P. v. Gonzales

Filed 3/24/06 P. v. Gonzales CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Christobal D. Gonzales appeals from a judgment of conviction entered following his guilty pleas to two counts of violating Penal Code section 288, subdivision (a)[1] (lewd acts upon a child under the age of 14 years) and admission of a section 1203.066, subdivision (a)(8) allegation making defendant ineligible for probation absent certain judicial findings under former subdivision (c) of section 1203.066 (stats. 1997, ch. 817, § 13, pp. 4457-4458).[2] Defendant Gonzales challenges the denial of his post-plea Marsden motion (People v. Marsden (1970) 2 Cal.3d 118). We reverse the judgment and remand for an adequate hearing.

A. Procedural History

On January 18, 2005, a criminal complaint was filed against defendant Gonzales. He was charged with committing 11 violations of section 288, subdivision (a), against the same victim. The complaint also alleged that, as to each count, defendant engaged in "substantial sexual conduct" with the victim (§ 1203.066, subd. (a)(8)), which rendered him ineligible for probation absent certain findings by the court (§ 1203.066, former subd. (c)). On March 25, 2005, defendant, represented by an assistant public defender, waived preliminary examination.

On April 14, 2005, an information containing the same charges and allegation as the complaint was filed against defendant. On the same date, defendant pled guilty to counts one and two and admitted the allegation of "substantial sexual conduct" under section 1203.066, subdivision (a)(8), in exchange for the dismissal of the remaining nine counts. Before entering his plea, the court indicated that probation was not likely. The court ordered a section 288.1 report evaluating defendant's mental condition.

On June 2, 2005, the date scheduled for sentencing, defense counsel informed the court that defendant wanted to request the appointment of a different attorney for purposes of sentencing. The court immediately commenced a Marsden hearing. The court inquired why defendant wished to have new counsel appointed. Defendant told the court: "If I can just read this. I want a Marsden hearing. I have a written Marsden. I cannot read good and everything that I want the Court to know is in this Marsden. I can try to answer questions but I really need the Court to read the Marsden first because people have helped me for the past three days to get all of the facts down in the Marsden. Please read it carefully. Thank you." The court asked, "What is it that you want me to read?" The defendant stated, "Just the reasons why I want the Marsden."

The court then asked why defendant wanted a new attorney. Defendant answered, "Just for further investigation into my reports from the doctor and probation." The court expressed doubt that new counsel would benefit defendant since defendant's current counsel did not "make up the reports." Defendant responded: "It's like written in this here paperwork that I had help with trying to get this figured out so I could have another shot at probation." The court inquired, "Is there anything else you should tell me why I should appoint another attorney to assist you for purposes of sentencing though?" Defendant answered, "No. It's written." The court said, "I'm sorry?" Defendant responded: "Not off the top of my head. It's written in here (indicating)." The court asked, "Do you want me to read something?" Defendant answered, "If you could, please."

The court questioned, "Have you let your attorney read this first?' Defendant replied, "No." The court then asked, "Did you write this?" Defendant answered, "No. I had help writing it." The court asked, "Who wrote it or helped you write it?" Defendant told the court, "A couple of guys in the jail. . . ."

Defendant then mentioned "a code or something that says that I am eligible [for probation] in some sort of way . . . ." The court asked whether there was anything defendant wished to say "about the underlying plea here as far as the special allegation." Defendant told the court: "Your Honor, the Court can grant probation if you find that it meets certain criteria that are listed in I believe it's Subsection (c) of 1203.066. There are five items that the Court needs to consider. If the Court finds that those are applicable the Court can still grant probation."

After a brief exchange regarding the findings required to overcome the presumptive ineligibility for probation and certain information in the probation report, the court asked defendant, "How is the changing of the attorney going to effect [sic] this?" The court wanted to know why defendant believed removing his current counsel from the case "would make any difference on what is written in the probation report or in the doctor's 288.1 report." The court pointed out that "it's not within the attorney's power to necessarily change the recommendation of probation." The court stated that an attorney "can argue the points" but it would not change the position of the probation officer or the doctor "unless there's something missing from this that they have not investigated that you have asked your attorney to investigate and he has either refused or just ignored your request and I'm not aware of anything from what you've told me that was not looked into by probation or Dr. Reidy in their interview with you and their report." The defendant then indicated that the doctor's report failed to mention an early termination of felony probation due to his full compliance.

The court asked, "Anything further you want to tell me?" Defendant replied, "No." The court thereupon denied defendant's request for new counsel, stating, "I do not find that there's any cause to appoint new counsel based on what you've told me."

The court returned to the issue of sentencing. The prosecutor made his sentencing recommendations and defense counsel advocated a grant of probation. After considering the arguments of counsel, the probation report, and the doctor's report, the court denied probation. The court sentenced defendant to a six-year midterm on count one and a consecutive two-year term on count two for a total prison term of eight years.

Defendant filed an appeal. Defendant requested a certificate of probable cause on the grounds that the trial court abused its discretion by denying his Marsden motion without accepting his written motion. The request was made under penalty of perjury. Exhibit A to the request for a certificate of probable cause was a handwritten note containing three statements, which the request stated had been read to the court verbatim. The appellate record shows that these statements do correspond to defendant's opening remarks during the Marsden hearing. Exhibit B to the request consisted of a handwritten motion, which was entitled "Notice of Motion and Motion to Withdraw Plea of Guilty and/or Substitute Counsel to Prepare Motion to Withdraw Plea of Guilty" and dated June 1, 2005, defendant's handwritten supporting declaration, which was made under penalty of perjury, and a handwritten memorandum of points and authorities, which together totaled 25 pages.

In the declaration in support of the motion, defendant detailed his dissatisfaction with his counsel's past conduct, including his counsel's failure to confer with him regarding preparation of his defense, failure to communicate "the factual basis for the plea and the material needed to seek a mitigated sentence involving probation . . . ," failure to proceed with a preliminary hearing "in order to determine what charges can actually be sustained by evidence" before advising him to enter a plea, failure to conduct an adequate investigation critical to his defense and necessary to support a grant of probation, failure to challenge the adequacy of the doctor's report, and failure to obtain and present defense experts and other evidence critical to obtaining probation.

Defendant did not obtain a certificate of probable cause.

B. Lack of Certificate of Probable Cause

The People assert that this appeal should be dismissed for lack of a certificate of probable cause because defendant's complaints were really with the plea itself. (See § 1237.5; Cal. Rules of Court, rule 30(b).) The People acknowledge that this court has previously determined that an appellate challenge to the denial of a post-plea Marsden motion is cognizable without a certificate of probable cause. (People v. Vera (2004) 122 Cal.App.4th 970, 978.) As we recognized in Vera, the essential question in a Marsden motion is whether substitute counsel is necessary for adequate future representation. (Id. at p. 978, see People v. Smith (1993) 6 Cal.4th 684, 695.) We determined that a challenge to the denial of a post-plea Marsden motion does not necessarily implicate the validity of a defendant's plea. (People v. Vera, supra, 122 Cal.App.4th at p. 978.) The analysis in Vera is still sound.

Vera's reasoning is completely consistent with the Supreme Court's explication of Marsden in People v. Smith, supra, 6 Cal.4th 684. In Smith, the court indicated that "the trial court should appoint substitute counsel when a proper showing has been made at any stage," including post-plea, and it was up to newly appointed counsel to decide whether to "investigate a possible motion to withdraw the plea." (Id. at p. 695.)

We conclude that defendant was not required to obtain a certificate of probable cause to attack a Marsden ruling on appeal even if "some of defendant's complaints pertained to his trial counsel's pre-plea conduct" (People v. Vera, supra, 122 Cal.App.4th at p. 978) or even if defendant had hoped that substitute counsel would bring a motion to vacate his plea.

C. Adequacy of Marsden Inquiry

Defendant argues that the trial court erred in denying his Marsden motion without considering the grounds raised in the written motion. We agree.

"[S]ubstitute counsel should be appointed when, and only when, necessary under the Marsden standard, that is whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel (People v. Webster, supra, 54 Cal.3d at p. 435), or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result (People v. Crandell, supra, 46 Cal.3d at p. 854)." (People v. Smith, supra, 6 Cal.4th at p. 696.) We review a trial court's denial of a Marsden motion requesting the court to relieve appointed counsel and appoint new counsel under the deferential abuse of discretion standard. (See People v. Jones (2003) 29 Cal.4th 1229, 1245, People v. Silva (2001) 25 Cal.4th 345, 367; Marsden, supra, 2 Cal.3d at p. 123.)

In Marsden, the Supreme Court explained: "Defendant properly contends that the trial court cannot thoughtfully exercise its discretion in this matter without listening to his reasons for requesting a change of attorneys. A trial judge is unable to intelligently deal with a defendant's request for substitution of attorneys unless he is cognizant of the grounds which prompted the request. The defendant may have knowledge of conduct and events relevant to the diligence and competence of his attorney which are not apparent to the trial judge from observations within the four corners of the courtroom. Indeed, '[w]hen inadequate representation is alleged, the critical factual inquiry ordinarily relates to matters outside the trial record: whether the defendant had a defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choice of trial tactics and strategy.' [Citation.] Thus, a judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant's offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney." (People v. Marsden, supra, 2 Cal.3d at pp. 123-124.) "Thus, '[w]hen a defendant moves for substitution of appointed counsel, the court must consider any specific examples of counsel's inadequate representation that the defendant wishes to enumerate.' (People v. Webster (1991) 54 Cal.3d 411, 435 . . . .)" (People v. Hines (1997) 15 Cal.4th 997, 1024.)

"Depending on the nature of the grievances related by defendant, it may be necessary for the court also to question his attorney. (People v. Hill (1983) 148 Cal.App.3d 744, 753 . . . .) For example, in People v. Croce (1971) 18 Cal.App.3d 292 . . . at page 297, the court held when a defendant asserts 'specific important instances of alleged inadequacy of [counsel's] representation' such as failure to secure potentially exonerating evidence, the court cannot deny a Marsden motion without inquiry into counsel's reason for not introducing the evidence." (People v. Turner (1992) 7 Cal.App.4th 1214, 1219.) "A defendant's expression of dissatisfaction with appointed counsel, necessitating a Marsden hearing, does not compel counsel to concede the allegedly inadequate representation but rather requires counsel to respond truthfully to those allegations. One of the purposes of a Marsden hearing is to afford counsel the opportunity to address the defendant's concerns with respect to the defendant's representation and to explain counsel's performance." (People v. Horton (1995) 11 Cal.4th 1068, 1123.)

Although a Marsden hearing is informal, a court must "ascertain[] the nature of the defendant's allegations regarding the defects in counsel's representation and decide[] whether the allegations have sufficient substance to warrant counsel's replacement." (People v. Hines, supra, 15 Cal.4th at p. 1025.) "[A] court may not conduct an off-the-record investigation into the allegations of incompetence but must make its inquiry in open court in the presence of the defendant. (People v. Hill, supra, 148 Cal.App.3d at pp. 753-755.)" (People v. Barnett (1998) 17 Cal.4th 1044, 1091.)

In response to defendant's claims, the People first argue that "the record does not show that the court did not read the motion," relying upon the general rule requiring error to be affirmatively shown on the record. The People next assert that the court's ruling did constitute error because "nothing [defendant] said at the Marsden hearing gave the trial court any reason to believe that defense counsel was providing inadequate representation." The People finally contend that defendant "provided the court with no reason to investigate his claims further by reading the written submission" because he "did not articulate any specific complaints about his attorney . . . ."

It is true that the following rule governs appellate review: " ' "A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. . . ." ' (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 . . . , italics in original.)" (People v. Wiley (1995) 9 Cal.4th 580, 592, fn. 7.) We cannot agree, however, that the record in this case is silent as to whether the court read and considered defendant's written motion.

Although the court did not formally announce that it refused to accept defendant's written Marsden motion, that is the only reasonable inference to be drawn from the record. The hearing began with defendant offering his written motion to the court. In response to the court's questioning, defendant reiterated a number of times that his reasons for wanting a new attorney were in his proffered written motion. No such document was made a part of the record of the Marsden hearing. The judge never addressed defendant's written motion on the record and redirected the conversation to what defendant hoped to gain from a new attorney. The court did not discuss with defendant any specifics from his written motion and the court never asked defense counsel to respond to any of defendant's written complaints. At the end of the hearing, the judge asked whether defendant had "anything further . . . to tell" him and then denied the motion based upon what defendant had "told" him.

The court's inquiry was inadequate. The court did not consider or discuss defendant's written concerns on the record but rather focused upon the limited benefit of a new attorney at the sentencing stage. The test is not whether a different attorney would achieve a better result for the defendant in subsequent proceedings. "Whenever the [Marsden] motion is made, the inquiry is forward-looking in the sense that counsel would be substituted in order to provide effective assistance in the future. But the decision must always be based on what has happened in the past. The further one is in the process, the more counsel has done in the past that can be challenged . . . ." (People v. Smith, supra, 6 Cal.4th at p. 695.)

"Generally, a trial court's refusal to listen to a defendant's reasons for requesting a substitution of counsel does not comport with the standards set forth in Marsden." (People v. Clark (1992) 3 Cal.4th 41, 104.) In this case, the judge in effect refused to "listen" to defendant's written motion to replace his current counsel. We are aware of no rule requiring that grievances be spoken rather than written. Not all defendants are equally adept at expressing themselves orally in front of a judge. A trial court has the responsibility to consider a defendant's proffered written grounds for seeking substitution of appointed counsel and to allow defense counsel to respond as appropriate.

The remedy for failing to conduct a sufficient Marsden inquiry in this case is a limited remand for the purpose of holding a new hearing to adequately consider defendant's written complaints concerning defense counsel's performance. (See, e.g., People v. Ivans (1992) 2 Cal.App.4th 1654, 1667; People v. Winbush (1988) 205 Cal.App.3d 987, 992; People v. Minor (1980) 104 Cal.App.3d 194, 199; but see People v. Mack (1995) 38 Cal.App.4th 1484, 1487-1489 [the trial court's failure to permit defendant to state the reasons for his expressed dissatisfaction with defense counsel and to conduct inquiry into request for substitute counsel was harmless beyond a reasonable doubt where appellate counsel raised ineffective assistance of counsel in direct appeal and in related petition for writ of habeas corpus]; but see also People v. Bills (1995) 38 Cal.App.4th 953, 962 [court affirmed judgment where reporter's transcript of unsuccessful Marsden motions were missing since "a judgment will not be reversed on appeal where the record on appeal, by its very nature, fails to show counsel was incompetent, it likewise should not be reversed on appeal simply because the record omits the Marsden proceeding challenging counsel's competence"].)

The judgment is reversed. The matter is remanded to the trial court with directions to hold a Marsden hearing to fully inquire into defendant's previously proffered written complaints concerning his trial counsel. If the trial court concludes that defendant is not entitled to substitution of counsel, the court shall reinstate the judgment. If the trial court concludes that defendant is entitled to substitution of counsel, the court shall appoint substitute counsel to represent defendant in subsequent proceedings, including sentencing.

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ELIA, J.

WE CONCUR:

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PREMO, Acting P. J.

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BAMATTRE-MANOUKIAN, J.

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

[2] Section 1203.066, subdivision (a)(8), denies probation to "[a] person who, in violating Section 288 or 288.5, has substantial sexual conduct with a victim who is under 14 years of age." " 'Substantial sexual conduct' means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender." (§ 1203.066, subd. (b).) At all relevant times, former subdivision (c) of section 1203.066 read: "Paragraphs (7), (8), and (9) of subdivision (a) shall not apply when the court makes all of the following findings: [¶] (1) The defendant is the victim's natural parent, adoptive parent, stepparent, relative, or is a member of the victim's household who has lived in the victim's household. [¶] (2) A grant of probation to the defendant is in the best interest of the child. [¶] (3) Rehabilitation of the defendant is feasible, the defendant is amenable to undergoing treatment, and the defendant is placed in a recognized treatment program designed to deal with child molestation immediately after the grant of probation or the suspension of execution or imposition of sentence. [¶] (4) The defendant is removed from the household of the victim until the court determines that the best interests of the victim would be served by returning the defendant to the household of the victim. While removed from the household, the court shall prohibit contact by the defendant with the victim, except the court may permit the supervised contact, upon the request of the director of the court ordered supervised treatment program, and with the agreement of the victim and the victim's parent or legal guardian, other than the defendant. As used in this paragraph, 'contact with the victim' includes all physical contact, being in the presence of the victim, communication by any means, any communication by a third party acting on behalf of the defendant, and any gifts. [¶] (5) There is no threat of physical harm to the child victim if probation is granted. The court upon making its findings pursuant to this subdivision is not precluded from sentencing the defendant to jail or prison, but retains the discretion not to do so. The court shall state its reasons on the record for whatever sentence it imposes on the defendant. [¶] The court shall order the psychiatrist or psychologist who is appointed pursuant to Section 288.1 to include a consideration of the factors specified in paragraphs (2), (3), and (4) in making his or her report to the court." (Stats. 1997, ch. 817, § 13, pp. 4457-4458.)