P. v. Cruz

Filed 2/3/09 P. v. Cruz CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, John S. Einhorn, Judge. Affirmed.

Santiago Cruz entered a negotiated guilty plea to one count of committing lewd acts upon a child under the age of 14 (Pen. Code^[1],  288, subd. (a)), and admitted he was a stranger to the victim ( 1203.066, subd. (a)(3)) and he had substantial sexual conduct with the victim ( 1203.066, subd. (a)(8)). The plea bargain called for the dismissal of a second count of Penal Code section 288, subdivision (a), and a stipulated sentence of six years. Also, as part of the plea bargain, the prosecution agreed to refrain from adding the charge of engaging in sexual penetration with a child who is 10 or younger ( 288.7, subd. (b)), which would have exposed Cruz to a 15 year-to-life sentence.

Subsequently, the trial court denied Cruz's motion to withdraw his guilty plea and sentenced Cruz in accordance with the plea bargain.

Cruz obtained a certificate of probable cause.

FACTS

Cruz rented a room located on the property of the seven-year-old victim's aunt. On September 13, 2007, the victim and her family visited the aunt for a family barbecue. The victim was playing in the back yard of the aunt's residence when Cruz, a stranger to her, called to her to come between two parked trucks. While the victim was standing in front of him, Cruz grabbed her and put his hand inside of her skirt and underwear. Cruz rubbed her vagina while he tongue kissed her. The victim reported that Cruz hurt her by rubbing the inside of her vagina with his fingers.

DISCUSSION

Appointed appellate counsel has filed a brief setting forth evidence in the superior court. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as a possible, but not arguable issue: whether the trial court erred by denying Cruz's motion to withdraw his guilty plea.

We granted Cruz permission to file a brief on his own behalf. He has not responded.

After review of the record, we requested the parties to submit letter briefs addressing whether the trial court erred by not holding a Marsden (People v. Marsden (1970) 2 Cal.3d 118) hearing in light of People v. Eastman (2007) 146 Cal.App.4th 688. In People v. Eastman, supra, at page 698, the appellate court held a trial court must hold a Marsden hearing when a defendant moves to withdraw his or her guilty plea based on inadequate representation by appointed counsel and states facts that could constitute good cause to withdraw the plea. (See also People v. Mejia (2008) 159 Cal.App.4th 1081, 1086-1087; People v. Mendez (2008) 161 Cal.App.4th 1362, 1368-1369.)

"Marsden and its progeny require that when a defendant complains about the adequacy of appointed counsel, the trial court permit the defendant to articulate his causes of dissatisfaction and, if any of them suggest ineffective assistance, to conduct an inquiry sufficient to ascertain whether counsel is in fact rendering effective assistance. [Citations.] If the defendant states facts sufficient to raise a question about counsel's effectiveness, the court must question counsel as necessary to ascertain their veracity." (People v. Eastman, supra, at p. 695.)

By failing to hold a Marsden hearing, the trial court improperly delegates its duty to review the defendant's claims, fails to make an adequate record of defendant's grievances and fails to provide a forum where the defendant could show his full reasoning and factual basis. (People v. Eastman, supra, 146 Cal.App.4th at pp. 696-697.) Further, "[i]f the defendant states facts sufficient to raise question about counsel's effectiveness, the court must question counsel as necessary to ascertain their veracity." (Id. at p. 695.)

Before sentencing, Cruz submitted a handwritten motion to withdraw his guilty plea and "Marsden motion to replace defense counsel." Cruz asserted his counsel had coerced him to plead guilty by lying to him about facing a life sentence if he went to trial. Cruz asserted that he knew this was false because other jail inmates said he could not be sentenced to a life term for two Penal Code section 288, subdivision (a) counts. As a result of counsel's alleged duplicity, Cruz said he could no longer trust his counsel.

The trial court treated the motion as a motion to withdraw the plea and appointed special counsel for the sole purpose of investigating whether legal grounds existed to withdraw the plea; the court did not conduct a Marsden hearing. After conducting an investigation, special counsel reported to the court that there were no grounds to grant Cruz's motion to withdraw his plea. The court denied Cruz's motion.

Both Cruz's appellate counsel and the Attorney General acknowledged that under People v. Eastman, supra, 146 Cal.App.4th 688, the trial court should have held a Marsden hearing to explore Cruz's complaints about his defense counsel and determine whether counsel should be retained or replaced. We agree. Cruz's dual motion set forth an arguable case that a fundamental breakdown had occurred in the attorney-client relationship that required replacement of counsel, and the court was obliged to make a record that this complaint had been adequately aired and considered. (Id. at pp. 696-697.)

However, appellate counsel and the Attorney General maintain any error was harmless. Marsden does not establish a rule of reversible error per se. (People v. Chavez (1980) 26 Cal.3d 334, 348-349.) Rather, reversal is not required if the error is found to be harmless beyond a reasonable doubt. (Ibid.; People v. Washington (1994) 27 Cal.App.4th 940, 944.)

We find the appointment of special counsel in this case and the subsequent hearing on the motion to withdraw the guilty plea rendered the court's failure to hold a Marsden motion harmless beyond a reasonable doubtthat is, the error did not prejudice Cruz.

Cruz's major complaint against his trial counsel was that he was forced to plead guilty because trial counsel falsely told him that he could face a life term if he went to trial. However, as special counsel correctly pointed out, trial counsel's statement was not false because the prosecution planned to add a count of section 288.7, subdivision (b), which mandates a 15-to-life term, if the case went to trial. Cruz had been misled by other jail inmates. Further, as special counsel indicated, the plea bargain was significantly favorable to Cruz. Special counsel opined that it would be "suicidal" if Cruz's efforts to rescind the plea bargain were successful. Special counsel also found no merit to Cruz's belated complaints about his guilty pleatrial counsel made additions to the change of plea form after the plea was taken and the interpreter was incompetent. We agree. First, the record contains nothing to substantiate a claim that trial counsel inserted material to the change of plea form after the plea was taken. Second, as special counsel noted, Cruz was provided the services of a certified interpreter, and concerns about in-court interpretation are met by statutory certification requirements. (Correa v. Superior Court (2002) 27 Cal.4th 444, 462.)

Finally, although Cruz did not have a formal Marsden hearing, he in effect had an airing of his grievances against trial counsel during the withdrawal motion hearing. Counsel countered Cruz's complaint that he had not visited him in jail by telling the court he had visited Cruz at least twice and spent more than three or four hours discussing the case with him.

Given this record and the concurrence of the parties, we conclude a limited remand for purposes of conducting a formal Marsden hearing outside the presence of the prosecution would exalt form over substance and waste precious judicial resources.

A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issue referred to by appellate counsel, has disclosed no reasonably arguable appellate issues. Competent counsel has represented Cruz on this appeal.

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

NARES, J.

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^[1] Statutory references are to the Penal Code.