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The People v. Bernardino Santillan Martinez


February 1, 2011


(Super. Ct. No. 09F01941)

The opinion of the court was delivered by: Hull , Acting P. J.

P. v. Martinez



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

As part of a bargain, defendant Bernardino Santillan Martinez pleaded no contest to two counts of committing a lewd act with a minor aged 10 or younger, in exchange for the dismissal of eight other counts and a stipulated prison sentence of 30 years to life. (Pen. Code, § 288.7, subd. (b); undesignated statutory references that follow are to the Penal Code.) The trial court sentenced defendant in accordance with the bargain, and defendant timely filed this appeal and obtained a certificate of probable cause.

On appeal, defendant contends the judgment must be reversed because the trial court erred in connection with his motion to withdraw his plea. For purposes of this appeal, we assume the trial court made a procedural error by appointing counsel for the limited purpose of investigating a motion to withdraw the plea, and then reinstating prior counsel after the motion was denied. But we find no prejudice. We note though that the abstract of judgment must be corrected in several respects. We affirm the judgment with directions to the trial court to prepare a new abstract.


An amended complaint filed on July 7, 2009, charged defendant with 10 sexual offenses against the victim, aged 10. On that date, defendant pleaded no contest to two counts of committing a lewd act on a minor aged 10 or younger, in exchange for the dismissal of the other eight counts, and a stipulated prison sentence of 30 years to life.

At the plea hearing, defense counsel Joseph Farina stated he had tried to negotiate a determinate term, but defendant had been caught molesting the child, and both he and the victim told the police that defendant had orally copulated the victim many times. Mr. Farina had explained the consequences of the plea---including a certainty of deportation---to defendant:

"And it is his decision to accept the D.A.'s offer. I can't recommend it. But Mr. Martinez feels there is no reason to continue to draw these proceedings out.

"I want on the record that I can't necessarily go along with this deal because it's a life offer.

"It is Mr. Martinez's case, and he is wishing to accept the D.A.'s offer."

After defendant told the trial court that he wanted to accept the offer for a prison sentence of 30 years to life, the trial court inquired of defendant in part as follows:

"You understand that your attorney recommends against entering this plea on these conditions.

"But the final decision is yours, Mr. Martinez, and that's what you want to do?

"Is that correct?

"THE DEFENDANT: Well, there isn't any other solution.

"THE COURT: All right. That's what you want to do then today?


While making the standard advisements for a no contest plea, the trial court ascertained that Mr. Farina had explained the charges and possible defenses to defendant, and defendant had not been threatened or promised anything other than as set forth in the plea bargain as described on the record.

The factual basis for the plea shows that on March 13, 2009, defendant orally copulated the victim, then aged 10, and between December 21, 2007, and December 20, 2008, he orally copulated her, then aged 9.

On August 21, 2009, the date set for sentencing, Mr. Farina informed the court defendant wanted to withdraw the plea, and that defendant had told the probation officer he had been rushed into taking the plea and had claimed that Mr. Farina "told him he had no other option than to take the plea agreement, 30 to life, and was given just two days to think about it." Mr. Farina continued:

"This Court may remember, since this Court took the plea, that I specifically put it on the record that this plea was against my legal advice; that I attempted to get a [determinate] sentence from the district attorney, with no luck, and then approached the Court about a [determinate] sentence, also, without success. But ultimately, I could not recommend this plea bargain.

"And this Court did inquire of the defendant, if he understood that taking this plea was against my legal advice. And Mr. Martinez indicated that he did, but he wished to proceed with the plea and the offer as related by the district attorney, which, again, was against my legal advice.

"He now has apparently changed his mind and wants to withdraw his plea. And that's where we find ourselves."

Mr. Farina recommended that an independent attorney be appointed "to take a look at it and see if there are any grounds to withdraw the plea." The trial court agreed, and defendant waived time to enable this procedure. Defendant did not lodge any objection to this procedure.

On October 9, 2009, attorney Kelly Tanalepy filed a motion to withdraw the plea. The motion asked, "that the court reconsider this plea in light of [defendant's] lack of record and immigration consequences."

Defendant's supporting declaration stated he had not committed other crimes, and "Once I finish the sentence I have to be deported from this country. I do not intend to . . . return here after that." His declaration conceded he had accepted the plea bargain against Mr. Farina's advice:

"In this case my attorney told me that all the evidence against me was the statement that was taken from me when I did not have an attorney. He said that in trial that statement would be enough together with hearsay statements to convict me of a sentence of at least thirty years to life. And it wouldn't necessarily be based on the statement of the person who was the victim, but a statement from someone who is quoting that person.

"This was the primary reason I entered the plea against the advice of my attorney. I made that decision while feeling a little pressured with my attorney saying I was between a rock and a hard place. This was really why I [pleaded no contest.]"

In its opposition, the prosecutor summarized the evidence available to the People, showing that the victim's father found defendant in the act of molesting the 10-year-old girl, and that both the victim and the defendant told peace officers he had molested her many times since she was 9.

On October 23, 2009, the trial court denied the motion. The trial court found that Mr. Farina's assessment of the case had been realistic, based on the strength of the evidence available to the prosecution, and found that defendant knowingly, intelligently and voluntarily accepted the bargain, in part stating that "when I took the plea, Mr. Farina urged Mr. Martinez not to enter it." The court stated: "The basis for Mr. Martinez's wish to withdraw the plea seems to be that he now feels that he should be capable of rehabilitation and that perhaps he could achieve a better disposition. That is not sufficient grounds to withdraw the plea."

Without objection by defendant, Ms. Tanalepy was relieved as counsel, and Mr. Farina represented defendant for sentencing. The trial court sentenced defendant to 30 years to life, in accordance with the plea bargain.

Defendant timely filed a notice of appeal, and the trial court issued a certificate of probable cause.



Motion to Withdraw the Plea

Defendant faults the procedure used by the trial court, whereby one attorney was appointed for the limited purpose of investigating a new trial motion, and was relieved when that motion was denied, reinstating prior counsel. He contends this deprived him of his right to conflict-free counsel. He contends Mr. Farina violated his duty of loyalty by "airing their differences," and Ms. Tanalepy "was not fully authorized to argue on [defendant's] behalf" because Mr. Farina had not been relieved as counsel. Defendant also suggests the procedure did not comport with People v. Marsden (1970) 2 Cal.3d 118 (Marsden) and its progeny. Therefore, he contends the judgment based on his plea must be reversed.

The Attorney General contends defendant needs a certificate of probable cause to attack his plea by raising these claims. (See People v. Johnson (2009) 47 Cal.4th 668.) The Attorney General knows defendant has a certificate, but argues the trial court should not have issued it. Assuming we have the authority to strike an improperly issued certificate, we decline to do so here. A defendant merits a certificate by raising "'any cognizable issue for appeal which is not clearly frivolous and vexatious[.]'" (Id. at p. 676.) Under this lenient standard, we see no basis to strike defendant's certificate.

In dicta in People v. Smith (1993) 6 Cal.4th 684 (Smith), the California Supreme Court raised doubts about the procedure of appointing "simultaneous and independent, but potentially rival, attorneys to represent defendant." (Id. at p. 695.)

Recently, the Fifth District Court of Appeal has condemned the practice followed here, characterizing it as an abandonment of a trial court's duty to conduct a Marsden hearing. (People v. Sanchez (2010) 189 Cal.App.4th 374, 385, fn. 4 (Sanchez); People v. Eastman (2007) 146 Cal.App.4th 688, 696-697.)

The Fifth District held that the proper procedure "includes (1) making an adequate inquiry of the defendant and his or her defense counsel, to learn the general basis for the defendant's proposed motion; (2) conducting a Marsden hearing, if the general basis for that motion is the alleged incompetence of defense counsel; (3) relieving defense counsel and appointing a new attorney for the defendant if, and only if, 'a failure to replace the appointed attorney would substantially impair the [defendant's] right to assistance of counsel[.]' ([Smith, supra, 6 Cal.4th at p. 696].) The proper procedure does not include the appointment of 'conflict' or 'substitute' counsel to investigate or evaluate the defendant's proposed new trial or plea withdrawal motion." (Sanchez, supra, 189 Cal.App.4th at p. 379.)

For purposes of this appeal, we shall assume the trial court's procedure was in error, but find any error harmless.

If we view the error as improperly bypassing a Marsden hearing, any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705].)

Before Ms. Tanalepy was appointed, defendant claimed that Mr. Farina rushed him into accepting a plea bargain, and his declaration attached to the motion to withdraw the plea stated that Mr. Farina had painted a bleak picture of the evidence available to the prosecution.

We accept the premise that coercing a client into accepting an unfavorable plea bargain may constitute incompetence of counsel, justifying removal of counsel by a trial court in response to a Marsden request by a defendant. But a defendant's expression of dissatisfaction with counsel does not trigger a duty to conduct a Marsden hearing absent a "'clear indication by defendant that he wants a substitute attorney.'" (People v. Mendoza (2000) 24 Cal.4th 130, 157, italics added.)

In People v. Dickey (2005) 35 Cal.4th 884 (Dickey), Dickey's trial counsel requested separate counsel be appointed to represent the defendant on a motion for new trial based on ineffective assistance of counsel. (Id. at p. 918.) The idea for appointment of separate counsel for this limited purpose was counsel's, not defendant's. (Ibid.) The California Supreme Court concluded the trial court did not commit Marsden error, because Dickey had not indicated he wanted substitute counsel, instead, "[t]o the extent he made his wishes known, he wanted to use counsel's assertedly incompetent performance . . . as one of the bases of a motion for new trial, and he wanted to have separate counsel appointed to represent him in the preparation of such a motion. As his expressed wishes were honored, he has no grounds for complaint now." (Id. at pp. 920-921.)

In this case, as in Dickey, supra, 35 Cal.4th 884, defendant never articulated a desire for substitute counsel and acquiesced in the procedure whereby he was given an additional attorney, albeit for the limited purpose of litigating a motion to withdraw the plea. "As his expressed wishes were honored, he has no grounds for complaint now." (Id. at p. 921.)

"Moreover, it is clear a Marsden motion would have been baseless." (Dickey, supra, 35 Cal.4th at p. 921.) Had the trial court conducted a Marsden hearing instead of appointing Ms. Tanalepy for a limited purpose, the trial court would have denied the Marsden motion. As the trial court later observed, Mr. Farina stated that he opposed the plea bargain, and the trial court had taken pains to make sure defendant still wanted to accept that bargain. Further, the motion to withdraw the plea revealed no basis to conclude that Mr. Farina had been incompetent. Defendant concedes that Ms. Tanalepy's motion did not allege Mr. Farina had been incompetent, only that defendant felt "a little pressured" because Mr. Farina had told him---accurately as it turned out---that, in defendant's words, defendant was "between a rock and a hard place." The motion sought a do over, but as the trial court found, it stated no valid grounds for withdrawing the plea. We will not presume that Ms. Tanalepy improperly failed to assert all viable claims in her motion.

Smith, supra, 6 Cal.4th 684, does not hold that the appointment of a second attorney without a Marsden hearing violates the defendant's fundamental rights. Rather, a Marsden hearing allows the court to screen for frivolous contentions and help avoid the "spectacle of a series of attorneys appointed at public expense whose sole job, or at least a major portion of whose job, is to claim the previous attorney was, or previous attorneys were, incompetent[.]" (Id. at p. 695.)

Further, even if defendant had prevailed at a Marsden hearing, the court would simply have appointed a new attorney who would have acted independently. (See Smith, supra, 6 Cal.4th at pp. 695-696.) The only difference between what occurred here and what would have occurred if defendant had prevailed at a Marsden hearing is that the trial court did not relieve Mr. Farina for all purposes. But, apart from the motion to withdraw the plea, the proceedings were essentially over when Ms. Tanalepy was appointed. After that motion was denied, all that remained was to sentence defendant pursuant to the plea agreement, which provided for a stipulated sentence.

Therefore, if we faulted the trial court for not conducting a Marsden hearing and appointing Ms. Tanalepy for a limited purpose, the error was harmless beyond a reasonable doubt.

If we view the error as providing multiple counsel with conflicting interests, such error, too, would be harmless.

We return to the stated concern of the California Supreme Court, which was over "the appointment of simultaneous and independent, but potentially rival, attorneys to represent defendant." (Smith, supra, 6 Cal.4th at p. 695.)

In this case, defendant did not object to the appointment of Ms. Tanalepy for a limited purpose nor did he object when she was removed and Mr. Farina resumed the case after the motion to withdraw the plea was denied. Prejudice will not be presumed based on a claim that trial counsel had a conflict of interest. (People v. Doolin (2009) 45 Cal.4th 390, 420-421; People v. Dancer (1996) 45 Cal.App.4th 1677, 1687 [absent objection, defendant must show "a demonstrable and negative effect on his right to effective representation" due to claimed conflict], disapproved on another point by People v. Hammon (1997) 15 Cal.4th 1117, 1123.) We see no prejudice.

We reject defendant's effort to characterize Ms. Tanalepy as lacking "the freedom to raise all issues relevant to the motion to withdraw appellant's plea, since any attempt to argue [Mr.] Farina's ineffectiveness in that motion would have created a conflict between her and her co-counsel." She was not "co-counsel" working with Mr. Farina, because if she were, defendant's contention of a conflict would evaporate. Instead, she was appointed to review the circumstances surrounding the entry of the plea by defendant, including reviewing Mr. Farina's work on behalf of defendant, and to file a motion to withdraw a plea if she found any grounds to do so. We will not presume she pulled her punches.

Nor, contrary to defendant's view, does the record show that Mr. Farina breached his duty of loyalty to defendant.

At a change of plea hearing, trial courts must ensure that a defendant knowingly and voluntarily enters the new plea. As part of the standard admonishments and waivers, trial courts generally ask a defendant whether she or he had sufficient time to discuss the charges and possible defenses thereto with counsel, and generally ask whether counsel joins in the waivers. (See, e.g., Cal. Judges Benchguide 91: Felony Arraignment and Pleas (CJER 2008) § 91.31, pp. 91:26-27 [felony plea script].)

Here, Mr. Farina properly stated that he did not believe the plea bargain was in defendant's best interests, but that he had been unable to negotiate a better bargain and defendant insisted on taking the bargain on the table. Contrary to appellate counsel's view, Mr. Farina was not arguing against defendant, or revealing privileged communications, he was informing the court of a relevant factor for the court to consider in determining whether defendant was acting knowingly and voluntarily in accepting the bargain. The only information given by defendant to Mr. Farina that Mr. Farina told the court was that defendant wanted to accept the plea bargain, and in the context of a hearing on the voluntariness of a plea bargain, giving that information to the court did not, as appellate counsel states, show that Mr. Farina argued against his client.

Counsel also asserts Mr. Farina breached the duty of loyalty by reminding the trial court later that he had opposed the plea bargain. All Mr. Farina did was state the plea was entered over his objection. That was a factual statement that did not reveal any client confidences, and was readily shown by the transcript of the plea hearing.

In an effort to demonstrate prejudice, appellate counsel posits that there may have been defects in the prosecution's case. Defendant's declaration, if believed, shows his statement to the police was made without representation, and that Mr. Farina had told defendant that hearsay statements could be used against him. Appellate counsel speculates that Mr. Farina failed to consider that such evidence might have been inadmissible. The fact defendant did not have an attorney when he spoke to the police does not mean his statements were inadmissible, and statements by young sexual assault victims made to peace officers or treating professionals are often admissible in cases where the victim forgets something or gives inconsistent testimony at trial. Thus, defendant's declaration does not establish that Mr. Farina made any errors. So far as this record shows, defendant was caught in the act with a 10-year-old girl, and both she and he told the police he had been molesting her for a long time.

No prejudice due to purported divided loyalties or other claimed failings by either counsel is shown by this record. Accordingly, any error in the procedure used by the trial court in appointing Ms. Tanalepy for a limited purpose, and relieving her when that purpose was satisfied, was harmless.


The Abstract of Judgment

An abstract of judgment must fully and accurately capture all components of a defendant's sentence. (See People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Zackery (2007) 147 Cal.App.4th 380, 389-390.)

The abstract here has three errors. First, it misstates the basis for defendant's custody credit award. A 15 percent limit on conduct credits was applied pursuant to Penal Code section 2933.1, not Penal Code section 4019. Second, it incorrectly states there is a determinate term reflected on an attachment. Third, it does not indicate defendant's two sentences were imposed consecutively. A corrected abstract must be prepared.


The judgment is affirmed with directions to the trial court to prepare and forward to the Department of Corrections and Rehabilitation a corrected abstract of judgment.

We concur: ROBIE, J. BUTZ , J.


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