P. v. Peralta



















Filed 1/8/13 P. v. Peralta CA5

















NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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





IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT


>

THE PEOPLE, Plaintiff and Respondent, v. DEAN JOHN PERALTA, Defendant and Appellant.

F063222 (Super. Ct. No. F09902851) >OPINION

THE COURThref="#_ftn1" name="_ftnref1" title="">^*

APPEAL
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Fresno
County. Arlan L. Harrell, Judge.

William
A. Malloy, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and
Jeffrey Grant, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant
Dean John Peralta challenges the denial of his Marsden motion (People v.
Marsden (1970) 2 Cal.3d 118 (Marsden)). We conclude that the motion was properly
denied and will affirm the judgment.

FACTS

>I. Proceedings in 2009.

On June 26,
2009, an amended information was filed charging appellant with one count of
willful infliction of corporal injury on a cohabitant and two counts of
attempting to dissuade a witness.href="#_ftn2" name="_ftnref2" title="">^[1] It was specially alleged
that appellant had served one prior prison term. (Pen. Code, §§ 273.5, subd. (a), 136.1, subd.
(a)(2), 667.5, subd. (b).)href="#_ftn3"
name="_ftnref3" title="">^[2]

A
pretrial hearing was held on September 24, 2009 (the pretrial hearing). The court asked counsel, “Have both parties
exhausted any possibility of a resolution?”
The prosecutor replied,

“[T]he People’s position in this case,
the defendant would need to plead to a felony, concurrent with any parole violation. My understanding from defense counsel is that
there are no new felonies that are alleged in the complaint that he would be
willing to plead to, that he would like a misdemeanor offer. The People are not willing to give him a
misdemeanor in this case.”

The court asked
defense counsel if the prosecutor’s statement was “correct” and defense counsel
replied, “Yes, Your Honor. He might be
willing to plead to a misdemeanor in order to resolve this and not go through
the trial. But I don’t think he will be
willing to plead to a new felony conviction.”

The court asked
the prosecutor “what is the exposure for Mr. Peralta in this case if he were
convicted?”

The prosecutor
replied, “The [section] 273.5 is two, three, four. So four years. He has a prison prior, so that adds one. So five.
If you run both [section] 136’s consecutive, one-third the midterm,
eight months each charge. So it would
come to six years, four months.”

The court asked,
“And when the People were suggesting that Mr. Peralta plead straight up to a
felony, does it matter which felony?”

The prosecutor
responded that “the People would be requesting [section] 136.1.”

The court asked
defense counsel, “Well, have you had adequate time, Mr. Meyer, to discuss with
Mr. Peralta his exposure in this case and the People’s most recent offer of a
plea to a [section] 136.1, with a maximum exposure of three years?”

A discussion was
held off the record between defense counsel and appellant. Then defense counsel said,

“Your Honor, he is not willing to plead
to that. I would say if there was a
[section] 273.5 offered as a misdemeanor, he would be willing to plead to
that. However, the possibility of
[section] 136, reduced to a misdemeanor.
But as a felony, that is a serious felony, and he is not willing to
plead to that.”

The court
concluded the discussion by saying, “It is.
I just want to be certain Mr. Peralta knows what he is looking at if
there is a conviction. Then it sounds as
if all parties have exhausted all possibilities of resolution.”

Jury
trial commenced the next morning. On
September 30, 2009, the jury returned guilty verdicts on counts 1 and 2. Count 3 was dismissed on motion of the
prosecutor. Appellant admitted the prior
prison term allegation.

On
October 30, 2009, appellant was sentenced to an aggregate term of four years
eight months imprisonment, calculated as follows: the mid-term of three years for count 1, plus
one-third the mid-term of two years for count 2, plus one year for the prior
prison term enhancement.

Appellant
appealed the judgment. (>People v. Dean John Peralta
(F059011).) He abandoned the appeal and
it was dismissed.

>II. Proceedings in 2011.

On
July 26, 2011, the California Department of Corrections and Rehabilitation
mailed a letter to the trial court stating that it may have erred when it
sentenced appellant on count 2 because section 1170.15 required it to impose
the full middle term.

A
resentencing hearing on count 2 was held on August 29, 2011. The court imposed a consecutive two-year term
for this offense.

Immediately
after the sentence was imposed defense counsel said, “Your Honor, [appellant]
has indicated to me, because I misadvised him on his full exposure, that he
would not have chose to go to trial [sic]. So maybe we can have a Marsden hearing or
something along that line.”

The court
replied, “Sure, we can have a Marsden hearing.”

The court
explained to appellant that a Marsden hearing
is “made after a plea or a conviction if a defendant is making a claim that in
some way counsel may not have been effective.
And it sounds like, at least according to [defense counsel], that is the
claim that you’re making here, that he failed to advise you properly. Is that what you’re claiming?”

Appellant
replied,

“Well,
yeah. How could I make a decision about
proceeding on any type of court proceedings if I don’t know my exact exposure,
all the evidence held against me. That
is basically making a decision just, you know, with the wind blowing, in a
sense of speaking. It is not on solid
ground. I feel that I maybe could have
made different decisions or actual one different decision if I knew, you know,
what I was actually looking at. I mean,
to just go into a trial not knowing what my maximum exposure is kind of
ludicrous, if you ask me.”

Appellant
protested his innocence, saying “[M]y witness did come and testify that I
didn’t even commit this crime,” and, “I honestly did not do this.” Appellant also complained that his initial
sentence was too long and increasing it was unfair. He claimed that the victim “abandoned” his
children and said that he “was hoping to go home next week to be a father to my
children.”

The court asked
appellant, “So what is your complaint as to [defense counsel], sir?”

Appellant
replied, “Well, can we go to trial again?
Because at least I know the maximum exposure now. Because after we did the whole thing, I
basically went into something blind.”

The
court took a brief recess. Then it
asked, “Anything else, Mr. Peralta?”

Appellant
answered, “I would just like to comment on if I could have a chance at maybe a
retrial.” The court responded, “Well,
that is not really an issue, sir.
Remember, this is an issue dealing only with whether your current
attorney should be replaced as your attorney of record. So is there anything else?” Defendant answered, “Well, yeah. I just don’t understand if he was replaced,
how would that possibly fix the fact that I was not notified of what I was
walking into before a trial? I don’t
understand that part.” The court again
asked appellant, “Well, anything else, sir?”
Appellant replied, “I guess that’s it.”

Defense
counsel said,

“… Your Honor, to be honest, I probably
advised him based on what I knew at the time, before going into the trial, that
his exposure was four years for the underlying, consecutive five, and he had
two [section] 136’s before the trial started.
So those are eight months each. I
probably told him it was four years, plus the 16 months. That was his exposure, I think, off the top
of my head.”

Discussion was
held between the court and defense counsel concerning appellant’s maximum
prison exposure. Appellant said, “All I
can say is I do have documentation. I
believe it was like five years, eight months, which is different than
everything we’ve just heard.”

Defense counsel
said, “I’m sure the probation report said five years, eight months, his
exposure, what he was convicted on, because of the prison prior on the eight
months of the one count he was convicted on.
So the maximum exposure would have been seven years.”

The court asked
appellant if he had any further comments.
Appellant said, “I’m really confused.
I guess not.” Defense counsel did
not have any further comments. The court
said,

“Well,
again, the purpose of this hearing is to determine whether there has been
ineffective assistance such that counsel should be removed as the attorney of
record and whether there has been a breakdown of the attorney-client
relationship to suggest that Mr. Meyer cannot effectively represent Mr. Peralta
going forward. [¶] The Court doesn’t find there has been any
type of ineffective representation.…”

The court took a
brief recess. When it returned, the
court stated that it had examined “notes of what was said at the pre-voir dire
conference.” The court recited for the
record the comments that were made during the pretrial hearing by defense
counsel, the prosecutor and the court concerning appellant’s maximum prison
exposure and plea negotiations. Then the
court ruled, as follows:

“So the
Court is satisfied that Mr. Peralta knew exactly what he was doing, that he was
not intending to plead to any felony, even if he had been told that the
[section] 136.1 would run full term -- full midterm consecutive. He wouldn’t have taken it at that time
because he made it very clear, through his counsel, that he wanted a
misdemeanor, only a misdemeanor and nothing but a misdemeanor. Which was not forthcoming in this case. [¶] … The Marsden motion is denied.”

DISCUSSION

Appellant
asserts that he was misadvised by the prosecutor and the judge about his
maximum prison exposure during the pretrial hearing. He further asserts that the misadvisal
violated his federal constitutional right
to due process of law and the effect of this error is assessed under the
standard for prejudice announced in Chapman
v. California (1967) 386 U.S. 18 (Chapman). Based on these factual and legal premises,
appellant contends that the trial court erred when ruling on his >Marsden motion because it did not apply
the Chapman prejudice standard to
assess the effect of the prosecutor’s and the court’s misadvisal.

Respondent
acknowledges that appellant was misadvised about his maximum prison
exposure. It argues that appellant bore
the burden of demonstrating a reasonable probability that he would have
accepted the plea offer if he had been properly advised. In respondent’s view, the trial court
properly denied the Marsden motion
because appellant did not satisfy this evidentiary burden.

We agree with
the parties that appellant was misadvised about his maximum prison
exposure. His maximum prison exposure
was nine years. The section 273.5 charge
carried a maximum possible sentence of four years. (§ 273.5, subd. (a).) Each section 136.1 charge carried a two-year
maximum sentence. (§§ 18, 136.1, subd.
(a), 1170.15) The prior prison term
enhancement carried an additional year.
(§ 667.5, subd. (b).) Yet,
during the pretrial hearing, the prosecutor said that appellant’s maximum
exposure was six years four months. The
court did not independently calculate appellant’s maximum exposure. During the Marsden hearing, defense counsel said that he probably misadvised
appellant about his maximum exposure.

Appellant’s
argument that he is entitled to a new hearing applying the Chapman standard of review to assess the effect of the prosecutor’s
and the judge’s misadvisal suffers from an insurmountable deficiency. As we will explain, the court did not decide
the Marsden motion based on an
incorrect legal standard. It is
appellant who is raising a new legal claim that was not presented for decision
below.

Appellant is
appealing from denial of a Marsden motion. A Marsden
motion is focused on the relationship between href="http://www.fearnotlaw.com/">defense counsel and his or her
client. The purpose of a >Marsden motion is to determine if a
defendant is entitled to substitution of another attorney. Under the Sixth Amendment right to
assistance of counsel, a defendant is entitled to substitution of counsel if
the record clearly shows that the appointed attorney is not providing adequate
representation or if the defendant and counsel have become embroiled in an
irreconcilable conflict such that ineffective representation is a likely
result. (People v. Welch (1999) 20 Cal.4th 701, 728.) As applicable here, “[w]ith a >Marsden motion, the defendant is seeking
a new lawyer on the ground his or her current attorney is providing ineffective
assistance.” (People v. Percelle (2005) 126 Cal.App.4th 164, 174.) The appellate court reviews the denial of a >Marsden motion for an abuse of
discretion. “‘Denial is not an abuse of
discretion “unless the defendant has shown that a failure to replace counsel
would substantially impair the defendant’s right to assistance of counsel.”’ [Citation.]”
(People v. Streeter (2012) 54
Cal.4th 205, 230.)

In this case,
the Marsden motion required the court
to decide if appellant was entitled to substitute attorneys because defense
counsel had not provided adequate representation due to his misadvisal about
appellant’s maximum prison exposure. The
court correctly stated that a Marsden
hearing “[deals] only with whether your current attorney should be replaced as
your attorney of record.” Appellant’s
claim that the prosecutor and the court violated
his federal constitutional due process rights by misadvising him about his
maximum prison exposure was not articulated, even in rudimentary form, by any
one during the Marsden hearing. Neither defense counsel nor appellant made
any remarks that could reasonably be construed as a claim that appellant’s
federal constitutional due process rights were infringed by the prosecutor’s or
the court’s misadvisal. Defense counsel
did not argue that the Chapman
standard applied. Appellant did not file
a motion for new trial or other post-conviction relief based on misadvisal by
the prosecutor or the trial court. The
claim that is presented on appeal was not raised in any fashion during the
lower court proceedings.

Appellant’s
failure to assert below that his federal constitutional due process rights were
infringed as a result of the misadvisal by the prosecutor and the judge,
together with his failure to argue that the court must apply the >Chapman standard of review to his >Marsden motion, resulted in forfeiture
of the issue presented on appeal. “‘No
procedural principle is more familiar to this Court than that a constitutional
right,’ or a right of any other sort, ‘may be forfeited in criminal as well as
civil cases by the failure to make timely assertion of the right before a
tribunal having jurisdiction to determine it.’
[Citation.]” (>United States v. Olano (1993) 507 U.S.
725, 731.) “Specificity is required … to
enable the court to make an informed ruling on the motion .…” (People
v. Mattson (1990) 50 Cal.3d 826, 854.)


In any event,
appellant’s argument lacks merit. The
record fully supports the trial court’s factual finding that appellant “was not
intending to plead [guilty] to any felony,” even if he had been told that the
sentence for the section 136.1 conviction would run “full midterm
consecutive.” There is nothing in the
record before us indicating that appellant might have accepted the People’s
plea offer if he had been correctly advised by the prosecutor, the court or
defense counsel that he faced a maximum prison exposure of nine years. During the pretrial hearing defense counsel
unequivocally stated that appellant was only willing to plead guilty to a
misdemeanor and would not accept a plea agreement that included an admission of
guilt to a felony, particularly a serious felony such as a violation of section
136.1. During the Marsden hearing appellant did not say that he would have taken the
plea bargain had he known that he faced a maximum of nine years’
imprisonment. Rather, appellant insisted
that he was innocent of the charges.
When the court asked appellant to state his complaint about defense
counsel, appellant replied, “Well, can we go to trial again?” Thus, the record affirmatively demonstrates
that the misadvisal was not prejudicial, even when the effect of the misadvisal
is assessed under the stringent Chapman
standard of harmless beyond a reasonable doubt.


For both of
these reasons, we reject appellant’s claim of error and uphold the trial
court’s decision denying the Marsden
motion.

DISPOSITION

The judgment is
affirmed.