(Super. Ct. No. 08F08112)
The opinion of the court was delivered by: Blease , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ...