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The People v. Joseph Martin Cardoza

March 28, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOSEPH MARTIN CARDOZA, DEFENDANT AND APPELLANT.



(Super. Ct. No. 07f1209)

The opinion of the court was delivered by: Murray , J.

P. v. Cardoza

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Joseph Cardoza was charged with sexual offenses involving two child victims. Thereafter, he entered a negotiated plea and the court sentenced him to state prison consistent with the negotiated resolution. Defendant contends that the trial court failed to conduct an adequate investigation of complaints concerning his counsel's representation that he raised after his plea. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

Defendant was charged with 11 counts of sex offenses against one child victim and one count against a second child victim. Defendant was a foster parent to the two victims. At a trial readiness conference in February 2010, the trial court granted the prosecutor's motion to add a charge of child endangerment of the second victim. Defendant then entered a negotiated plea of guilty to the new count and to one count of unlawful sexual intercourse with the first victim.*fn1 The trial court dismissed the remainder of the charges. The parties agreed that defendant would be sentenced to no more than four years in state prison. The trial court then ordered a probation report and scheduled the case for a sentencing hearing.

On April 30, 2010, the date set for the sentencing hearing, defense counsel requested an in camera hearing. During the hearing, defense counsel explained that defendant indicated a desire to withdraw his plea, and consequently counsel requested that the court conduct a Marsden hearing,*fn2 although counsel was unsure whether "it's simply a Marsden or if it's more of a withdrawal of plea." The court explained to defendant that a Marsden motion involves a determination of whether there is "a basis to change your court-appointed attorney," and added "if you want to change counsel because you don't believe that counsel is serving your best interest, we have to have what's called a . . . 'Marsden hearing' in which you would offer to me specific reasons demonstrating what [defense counsel] has or has not done that has been to your detriment." The court further stated that when a defendant wishes to withdraw his plea, "we have to start off by having a Marsden hearing, which sometimes is very awkward because the compliant [sic] may have absolutely no complaint of the services that he or she got from his or her attorney." The court told defendant, "So I'm a little, as I think [defense counsel] is, a little confused as to what your desires are. . . . [¶] . . . [¶] . . . So help me out by telling me what your needs would be at this moment or what your desires or what your thinking is."

Defendant's complaints were: (1) Defense counsel had not spent much time with him during the two years of representation; (2) Defense counsel did not subpoena any witnesses for "trial readiness"; (3) Defense counsel did not contact one of the witnesses who was to appear at the sentencing hearing; defendant contacted the witness, but the witness was unable to appear on short notice; and (4) Defendant never wanted to "take a plea," implying that he did so only because defense counsel said he would be committing suicide if he did not plead because it was such a good deal. Defendant said there were "a few other things," and that he could give the court a list. Defendant did not at any point say that he wanted a new attorney.

The court determined that defendant's complaints fell into two categories -- defense counsel's preparation for the sentencing hearing and defendant's acceptance of the plea offer. The court observed that if the plea was withdrawn, there would be no need for a sentencing hearing. Consequently, the withdrawal of plea was the most important issue. Defendant agreed. The court deemed it appropriate to appoint conflict counsel to determine whether there were grounds for defendant to withdraw the plea and whether to do so would be in defendant's best interests. The court told defendant it would appoint counsel for that purpose unless defendant had a problem with proceeding that way. Defendant did not disagree with the court's plan.

On June 1, 2010, conflict counsel told the trial court that, after speaking with defendant and defense counsel and reviewing the file, including defendant's plea, he could not find any legal basis for withdrawing the plea. At that time, the court informed the parties that it felt obligated to appoint conflict counsel for all purposes. Therefore, counsel who represented defendant at the time of his plea was relieved and the conflict counsel who investigated and advised on the motion to withdraw the plea subsequently represented defendant at sentencing.

On July 23, 2010, the day set for the sentencing hearing, defendant's new attorney submitted sentencing on the probation report without witnesses. Defendant did not express a desire to call witnesses. The court ...


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