P. v. Donahue

Filed 4/9/08 P. v. Donahue CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Following a jury trial, appellant Noelle Mary Donahue was convicted of embezzlement (Pen. Code,  503) and grand theft by larceny (Pen. Code,[1]  484, subd. (a), 487, subd. (a)). On appeal, she contends the trial court committed reversible error by failing to conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) prior to sentencing. She also contends she was erroneously convicted of both embezzlement and grand theft by larceny because one is a necessarily included lesser offense of the other.

We reverse the judgment and remand the matter with directions to the trial court to hold a Marsden hearing and to conduct further proceedings as authorized by law.

Factual and Procedural Background

The Mendocino County District Attorney filed an information on December 19, 2006, alleging in count 1 that appellant and codefendant Steven Perry had committed the offense of embezzlement ( 503).[2] In count 2, the district attorney alleged that appellant and Perry had committed grand theft by larceny ( 484, subd. (a), 487, subd. (a), 503). Both counts arose out of an allegation that appellant and Perry had fraudulently appropriated antiques, jewelry, paintings, furniture, and other items on or about September 6, 2006. In count 1, it was alleged that the items had been entrusted to Perry and appellant, and in count 2 it was alleged the items exceeded $400 in value and belonged to Deborah Fulmor. The information specified that the two counts were of the same class of crime and [were] connected together in their commission.

Trial by jury commenced on April 16, 2007. Perry testified in his own defense at trial. Appellant did not testify. The evidence adduced at trial revealed that Deborah Fulmor rented a fully furnished house to appellant and Perry. After appellant and Perry stopped paying rent, Fulmor successfully prosecuted an unlawful detainer action against them. While they were still living in Fulmors fully furnished house, appellant and Perry sold some of Fulmors personal property. In addition, when they moved out, appellant and Perry took about $18,000 worth of Fulmors personal property with them. In defense of his and appellants actions, Perry testified that Fulmor had told them the items in the house were of no value to her and that Perry and appellant could do with them as they pleased. Perry also testified that the value of the items they had taken was less than adequate compensation for the work he and appellant had done in cleaning the house and yard, and in moving items from the house into storage.

The jury found appellant and Perry guilty as charged. On June 1, 2007, the trial court suspended imposition of sentence and admitted appellant to probation for three years on a variety of conditions, including that she serve 270 days in county jail. Appellant filed a timely notice of appeal.

Discussion

1. Failure to conduct a Marsden hearing at the time of sentencing

A. Facts

After she was convicted but before the hearing at which she was sentenced, appellant submitted a letter addressed to the trial judge that began, I would like to request a Marsden hearing pertaining to another trust issue with my [trial attorney]. She wrote that [t]his is a different matter then [sic] the Marsden hearing before the trail [sic] . . . .[3] The letter continued: I would like a Marsden hearing before June 1st 2007 the next court date. [My trial attorney] did not call me to testify against my request. Because of [my trial attorney] my constitutional right to testify was denied. When I realized I wasnt going to testify it was too late. She stated that her trial attorney made threatening statements to her in order to coerce her not to testify. She claimed in the letter that her testimony would have supported a not guilty verdict.

At the sentencing hearing on June 1, 2007, appellants trial counsel told the court that theres a letter from Miss Donahue where shes requested ashe refers to a Marsden hearing. I dont know if the court had a chance to review that. She had some concerns about whether she was allowed to testify or whether she testified at the trial, and I think the court needs to determine whether she needs to have new counsel appointed or if theres a substantial issue there. The following colloquy ensued.

THE COURT: Well, I did read that. My first thought is Im not sure if thats a Marsden issue or not. [] . . .  [] That may be an issue, potentially, for new trial. It may be an issue for appeal for ineffective assistance of counsel. Im not sure its a Marsden issue.

[DEFENSE COUNSEL]: I agree with the court. But I think the court needs to make a determination whether or not that is a substantial issue, whether theres a good faith issue that would require the appointment of counsel to do a motion for a new trial on that basis. [] . . .[]

THE COURT: One problem is that she phrased this issue regarding testimony. Again, I dont see that as a Marsden issue. I see that, perhaps, as an issue that could be raised on appeal for ineffective assistance of counsel. [] It may be an issue thatIm not sure if its an issue that could be raised on a motion for new trial or not. It is a tactical decision. Although the defendant does have a right to testify.

[DEFENSE COUNSEL]: She does.

THE COURT: I dont it as a Marsden issue. If youre moving forwell, what do I want to say? [] I guess . . . if youre moving for the court to consider appointment of separate counsel because theres this issue that needs to be addressed on a potential motion for new trial that deals with the competency of counsel, then I can see that. . . . I dont see this as a Marsden motion.

[DEFENSE COUNSEL]: I would tend to agree with the court. Im not sure that thats what Miss Donahue wants. I assume it is, though, that she would want counsel appointed to do a motion for a new trial. [] But I think the court, before it does that, has to determine if theres a colorable issue in that regard, and I think thats an issue that needs to be resolved before the court would appoint new counsel. At least thats my understanding of the procedure. But Im happy to submit the issue.

THE COURT: I dont know how I determine the colorable issue. All Ive got is that shes saying she wanted to testify and she was mistaken and misunderstood that she wasnt going to testify. Thats what I get from her letter. That letter isnt in the form of a declaration, though. Its simply a letter attached to a sentencing report.

[DEFENSE COUNSEL]: Ill submit the issue. It sounds like Miss Donahue wants to address the court. I am concerned about her addressing the court, if I could have just a moment.

(Counsel and defendant confer)

[DEFENSE COUNSEL]: She indicates she wants a new trial, your honor. Thats all I can tell the court. Ill submit it on that. Im notI have reviewed the matter. I dont think theres grounds for such a motion.

THE COURT: Well, other than her letter thats attached to the report, I really dont see any grounds for the motion either. If thats a formal motion for new trial, based on whats been presented, its denied.

B. Analysis

Appellant contends the trial court committed reversible error by failing to conduct a Marsden hearing at the time of sentencing. We agree.

When a defendant complains about the adequacy of appointed counsel, the trial court must permit the defendant to articulate the basis for her concerns so that the court can determine if they have merit and, if necessary, appoint new counsel. (Marsden, supra, 2 Cal.3d at pp. 123-124; accord, People v. Smith (1993) 6 Cal.4th 684, 691.) [T]he trial court cannot thoughtfully exercise its discretion . . . without listening to [the defendants] reasons for requesting a change of attorneys. A trial judge is unable to intelligently deal with a defendants request for substitution of attorneys unless he is cognizant of the grounds which prompted the request. (Marsden, supra, 2 Cal.3d at p. 123.) The denial of a Marsden motion without careful inquiry into the defendants reasons for requesting the substitution of counsel does not qualify as an informed judicial determination. (People v. Ivans (1992) 2 Cal.App.4th 1654, 1666.)

The rule requiring a Marsden hearing applies equally posttrial. [T]he trial court should appoint substitute counsel when a proper showing [pursuant to Marsden] has been made at any stage [of the proceedings]. A defendant is entitled to competent representation at all times, including presentation of a new trial motion . . . . (People v. Smith, supra, 6 Cal.4th at p. 695.)

In People v. Bolin (1998) 18 Cal.4th 297, our Supreme Court explained what must transpire when a defendant makes a posttrial Marsden request in conjunction with a claim that a new trial is justified on the ground of ineffective assistance of counsel.  When, after trial, a defendant asks the trial court to appoint new counsel to prepare and present a motion for new trial on the ground of ineffective assistance of counsel, the court must conduct a hearing to explore the reasons underlying the request. [Citations.] If the claim of inadequacy relates to courtroom events that the trial court observed, the court will generally be able to resolve the new trial motion without appointing new counsel for the defendant. [Citation.] If, on the other hand, the defendants claim of inadequacy relates to matters that occurred outside the courtroom, and the defendant makes a colorable claim of inadequacy of counsel, then the trial court may, in it discretion, appoint new counsel to assist the defendant in moving for a new trial. [Citations.]  [Citation.] (Id. at p. 346, italics added.)

Here, appellant presented the court with a letter requesting a Marsden hearing and articulating a basis for her dissatisfaction with counsel. Specifically, she claimed her trial counsel prevented her from testifying at trial. Although the decision whether to testify is a tactical one and defense counsel ordinarily has control over the conduct of the defense, that power may not be exercised to deprive a defendant of her absolute right to testify. (People v. Robles (1970) 2 Cal.3d 205, 214-215.) Thus, appellants letter not only explicitly requested a Marsden hearing, but it also alleged at least one particular instance of ineffective assistance of counsel. During the colloquy between the court and defense counsel, it also became clear that, in connection with her request for new counsel, appellant was seeking a new trial on the ground she had received ineffective assistance of counsel at trial. Given this series of events, the trial court had a duty to conduct a hearing and make further inquiry of appellant and counsel. (People v. Smith, supra, 6 Cal.4th at p. 694.) Instead, no inquiry was made of appellant.[4] Indeed, appellants defense counsel prevented his client from speaking, even though he acknowledged she wished to address the court. Further, the court did not specifically ask defense counsel to respond to the allegation he prevented appellant from exercising her right to testify in her own defense. Rather, the court accepted counsels representation that appellant had no valid grounds for seeking a new trial. The lack of inquiry constituted error under Marsden.

The Attorney General urges there was no error, claiming the trial court had numerous grounds on which to deny appellants motion. Among the grounds cited by the Attorney General are that appellants credibility was nil, that the court heard the evidence at trial and thus was aware appellant was a thief, and that appellant continued to disclaim responsibility for her crimes despite her conviction. The Attorney General also suggests the trial court was entitled to rely on the representations of appellants trial counsel because he is an officer of the court.[5]

The issues raised by the Attorney General have no bearing on the decision to conduct a Marsden hearing. A trial court may not refuse to conduct a Marsden hearing on the ground the defendant lacks credibility or because the defendant denies responsibility for crimes of which he or she has been convicted. Nor is it appropriate for the court to refuse to conduct a Marsden hearing based on defense counsels representation that the defendant has no grounds for such a motion. Moreover, to the extent the court does conduct a Marsden hearing, it is error to elicit comment only from defense counsel and not from the defendant who seeks to have new counsel appointed. (See People v. Meja (2008) 159 Cal.App.4th 1081, 1086-1087.)

We conclude the courts failure to conduct a Marsden hearing was error. Ordinarily, we review an order denying a Marsden motion under the deferential abuse of discretion standard. (People v. Smith (2005) 135 Cal.App.4th 914, 926.) However, when there is failure to comply with the requirements of Marsden, the error compels reversal unless the record shows beyond a reasonable doubt that the error was harmless. (Marsden, supra, 2 Cal.3d at p. 126; People v. Eastman (2007) 146 Cal.App.4th 688, 697.) Here, because we do not know what appellant could have shown had she received a full hearing on her Marsden motion, we cannot say the error is harmless. (See People v. Eastman, supra, 146 Cal.App.4th at p. 697.) The lack of an adequate inquiry creates a silent record, making appellate review impossible. (People v. Leonard (2000) 78 Cal.App.4th 776, 787.)

As appellant recognizes, she is not entitled to an unqualified reversal. Instead, the appropriate disposition is to reverse the judgment and remand the matter to the trial court for a hearing on appellants Marsden motion. If the court finds that appellant establishes a colorable claim of ineffective assistance of counsel or that appellant and her attorney had become embroiled in such an irreconcilable conflict that ineffective representation was likely to result, the trial court should appoint new counsel to assist appellant in filing a motion for new trial or any other such motions that newly appointed counsel may deem appropriate.[6] (See People v. Eastman, supra, 146 Cal.App.4th at p. 699; see also People v. Smith, supra, 6 Cal.4th at p. 696.) However, the trial court shall reinstate the judgment if (a) the Marsden motion is denied, (b) the Marsden motion is granted but substitute counsel declines to file a new trial motion or other appropriate motion, or (c) the Marsden motion is granted but the trial court denies a new trial motion or other appropriate motions filed by substitute counsel. (People v. Eastman, supra, 146 Cal.App.4th at p. 699.)

2. Conviction for multiple offenses when one is a lesser included offense Appellant contends that her convictions for both embezzlement and grand theft by larceny are improper because one crime is a lesser included offense of the other. Because we are reversing and remanding the case, the issue is technically unripe. However, because our decision requires the trial court to reinstate the existing judgment if certain conditions are met, it is necessary to confirm that the judgment we are conditionally directing the court to reinstate is valid. We therefore address appellants contention.

In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. In California, a single act or course of conduct by a defendant can lead to convictions of any number of the offenses charged. [Citations.] [Citation.] Section 954 generally permits multiple conviction. Section 654 is its counterpart concerning punishment. It prohibits multiple punishment for the same act or omission.  (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227.) A judicially created exception to the general rule permitting multiple conviction prohibits multiple convictions based on necessarily included offenses. [Citation.] [I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. [Citation.] (Id. at p. 1227.)

Here, appellant contends her convictions fall within the exception to the general rule permitting multiple convictions. She asserts that theft by larceny is a necessarily included offense of embezzlement. We disagree.

Appellant fails to cite any reported case holding that grand theft by larceny is a necessarily included offense of embezzlement. Although she cites several cases, they do not support her contention. (People v. Pearson (1986) 42 Cal.3d 351, 355, overruled on another ground in People v. Fields (1996) 13 Cal.4th 289, 308, fn. 6; People v. Schramling (1986) 192 Cal.App.3d 989, 993.) Indeed, she acknowledges the law is unclear in this area and asserts that grand theft by larceny and embezzlement may be lesser included offenses of each other. We are unaware of any support for the contention that two offenses could each be lesser included offenses of the other.

While embezzlement and grand theft by larceny are both species of the crime of theft (see  490a), neither one is a lesser included offense of the other because each contains elements not contained in the other offense. (Compare CALCRIM No. 1800 with CALCRIM No. 1806.) Grand theft by larceny requires that certain money, labor or real or personal property be taken by the defendant. ( 487, subd. (a); see CALCRIM No. 1800.) By contrast, the chapter of the Penal Code relating to embezzlement clarifies that a distinct act of taking is not necessary to constitute embezzlement. ( 509.) Further, the crime of embezzlement has as one of its elements that property has been fraudulently appropriated by a person to whom it has been instrusted. ( 503; see CALCRIM No. 1806.) Grand theft by larceny does not require fraudulent appropriation or an entrustment of property to the defendant. ( 487, subd. (a); see CALCRIM No. 1800.)

Accordingly, we conclude a defendant may be convicted of both theft by larceny and embezzlement. However, as the probation report in this matter acknowledged, a defendant may not receive multiple punishment when both offenses arise out of the same act or omission. ( 654.)

Disposition

The judgment is reversed and the matter remanded with the following directions. The court shall hold a hearing on appellants Marsden motion. If the court finds that appellant establishes a colorable claim of ineffective assistance of counsel or that appellant and her attorney had become embroiled in such an irreconcilable conflict that ineffective representation was likely to result, the court shall appoint new counsel to assist her and shall entertain such applications as newly appointed counsel may make. The court shall reinstate the judgment if (1) the Marsden motion is denied, (2) the Marsden motion is granted but substitute counsel declines to file a new trial motion or other appropriate motion, or (3) the Marsden motion is granted but the trial court denies a new trial motion or other appropriate motions filed by substitute counsel.

_________________________

McGuiness, P. J.

We concur:

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Siggins, J.

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Jenkins, J.

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[1] All further statutory references are to the Penal Code unless otherwise specified.

[2] Perry and appellant are not legally married but have been a couple for 19 years and hold themselves out as husband and wife.

[3] The court held a Marsden hearing several days before the trial started. At that hearing, appellant raised a number of issues but did not explicitly state that she had a dispute with her trial counsel about testifying in her own defense at trial.

[4] Although her letter expressed a reason for dissatisfaction with her counsel, the court conducted no inquiry into the matter. Thus, it is unclear whether the reason expressed in the letter was the sole support for her contention she received ineffective assistance of counsel at trial. Further, she may have been able to offer more particularized support for her contention that her attorney prevented her from testifying. (See People v. Ivans, supra, 2 Cal.App.4th at p. 1666 [court erred by conducting incomplete inquiry into defendants complaints].)

[5] The Attorney General also contends that the trial court had the opportunity to assess for itself whether trial counsel was coercing appellant because it observed appellant and her trial counsel conferring among themselves. While the trial courts observations of the interaction between a defendant and his or her trial counsel are relevant to the resolution of a Marsden motion, the courts observations plainly do not substitute for the duty to inquire of the defendant the reasons for his or her dissatisfaction with counsel. (Marsden, supra, 2 Cal.3d at p. 124 [judge who denies request for substitution of counsel based solely on courtroom observations abuses exercise of discretion].)

[6] Our opinion should not be read to suggest that appellants Marsden motion should be granted or that we think appellant has made, or will make, a colorable claim for ineffective assistance of counsel justifying appointment of substitute counsel for purposes of filing a new trial motion. That decision rests in the sound discretion of the trial court and will obviously depend upon what information the trial court elicits from appellant and her trial counsel during the hearing. (See People v. Smith, supra, 6 Cal.4th at p. 696.)