(Super. Ct. No. 09F00267)
The opinion of the court was delivered by: Butz , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Reginald Hola entered a negotiated plea of no contest to receiving stolen property, attempted second degree robbery and two counts of second degree robbery, and admitted a principal was armed with a firearm. He entered his plea in exchange for a stipulated state prison sentence and dismissal of the remaining counts with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 for purposes of restitution only.
After entering his plea, defendant sought substitute counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) on three occasions (May 28, July 9, and Dec. 21, 2010) and each time his request was denied. Defendant also sought to withdraw his plea (July 9, 2010) and that motion was denied as well. On January 14, 2011, the court expressed a doubt as to defendant's competency. After an evaluation by a doctor and referral to CONREP*fn1 for placement, defendant was committed to Napa State Hospital on April 15, 2011, for no more than three years. Six months later, the court found defendant competent. On November 4, 2011, defendant again sought substitution of counsel. After denying defendant's Marsden motion, the court sentenced defendant to state prison.
Defendant appeals. His request for a certificate of probable cause (Pen. Code, § 1237.5) was granted. He contends that during the Marsden hearing on December 21, 2010, his attorney created a conflict of interest by her statements and that she should have been immediately relieved. He argues the trial court's error in failing to replace his attorney requires reversal and remand. We disagree and shall affirm the judgment.
On December 27, 2008, defendant and two others, one of whom was armed with a shotgun, entered a Game Stop store on Calvine Road. Two victims were inside the store. One victim gave the robbers the money out of the cash register. The same day, defendant and two others, one of whom was armed with a sawed-off shotgun, entered the Game Stop store on Bruceville Road and committed a robbery. Five victims were inside the store. Another robbery of the Game Stop store on Calvine Road occurred in January 2009 and the suspects fled with money containing an electronic tracking device, leading to their arrest. One of these suspects identified defendant as having been involved in the other robberies. A search of defendant's home revealed several video games and clothing worn in the robberies.
December 21, 2010 Hearing and Related Proceedings
On December 21, 2010, defendant personally filed a written motion to relieve counsel "due to inadequate representation." Defendant declared that there were conflicts between him and his attorney and he would "provide the necessary evidence to support" his claim at the hearing scheduled for the same date. He claimed that due to counsel's inadequate representation, he had suffered prejudice "such as to justify dismissal of charges currently pending, or in the alternative, enjoy the substitution of counsel." He stated that counsel had failed and/or refused "to confer with [him] concerning the preparation of [his] defense; [¶] . . . to communicate with [him]; [¶] . . . [to] subpoena witnesses favorable to [his] defense and deprived [him] of the testimony critical to the defense; [¶] . . . to perform and/or to have performed investigation(s) critical and necessary to the defense; [and] [¶] . . . to prepare and file motion(s) critical to the defense." He attached points and authorities in support of his motion, indicating that the trial court was required to inquire on the record.
At the closed Marsden hearing on December 21, 2010, defendant personally confirmed on the record that he was making a motion to relieve counsel and understood that what was said at the hearing was in confidence. When the court inquired as to defendant's specific reasons, defendant responded, "Can't work with her." When asked why, defendant remained silent for "well over a minute." When the court inquired again, defendant did not respond.
The court then turned to counsel and asked how long she had represented defendant. Counsel responded that she had represented defendant for almost two years. When the court asked whether she had met with defendant several times, counsel responded "numerous times" and then recounted the procedural history of the case, noting the preliminary hearing, the plea agreement, the prior Marsden motions, defendant's motion to withdraw his plea, which was presented by an attorney appointed for that purpose only (that attorney found no basis for a motion to withdraw plea), counsel's declaration of doubt as to defendant's competency, and the court's appointment of Dr. Schaffer (who opined defendant was competent and possibly malingering), Dr. Roof (who opined defendant was incompetent), and Dr. Nakagawa (who opined that defendant was competent and malingering). Counsel stated that she had set the matter for a hearing on defendant's competency and had met with defendant several times during which he seemed very normal.
Counsel then provided the following information to the court. When she advised defendant a few days before the December Marsden hearing that she had given the other doctor's reports to Dr. Roof who then changed his opinion and concluded defendant was, more likely than not, malingering, defendant "became very upset and said that he felt that [she] was working against him, that [she] took the only doctor who was on his side and turned that doctor against him by showing him the reports of the other doctor[s]." She explained to defendant that Dr. Roof would be asked about the other reports and their tests when he testified. Defendant had asked counsel to determine how long he had met with the other doctors, telling counsel that he had met with Dr. Schaffer for only five or six minutes and with Dr. Nakagawa for only 30 minutes. Counsel learned that Dr. Schaffer had met with defendant for three and one-half hours. She contacted "C.C.D." but it was unable to locate the information in order to determine how long defendant had met with Dr. Nakagawa.
Counsel also stated that defendant had given her the names of three inmates. When she asked what those inmates would testify to, he asked her "what did they need to testify to." Counsel "explained to [defendant] that [she] could not assist him in trying to present some kind of fraud to the Court as to his mental condition."
The court asked defendant to respond. Defendant reiterated that he "can't work with her" and added that when he started to talk, she would yell at him. When the court inquired as to what defendant meant, defendant stated "I try to speak out, tell her my opinion or whatever, and she--she--she gets up ...