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The People v. David Timothy Atzet


November 22, 2011


(Super. Ct. No. 07F4410)

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

P. v. Atzet



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


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 guilty pleas. The date was set for December 8, 2008.

On October 27, 2008, defendant filed a fourth Marsden motion, claiming counsel had misled him and prevented him from bringing a Marsden motion. A Marsden hearing was held on November 3, 2008. Defendant reiterated his complaints that Babbits had not been communicating enough and had not obtained expert witnesses to testify about his medical condition. He also complained that Babbits had not subpoenaed unidentified witnesses he believed were "favorable," had not interviewed the victims, and had failed to seek suppression of the statements he made to the interviewing detective. Babbits responded that she had met with defendant, had attempted to locate an expert who would testify on defendant's behalf but neither she nor her investigator could locate one. As a result, the only way to present evidence of defendant's state of mind was through his own testimony. She had determined that contacting the victims would agitate them and not be to defendant's benefit because their mother had refused to speak to her other than to tell her that the victims were in counseling. She had not filed a motion to suppress defendant's statements to the detective, noting it was a Miranda*fn3 violation which would be addressed in limine. Finally, Babbits explained that she had discovered a potential statute of limitations defense, which were the grounds for the upcoming motion to withdraw the pleas. The trial court denied defendant's Marsden motion, noting Babbits's investigation had been adequate.

On November 19, 2008, the public defender's office was relieved and attorney Daniel Irving substituted in as counsel for defendant. Thereafter, Irving moved to withdraw the guilty pleas on two separate grounds. First, he argued that some of the counts might have been challenged as barred by the statute of limitations and, because Babbits did not make this challenge or so advise defendant, she had provided ineffective assistance of counsel. After reviewing the prosecution's opposition citing case law that held the crimes contained in the information in this case were not in fact barred by the statute of limitations, however, Irving conceded case law so held but argued defendant should have been advised anyway, since the plea would prevent him from challenging the reasoning of the published case law on appeal. The trial court found no grounds to withdraw the plea based on ineffective counsel, because counsel was not ineffective for failing to provide a meaningless advisement of a nonissue.

As a second ground to withdraw the guilty pleas, Irving argued defendant did not enter a knowing, voluntary, or intelligent waiver due to medication that affected his ability to comprehend the proceedings. He also argued that the lack of responsive communication defendant had with Babbits had made defendant feel hopeless. Defendant did not want to go to prison. He claimed that the Prozac he was taking was not addressing his depression and was aggravating his back pain which then utilized all his focus. He claimed that, despite his representation to the court otherwise, he had not read the plea form and advisements of rights. He had not wanted to take the plea, but felt confused, pressured, and hopeless. A vocational nurse listened to defendant's testimony at the hearing on the motion to withdraw the plea and found his complaints to be consistent with a patient having difficulty with antidepression medication, as it can sometimes cause confusion or paranoia.

Babbits testified that, during the time she represented defendant, he would often cry during their discussions and seemed depressed. They also had a conversation about defendant wanting to commit suicide. On the date that he entered his guilty pleas, he seemed to be emotionally "broken down." He did, however, appear to be mentally alert and seemed to understand the entry of his plea. She discussed the change of plea form with defendant and answered his questions. If she had believed him to be mentally incapable of entering the plea, she would not have allowed him to go forward with it.

After considering the evidence, the trial court denied defendant's motion to withdraw his plea. Defendant was sentenced to 20 years in state prison.



Defendant contends his convictions must be reversed because attorney Babbits "was ineffective for failing to adequately meet with [him], investigate potential defenses and motions and secure crucial witnesses" prior to his change of plea.

Defendant's guilty plea, however, "'admits all matters essential to the conviction.' [Citation.]" (People v. Turner (1985) 171 Cal.App.3d 116, 126.) Thus, he "can raise only those questions which go to the power of the state to try him despite his guilt." (Ibid.) Defendant does not directly claim the trial court afforded him inadequate Marsden review, although it was with these rulings that the trial court rejected the very complaints he now seeks to resurrect. But even if he had challenged those rulings here, we doubt his claims would be cognizable on appeal from his guilty plea, despite the issuance of a certificate of probable cause (§ 1237.5), because they do not go to the legality of the proceedings.*fn4 (People v. Lovings, supra, 118 Cal.App.4th at pp. 1311-1312; People v. Lobaugh (1987) 188 Cal.App.3d 780, 786.)


Defendant also argues that his convictions must be reversed because attorney Babbits "rendered ineffective assistance by failing to request a competency hearing before [he] entered his guilty pleas."

The conviction of an accused while he is legally incompetent violates his due process right to a fair trial. (Drope v. Missouri (1975) 420 U.S. 162, 171-172 [43 L.Ed.2d 103, 112-113].) To be competent, an accused must have the present ability to understand the nature of the proceedings against him, to consult with counsel, and to assist in preparing a rational defense. (Dusky v. United States (1960) 362 U.S. 402 [4 L.Ed.2d 824, 825].)

"The obligation and authority to determine a defendant's competency belong to the trial court or jury, not to the defendant's counsel." (People v. Marks (1988) 45 Cal.3d 1335, 1340.) The trial court is not compelled to order a competency hearing based on defense counsel's opinion that the defendant might be incompetent. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1111.) Section 1368 requires the court to initiate the process of determining a defendant's mental competence if "a doubt arises in the mind of the judge . . . ." (§ 1368, subd. (a).) If the court has doubt, and that is confirmed by counsel upon inquiry, then the court must order a competency hearing. (§ 1368, subd. (b).)

Here, defendant does not complain that, based on the record, the trial court had a duty to order a competency hearing. Instead, he argues that counsel was ineffective for not requesting one.

To establish ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) A claim on appeal of ineffective assistance of counsel must be rejected if "'the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.'" (People v. Wilson (1992) 3 Cal.4th 926, 936, citing People v. Pope (1979) 23 Cal.3d 412, 426.)

Defendant fails on all counts. The record does not demonstrate that counsel's performance was deficient because it does not establish that attorney Babbits had doubt as to his competence. To the contrary, when asked, she explained that she did not have doubt, and believed he was mentally alert and seemed to understand the entry of his plea. The fact that defendant was depressed, cried during discussions, or even mentioned suicidal thoughts, did not demand that Babbits believe otherwise. The record did not even establish that Babbits knew what medication defendant was taking. Moreover, defendant cannot establish any prejudice on this record. The record does not establish that the court would or should have entertained doubt and ordered a hearing if Babbits had informed the court that defendant was depressed, or even if she had otherwise expressed doubt as to his competence.

Defendant has simply failed to carry his burden as to this contention.


Defendant also contends the trial court erred in failing to conduct a Marsden hearing in connection with his second Marsden motion filed on September 22, 2008. Defendant acknowledges, however, that, at the scheduled hearing, he withdrew the motion.

"A trial court errs under Marsden by not affording a criminal defendant the opportunity to state all his reasons for dissatisfaction with his appointed attorney. [Citations.]" (People v. Vera (2004) 122 Cal.App.4th 970, 980.) In order to trigger the court's obligation to hold a Marsden hearing, there must be at least some clear indication by defendant that he wants substitute counsel. (People v. Mendoza (2000) 24 Cal.4th 130, 157.) The trial court has no obligation to initiate a Marsden hearing sua sponte and a defendant is free to abandon his request for substitute counsel. (People v. Leonard (2000) 78 Cal.App.4th 776, 787; People v. Vera, supra, 122 Cal.App.4th at p. 982.) Thus, the trial court simply had no duty to hold a hearing on defendant's Marsden motion once it had been withdrawn.


Finally, defendant contends the trial court erred in denying his motion to withdraw his plea. Again, his argument is based on the alleged ineffective assistance of counsel he received from attorney Babbits. We find no error.

A defendant may withdraw a plea of guilty or no contest at any time before judgment for good cause shown. (§§ 1016, 1018; People v. Waters (1975) 52 Cal.App.3d 323, 328.) "'Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citations.] But good cause must be shown by clear and convincing evidence.' [Citation.]" (People v. Hunt (1985) 174 Cal.App.3d 95, 103.) "[I]n determining the facts, the trial court is not bound by uncontradicted statements of the defendant." (Ibid.) The trial court's ruling on the motion "lies within [its] sound discretion after consideration of all factors necessary to effectuate a just result; a reviewing court will not disturb its decision unless abuse is clearly demonstrated. [Citation.]" (Ibid.)

Again, we reiterate that, in order to establish ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington, supra, 466 U.S. at pp. 687-688, 691-692; People v. Ledesma, supra, 43 Cal.3d at pp. 216-218.)

Defendant argues that he should have been permitted to withdraw his plea because Babbits did not challenge several of the charges on the basis that they were time-barred under the statute of limitations. However, as the trial court found, the charges were not barred by the statute of limitations. We do not set forth the lengthy analysis establishing the timeliness of the charges because defendant does not dispute that they were timely under the statute of limitations as interpreted by the published case law. Instead, he asserts that Babbits rendered ineffective assistance of counsel for failing to argue that the trial court should disregard binding authority and dismiss the charges on due process grounds for violating the principles underlying statutes of limitation, and that defendant must be permitted to withdraw his plea accordingly. Defendant, however, does not offer any sound legal analysis that such a due process challenge has any merit. Trial counsel need not make futile or meritless arguments simply to avoid being called ineffective by appellate counsel. (See People v. Cunningham (2001) 25 Cal.4th 926, 1038.)

Defendant also argues that he should have been permitted to withdraw his plea because Babbits rendered ineffective assistance by failing to request a competency hearing before he entered his guilty pleas. As we explained in part II, ante, the record does not establish deficient performance or prejudice in this regard.

Lastly, to the extent defendant contends the trial court erred by not permitting him to testify at the hearing on the motion to withdraw the plea regarding Babbits's alleged failure to prepare his defense, he has forfeited such contention by the absence of a separate heading therefor. (Cal. Rules of Court, rule 8.204(a)(1)(B); Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4.) In any event, the trial court had already heard defendant's complaints and Babbits's explanations in a Marsden hearing and had determined defendant's complaints lacked merit. Attorney Irving had filed a written motion containing the allegations against Babbits (with citations to the Marsden hearing transcripts), and filed a lengthy declaration from defendant along with exhibits. At the hearing, Irving did not proffer any new evidence as to Babbits's alleged "failings" and we do not require the trial court to permit unlimited, cumulative testimony on a matter. Moreover, the trial court ultimately overruled the objection to testimony and permitted Irving to proceed with his questioning. Thus, the trial court did not improperly prevent defendant from presenting evidence in support of his motion.


The judgment is affirmed.

We concur: BUTZ , J. MAURO , J.

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