994) 27 Cal.App.4th 940 (Washington), in which the defendant requested a Marsden hearing after trial but the matter was never addressed. (Washington, at pp. 942-943.) The appellate court in Washington found the trial courts failure to conduct a Marsden hearing was harmless beyond a reasonable doubt because defendant was still able to attack the competency of counsel and his sentencing could be reviewed on appeal. We cannot see how the appointment of a different attorney would have gained Washington a new trial, or could have had any effect on the sentence imposed, and we, of course, are able to review Washingtons claims that the sentence imposed was improper. We therefore conclude that the failure to consider the purported Marsden motion has not deprived Washington of any arguments or otherwise irrevocably affected the verdict or sentence. Under the circumstances, and on the record before us, we cannot see that Washington would have obtained a result more favorable to him had the motion been entertained. (Id. at p. 944.)

Here, defendant does not explain how he was prejudiced by the courts failure to conduct a Marsden [hearing] at sentencing; he merely asserts the courts failure to conduct the requisite Marsden [hearing] resulted in prejudicial error. Unfortunately, the level of prejudice is impossible to ascertain. He makes no claim of incompetency of counsel or sentencing error on appeal, and our review of the record reveals none. Moreover, having reviewed the transcript of the sentencing procedure, we cannot see how defendant would have benefited from a change of counsel for sentencing. Defense counsel argued on defendants behalf in favor of probation, and again urged the court to reduce his conviction for making criminal threats to a misdemeanor. The court rejected those arguments based on defendants prior criminal record and defendants evident inability to conform his conduct to the law.  He nonetheless received the low term sentence. Defendant does not attempt to show that new counsel could have done more. (Cf. Washington, supra, 27 Cal.App.4th at p. 944.)

Under these circumstances, we conclude that the failure to address defendants Marsden motion was harmless beyond a reasonable doubt; substitution of counsel at that point could have had no effect on the remaining proceedings.

Disposition

The judgment is affirmed.

DAVIS , J.

We concur:

SCOTLAND , P.J.

RAYE , J.

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^[1] According to the probation report, defendant threatened a store employee, saying go ahead and call 911, Ill rape and kill you and take everything in your store. Later, while he was being transported by police, defendant kicked and damaged the rear passenger window of the patrol car.