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The People v. Phillip Renee Shields

April 12, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
PHILLIP RENEE SHIELDS, DEFENDANT AND APPELLANT.



(Super. Ct. No. SM261060A)

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

P. v. Shields

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Following his plea of guilty to one count of robbery and an admission to having suffered a prior strike conviction, defendant Phillip Renee Shields sought, unsuccessfully, through various means, to withdraw his plea. In accordance with the plea agreement, he was sentenced to the middle term of three years, doubled to six years because of the prior strike conviction. Defendant's request for a certificate of probable cause was granted. He now contends on appeal that the trial court improperly delegated its duty to conduct a Marsden*fn1 hearing when he sought to withdraw his plea on the grounds of ineffective assistance of counsel. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The substantive facts of defendant's offenses are not at issue and need not be recounted. Accordingly, we summarize only the procedural background related to defendant's contention on appeal.

About a month and a half after defendant entered his plea of guilty, he made a Marsden motion seeking to replace his counsel, Dorothy Mead. Defendant claimed she had not made particular pretrial motions, including discovery motions, had not sought bail for him after his plea stating he did not "'need to get out because [he] might catch another case,'" had conducted inadequate investigation and it appeared to him that "she didn't really care about" the case. Mead responded that the issues defendant had raised regarding the pretrial motions were more appropriately issues for cross-examination at trial. She did not recall making the statement about him "'catch[ing] another case,'" rather, she had explained the risks of a two-year on-bail enhancement if he were charged with another crime while released on bail. As to not "caring" about the case, Mead explained she had worked extensively with defendant, thoroughly investigated the case and had made a number of in limine motions. Mead also indicated they had been ready to go to trial. Defendant disagreed with that assertion. He claimed, although he was not ready to go to trial, Mead had said they were going to trial because she was not going to delay her vacation. Mead explained they had discussed the possibility of a continuance, but there was no legal basis for one. Accordingly, she informed defendant their options were to resolve the matter or go to trial, and he insisted on going to trial. The court denied the Marsden motion, finding although it was clear defendant was having some doubts about the relationship with Mead, she had been effectively representing defendant and was able to continue to do so.

Later that day, defendant made a Faretta*fn2 motion. In cautioning defendant about representing himself, the court advised defendant that Mead was a competent attorney who did a good job for her clients. Mead advised the court that defendant wanted to withdraw his plea. The court cautioned him that if he were successful in his motion, the previously dismissed charges would be reinstated and he would potentially be facing a 24- to 26-year prison sentence. The court adjourned the proceedings until the next morning, in part to allow defendant to review and complete a self-representation form.

The following day, defendant reaffirmed his desire to represent himself. His Faretta motion was granted and Mead was discharged as counsel. On July 7, 2008, defendant filed a motion to withdraw his plea claiming ineffective assistance of counsel. The motion reiterated defendant's complaints about Mead's lack of investigation and failure to seek discovery. Defendant also claimed she had coerced him to accept the plea.

On July 21, 2008, the court found the motion inadequate on its face and found that defendant had simply changed his mind about the plea. The court specified that it did not find incompetence of counsel, but rather that defendant was having a difference of opinion with his attorney. Accordingly, the court denied the motion. Defendant was then referred to probation for a presentence report. At which point, he requested an attorney and the court reappointed Mead.

The next hearing was held on August 4, 2008. Mead informed the court she thought defendant wanted to make another Marsden motion. The court indicated its intention to appoint conflict counsel "solely for the purpose of investigating and bringing -- if he decides grounds exist -- a motion to withdraw plea for Pope[*fn3 ] error . . . [a]nd for no other reason." However, no specific conflict lawyer was appointed at that time. The court also stated if there were additional grounds for a motion to withdraw the plea, Mead was responsible for addressing those issues, "unless and until I grant a Marsden motion." The matter was reset and referred to probation. The court also indicated since defendant had asked for a Marsden hearing, they would have one at the next hearing.

At the next hearing on September 8, 2008, the court actually appointed conflict counsel Gus Barrera, to review defendant's grounds for possible withdrawal of the plea based only on Pope error, that is, as the court had earlier declared, possible incompetence of Mead as counsel. Barrera filed a motion to withdraw defendant's plea on October 24, 2008. The motion reiterated the allegations first made in defendant's Marsden motion, that Mead had coerced him to accept the plea, that she told him he was going to lose the ...


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