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After responding to a report of gunshots fired and three men running through an apartment complex, deputy sheriffs detained Ladon Zeigler, who matched the description of one of the men seen running. Zeigler was sweating profusely and was out of breath. A person approached, reported that his apartment had been broken into while he was sleeping, and described the suspects who fled when he chased them. Defendant Patrick Bumpus was found walking behind the apartment complex. The victim positively identified defendant as one of the men who committed the burglary. Defendant entered a negotiated plea of no contest to first degree burglary (Pen. Code, § 459) and admitted he had a prior serious felony conviction for assault with a firearm. Consistent with the plea agreement, he was sentenced to the stipulated middle term of four years, doubled because of his prior serious felony conviction. The trial court granted his request for a certificate of probable cause. (Pen. Code, § 1237.5.) On appeal, defendant contends the trial court erred in denying his Marsden motion (People v. Marsden (1970) 2 Cal.3d 118 (hereafter Marsden)), seeking to obtain new appointed counsel prior to entering his plea. We shall affirm the judgment. DISCUSSION I The trial court conducted a Marsden hearing at the request of defendant’s mother. Defendant complained that there were “some things” his appointed attorney, Sandra DiGiulio, should have, but had not, done. When the court asked for examples, defendant said that Zeigler, who was arrested with defendant, was a person who “should be involved in the case that’s not.” Zeigler had not been “questioned to [defendant’s] liking because he could open a lot of light on this case.” Defendant also noted that Raymond Owens should be a witness because he gave a statement and the prosecutor would see there was another person who had admitted some involvement in the offense. After saying, “Those are my main issues,” defendant had nothing else to add when the court so inquired. Attorney DiGiulio explained that Zeigler had been charged as a codefendant, but the charges against him were dropped and the prosecutor had Zeigler on his list of witnesses against defendant. DiGiulio had considered Owens as a witness for the defense but decided against it because other evidence, including defendant’s statements to Owens, “may come out if Mr. Owens hits the stand” and his testimony “is likely to do more damage to [defendant’s] case than help his case.” DiGiulio also stated “[defendant] is aware that I personally have been out to the scene several times and canvassed the scene. I’m in contact with just about every single witness on the District Attorney’s list. I’ve talked to all of them with the exception of one, but my investigator has talked to that witness. [¶] We have done a lot of investigation and a lot of work in this case since I’ve had the case, not to mention what was done by the previous two attorneys on this case that [defendant] is very well aware of all the work we have put in to it.” When the court asked whether defendant had any more comments, defendant said he did not believe that his attorney spoke with the burglary victim, whom defendant identified as “one of the main witnesses.” Defendant stated, “I need to fight for my life and there isn’t - I have to feel comfortable with somebody fighting for my life and I have to make sure -” In denying the motion, the court said it was “not convinced that this lawyer is not working as hard as she can for you.” After the Marsden hearing, the parties informed the court that they were discussing a plea agreement. The parties later reached an agreement, and defendant stated he wanted to take the deal. After asking defendant about the plea agreement and advising him of his rights, the court accepted defendant’s plea and admission, finding that he “knowingly, intelligently and voluntarily” entered his waivers and his plea. Defendant now claims the trial court did not conduct an adequate inquiry into his complaints about counsel’s failure to interview particular witnesses. The People correctly point out that defendant’s opening brief does not claim that his plea was not intelligently and voluntarily made or that his counsel’s advice regarding the plea was erroneous. Therefore, defendant is precluded from raising his challenge to the court’s inquiry at the Marsden hearing because the asserted error does not implicate the legality of the proceedings. (People v. Lovings (2004) 118 Cal.App.4th 1305, 1311; 780, 786.) Only in his reply brief does defendant assert that his plea was “not voluntary and intelligent,” citing statements he made in his request for a certificate of probable cause. However, the record of the plea does not support his assertion. When defendant entered his plea, he confirmed that he understood the charges, defenses, his rights, and the consequences of his plea. Although the entry of plea hearing reflects defendant was upset and the court was concerned, he wanted to go forward with his plea. When defendant twice stated, “This ain’t right, man,” the court said it would not allow the plea if it were not freely and voluntarily made. Defendant replied that he was “scared to death” but confirmed that no promises were made other than those stated on the record. Although he said that he felt pressured to enter the plea because of the long sentence he would otherwise face, he confirmed that he had not been threatened to do so. He then entered his plea and confirmed that he was doing so freely and voluntarily. In any event, defendant’s claim of error lacks merit. A defendant is entitled to the discharge of appointed counsel and substitution of another attorney if the trial court’s inquiry reveals 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.” (People v. Crandell (1988) 46 Cal.3d 833, 854, criticized on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) Here, the trial court made an adequate inquiry and there was no abuse of discretion in denying the Marsden motion. (People v. Panah (2005) 35 Cal.4th 395, 431.) Defendant’s complaints were about defense counsel’s alleged failure to interview witnesses. However, counsel stated that all witnesses on the prosecutor’s list had been interviewed, that she had a tactical reason for not calling Owens as a witness for the defense, and that the prosecution would have Ziegler testify against defendant. According to defendant, the victim of the burglary had not been interviewed by defense counsel-a claim that is inconsistent with counsel’s statement that all the prosecution witnesses had been interviewed. The trial court was entitled to believe defense counsel and to disbelieve defendant. ( 696.) In sum, the trial court adequately aired and considered defendant’s complaints at the plea was not affected by inadequate representation or an irreconcilable conflict with counsel. There was no error. II Pursuant to this court’s miscellaneous order No. 2010-002, filed March 16, 2010, we deem defendant to have raised the issue of whether amendments to section 4019 apply retroactively to his pending appeal and entitle him to additional presentence credits. We conclude that the amendments do apply to all appeals pending as of January 25, 2010. (See People v. Doganiere (1978) 86 Cal.App.3d 237, 239-240; People v. Hunter (1977) 68 Cal.App.3d 389, 393.) However, the amendments to section 4019 do not operate to modify defendant’s entitlement to credit because he had a prior conviction for a serious felony. (Pen. Code, §§ 1192.7, subd. (c)(31), 4019, subds. (b), (c); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) DISPOSITION The judgment is affirmed. SCOTLAND , P. J. We concur: BLEASE , J. HULL , J. Publication courtesy of California pro bono legal advice. Analysis and review provided by La Mesa Property line Lawyers. San Diego Case Information provided by www.fearnotlaw.com |
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