IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
January 24, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
COREY JAMAUL BROWN, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F01030)
The opinion of the court was delivered by: Butz , J.
P. v. Brown
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Corey Jamaul Brown pleaded no contest to possession of cocaine base for sale (Health & Saf. Code, former § 11351.5--counts one & five),*fn1 possession of MDMA (ecstasy) (former § 11377, subd. (a)--count two), possession of not more than 28.5 grams of marijuana (former § 11357, subd. (b)--count three), and resisting a law enforcement officer (Pen. Code, § 148, subd. (a)(1)--count four). He admitted that he committed count five while released on bail (Pen. Code, § 12022.1), and that he had a prior narcotics conviction (§ 11370.2, subd. (a)).
After his Marsden motion*fn2 was denied, defendant was sentenced to state prison for nine years and was ordered to pay, inter alia, a $150 drug program fee (Health & Saf. Code, § 11372.7) and a $263.85 booking fee and $28.75 classification fee (Gov. Code, § 29550.2). He was awarded custody and conduct credits in accordance with the January 25 and September 28, 2010 amendments to Penal Code sections 4019 and 2933: 159 actual days and 159 conduct credits for a total of 318 days of presentence custody credit. The trial court issued a certificate of probable cause.
On appeal, defendant contends (1) his Marsden motion was erroneously denied, and (2) the drug program, booking, and classification fees must be stricken because the record does not demonstrate his ability to pay the fees. We shall affirm the judgment.
The facts of defendant's offenses are not at issue and need not be set forth in this opinion.
I. Marsden Motion
Defendant contends his June 18, 2010 Marsden motion was erroneously denied because he had articulated specific facts that, if true, required that his appointed counsel be relieved and new counsel appointed. Specifically, he claims he raised his concern that counsel had not investigated a recanting informant. The Attorney General counters that defendant's complaint regarding the recanting witness was not a sufficient basis to grant the Marsden motion. We find no error.
At the outset of the June 18, 2010 Marsden hearing, defendant complained, "I just feel like I wasn't advised right by" trial counsel.*fn3 The trial court inquired further and determined that defendant's primary complaint was that he was unable to take advantage of an early plea offer that would have substantially reduced the time he was to spend in custody. Counsel responded to this complaint by noting that he had clearly informed defendant of the offer and had encouraged him to accept the plea deal. Defendant responded that he did not accept the deal because he believed he might receive a better offer. The trial court noted that this belief was not based on anything trial counsel had told defendant.
Defendant next claimed the probation officer had opined to him that trial counsel had "disrepresented" him. The probation officer had asked defendant why he had pleaded no contest if he was not guilty, and defendant had responded that trial counsel had "made [defendant] plead to those charges." The trial court responded that it had explained defendant's rights and the consequences of the plea; defendant replied that at the time of the plea he was "clueless." The court reiterated that it had explained the potential sentence range and its inclination to impose "about nine years." Trial counsel responded that, after the jury was impaneled, defendant wanted to resolve the case; counsel explained to defendant that he would have to plead to every charge in the complaint.
Defendant next stated he wanted to file a Penal Code section 995 motion for dismissal on speedy trial grounds. Trial counsel responded that he had conducted the preliminary examination and that he did not believe there were any meritorious issues related to that hearing.
Defendant next complained generally that trial counsel had not advised him of "all the steps" involved with trial and with entering his plea. The trial court invited trial counsel's response to this complaint.
Before trial counsel could respond, defendant uttered the following words that underscore his present contention: "And then I also feel that one of these drug charges are--or possession or whatever you guys trying to get me should have been dropped if the C.I. [confidential informant], C.I. came to court and said it wasn't me. [¶] And he backed out, and he said that he wasn't coming back to court no more, and he wasn't a witness no more, somehow. [¶] I don't understand why that, that wasn't dropped, or whatnot." (Italics added.) Trial counsel was not asked to respond to these words.
Immediately thereafter, defendant complained that counsel had treated him poorly because of defendant's race. Counsel vehemently rejected that suggestion, as did the trial court.
The trial court concluded that defendant had "buyer['s] remorse" for having failed to accept the more favorable plea offer and was blaming counsel for defendant's own decision. Finding no deficiency in trial counsel's performance and no breakdown of communications between attorney and client, the trial court denied the Marsden motion.
"In Marsden, supra, 2 Cal.3d 118, 123-124, the California Supreme Court held that trial courts must give indigent criminal defendants an opportunity to state reasons in support of appointment of new defense counsel. 'A defendant "may be entitled to an order substituting appointed counsel if he shows that, in its absence, his Sixth Amendment right to the assistance of counsel would be denied or substantially impaired." [Citation.] The law governing a Marsden motion "is well settled. 'When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].' [Citations.]" [Citation.]' [Citation.] We review the trial court's ruling on the motion for an abuse of discretion." (People v. Henning (2009) 178 Cal.App.4th 388, 403.)
Defendant claims the trial court abused its discretion when it failed to question him further, failed to elicit any explanation from trial counsel, and failed to take any steps to ascertain the facts, after defendant complained that the prosecution failed to drop a drug possession charge even though its witness recanted his or her identification of him and refused to return to court to give further testimony.
We note at the outset that defendant's complaint appears to have been directed at the prosecution, which had the power to dismiss particular counts, rather than at his trial counsel who had no such power. The trial court appears to have understood the complaint in that manner because it did not invite trial counsel to respond.
Defendant nevertheless claims he somehow "alleged" at the hearing that the recanting informant had not been "utilized or investigated by appointed counsel" and that, if true, this omission "arguably amounted [to] ineffective assistance of counsel." Thus, in his opening brief, defendant claims he had "made the specific allegation that trial counsel had failed to make any use of the potentially exculpatory evidence that the confidential informant who had pointed the finger at [defendant] had recanted and said [defendant] was not the person selling drugs. [Defendant] told the trial court he did not understand why nothing was done about what the confidential informant had said, or why his lawyer had not gotten those charges dismissed." (First and third italics added.)
In his reply brief, defendant goes so far as to claim he made a "particularized statement on the record alleging a specific instance of counsel's failure to investigate what on its face appears to be a piece of exculpatory evidence." (Italics added.)
Contrary to defendant's arguments, his brief remarks at the Marsden hearing never made any particularized reference to trial counsel regarding the confidential informant. While he made a particularized reference to charges not being dismissed, he never made any express or implied reference to "his lawyer" as opposed to the prosecutor.
Defendant complains that the trial court "responded as though no specific allegation had been made." Indeed, the court responded as though no allegation had been made against trial counsel. Because defendant's complaint had targeted the prosecution's failure to drop the charges, the court's lack of reference to trial counsel is understandable.
Although defendant had been afforded a sufficient opportunity (see Marsden, supra, 2 Cal.3d at p. 126), he never asserted at the hearing that trial counsel somehow had been ineffective or had lacked diligence with respect to the recanting informant. Nor did defendant suggest that substitute counsel would have responded to the recantation any differently than trial counsel had done. Thus, he did not "make a sufficient showing that denial of substitution [of counsel] would substantially impair his constitutional right to the assistance of counsel." (People v. Ortiz (1990) 51 Cal.3d 975, 980, fn. 1.) Denial of the Marsden motion was not an abuse of discretion. (People v. Henning, supra, 178 Cal.App.4th at p. 403.)
II. Defendant's Ability to Pay Fees
The trial court ordered defendant to pay a $150 drug program fee (Health & Saf. Code, § 11372.7), a $263.85 booking fee and a $28.75 classification fee (Gov. Code, § 29550.2). Defendant contends the three fees must be stricken because the record does not demonstrate his ability to pay the fees.
The Attorney General argues defendant has forfeited these arguments by not objecting in the trial court.
Defendant counters that he is challenging the sufficiency of evidence to support imposition of these fees and that such a challenge is not forfeited by failure to object in the trial court.
We agree with the Attorney General.
The right to appellate review of a non-jurisdictional sentencing issue not raised in the trial court is forfeited. (People v. Gonzalez (2003) 31 Cal.4th 745, 751-755; People v. Scott (1994) 9 Cal.4th 331, 356.) This court has previously held that if a defendant does not object in the trial court to the imposition of a fee or fine, the issue is forfeited. (People v. Crittle (2007) 154 Cal.App.4th 368, 371 [crime prevention fine--Pen. Code, § 1202.5, subd. (a)]; People v. Hodges (1999) 70 Cal.App.4th 1348, 1357 [jail booking fee--Gov. Code, § 29550.2]; see also People v. Valtakis (2003) 105 Cal.App.4th 1066, 1069-1072 (Valtakis).) We have applied the forfeiture rule, even when the claim on appeal is that there is not sufficient evidence to support the imposition of the fine or fee. (People v. Gibson (1994) 27 Cal.App.4th 1466, 1467, 1468-1469 (Gibson) [restitution fine--Gov. Code, former § 13967, subd. (a)].)
The issue of ability to pay is distinguishable from the issue of HIV testing. (Pen. Code, § 1202.1; People v. Butler (2003) 31 Cal.4th 1119, 1127 (Butler).) An HIV testing order must be supported by sufficient evidence in the trial record and its sufficiency may be challenged for the first time on appeal. (Id. at p. 1127.) But unlike facts that show ability to pay, the facts that support the HIV testing order arise from the underlying sex offense.
Defendant's reliance on Butler is misplaced. The majority in Butler cautioned that "nothing in our analysis should be construed to undermine the forfeiture rule of People v. Scott, supra, 9 Cal.4th 331, that absent timely objection sentencing determinations are not reviewable on appeal, subject to the narrow exception articulated in People v. Smith (2001) 24 Cal.4th 849." (Butler, supra, 31 Cal.4th at p. 1128, fn. 5.) Justice Baxter, joined by Justice Chin, wrote a concurring opinion to "make explicit what is implicit in the majority opinion." (Id. at p. 1130.) Specifically, Justice Baxter wrote that the forfeiture rule still applies to "claims that the record fails to demonstrate the defendant's ability to pay a fine." (Ibid., citing Valtakis and Gibson.) We conclude nothing in Butler requires us to depart from Gibson and its progeny.*fn4
The judgment is affirmed.
We concur: RAYE , P. J. MAURO , J.