P. v. Huber

Filed 7/28/08 P. v. Huber 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

----

Defendant Lawrence Duane Huber pled no contest to a charge he fondled his 10-year-old daughters breasts. Initially granted probation and ordered to participate in sex offender therapy, defendant was ultimately sentenced to prison for the midterm of six years and ordered to pay various fines and fees.

On appeal, defendant contends the trial court committed reversible error in not treating a letter he wrote to the court as a Marsden^[1]motion and erred in imposing various fines. The People concede the trial court erred in imposing fines pursuant to Penal Code section 1465.7, subdivision (a) and Government Code section 70372.

We find no Marsden error, but shall strike the fines erroneously imposed and otherwise affirm the judgment.

As the substantive facts of defendants offense are not relevant to the issues posed on appeal, we recite only those facts relevant to defendants contentions under their respective Discussion headings, post.

DISCUSSION

I

The Trial Court Did Not Err In Failing

To Conduct A Marsden Hearing

After defendant was found to have violated his probation, the court referred defendant to a Department of Corrections and Rehabilitation diagnostic facility for presentence evaluation. (Pen. Code,  1203.03.) While defendant was serving the 90-day diagnostic commitment, he wrote the following letter to the court:

I am Lawrence Huber Case # CM16529.

I have questions which my attorney Mr. M. Stapleton isnt helpful. He refuses contact with me.

We all have heard one can create a fire by rubbing two sticks together. When somebody shows us how to rub them to create fire, we learn.

I am at a crossroads. I am in a prison for a Psychiatric Evaluation. It was supposed to be a 120 day jail term. People are saying one thing, yet doing the opposite. I am confused.

My purpose for this letter is for guidance and help. I hunger and thirst for knowledge, yet I dont want prison influence.

During my time here, Ive talked to Five Doctors. Two were Psychologists and three were Psychiatrists. Three of these Doctors sent reports to your court. In them, I am requesting Therapy from New Beginnings. This is coun[sel]ling which will explain things to me what I need to and how to make these changes. This has satisfied certain Probation Officers before, why cant I be allowed to change and grow?

I want help, but I also need someone who will explain how to grow. This clinic does that.

I have brain trauma and PTSD, post traumatic stress disorder. I am also emotional. I work hard at understanding others. I often times feel stupid because I ask for clarifications. But I understand better. I am in your court because my Therapist Dawn [H.] didnt have time to help. All I could do was ask. I did.

Sir, I understand certain things about the law and how it works. I dont want more confusion. I ask for help. I implore your wisdom.

Ive reached out for help and it was refused, I am suffering but mostly my victim. I cant return time and redo anything, but I can make a difference now. Who can I turn to for proper instructions. I ask for an opportunity for proper training.

I had asked Probation for a new Therapist, but to no avail.

I am pleading sir, I need coun[sel]ling to help me grow into a positive person. Post traumatic stress retards growth, since I have learned I have it, . . . I have sought help.

If allowed New Beginnings, I also would like a new Therapist . . . . But in order to afford both of these treatments, I would need to keep and live on my mothers property.

If possible, I would gratify [sic] probation as well as grow personally. New Beginnings can help [the therapists] progress.

Sir, a proper opportunity awaits. All I ask is for you to allow me the growth.

Thank you for the time. Now, my time is yours.

After his diagnostic commitment, defendants next court appearance was for sentencing. At the sentencing hearing, defense counsel urged the court to allow defendant to continue sex offender treatment. Defendant made no mention of his letter to the court, expressed no dissatisfaction with counsel, and did not indicate he wished to have new counsel.

Defendant contends the trial court erred in failing to treat his letter as a Marsden motion and to conduct a hearing. In Marsden, the Supreme Court explained that a defendant has the right to have appointed counsel discharged and other counsel appointed if the trial court decides, after hearing defendants reasons for requesting different counsel, that defendants right to assistance of counsel would be substantially impaired if the request were not granted. (People v. Marsden, supra, 2 Cal.3d at pp. 123-126.) While a defendant need not file a formal motion to initiate the Marsden inquiry, he must express at least some clear indication . . . that he wants a substitution of attorney. (People v. Lee (2002) 95 Cal.App.4th 772, 780.) Mere grumbling about counsels performance is not enough. (Ibid.)

Defendants letter to the court fails to express any indication, much less a clear one, that he wanted new counsel. (People v. Lee, supra,95 Cal.App.4th at p. 780.)

Defendant does not contend to the contrary. Instead, he relies upon cases which state the rule that a trial courts duty to conduct a Marsden inquiry arises when the defendant asserts directly or by implication that his counsels performance has been so inadequate as to deny him his constitutional right to effective counsel. (People v. Molina (1977) 74 Cal.App.3d 544, 549; see also People v. Kelley (1997) 52 Cal.App.4th 568, 579-580, People v. Leonard (2000) 78 Cal.App.4th 776, 787-788.) But only one of these cases actually found error in the trial courts failure to conduct a Marsden inquiry. In Kelley,the defendant filed a written motion for a new trial and claimed under penalty of perjury that his attorney refused to let him testify, and failed to subpoena or call several material witnesses, the materiality of which he set forth in detail; his complaints of counsels deficiencies was held sufficient to warrant a Marsden hearing. (People v. Kelley, supra, 52 Cal.App.4th at pp. 579-580; cf. People v. Molina, supra, 74 Cal.App.3d at p. 549 [no Marsden hearing was required after defendant stated he wished to substitute private counsel in place of the public defender and criticized the scope of an limine motion]; People v. Leonard, supra,78 Cal.App.4th at pp. 787-788 [defendants displeasure after the lawyer reported finding possible weapon in defendants bag not based on attorneys professional competence, so no Marsden inquiry necessary].)

Defendant reasons that his report to the court that counsel had refuse[d] contact and was not helpful constitutes a claim of ineffective assistance of counsel sufficient to justify counsels substitution, and the trial courts failure to inquire as to the alleged incompetency was error.

For support, he relies on three Ninth Circuit cases in which courts found inadequate defense counsels limited pretrial consultation with the defendant. In Turner v. Duncan (9th Cir. 1998) 158 F.3d 449, the Ninth Circuit found counsels performance in a first degree murder trial generally deficient, including that he spent at most forty-five minutes with [the defendant] prior to trial demonstrates deficient performance[,] a cursory consultation [that] is especially shocking in light of the seriousness of the charges against [the defendant], the fact that the entire defense hinged on [the defendant]s intent and mental state, and that [the defendant] testified in a manner that suggests he was wholly unprepared to answer questions on cross-examination. (Id. at p. 457.) In United States v. Tucker (9th Cir. 1993) 716 F.2d 576, the court emphasized that defense counsels pretrial consultation should be sufficient to determine all legally relevant information known to the defendant (id. at p. 582), and devoting no more than 20 hours discussing the case with [defendant] (ibid.) was inadequate in a case in which the government intended to call 80 witnesses during its case-in-chief, and pretrial discovery materials exceeded 13,000 pages, including over 3,000 pages of sworn testimony by prospective witnesses (Id. at p. 581). Finally, in Correll v. Ryan (9th Cir. 2006) 465 F.3d 1006, the courts conclusion that defense counsel in that capital case performed inadequately rested partly on evidence counsel met with the defendant only once, briefly, between the trial and penalty phases and demonstrated an almost complete failure to investigate potentially mitigating evidence to present during the penalty phase. (Id. at pp. 1010-1012.)

Viewed in context of the proceedings here, none of these cases are remotely helpful to defendant. First, a defendants complaint that counsel had refused to contact him, without more, does not constitute a claim of ineffective assistance of counsel. (E.g., People v. Smith (2005) 135 Cal.App.4th 914, 926 [the defendants contention his communication with his counsel was down to zero failed to show inadequate representation; Marsden motion properly denied]; see also People v. Cole (2004) 33 Cal.4th 1158, 1192 [the number of times one sees his attorney, and the way in which one relates with his attorney, does not sufficiently establish incompetence.].)

Nor is there any suggestion here that defense counsel failed to communicate with him at any time other than while he was undergoing psychiatric evaluation. Indeed, the record shows defense counsel had previously had significant contact with his client: on the plea form, counsel averred he had answered all defendants questions regarding the plea; discussed the content, substance and meaning of all items in that document; discussed the facts of the case with defendant; and explained to him possible consequences, legal elements of the offenses and defenses.

In fact, reading defendants two-line report about his attorney in the context of his entire two-page letter, it appears defendant was bemoaning a state of generalized confusion (People are saying one thing, yet doing the opposite. I am confused; Sir, I understand certain things about the law and how I works. I dont want more confusion) and posing rhetorical questions (why cant I be allowed to change and grow; [w]ho can I turn to for proper instructions?) Taken as a whole, defendants letter appears to focus on availability of counseling, rather than legal assistance or advice (counseling which will explain things to me [that] I need to and how to make these changes.) And defense counsel was not the only person who defendant claimed was unhelpful: he also complained his therapist didnt have time to help.

The trial court was entitled to consider defendants brief criticism of counsel in the context of his entire letter and to conclude that he did not intend to request new counsel, particularly after defendant failed thereafter either to request new counsel or to make any further complaint about his attorney.

II

Imposing Fees Ex Post Facto Was Error

On September 22, 2003, following defendants no contest plea to molesting his daughter, the court placed him on five years formal probation and imposed the following financial terms and conditions: a fine: Count 1 of $680, a Child Molestation Fine of $500, and a restitution fine of $200, pursuant to Penal Code section 1202.4. A probation report recommendation sheet suggests the Count 1 fine is a sum of the following components: ($200.00 fine, $40.00 Count Surcharge (per 1465.7 PC), $100.00 State Court Facilities Construction Fund (per 70372(a) GC), $200.00 State Penalty Assessment (per 1464 PC) [and] $140.00 County Penalty Assessment (per 7600 GC). The same probation report recommendation sheet indicates that the Child Molestation Fine was imposed pursuant to Penal Code section 288, subdivision (e).^[2]

Four years later, after defendant was found to have twice violated his probation, he was sentenced to prison for the midterm of six years. The court imposed a $200 restitution fine pursuant to Penal Code section 1202.4, subdivision (b) (plus a corresponding parole revocation fine in the same amount under Penal Code section 1202.45), and a fine of $680, imposed per PC290.3.

On appeal, defendant challenges as illegal various components of the fines and fees imposed. Only one has merit.

A

Fines Imposed Pursuant To Penal Code Section 1465.7

And Government Code Section 70372

Defendant contends the trial court erred in imposing penalties under Penal Code section 1465.7, subdivision (a) ($40), and the former version of Government Code section 70372 ($100), as the statutes were not operative until after the date of his offense.

The People properly concede this point.

Defendant was charged with fondling his daughter on or about July 14, 1999. Penal Code section 1465.7, subdivision (a) became operative on September 30, 2002 (Stats. 2002, ch. 1124,  46); Government Code section 70372 became effective on January 1, 2003 (Stats. 2002, ch. 1082,  4). As we have previously held, it violates the prohibition against ex post facto laws to impose fines under Penal Code section 1465.7 and Government Code section 70372 on offenses committed prior to their enactment. (People v. High (2004) 119 Cal.App.4th 1192, 1197-1199.) We will order these penalties stricken.

B

Child Molestation Fine And Penal Code Section 290.3 Fine

Defendant also contends the $500 child molestation fine imposed when probation was granted was not permitted by any existing statute and must be stricken. He is mistaken. As the People correctly observe, the court was permitted to impose such a fine pursuant to Penal Code section 288, subdivision (e), which states that [u]pon the conviction of any person for a violation of subdivision (a) or (b), the court may, in addition to any other penalty or fine imposed, order the defendant to pay an additional fine not to exceed ten thousand dollars ($10,000). . . . (Italics added.)

Nor does the imposition of the child molestation fine render the court incapable of imposing the $200 component of the $680 fine, as defendant suggests. As the court indicated in its restatement of the $680 fine after probation was revoked and defendant was sentenced to prison, the total 290 fees and fines total $680: though inartfully stated, this fine was imposed pursuant to Penal Code section 290.3, subdivision (a), which then provided in relevant part that Every person who is convicted of any offense specified in subdivision (a) of Section 290 shall, in addition to any imprisonment or fine, or both, imposed for violation of the underlying offense, be punished by a fine of two hundred dollars ($200) upon the first conviction . . . . Defendants offense, a violation of Penal Code section 288, subdivision (a), is a qualifying offense^[3](Pen. Code,  290, subdivision (a)(2)(A); 290.3, subd. (a)), and the $200 fine defendant complains of was mandatory.

There was no error.

DISPOSITION

The judgment is affirmed. The trial court shall strike the fines imposed under Penal Code section 1465.7, subdivision (a) and Government Code section 70372, and send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

ROBIE , J.

We concur:

DAVIS, Acting P.J.

NICHOLSON , J.

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^[1]People v. Marsden (1970) 2 Cal.3d 118.

^[2] Although the probation department recommendation sheet appears to recommend the imposition of a second $680 fine (described as Sex Offender Fine under item No. 13, its imposition is not reflected in the financial obligation sheet signed by defendant and the clerk of the court.

^[3] Defendant insists that the $200 fine was imposed in error because Penal Code section 288, subdivision (a) does not provide for any fine at all. He is correct, but the court likely referenced section 288, subdivision (a) because defendants conviction under that provision required him to be fined $200 under section 290.3.