IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
March 16, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
GREGORY DAVID HAIL, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F08112)
The opinion of the court was delivered by: Blease , Acting P. J.
P. v. Hail
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After several continuances of a hearing on his motion to replace appointed counsel (People v. Marsden (1970) 2 Cal.3d 118 [Marsden]), defendant Gregory Hail entered a negotiated plea of no contest to one count of robbery*fn1 without there being any further reference on anyone's part to the pending hearing. The trial court sentenced him in accordance with the agreement. In connection with his appeal, defendant obtained a certificate of probable cause from the trial court in which he had claimed that his plea was invalid because it was motivated by his fear that he would receive ineffective assistance from trial counsel.
On appeal, defendant asserts he did not abandon the Marsden motion, and we must conditionally reverse the judgment for the trial court to hold a hearing on it. The People maintain that defendant's plea precludes him from raising the issue on appeal, because he simply points to the procedural lacuna of the absence of a hearing and does not otherwise argue that his plea was involuntary, uninformed, or a function of trial counsel's inappropriate advice. (People v. Lovings (2004) 118 Cal.App.4th 1305, 1311-1312 [Lovings].) We shall affirm the judgment.
The facts related to defendant's conviction are of only marginal relevance on appeal. The stipulated factual basis recited that after defendant approached the victim in a Wal-Mart parking lot, he placed a hard object in her back and demanded her wallet, which she surrendered. With respect to the dismissed count (defendant assenting to use of the facts for purposes of sentencing), the probation report stated defendant had attempted to drag a 66-year-old woman passenger out of a vehicle in which she was waiting in order to carjack it.
Defendant apparently made a Marsden motion in June 2009, but withdrew the motion at an unreported hearing in camera. At an unreported hearing on 13 July, the court granted appointed counsel's motion to be relieved as counsel for "legal conflict."
On July 30, defendant appeared with a new attorney, who told the trial court that the conflict his predecessor had with defendant was continuing with him. Defendant was adamant about moving to suppress an identification, but current counsel agreed with his predecessor that it was without merit. Current counsel was willing to allow defendant to present the motion directly to the court, but defendant did not want to proceed in that manner. At that point, defendant made a second Marsden motion.
In camera, defendant expressed his disagreement with both attorneys over the suppression motion, claimed his new attorney had come in "with a negative attitude" about defendant's prior convictions, and said he was unhappy that his new attorney's busy schedule meant that it would be months until trial. Defense counsel explained that he had been working on the case for only a week; it was too early in the proceedings to decide whether to move to suppress, or to raise misidentification as an issue at trial; and he had cautioned defendant that a jury would not favorably view his priors for "pimping a minor" and "sexual assault on a minor" if defendant testified (and that they could be used to enhance his sentence). The court denied defendant's motion, but indicated that if defendant still felt strongly about the issue as defense counsel developed the case, he could renew it.
At the trial-readiness conference (TRC) on August 28, the court granted defense counsel's motion for a continuance while he completed another trial. After the court continued the trial date, defendant made his third Marsden motion, stating defense counsel refused to file motions that defendant had given him. Since both the court and defense counsel needed to be elsewhere, the court postponed a Marsden hearing until September 18.
On September 2, defendant filed handwritten motions in propria persona to suppress and for discovery. In the former, he sought to suppress the victim's identification of him on the basis that a security guard had suggested to her that defendant was the robber, because the robber had first asked if the victim wanted to buy compact discs and defendant regularly sold those in the parking lot.*fn2 He also argued the photo line-up was unnecessarily suggestive. At the September 18 hearing, defense counsel was not available. The trial court postponed the Marsden hearing until the following week, at which point defendant asked about his suppression motion. The trial court acknowledged receiving it, and said it would rule on it at the next hearing.
On September 25, defendant was not present. At defense counsel's request, the court agreed to combine the Marsden hearing with the TRC, which the court subsequently continued several times through November 12. (At one of the scheduled TRCs on October 15, defendant expressly assented to a trial date of November 19. He also inquired about the status of his suppression motion; defense counsel indicated his assent to defendant proceeding in propria persona, and the court promised to rule on it when it finally held a TRC).
On November 12, the court once again continued the TRC in defendant's presence to November 17. No one mentioned either the suppression motion or the pending Marsden hearing. The continued TRC apparently went unreported; the minutes reflect only a waiver of defendant's presence, and a confirmation of the trial date (which the court then trailed until December 9).
On the first day of trial, the court addressed motions in limine that the prosecutor had filed and an oral defense motion in limine. Defense counsel stated there were not any other defense motions pending.
On the following day, the parties appeared and began to discuss scheduling. Following unreported discussions between defendant and his attorney and between counsel, defense counsel announced that defendant was prepared to enter a plea of no contest in exchange for the dismissal of the carjacking charge and two recidivist allegations, and a stipulated sentence of three years (the middle term). Defense counsel indicated that defendant wanted to enter a plea and consent to punishment without admitting the underlying facts in order to further his best interests--a so-called "West plea" (see In re Alvarnez (1992) 2 Cal.4th 924, 932; People v. Manning (2008) 165 Cal.App.4th 870, 879 [both characterizing such a plea as based on People v. West (1970) 3 Cal.3d 595]). However, the trial court stated that "if he's not guilty, he can go to trial. If he is guilty, he can enter a plea." It then told defendant "I will accept the plea if you are indicating, in fact, [that] you are guilty . . . . However, I do not want you stating later that you entered this plea because of any coercion or duress or anything that is not of your own free will. [¶] My question to you is are you accepting responsibility for . . . a violation of Penal Code Section 211?" Defendant answered in the affirmative. In later accepting his plea, the court confirmed that he was entering it freely and voluntarily after discussing any potential defenses.
In a statement to the probation officer, defendant claimed that he had alibi evidence in the form of a surveillance video and a store receipt that he had provided to investigators. He entered his plea because "the public defendant was judging him on his prior convictions and wasn't going to fairly represent him if he took the matter to trial." At the sentencing hearing, defendant did not respond when the court asked whether he or defense counsel wished to address it.
In defendant's declaration in support of the request for a certificate of probable cause, he asserted he had been assured that his suppression motion and Marsden hearing would be heard on November 12. However, he instead found himself going to trial four weeks later with an attorney that he did not want to represent him, without the court having addressed either his suppression motion or the Marsden hearing. He claimed, "I felt pressured into accepting the plea deal . . . [because] I feared the ineffectiveness of counsel and didn't want to be found guilty" despite his professed innocence. As earlier noted, the court granted the request.
In People v. Lobaugh (1987) 188 Cal.App.3d 780, 786, we held that after the entry of a plea of guilty (or no contest), a claim of Marsden error is waived because it does not challenge the legality of the plea, except where a defendant asserts that the plea was not informed and voluntary or was the product of inappropriate advice from counsel. Lovings, supra, explained that the issuance of a certificate of probable cause does not affect this rule. (118 Cal.App.4th at p. 1311.)
The People correctly point out that defendant's opening brief does not claim that his plea was not intelligently and voluntarily made, or that his counsel's advice regarding the plea was erroneous. In response (without providing an excuse for failing to address this issue previously), defendant finally asserts that his plea was not voluntary and intelligent, and was the result of fear of ineffective assistance at trial. He then cites his statement in his request for a certificate of probable cause.
This belated effort to come within an exception to Lovings is forfeited. (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.)
In any event, the record of the plea does not support it. When defendant entered his plea, he confirmed that he understood the charges, defenses, his rights, and the consequences of his plea. While the hearing reflects defendant's reluctance to admit guilt for the robbery, the court said it would not allow the plea if defendant were in fact innocent. The court also twice obtained confirmation that defendant was not acting under any form of coercion or duress. Defendant chose nonetheless to proceed with his plea. "No such claim [on appeal from an involuntary or ill-informed plea] could succeed in view of the [trial] court's finding to the contrary . . . ." (Lovings, supra, 118 Cal.App.4th at p. 1311.) His claim that he anticipated ineffective assistance of counsel at trial because the experienced member of the criminal-defense bar who was representing him was prejudiced against him on the basis of the nature of the priors, does not demonstrate the entry of a plea based on inappropriate advice; "the record establishes that advice of counsel [did not have any] bearing on [the] decision to [enter a plea]." (Id. at p. 1312 [italics added].)
Consequently, the trial court's failure to hold a Marsden hearing was error that his plea of no contest waived. (As a result, we do not need to consider the People's alternative argument that defendant's conduct abandoned the Marsden motion.)
The judgment is affirmed.
We concur: HULL , J. ROBIE , J.