P. v. Silva
Filed 8/26/08 P. v. Silva CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, Plaintiff and Respondent, v. KRISTIAN JOSUE SILVA, Defendant and Appellant. | 2d Crim. No. B202900 (Super. Ct. No. VA99907) (Los Angeles County) |
Appellant Kristian Josue Silva was charged by felony complaint with 15 counts of second degree robbery (Pen. Code 211)[1]and 12 counts of false imprisonment by violence. ( 236) The complaint alleged a firearm enhancement as to each count pursuant to section 12022.53, subdivision (b). Appellant pleaded not guilty to all counts.
Appellant subsequently entered a change of plea and pleaded guilty to four counts of second degree robbery (counts 1-4). At the sentencing hearing, the trial court heard and denied a motion to discharge retained counsel. It imposed a sentence of 26 years in state prison. This consisted of a 3-year midterm as to second degree robbery (count 1) plus a 10-year gun use enhancement pursuant to section 12022.53, for a total of 13 years on count one.
As to counts 2 through 4, the court imposed a total term of 13 years. This consisted of one-third the midterm for robbery (one year), plus one-third of the gun use enhancement (three years 4 months). The sentences were to run consecutively. The remaining counts, 5 through 27, were dismissed pursuant to the plea negotiation.
Appellant argues that the trial court erroneously denied his right to discharge retained counsel. We conditionally reverse and remand to allow appellant an opportunity to obtain new counsel.
FACTS
According to the probation report, appellant and a co-defendant committed a series of robberies at Radio Shack and Game Stop stores. They entered the businesses acting as customers, then displayed firearms to force their victims into another part of the store. Appellant and his co-defendant tied the victims' hands behind their backs, took various items from the store and left.
PROCEDURAL HISTORY
At his April 3, 2007 arraignment, appellant was represented by retained counsel, Grant T. Hoagland. On June 11, he changed his plea and entered a plea of guilty to counts 1-4 and admitted the firearm allegations.
At the July 26, 2007 sentencing hearing, appellant moved to withdraw his plea, stating that he was forced into signing it. The trial court denied the motion and stated, ". . . But you entered into [the plea agreement] willingly, knowingly, and intelligently. I was there when you did it." Appellant asserted that he was forced into signing the agreement, and that his attorney told him "the deal was going to go lower . . . ."
The court held a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118. It inquired whether appellant was dissatisfied with his counsel and wished another attorney to represent him. Appellant stated, "That's right." He told the court that his attorney had failed to communicate with his family and failed to provide certain paperwork. Retained counsel disputed these assertions and the court denied the Marsden motion.
The court resumed the sentencing hearing and appellant moved the court to withdraw his plea. The court denied his request and imposed the sentence.
DISCUSSION
Appellant argues, and the Attorney General agrees, that the matter must be remanded so that appellant may discharge privately retained counsel.
The record on appeal does not indicate whether appellant requested or received a certificate of probable cause. Appellant contends that a certificate of probable cause was unnecessary because our review does not require us to pass upon the validity of the guilty plea, but only the denial of his motion to discharge retained counsel. Because the Attorney General raises no argument concerning the necessity of a certificate of probable cause, and agrees that remand is required, we address appellant's argument on the merits.
A defendant may discharge retained counsel without showing an impairment of his right to counsel. (People v. Ortiz (1990) 51 Cal.3d 975, 987.) The erroneous denial of a motion to discharge retained counsel is reversible per se: "The right to counsel of choice is one of the constitutional rights most basic to a fair trial. Accordingly, it is clear that a criminal defendant need not demonstrate prejudice resulting from a violation of that right in order to have his conviction reversed." (Id. at p. 988.) However, a court has discretion to deny a motion to discharge privately retained counsel if it would result in significant prejudice to the defendant or is not timely, i.e., if it will result in "'disruption of the orderly processes of justice.'" (Id. at p. 983)
Appellant's request to discharge retained counsel was timely. It would have only required postponing the sentencing hearing to prepare a motion to withdraw the plea, or to allow new counsel to advise against the filing of the motion. It was unnecessary for the trial court to hold a Marsden hearing because a request to discharge retained counsel requires automatic reversal. (People v. Munoz (2006) 138 Cal.App.4th 860, 866.) "Once new counsel is appointed, the case shall proceed anew from the point [the] defendant originally sought to discharge his attorney." (Id. at p. 871.)
DISPOSITION
We conditionally reverse the judgment and remand the matter with the following directions: (1) the trial court shall hold a hearing to allow appellant the opportunity to discharge retained counsel or apply for the appointment of counsel upon an adequate showing of indigence; (2) if newly retained or appointed counsel determines there is a basis for moving to withdraw appellant's plea, the court shall consider and decide that motion; (3) if counsel does not make such a motion, or the motion is denied, the trial court shall reinstate the original judgment and sentence which shall stand affirmed.
NOT TO BE PUBLISHED.
COFFEE, J.
We concur:
GILBERT, P.J.
YEGAN, J.
Burt Barnett, Temporary Judge*
Superior Court County of Los Angeles
______________________________
Linn Davis, under appointment by the Court of Appeal for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Nima Razfar, Deputy Attorney General, for Plaintiff and Respondent.
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[1]All further statutory references are to the Penal Code unless otherwise stated.
