Filed 1/23/18 P. v. Glover 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

DENNIS DAVID GLOVER,

Defendant and Appellant.
C083057

(Super. Ct. No. 16CF01338)





Defendant Dennis David Glover pleaded no contest to battery with serious bodily injury (Pen. Code, § 243, subd. (d)) and the trial court sentenced him to four years in state prison. Defendant now contends his trial counsel was ineffective in failing to “inform him of [a] witness statement” before he entered into the plea agreement. Defendant also contends the trial court abused its discretion in denying his motion to withdraw his no contest plea.
We conclude defendant never moved to withdraw his plea but also conclude trial counsel was ineffective for not disclosing a witness’s statement to defendant prior to defendant’s entering a no contest plea. Accordingly, defendant is entitled to withdraw his no contest plea. We reverse the judgment and remand the matter for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
A. Underlying Facts, Investigation, and Charges
On April 26, 2016, law enforcement received a report of a fight in a public park: Two men were kicking a third man in the head. As law enforcement approached, two of the men ran away. One of the men, identified as defendant, was nevertheless quickly apprehended. Meanwhile, the victim Martin Martinez lay face down in the grass, unconscious, with his head bleeding. He was transported to the hospital.
Defendant “spontaneously” told the law enforcement officers that he got into a fight with Martinez and tackled him to the ground. They arrested defendant and transported him to the police station. After he was given his Miranda rights, defendant said he was approached by Martinez. According to defendant, Martinez was drunk and “making weird movements.” Defendant felt threatened and tackled him to the ground. Then, defendant reported, another man “ ‘jumped in’ ” and started hitting and kicking Martinez in the head. Defendant claimed he did not know the other man and defendant fled the scene after Martinez was knocked unconscious.
Defendant was booked into the county jail.
When Martinez was interviewed days later, he reported that at the time of the assault, he was wearing two watches. According to Martinez, defendant approached him and questioned him about the watches. He believed defendant attacked him in order to steal the watches. A subsequent review of defendant’s booking sheet revealed that when he was booked, defendant had two watches in his possession and they matched the description of the watches stolen from Martinez.
In May 2016, the People charged defendant with battery with serious bodily injury (§ 243, subd. (d)), assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)), and second degree robbery (§ 211). The People further alleged defendant personally inflicted great bodily injury on his victim (§ 12022.7, subd. (a)) and served a prior prison term (§ 667.5, subd. (b)).
On June 2, 2016, defense counsel’s investigator met with Serenity Grace Breevaart, a witness to the assault. According to Breevaart, she was sitting in a park when she was approached by Martinez. Martinez was yelling profanities at Breevaart and throwing cinnamon rolls at her; he picked up a cinnamon roll in each hand and “aggressively approached her.” Defendant intervened and told Martinez to leave Breevaart alone. Defendant was on his bike; Martinez grabbed him, and the two men fell to the ground. According to Breevaart, the men wrestled but “[n]o punches were thrown and [defendant] was just trying to restrain [Martinez].” Breevaart remembered a third man, “Cody,” arrived at the scene and he was the one kicking and punching Martinez. She also knew there was some animosity between Cody and defendant based on their shared history with a woman. They all ran from the park when they heard sirens.
On June 8, 2016, defendant pleaded no contest to battery with serious bodily injury. (§ 243, subd. (d).) In exchange for defendant’s plea, the People agreed they would move to dismiss the remaining charges and allegations. On June 29, 2016, the probation department issued a report recommending defendant be denied probation and sentenced to four years in state prison.
B. Marsden Hearing
On July 6, 2016, the date set for sentencing, defendant appeared with counsel; counsel opened with the following statement to the court: “Your Honor, it was my belief that we were going to provide some additional information to the probation department on behalf of my client, but he wants to at this point address the issue as to whether or not the Court would permit him to withdraw his plea, and we are familiar with that protocol and given the fact that this is my last case, . . . I suggest that we can address that.”
The People were not clear on what defense counsel was suggesting, so counsel elaborated: “We’re going to have a Marsden motion. Once that is completed, then we’ll either proceed to sentencing or we’ll put it over, but I was not aware until this morning, but it seems to me we have time to address it this morning. It shouldn’t take long.”
Later that morning, the court conducted the Marsden hearing. In a closed courtroom, defendant advised the court that counsel “withheld my witness statement from the courts and did not make them aware when I asked to and that reflected on a negative probation report, and I want the electronic—that’s new evidence into the court that is to my behalf, which is my defense.” There also were character references, which defendant said trial counsel did not deliver to the probation department.
The court responded: “Just so I’m clear, you’re saying that you have witness statements that were not sent to probation, and, therefore, probation didn’t consider them in making their recommendation?
“THE DEFENDANT: Yes.
“And my letters—and my letters from people I know and from people, you know.”
The court indicated it had received “quite a few” character reference letters, and the court read them. The court again attempted to clarify defendant’s concerns: “So your concerns are witness statements and character reference letters that probation has not considered.
“THE DEFENDANT: Yes.
“THE COURT: All right. Anything else you want to say at this time?
“THE DEFENDANT: I feel that the witness statement is key to my case, and it came in during, you know—after the fact, you know, of the matter of my plea, and I haven’t even been able to see, you know, what it says.
“THE COURT: Just so I’m clear, when you talk about a witness statement, this is something you believe [trial counsel] has through his investigator?
“[TRIAL COUNSEL]: I can address that.
“THE COURT: All right. Before I hear from [trial counsel], anything further, [defendant]?
“THE DEFENDANT: No, sir.”
Trial counsel proceeded to explain the situation: “It was my intention today, which I articulated to the Court earlier, and explained to [defendant], who is seated next to me, that I . . . going to continue this case to placate him with regards to additional letters that, apparently, were late arriving at my office. And, finally, whether or not to submit a witness statement that may—and I’ve discussed this with Mr. Gomes today—which served to mitigate the offense, but, certainly, would not have amounted to a defense.”
Counsel explained defendant’s exposure, should they proceed to trial, was “significantly greater” than the plea defendant entered into. He said he tried to explain things to defendant but defendant “wasn’t interested in listening to what I had to say.” Counsel proposed continuing the hearing so he could provide “any additional information that would please [defendant], including a witness statement that may have related to events that may have mitigated this case.”
Defendant then asked the court if he was “allowed a copy of the witness statement even if it’s blacked out? . . . I would like to know what it says at least because it’s on my behalf.” Counsel indicated that after considering the implications to attorney-client privilege and whether the statement would “exacerbate . . . [defendant’s] case,” he was comfortable providing defendant with a copy of the witness statement.
Defendant continued to explain that the statement was “key” to his case. The court responded: “Well, first of all, you haven’t even seen the witness statement yet.” Defendant indicated, however, that he was “aware [of] what it is.” Attorney Gomes had discussed the statement with defendant but would not let him see the statement itself. According to defendant, Attorney Gomes told him that he was not allowed to show the statement to defendant. Defendant did not believe counsel was “on [his] side.”
The court found defendant did not meet his burden under Marsden and denied defendant’s motion. The court indicated it would give counsel the opportunity to deliver copies of “everything” to the probation department and the court would order the probation department to prepare a supplemental report. Defendant responded: “I’m just asking—so—so—so withholding material facts isn’t—isn’t a good enough reason to withdraw plea?
“THE COURT: That’s not before me right now, okay. Anything further at this time?
“[TRIAL COUNSEL]: One thing that I think that will help [Attorney] Gomes and I and the People and the probation department is for [defendant] to understand that, based upon this procedure, the Court is not at this point going to permit him to address an issue as to withdrawing his plea. That’s not going to happen.
“THE COURT: That’s correct.”
C. Sentencing
On July 27, 2016, the probation department filed an interdepartmental memorandum with the trial court. In that memorandum, Deputy Probation Officer Dwight Callaway indicated he read the witness statement provided by defendant’s trial counsel but, “[b]ased on the totality of the circumstances and various statements,” affirmed the prior recommendation that defendant be sentenced to four years in state prison.
The trial court subsequently adopted the probation department’s recommendation and sentenced defendant to four years in state prison.
DISCUSSION
I. Motion to Withdraw No Contest Plea
Defendant contends the trial court abused its discretion in denying his motion to withdraw his plea. We cannot resolve this issue on appeal because defendant never actually moved to withdraw his plea.
On the date set for sentencing, trial counsel indicated defendant wanted to know if the court would consider allowing him to withdraw his no contest plea. Counsel then indicated there was time that morning to follow “protocol” and have a Marsden hearing. Defendant argues this was in error because defendant did not personally request a Marsden hearing. Defendant is mistaken. A Marsden motion can be requested by defendant “personally or through his current counsel . . . .” (People v. Sanchez (2011) 53 Cal.4th 80, 89-90.)
Moreover, there is no evidence in the record, as defendant suggests, that the Marsden motion was made “at the behest solely of [trial] counsel.” Indeed, requesting a Marsden hearing for replacement counsel before moving to withdraw a plea based on ineffective assistance of current counsel, is a well-accepted protocol. (See People v. Sanchez, supra, 53 Cal.4th at pp. 89-90 [“[A] trial court is obligated to conduct a Marsden hearing on whether to discharge counsel for all purposes and appoint new counsel when a criminal defendant indicates after conviction a desire to withdraw his plea on the ground that his current counsel provided ineffective assistance only when there is ‘at least some clear indication by defendant,’ either personally or through his current counsel, that defendant ‘wants a substitute attorney.’ ”].)
Here, the Marsden hearing was held and defendant explained why he thought counsel was not representing him “to his fullest abilities.” Defendant also asked whether counsel’s failures were enough to allow him to withdraw his plea—the court said that issue was not before the court. The court denied defendant’s Marsden motion. Defense counsel then noted, for defendant’s benefit, that “based upon this procedure, the Court is not at this point going to permit him to address an issue as to withdrawing his plea. That’s not going to happen.” The court agreed and reopened the courtroom. There was no further discussion about defendant’s moving to withdraw his plea. (See § 1018 [defendant must, in open court, make personally or adopt counsel’s motion to withdraw from a plea agreement].)
Because defendant never moved to withdraw his no contest plea, there is no ruling for us to review.
II. Ineffective Assistance of Counsel
Defendant further contends trial counsel failed to disclose Breevaart’s statement to him before he entered a no contest plea. This, he contends, rendered counsel’s representation of him deficient and, had he seen the statement before entering the plea, he would not have entered the plea.
The People argue defendant has failed to establish that counsel did not discuss the Breevaart statement with him until after the plea. Alternatively, the People argue that even if counsel had not disclosed the contents of the Breevaart statement with defendant prior to the plea, counsel’s conduct was not ineffective because the statement “fails to provide [defendant] any additional defenses to the charges.”
Finally, the People argue that defendant failed to establish he was prejudiced by counsel’s conduct.
On this record, defendant has the better argument.
“It is well settled that where ineffective assistance of counsel results in the defendant’s decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea.” (In re Alvernaz (1992) 2 Cal.4th 924, 934.) Where, as here, a defendant contends that ineffective assistance of counsel induced his no contest plea, he or she must “establish not only incompetent performance by counsel, but also a reasonable probability that, but for counsel’s incompetence, the defendant would not have pleaded guilty and would have insisted on proceeding to trial.” (Ibid.)
We conclude trial counsel was deficient in his representation. Counsel had a witness statement that corroborated defendant’s claim he was not the aggressor. The statement also corroborated defendant’s claim that it was a third man who inflicted the damage on Martinez and not defendant. Breevaart’s statement also suggests defendant was acting to defend her. In sum, Breevaart’s statement weakened the People’s case and offered potential defenses to the charges of assault and battery, including defense of others. It is, therefore, objectively unreasonable for counsel to withhold such information from a defendant before entering into a plea agreement.
Defendant also has established prejudice as a result of trial counsel’s deficient representation. Defendant told the court he did not know about Breevaart’s statement until after his plea. And, from defendant’s perspective, Breevaart’s statement was “key to [his] case”; it was essential to his defense. Defendant repeatedly told the court that, now knowing the content of the Breevaart statement, he wanted to withdraw from his plea. Thus, on this record, defendant has established that, had trial counsel discussed with him the content of Breevaart’s statement before defendant entered his plea, he would not have entered the plea.
We will reverse the judgment and remand the matter for further proceedings.
DISPOSITION
The judgment is conditionally reversed and remanded with directions to allow defendant to make an appropriate motion, within 45 days of remittitur, to withdraw his no contest plea. If defendant files such a motion, the trial court shall grant the motion and reinstate the charges and allegations. If defendant does not file a motion to vacate his no contest plea, the judgment will be affirmed. A copy of this opinion shall be provided to
the State Bar and to defendant’s trial counsel as required by Business and Professions Code section 6086.7.



BUTZ , J.



We concur:



BLEASE , Acting P. J.



MURRAY , J.