Filed 3/1/18 P. v. Price 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


THE PEOPLE,

Plaintiff and Respondent,

v.

JONATHAN AMORAE PRICE,

Defendant and Appellant.
H044289
(Santa Clara County
Super. Ct. No. C1371953)
I. INTRODUCTION
Defendant pleaded no contest to possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and misdemeanor possession of controlled substance paraphernalia (former § 11364.1). He also admitted that he had one prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). The trial court sentenced defendant to 32 months in prison, which was deemed satisfied by credit for time served.
On appeal, defendant contends the trial court abused its discretion by denying his post-plea Marsden motion. He argues that he was not receiving adequate legal representation, because his counsel failed to file a motion to withdraw the plea based on defendant’s unawareness at the time of the plea that he would have to wear an ankle monitor on parole. Defendant further argues that he had the right to seek withdrawal of his plea where legitimate grounds existed, even if his counsel did not believe it was in defendant’s best interest.
For reasons that we will explain, we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint
In December 2013, defendant was charged by complaint with possession of a controlled substance (§ 11377, subd. (a); count 1) and misdemeanor possession of controlled substance paraphernalia (former § 11364.1; count 2). The complaint further alleged that defendant had a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) for a violation of Penal Code section 288, subdivision (a).
B. The First Marsden Motion
On April 3, 2015, defendant requested substitution of appointed counsel. The trial court held a Marsden hearing and denied the request to change counsel.
C. The Pleas
A change of plea hearing was held on May 18, 2016. By this time, defendant had new counsel because his prior counsel was on medical leave.
Defendant’s new appointed counsel stated that she had relayed to defendant the two options that had been discussed at the bench. The first option was a 32-month “top and bottom” sentence. Counsel believed defendant was “very close” to having enough presentence credits to satisfy that sentence. The second option was a 32-month “top” with a full report by probation, an oral Romero motion requesting that the court dismiss a strike, and a request that defendant be granted probation with a county jail sentence. Counsel stated that if defendant took the first option, he would be sentenced on June 3, and if he took the second option, he would be sentenced later on June 20.
Defendant’s counsel indicated to the trial court that defendant wanted the first option—the 32-month “top and bottom.” She explained that defendant was “very anxious to be sentenced on the earliest date possible with his belief that he has enough credits.” Counsel had told defendant that she did not know his actual credits but that she believed he was very close to 32 months.
Defendant’s counsel asked whether the trial court would release defendant prior to sentencing with a “Cruz waiver.” The trial court indicated that it would not release defendant prior to the earliest sentencing date of June 3.
Before defendant entered his pleas, the trial court asked him several questions. Among other matters, defendant confirmed that his counsel had explained to him the charges, the elements that the prosecution had to prove, and any potential defenses. The court set forth defendant’s constitutional rights, and defendant indicated his understanding and waiver of those rights. The court further informed defendant that following his release from prison, he would be placed on parole or post release community supervision for three years.
Defendant pleaded no contest to both counts and admitted that he had one prior strike conviction. His counsel concurred in the pleas, waivers, and admission and stipulated to a factual basis. The trial court found that defendant made a knowing and intelligent waiver of his rights, freely and voluntarily, and that there was a factual basis for his pleas and admission. Defendant did not waive time for sentencing, and the matter was set for sentencing.
At the outset of the initial sentencing hearing on June 3, 2016, defendant’s counsel stated that defendant regretted his decision to accept the 32-month “top and bottom,” and that he now preferred the second option, the 32-month “top” with a Romero motion. Counsel indicated that she did not believe there were grounds for defendant’s withdrawal of his plea, and that a “Smith/Marsden hearing” was needed so that defendant could explain his grounds for withdrawal of his plea. The court set the matter for hearing on the “Smith/Marsden” issue on June 21, 2016.
D. The Second Marsden Motion
The trial court that took defendant’s pleas also presided over the hearing on June 21, 2016. Before the court heard defendant’s Marsden motion, defendant’s counsel raised several issues in open court.
First, defendant’s counsel indicated that defendant had agreed to the first plea option because the sentencing date was sooner, he had been in custody for a long time, and he was anxious to move forward and get out of custody. By the time of the sentencing hearing, however, defendant had indicated to counsel “that he did not want to be both on probation[ ] and parole and was willing to do additional time in order to avail himself of the previous offer of 32 months top.” Counsel requested that, “even though technically and legally a motion to withdraw the plea would be the proper way to go, . . . the Court, given the circumstances of this case and [defendant’s] mental health history, grant some leniency in this matter and have some understanding of his dilemma and allow him to withdraw his plea.”
Second, defendant’s counsel stated that if the court did not allow withdrawal of the plea “out of the goodness of the Court’s heart,” then the issue was whether there were legal grounds to withdraw the plea. Counsel did not believe defendant had such grounds.
Third, if the court denied leave to withdraw the plea, defendant’s counsel stated that a “Smith/Marsden” hearing was necessary. Counsel explained that the court could hear defendant’s reasons and his complaints about information that he did not have at the time of his plea, and the court could determine whether counsel was wrong about whether defendant had grounds to withdraw his plea.
The trial court denied defendant’s request to withdraw his plea. The court stated that it had previously made findings that defendant was fully advised and apprised of his rights, options, and consequences of his plea, and that there was a knowing and intelligent waiver of rights. The court stated that there was no basis for withdrawal of the plea due to defendant’s “current desire to have a different outcome.” The court believed it would be an abuse of discretion to grant the motion without legal grounds.
The court proceeded to hold a Marsden hearing. Defendant’s counsel indicated that defendant wanted to state the grounds for withdrawal his plea. Counsel stated that if the court agreed with the grounds, then alternate counsel should be appointed to file a motion to withdraw the plea.
Defendant raised several issues. Relevant here, defendant indicated to the trial court that he had not understood the difference between probation and parole, and that he was not informed that he would have to wear an ankle monitor while on parole. He wanted probation, because being on parole would affect his employment at a fitness center. Defendant stated that the ankle monitor would have to be charged every six hours, that he might need to take a bus to and from work, and that the fitness center would not let him work for only two or three hours. The fitness center told him that he could get his job back if he was on probation but not on parole. Defendant stated that getting released sooner was “not an issue,” and that he would rather be placed on probation with “extended jail time” so that he could get his job back at the fitness center.
The trial court observed that defendant had raised “a lot” of points. The court intended to seek clarification from defendant’s counsel on some of the points and to hear counsel’s assessment of some of the points. The court stated, “Before I do that, and I just want to make clear then, you’re not asking to change attorneys?” (Italics added.) Defendant responded, “No. No. I’m not asking to change attorneys. I’m not asking to change.” (Italics added.)
Defendant’s counsel acknowledged that she did not inform defendant that an ankle monitor was a possibility. She believed that such an advisement might be required if he was taking a plea in a sex case, but not to a drug charge as in this case. Counsel stated that she believed defendant’s priority at the time of the plea was getting out of custody sooner, rather than the issue of parole. She had explained to him the consequences of the 32-month “top and bottom” offer, including that he would be on parole afterwards. Counsel stated that this was the “first time” she had learned defendant was “saying he was unclear that he was going to be on parole versus being on probation.” She stated, “I do know I discussed it with him.”
After hearing further from defendant and counsel, the trial court again sought clarification regarding whether defendant want to substitute counsel. The court stated: “So we’re here for this Marsden hearing, and a Marsden hearing is essentially when you want to change your lawyer. And you made clear that you don’t want to change a lawyer. You just wanted that court to understand there was confusion on your part. Is that clear? Am I stating that correctly?” (Italics added.) Defendant responded, “Yeah.” (Italics added.) The court subsequently denied defendant’s Marsden motion.
In response to the trial court’s question about whether sentencing should proceed, defendant’s counsel stated: “So your Honor, I think at this point I need to research whether his claim that he did not have a knowing plea is an issue for a grounds [sic] for withdrawal of his plea. And I’m not basing this on his not being informed about the ankle bracelet but rather his statement that he did not understand that he was going to be on parole.” The court asked, “Based on counsel’s representation to him or the Court’s representation to him or voir dire of him?” Counsel responded, “I’m basing it on his statement that based on all of his prior conversations, not just with me but with his other attorney, that he believed and understood that he was going to be getting probation and not parole. So that’s my concern, is that there seems to have been—he’s now stating not just that he didn’t know about the ankle bracelet but he was also confused about the consequences of the plea that were told to him. I’m not saying you didn’t say parole. I know you did. I said parole. I know I did. I just don’t know that he understood it.”
After the proceeding resumed in open court, defendant waived time for sentencing. The matter was set for a hearing on the anticipated motion to withdraw the plea and for sentencing.
On August 9, 2016, defendant was released on his own recognizance after agreeing to appear in court on the next hearing date.
E. The Third Marsden Motion
At a hearing on September 16, 2016, defendant’s counsel stated that due to changed circumstances, a motion to withdraw the plea would not be filed. She requested that sentencing be continued “so we can see what happens on the new case.” Counsel further stated that defendant wanted to make a Marsden motion.
The trial court, which was the same court that had taken defendant’s plea and had conducted the prior Marsden hearings, held another Marsden hearing. Before defendant set forth the substance of his Marsden motion, the court observed that it was defendant’s third Marsden motion in the case and his second Marsden motion as to his current counsel. The court stated that a hearing was scheduled for a motion to withdraw the plea, but that defendant’s counsel had indicated that the motion had been withdrawn. The court further stated that a request had been made to continue sentencing “pending another felony case” that had arisen since defendant’s release in the instant case. Counsel confirmed that the pending felony case was the reason that the motion to withdraw the plea was not filed.
Defendant indicated that he wanted to substitute counsel because there had been some misunderstanding and miscommunication between them, and because there was insufficient evidence relating to the “non-use of a syringe.”
Defendant’s counsel explained that at the prior Marsden hearing, the trial court had determined that there were no grounds to withdraw the plea. Counsel believed “however, after [the] previous discussion, perhaps [defendant] didn’t understand the difference between probation and parole, and so at that point [counsel] thought that [she] would file a motion on his behalf to withdraw his plea.” However, defendant was released from custody while counsel was in the process of writing the motion, and he was arrested on a new felony drug charge with a prior strike conviction alleged. Counsel and her supervisor determined that it would not be “prudent at that point” to file a motion to withdraw the plea. Based on presentence credits, defendant had already served his time under the plea option that provided for a 32-month “top bottom.” If defendant was allowed to withdraw his plea, there was a risk that the court would sentence him to additional time, for a total of four or six years, for which defendant would not have enough presentence credits. Counsel also had a conversation with defendant regarding subordinate sentencing, regarding the “worst case scenario” in the new case if he was convicted of a felony, and regarding credits in the two cases. Counsel acknowledged that her discussion with defendant regarding subordinate sentencing may have confused him “more than necessary.” She also believed that he was frustrated because he was telling her that he was not guilty of the new charge, and that she was “not taking at face value that he’s going to be acquitted on that case.” However, counsel had not “seen the new report” and could not “operate on the assumption that he’s going to win that new case.” Rather, she was operating “in a manner to protect his best interests.”
The trial court asked defendant whether he wanted to add anything, and defendant responded, “No.” The court denied defendant’s Marsden motion. The court recognized that there might have been a miscommunication or misunderstanding on defendant’s part. The court believed, however, that defendant’s reasons for requesting substitute counsel was based on “a disagreement or the strategic decisions of counsel” regarding the motion to withdraw the plea.
F. Sentencing
The sentencing hearing was held on October 25, 2016. Defendant renewed his request for probation. The trial court denied probation and sentenced defendant to 32 months in prison on count 1 (double the lower term) and five days on count 2. Defendant’s sentence was deemed satisfied by credit for time served. Defendant was subject to parole supervision or post-release community supervision for a term of three years.
Defendant filed a notice of appeal and request for certificate of probable cause. The trial court granted the request for a certificate of probable cause.
III. DISCUSSION
Defendant contends that the trial court erred by denying his motion to substitute counsel. He argues that he was not receiving adequate legal representation because his counsel failed to file a motion to withdraw the plea where grounds existed to do so. In particular, he contends that he “was unaware of a significant fact when he pled—that he would have to wear an ankle bracelet.” Defendant further argues that he had the right to seek withdrawal of his plea where legitimate grounds existed, even if his counsel did not believe it was in defendant’s best interest.
“ ‘ “When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations.]” [Citations.]’ [Citations.] ‘[S]ubstitution 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 defendant’s right to assistance of counsel.’ [Citations.]” (People v. Hart (1999) 20 Cal.4th 546, 603.)
In this case, the record reflects that defendant made three Marsden motions and that the court denied all three. On appeal, defendant does not challenge the court’s denial of his first Marsden motion, which was made prior to his no-contest pleas.
The second Marsden motion was heard on June 21, 2016, approximately one month after defendant had entered his no contest pleas. At this Marsden hearing, defendant stated, and the court confirmed, that defendant did not want to substitute counsel. Specifically, when the trial court asked about changing attorneys, defendant responded, “No. No. I’m not asking to change attorneys. I’m not asking to change.” Later, just prior to denying the motion, the court again clarified that defendant did not want to change his attorney. The court stated, “So we’re here for this Marsden hearing, and a Marsden hearing is essentially when you want to change your lawyer. And you made clear that you don’t want to change a lawyer. You just wanted that court to understand there was confusion on your part. Is that clear? Am I stating that correctly?” Defendant responded, “Yeah.” Because defendant expressly indicated his desire to continue to be represented by the same appointed counsel, defendant fails to demonstrate an abuse of discretion by the trial court in denying his second Marsden motion.
The third Marsden motion was heard on September 16, 2016. At this Marsden hearing, neither defendant nor his counsel indicated that there was a conflict between them concerning the filing of, or refusal to file, a motion to withdraw the plea based on defendant’s lack of awareness about wearing an ankle monitor. Rather, defendant’s expressed concerns were limited to (1) some misunderstanding and miscommunication with his counsel and (2) an issue concerning whether a syringe was used and the sufficiency of that evidence.
Defendant’s counsel indicated that she had intended, but ultimately decided against, filing a motion to withdraw the plea based on defendant’s lack of understanding of the difference between probation and parole. Counsel never indicated to the court that the intended motion to withdraw pertained to the ankle monitor issue. Indeed, counsel at the prior (second) Marsden hearing had expressly disclaimed any intent to file a motion to withdraw the plea based on the ankle monitor issue. Specifically, at the prior (second) Marsden hearing, counsel indicated that she was going to research whether there were grounds for withdrawal of defendant’s plea, but that she was “not basing [it] on his not being informed about the ankle bracelet.” (Italics added.) Instead, the motion she was considering was based on whether defendant understood “he was going to be getting probation and not parole.”
On this record, by the time of the third Marsden hearing, even assuming defendant had a valid legal ground for bringing a motion to withdraw the plea based on his lack of awareness about wearing an ankle monitor, that issue was not raised as a basis for his request for substitute counsel at the third Marsden hearing. Accordingly, defendant fails to demonstrate that the trial court abused its discretion in denying the third Marsden motion, where the issue of counsel’s refusal to file a motion to withdraw defendant’s plea based on defendant’s lack of awareness concerning an ankle monitor was not an issue raised during the third Marsden hearing.
IV. DISPOSITION
The judgment is affirmed.







___________________________________________
BAMATTRE-MANOUKIAN, J.






WE CONCUR:






__________________________
ELIA, ACTING P.J.






__________________________
MIHARA, J.








People v. Price
H044289