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The People v. David Timothy Atzet

November 22, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DAVID TIMOTHY ATZET, DEFENDANT AND APPELLANT.



(Super. Ct. No. 07F4410)

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

P. v. Atzet

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant David Timothy Atzet pled guilty to seven counts of committing lewd and lascivious acts upon a child under the age of 14. (Pen. Code, § 288, subd. (a).)*fn1 Sentenced to an aggregate term of 20 years, he appeals. He contends he received ineffective assistance of counsel, and that the trial court erred in failing to hold a Marsden*fn2 hearing and denying his motion to withdraw his plea. We affirm.

BACKGROUND

On May 11, 2007, defendant contacted authorities to report that he had molested two minors approximately nine years earlier. He stated he was reporting the incidents because someone was attempting to use the information as leverage against him. A Shasta County sheriff's detective interviewed defendant, who explained that he had been taking prescription medications which caused sexual and marital frustration at the time of the offenses. His actions had haunted him and he was not going to deny what he had done. The victims were contacted and they corroborated numerous instances of molestation.

On June 5, 2007, defendant was charged with nine counts of committing lewd and lascivious acts upon a child under the age of 14. Counts 1 and 2 charged defendant with acts between February 13, 1997, and February 12, 1999, against C. Counts 3 through 9 charged defendant with acts between September 6, 1997, and September 5, 1999, against J. It was alleged as to all counts that defendant committed acts against more than one victim (§ 667.61, subd. (b)) and that there had been substantial sexual conduct (§ 1203.066, subd. (a)(8)). Defendant pled not guilty and denied the special allegations.

On August 29, 2008, defendant filed a Marsden motion based on the alleged failure of counsel to confer with him about his mental defense. At the September 9, 2008, Marsden hearing, defendant complained that his trial counsel, public defender Amy Babbits, had not spent enough time on his case and had not communicated with him. Babbits explained that she had met with and discussed trial strategy with defendant and that the defense defendant sought to raise required expert testimony. She had spent most of her time unsuccessfully attempting to locate an expert to testify in support of defendant's theory. The trial court found that the relationship had not broken down and there was enough time before trial to prepare and address defendant's concerns. The court also explained to defendant that trial tactics and strategy were within the purview of the attorney. The court denied the Marsden motion.

Defendant filed a second Marsden motion on September 22, 2008. His written motion alleged counsel had failed to investigate, obtain expert witnesses, file motions, and respond to his letter requesting a meeting. The matter was set for hearing on September 25, 2008. When the hearing commenced, however, defendant withdrew his motion.

At the trial readiness conference the following day, the court was provided with a change of plea form, initialed and signed by defendant, indicating he wished to plead guilty to counts 1 through 7 with dismissal of the remainder of the information in exchange for a state prison sentence of 15 to 20 years. The form contained advisements of rights and consequences, initialed by defendant. Defendant informed the court that he had done so only after having read and understood them completely. After assuring defendant was satisfied his attorney had answered all his questions and had gone over the form and counts with him and that defendant was entering the plea because he had weighed the benefits against the risks of going to trial, the court accepted the guilty pleas. The matter was referred out for preparation of a probation report and scheduled for sentencing.

In the meantime, defendant filed a third Marsden motion on October 1, 2008, seeking leave to withdraw his plea. He alleged he was under the influence of a large amount of medication (Prozac) at the time he changed his plea and, accordingly, was unable to think clearly or make a sound decision. He also alleged that attorney Babbits had coerced him into entering the guilty pleas through intimidation, lies, and manipulation of his mental and emotional weaknesses.

At the October 24, 2008, hearing, Babbits informed the court that they would not be proceeding with the Marsden motion but, instead, requested a date be set for a motion to withdraw defendant's ...


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