P. v. Navarro

Filed 4/30/07 P. v. Navarro CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Anthony Navarro, also known as Anthony Spencer, appeals from the judgment following his guilty plea to 24 charges, including theft from an elderly adult; forgery; money laundering; grand theft; filing a false or forged instrument; making a false financial statement; obtaining money, labor or property by false pretenses; making, drawing or passing a check with insufficient funds; and identity theft. (Pen. Code,  368, subd. (d); 470, subds. (a), (b); 186.10, subd. (a); 487, subd. (a); 115, subd. (a), 532a, subd. (1); 532, subd. (a); 476a, subd. (a); 530.5, subd. (a).)[1] Pursuant to the terms of the plea agreement, the court sentenced appellant to 15 years in state prison. Appellant contends that the trial court (1) violated his right to counsel by refusing to allow him to discharge the attorney who represented him when he pleaded guilty and appointing conflict counsel regarding a motion to withdraw his guilty plea, and (2) acted without jurisdiction by resentencing him after he filed his notice of appeal. We hold that the failure to allow appellant to discharge retained counsel was error requiring conditional reversal.

FACTUAL AND PROCEDURAL BACKGROUND

On March 10, 2005, the prosecution filed a third amended felony complaint alleging that from May 2002 through June 2004, appellant committed 48 crimes, including fraud, forgery, money laundering, grand theft, theft from elderly or dependent adults, identity theft, and issuing checks with insufficient funds, involving multiple victims who collectively lost more than $1,000,000. Appellant retained private counsel who appeared on his behalf, with isolated exceptions where the public defender appeared for limited purposes, or the court appointed a Conflict Defense Associates (CDA) attorney on one occasion.

On April 22, 2005, in describing the plea agreement, the prosecutor explained that "[t]he maximum sentence that [appellant] could receive for the counts [he pled] guilty to [would be] 28 years, although the Court has committed to sentence you to no more than 15 years in prison." Pursuant to the terms of the agreement, appellant pled guilty to 24 crimes (counts 1-4, 6-7, 13, 15, 17-18, 20-21, 24-32, 34, 44 and 48) and admitted several allegations, including excess taking allegations. ( 186.11, subd. (a)(2), 12022.6, subds. (a)(3), 667.5, subd. (b).) The court expressed its "commitment that [appellant would be given] 15 years . . . as a maximum sentence [which was indicated] on page 15 of the Felony Disposition Statement." That statement contains a handwritten entry providing: "The Court has committed to no more than 15 years." The court scheduled sentencing for July 21, 2005.

On July 21, 2005, after attorney Ron Bamieh indicated that appellant wished to address the court, appellant asked to submit a verbal motion which he described as a "Marsden" motion. The court conducted an in camera hearing: "[Appellant]: Thank you. . . . I'm verbally submitting this Marsden [People v. Marsden (1970) 2 Cal.3d 118] motion . . . . The accused in any criminal proceeding is . . . guaranteed the right to the effective assistance of counsel. . . . [] . . . [] . . . My case . . . wasn't investigated at all, not to mention the fact that not a single witness has ever been interviewed on my behalf, even after [my] having impressed the counsel to do so. The only thing defense counsel has done so far . . . is file continuance motions and [make] a so-called deal of 15 years by telling me that the DA Marc Leventhal was going to arrest my wife and charge her as a codefendant unless I took this deal, even though she also has absolutely nothing to do with this--mess."

Bamieh then asked "that CDA be appointed for [appellant] to review whether he wants to withdraw his plea or not" because "those issues need to be resolved prior to sentencing." Appellant replied that "this has really nothing to do with withdrawing my plea at this point," and that he "would just like to discuss my whole case with an effective advocate that could give [him] advice whether [he] should take this plea of 15 years or . . . advise [him] otherwise, [and that he was] reserving [his] plea pending recommendation of new counsel . . . ." When asked by the court to respond to the Marsden motion, Bamieh stated:

"I spent ample time with [appellant] both in the Ventura county jail and at the preliminary hearing. I advised him fully of the consequences of his plea. I advised him fully on the record of what his consequences would be if he did not take the plea offer. I researched the law. I reviewed the entire file . . . . I listened to numerous audiotapes of witnesses who provided statements to the district attorney. [] I listened to the audiotapes where the witness wore a wire on [appellant]. I advised him of what those statements meant and what they would be at the preliminary hearing and what I expected the court finding to be and the difficulty of defending most of the charges that he was facing. [] . . . I advised him to plead guilty based on the total exposure and . . . the . . . offer of 15 years . . . . [] Also, [appellant] . . . informed me that the DA had threatened to arrest his wife. I told him that the DA promised that if he pled guilty and restitution was made that he [would] not go after his wife. And I told him that, that was what Mr. Leventhal said, and if the court has questions about that, please ask Mr. Leventhal. [] . . . I explained to him at the time that I was more than ready to go to preliminary hearing. However, this offer would not be available after preliminary hearing [and that] he should seriously consider it before he pass[ed] it up."

Appellant then commented that the "primary reason for having said in the first place is . . . that I was being coerced by the district attorney threatening to arrest my wife and charge her as a codefendant if I didn't [plead guilty]. . . . It really left me against the wall with no choice in the matter at all. I mean . . . you never even called any of the witnesses that I asked you to call. Nobody interviewed."

The court denied the "Marsden" motion. After the in camera session ended, Bamieh asked "on behalf of the court to appoint CDA for [appellant] to advise him as to any rights he may have in terms of the plea. I understand the court's decision . . . on the Marsden motion[, but] I think it's appropriate that [another] attorney interviews him and advises him on whether or [what] action he should take from this point on." After appellant indicated that he wished to withdraw his plea, the court indicated it could appoint CDA to represent him "in that connection." Although the prosecutor objected that a request to withdraw the plea was untimely on July 21, the court continued the "matter for possible withdrawal of plea " (or sentencing) to August 18. Bamieh added, "Just so the record is clear, at this point I remain attorney of record. If . . . [CDA] makes a recommendation of withdrawal, then I'll ask to be relieved at that time." The court agreed.

On August 18, 2005, Attorney Willard Wiksell of CDA advised the court as follows: "The court has asked me . . . to meet with [appellant] to look into any possible legal issues concerning a motion to withdraw his plea. I [met] with him . . . [,] looked at the court file, . . . looked at the plea form, and . . . discussed his issues with him. [] He expressed some . . . dissatisfaction with not being able to go to preliminary hearing, possibly some . . . investigation, but I didn't look into the merits of that because I don't feel that that was sufficient for grounds to withdraw his plea. [] I did examine . . . a copy of a plea form . . . . [I]n my view, there are no . . . legal grounds for him to withdraw his plea . . . . [] I've also advised him that . . . because he's made an oral motion that that's probably preserved his right to appeal on that issue once it gets . . . denied, which I expect it will since I'm not making the motion. And certainly, . . . he can appeal [his sentence] as well. [] So I feel my role is done. I'm not making the motion. I don't feel that there [are] any legal grounds that are . . . present. I think the plea is solid. I think he was properly advised, and it was free and voluntary. And he was . . . he waived those rights. So as far as I'm concerned, I just want to report that to the court, your Honor. " The court thanked and excused Wiksell, and, in an apparent reference to appellant's July 21 request to withdraw his plea, denied appellant's "oral motion."

Later on August 18, appellant's counsel urged the court to impose an eight-year sentence. The prosecutor argued that its offer had increased from 12 years, to nothing "less than a 15-year offer," and that the prosecution's letter to the defense indicated that it would "seek the imposition of a state prison term of 15 years." In sentencing appellant on that date, the court stated: "Pursuant to the court's commitment, you're ordered to serve a sentence in the State Department of Corrections of 15 years, calculated as follows: [] On Count 1, the midterm of three years. [] On Counts 13, 18, 25, and 26, one-third of the midterm for a total of three years. [] Pursuant to section 186.11(a) . . . , five years. [] Pursuant to sections 12022.6(a)(3) and (b), three years. [] And pursuant to section 667.5(b), one year. [] Total is 15 years. [] As to all the remaining counts, the court orders you sentenced to the midterm to be served concurrently, and all the remaining special allegations are stricken." The court then remanded appellant "to the custody of the sheriff for transportation to the State Department of Corrections." Appellant filed his notice of appeal on August 22, 2005, and obtained a certificate of probable cause.

On August 29, 2005, because the prosecutor had committed a calculation error, which resulted in appellant having been sentenced to 14 years 8 months rather than 15 years on August 18, the court conducted further sentencing proceedings. Appellant objected to resentencing. After stating that "[t]he bargain was for 15 years and that's what he's going to get," the court ordered the previous sentence modified and added count 17 "to the consecutive counts [for a total] sentence [of] 15 years."

DISCUSSION

The Trial Court Erred By Failing to Inform

Appellant of His Right to Discharge Retained Counsel

Relying upon People v. Ortiz (1990) 51 Cal.3d 975, appellant contends that the judgment must be reversed because the trial court deprived him of the right to discharge retained counsel. In Ortiz, our Supreme Court held that the constitutional right to counsel of choice includes the right to discharge retained counsel with or without cause, even if the defendant is indigent and requests court-appointed counsel. Thus, the trial court must grant a motion to discharge retained counsel unless the discharge would significantly prejudice the defendant or disrupt the "'orderly processes of justice.'" (Id. at pp. 983, 987.) If the court grants the motion and the defendant is indigent, he is entitled to court-appointed counsel. (Id. at p. 989.) The erroneous denial of a motion to discharge retained counsel is reversible per se: "The right to counsel of choice is one of the constitutional rights most basic to a fair trial. Accordingly, it is clear that a criminal defendant need not demonstrate prejudice resulting from a violation of that right in order to have his conviction reversed." (Id. at p. 988.)

When appellant cited Marsden in complaining about his retained counsel, the trial court drew no distinction between the discharge of retained and appointed counsel. The court conducted an in camera hearing, as if appellant were seeking to discharge appointed counsel. Marsden applies "when a defendant seeks to discharge [appointed] counsel and substitute another attorney on the ground of inadequate representation . . . ." (People v. Clark (1992) 3 Cal.4th 41, 102.) Under Marsden, a defendant is not entitled to substitute counsel unless he makes "a sufficient showing that denial of substitution would substantially impair his constitutional right to the assistance of counsel . . . ." (People v. Ortiz, supra, 51 Cal.3d at p. 980, fn. 1.) The court denied appellant's request because it concluded that he had failed to make the showing required by Marsden.

A defendant is entitled to discharge retained counsel without showing any impairment of his right to counsel. (Ortiz, at p. 987.) While a court has discretion to deny a motion to discharge privately retained counsel "if it is not timely" (id. at p. 983), the record does not suggest that the court denied appellant's motion as untimely. In fact, despite the prosecution's vigorous objection to any further delay, the court continued the case for several weeks to allow a CDA attorney to assess whether there was a basis for filing a motion to withdraw the plea. The court should have informed appellant that he had the right to discharge retained counsel and allowed him to retain private counsel, if he were able to do so, and advise him that he would be eligible for appointed counsel upon an adequate showing of indigence. By refusing to allow appellant to discharge retained counsel, the trial court denied him the right to defend with counsel of his choice. (Id. at pp. 987-988.) (The record does not indicate that appellant was required to make an adequate showing of indigence before the court-appointed CDA attorney Wiksell.)

The Trial Court Lacked Jurisdiction to Increase Appellant's Aggregate Sentence

Appellant contends that the trial court lacked jurisdiction to increase his aggregate sentence on August 29. The court then conducted additional sentencing proceedings after the prosecutor informed the court of "an error in the sentencing." The prosecutor explained that he "made a mistake in the [sentence] calculation . . . by . . . accidentally exclud[ing] a [four-month] consecutive sentence for Count 17, . . . [a] subordinate count[] for attempted grand theft . . . ." The aggregate sentence imposed on August 18, without a consecutive term for count 17, was 14 years 8 months. The prosecutor proposed that the court resentence appellant and impose a consecutive term for count 17. Appellant objected and the court stated, "There was a clerical error by counsel and [the court]. The bargain was for 15 years and that's what he's going to get; 15 years. [] The Court orders the previous sentence modified, and Count 17 is added to the consecutive counts, and now the sentence will . . . total 15 years."

Respondent argues that section 1170, subdivision (d) provides an exception to the general rule that a trial court loses jurisdiction over a criminal defendant once the sentence has been entered in the court minutes, or after the defendant has begun serving the sentence or has been restrained by the sentence imposed. Section 1170, subdivision (d) states as follows, in pertinent part: "When a defendant . . . has been sentenced to be imprisoned in the state prison and has been committed to the custody of the Director of Corrections, the court may, within 120 days of the date of commitment on its own motion, . . . recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence." (Italics added; see People v. Johnson (2004) 32 Cal.4th 260, 265-266.) Because the 15-year sentence imposed on August 29 exceeded the initial sentence, the court exceeded its section 1170, subdivision (d) resentencing jurisdiction by imposing the 15-year sentence.

Respondent further argues that a court may correct an unauthorized sentence at any time, citing People v. Guillen (1994) 25 Cal.App.4th 756, 764-765. An unauthorized sentence is one that cannot lawfully be imposed under any circumstances in the particular case. (People v. Smith (2001) 24 Cal.4th 849, 852; People v. Jordan (2006) 141 Cal.App.4th 309, 319.) Respondent cites no persuasive authority for the proposition that the court acted without authorization when it imposed a 14-year 8-month sentence after making a commitment to sentence appellant to "no more than 15 years in prison." The 14-year 8-month sentence imposed by the court on August 18 is not an unauthorized sentence.

The judgment is reversed and the matter remanded with the following directions: (1) The court shall hold a hearing to allow appellant the opportunity to request a reasonable continuance to retain private counsel or apply for the appointment of counsel upon an adequate showing of indigency; (2) if newly retained or appointed counsel determines there is a basis for making a motion to withdraw appellant's plea, the court shall consider and decide that motion; (3) if counsel does not make any motions, or any motions made are denied, the court shall reinstate the judgment and impose the sentence it imposed on August 18.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

PERREN, J.

Charles R. McGrath, Judge

Superior Court County of Ventura

______________________________

Dan Mrotek, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Edmond G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Taylor Nguyen, Deputy Attorney General, for Plaintiff and Respondent.

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