P. v. McCovellen
Filed 1/27/14 P. v. McCovellen 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NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 APEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and
Respondent,
v.
TERRIL S. MCCOVELLEN,
Defendant and
Appellant.
D062719
(Super. Ct. No.
SCD241417)
APPEAL
from a judgment of the Superior Court of
San Diego County, Laura Halgren, Judge.
Affirmed.
Dawn
S. Mortazavi, under appointment by the Court
of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney
General, Eric A. Swenson and Laura A. Glennon, Deputy Attorneys General, for
Plaintiff and Respondent.
At
the defendant's request, prior to sentencing him, the
at which the defendant asked that new counsel be appointed for the purpose of
filing a motion to withdraw his earlier plea.
At the hearing, the trial court examined defendant and his counsel with
respect to counsel's representation and the basis for a motion to withdraw. Based on what it learned from the defendant
and his counsel, the trial court determined that the defendant had been
adequately represented and that there was no basis upon which a
made.
The
trial court's determinations are fully supported by the
conviction.
FACTUAL AND
PROCEDURAL BACKGROUND
The defendant and appellant in
this case, Terril S. McCovellen,
title="">[2] was at all material times
a felon. On November 25, 2011, he was apprehended at the home of a known gang member in possession
of a stolen firearm, a magazine and ammunition.
On
December 9,
2011, while McCovellen was in custody, law
enforcement personnel recovered an ammunition magazine from another location
and ordered that DNA testing be performed on it.
On
June 18, 2012, the district attorney filed a complaint with respect to McCovellen's
November 25,
2011 firearm possession. Shortly thereafter, in the course of
negotiating a plea with defense counsel, the prosecutor informed defense
counsel that McCovellen's DNA had been found on a second magazine recovered in
a separate incident. The prosecutor
agreed that, as part of a plea bargain with McCovellen, the district attorney
would not charge him with possession of the second magazine. The prosecutor agreed to provide defense
counsel with the DNA report on the second magazine.
On
July 12, 2012, McCovellen pled guilty to one count of being a felon in possession
of a firearm and admitted both a gang enhancement and a prior strike. In exchange, the district attorney agreed to a
four-year prison commitment instead of a 10-year prison maximum exposure. The district attorney also agreed to: dismiss
an allegation that, at the time of his November 25, 2011 arrest, McCovellen gave
officers false information about his identity; strike the gang enhancement
punishment; and not file a new charge with respect to McCovellen's possession
of the second gun magazine. The trial
court accepted the plea.
On
August 1, 2012, as promised, the prosecutor sent defense counsel the DNA report on
the second magazine. The report showed McCovellen's
DNA had been found on the second magazine; the report also indicated the
magazine had been recovered on December 9, 2011, while McCovellen
was in custody.
On
August 7, 2012, defense counsel brought the report to McCovellen while he was in
custody.
The
trial court conducted a sentencing hearing on August 9, 2012. At the sentencing hearing, McCovellen asked
to make a Marsden motion. In response, the trial court conducted a
stated he wanted new counsel to make a motion to withdraw his plea. According to McCovellen, his counsel had been
ineffective because she had only provided him with discovery on August 7, 2012, shortly before the sentencing hearing. In response, defense counsel explained that
what she had recently provided McCovellen was the DNA report she had received
from the prosecutor, which showed McCovellen's DNA was on the second magazine. McCovellen then questioned how his DNA could
have been discovered on the second magazine when he was incarcerated at the
time it was seized by law enforcement officials and asserted that he believed
he had been improperly pressured to take the plea bargain offered by the
prosecutor.
The
trial court denied McCovellen's Marsden
motion. The trial court found there was
no basis upon which a motion to withdraw McCovellen's plea could be made; in
particular, the trial court found that his counsel had been effective in
representing him and that the fact that the DNA report showed that the second
magazine had been recovered while he was incarcerated did not diminish it as
evidence that he been in possession of the magazine.
The
trial court then sentenced McCovellen to four years in prison. McCovellen filed a timely notice of appeal.
DISCUSSION
McCovellen contends the trial court
erred in denying his Marsden motion. In particular, McCovellen contends that, in
ruling on his motion for new counsel, the trial court should not have
considered the merits of his contention that his counsel had been ineffective
in failing to provide him with the DNA report in a more timely manner. We find no abuse of discretion.
I
The principles governing a
was ineffective in providing assistance with respect to a plea were fully
considered by the court in People v.
Smith (1993) 6 Cal.4th 684, 690-697 (Smith). In recapitulating a defendant's rights to new
counsel, the court stated:
"The seminal case regarding the
appointment of substitute counsel is Marsden,
supra, 2 Cal.3d 118, which gave birth
to the term of art, a 'Marsden
motion.' We there held that 'the
decision whether to permit a defendant to discharge his appointed counsel and
substitute another attorney during the trial is within the discretion of the
trial court, and a defendant has no absolute right to more than one appointed
attorney.' (Id. at p. 123.)
"We also established in Marsden that the trial court must give the defendant the
opportunity to explain the reasons for desiring a new attorney. (Marsden,
supra, 2 Cal.3d at pp. 123-125.) '[T]he trial court cannot thoughtfully
exercise its discretion in this matter without listening to [the defendant's]
reasons for requesting a change of attorneys.'
(Id. at p. 123.) Accordingly, 'When a defendant moves for
substitution of appointed counsel, the court must consider any specific
examples of counsel's inadequate representation that the defendant wishes to
enumerate. Thereafter, substitution is a
matter of judicial discretion. Denial of
the motion is not an abuse of discretion unless the defendant has shown that a
failure to replace the appointed attorney would "substantially impair"
the defendant's right to assistance of counsel. [Citations.]' [Citation.]" (Smith,
The focus of a Marsden
motion is on the representation the defendant has been provided: "It is the very nature of a
whether counsel has been providing competent representation. Whenever the motion is made, the inquiry is
forward-looking in the sense that counsel would be substituted in order to
provide effective assistance in the future.
But the decision must always be based on
what has happened in the past." (Smith,
Like McCovellen, the defendant in Smith entered a plea and then asked to have new counsel appointed
for the purpose of making a motion to withdraw his plea on the grounds his
trial counsel had not been effective in representing him prior to and at the
time of the plea. The trial court, after
listening to the defendant's complaints about counsel and counsel's
explanation, denied the motion for new counsel.
On appeal, the Court of Appeal reversed, holding new counsel should be
appointed if the trial court determined on remand that the defendant had a "colorable"
claim of ineffective assistance of counsel.
The Court of Appeal reasoned that a defendant's burden in making a
posttrial Marsden motion based on
conduct that did not occur at trial is not as high as when a
did occur at trial or had an impact on the trial. (Smith,
reversed the judgment of the Court of Appeal.
(Id. at p. 697.) The Supreme Court found that a defendant's
burden under Marsden is the same at
all stages of a criminal proceeding: "[T]he
trial court should appoint substitute counsel when a proper showing has been
made at any stage. A defendant is
entitled to competent representation at all times, including presentation of a
new trial motion or motion to withdraw a plea. . . . In those cases in which counsel
early. Thus, when a defendant satisfies
the trial court that adequate grounds exist, substitute counsel should be
appointed. Substitute counsel could then
investigate a possible motion to withdraw the plea or a motion for new trial
based upon alleged ineffective assistance of counsel. Whether, after such appointment, any
particular motion should actually be made will, of course, be determined by the
new attorney.
"We stress
equally, however, that new counsel should not be appointed without a proper
showing. A series of attorneys
presenting groundless claims of incompetence at public expense, often causing
delays to allow substitute counsel to become acquainted with the case, benefits
no one. The court should deny a request
for new counsel at any stage unless it is satisfied that the defendant has made
the required showing. This lies within
the exercise of the trial court's discretion, which will not be overturned on
appeal absent a clear abuse of that discretion. [Italics added.]
"We thus hold that substitute counsel should be
appointed when, and only when, necessary under the Marsden standard, that is whenever, in the exercise of its
discretion, the court finds that the defendant has shown that a failure to
replace the appointed attorney would substantially impair the right to
assistance of counsel [citation] . . . ." (Smith,
In Smith, the
court went on to determine that the trial court did not abuse its discretion in
denying the defendant's Marsden
motion. (Smith, supra, 6 Cal.4th
at p. 696.)
II
Under
right, indeed the duty, to determine whether counsel had adequately represented
McCovellen at the time his plea was negotiated.
As Smith makes clear, where
the reasons stated by a defendant at a Marsden
hearing do not, in light of any explanation offered by counsel, show any
inadequacy of counsel or irreconcilable differences, a Marsden motion should be denied.
(Smith, supra, 6 Cal.4th at p. 696.)
Here, the record the fully supports the trial court's
determination that counsel's representation was adequate and, in particular,
the trial court's ultimate conclusion that there was no basis upon which a
motion to withdraw could be made. In
this regard, we agree with the trial court that the fact that the second
magazine was recovered while McCovellen was incarcerated did not undermine the
relevance of the DNA results obtained by the prosecutor. Thus, like the trial court, we conclude there
was no basis upon which a motion to withdraw McCovellen's plea could be
granted.
This case is readily distinguishable
from People v. Brown (1986) 179
Cal.App.3d 207, 216, where the trial court failed to conduct the hearing
required under Marsden and the
judgment was set aside for the limited purpose of conducting such a hearing. Here, the record shows that the trial court
conducted a Marsden hearing at which
it both permitted McCovellen to fully state his reasons for requesting new
counsel and examined counsel with respect to her representation of McCovellen. People
v. Brown requires no more than that.
DISPOSITION
The judgment of conviction is
affirmed.
BENKE, Acting P. J.
WE CONCUR:
HALLER, J.
McDONALD, J.
name="_ftn1" title="">[1] People v. Marsden (1970) 2 Cal.3d 118, 123 (Marsden).
name="_ftn2" title="">[2] Defendant was charged
as Terril S. McCouellen. During the course of proceedings in the trial
court, he stated that his name is Terril S. McCovellen, and the abstract of judgment also identifies him as
Terril S. McCovellen.
