P. v. Villareal
Filed 4/17/13 P. v. Villareal CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JAIME VILLAREAL,
Defendant and Appellant.
D061442
(Super. Ct.
No. JCF27644)
APPEAL from
a judgment of the Superior Court
of
County, Raymond A. Cota, Judge. Affirmed.
Jaime
Villareal entered a no contest plea to one count of robbery (Pen. Code,
§ 211) as part of a plea agreement.
The remaining count was dismissed.
At the time
originally set for sentencing, defense
counsel indicated that Villareal may wish to withdraw his plea. Counsel requested, with apparent agreement of
the defendant, that the court appoint an additional attorney to investigate
possible grounds for a motion to withdraw the plea. Over the prosecutor's objection, the court
appointed an additional attorney for the limited purpose of exploring a motion
to withdraw Villareal's plea.
At a
subsequent hearing new counsel advised that he could not find any meritorious grounds
for a motion to withdraw the
plea. The matter was called for
sentencing. Villareal's original counsel
was not available that day, so the defendant was represented by another
attorney from the Public Defender's office.
After the court denied a defense motion for further continuance,
Villareal brought what was called a "Marsden"
motion. The court denied the so-called
"Marsden" motion and
sentenced Villareal to a determinate term of two years in prison, consistent
with the plea agreement.
Villareal
appeals contending the court committed prejudicial error in appointing separate
counsel to review a motion to withdraw his plea, without first conducting an
appropriate Marsden motion. While we agree the trial court erred in
appointing an additional attorney to represent Villareal, the record clearly
demonstrates there was no prejudice.
Original trial counsel was never relieved and Villareal never sought to
have that attorney replaced. Indeed, as
we will discuss, in Villareal's so-called Marsden
motion made at the sentencing hearing, he specifically requested that his
original attorney represent him.
name="_ftnref3" title="">[3] Thus we will find no prejudice and affirm,
although we disapprove of the procedure followed by the trial court in this
case.
We will
omit the usual statement of facts because the facts of the underlying offense
are not relevant to the resolution of the issues on this appeal.
DISCUSSION
Relying of
Cal.4th 80, 90 (Sanchez),
Villareal contends the trial court prejudicially erred in appointing
"separate" counsel to consider his possible motion to withdraw his
plea, without first conducting a Marsden
motion. He asserts he was prejudiced
simply because the court granted the request for separate counsel without
conducting a Marsden hearing. He does not identify any other prejudice he
might have suffered.
Legal Principles.
In
the process, used by many courts, of appointing new counsel for a possible new
trial motion, or motion to withdraw a plea, and then reappointing trial counsel
if such a motion is not successfully brought.
The court held that trial courts should first conduct a
request and then either deny the request or appoint new counsel for all
purposes. (Sanchez, supra 53 Cal.4th at pp. 89-91.) The court noted, however, that before a trial
court must conduct a Marsden hearing,
the defendant must make some indication that he or she wants a "substitute
attorney." (Id. at pp. 89-90.)
When a
defendant seeks to discharge trial counsel based on inadequate representation
the court must permit the defendant an opportunity to tell the court about
counsel's alleged deficiencies. (
204.) The decision to grant or deny the
request for substitute counsel will be reviewed under the abuse of discretion
standard. We will not reverse a denial
of a motion to substitute counsel unless the record shows the defendant's right
to effective assistance of counsel has been "substantially
impaired." (People v. Abilez (2007) 41 Cal.4th 472, 487-488.)
Analysis
In the
present case, the defendant never asked to have his trial counsel, Mr. Bill,
relieved. Rather he sought, through
counsel, to gain the benefit of an additional
attorney to evaluate his case for a possible
with trial counsel. He did bring a
motion, which he styled as a Marsden
motion. The trial court met with
Villareal, who expressed the wish to have Mr. Bill present for sentencing. He also offered reasons for why there may
have been a problem with information provided to him prior to his plea when
there was not an interpreter present.
The trial court correctly concluded Villareal was not making a
discussing other issues.
It may be
that what Villareal was seeking was a further continuance of his sentencing
hearing, however, as we have noted he does not raise any issue on this appeal
regarding the conduct of his sentencing hearing or the denial of a continuance.
Villareal's
reliance on Sanchez,
reversal of the judgment is misplaced.
In Sanchez, although the court
disapproved of the procedure followed by the trial court, it adopted the remedy
selected by the Court of Appeal in sending the case back to conduct a
to remove trial counsel would the conviction be set aside. (Sanchez,
supra, at pp. 92-93.) Thus the court
required a showing of prejudice to justify reversal.
This case
is more like People v. Dickey (2005)
35 Cal.4th 884, 920, which was discussed in Sanchez, supra, 53 Cal.4th 80.
In Dickey the defendant had
requested a substitute lawyer be appointed for a future hearing, the certainty
of which had not yet occurred. The court
noted that the defendant in Dickey
had not expressed any dissatisfaction with trial counsel and thus the concern
of a court failing to conduct a requested Marsden
review did not happen.
In this
case, the record is clear that Villareal did not express any dissatisfaction
with the representation of his trial counsel, Mr. Bill. On the contrary, he specifically expressed
his desire to be represented by Mr. Bill at the Marsden hearing, which took place prior to sentencing. Mr. Bill was never relieved from
representation by the trial court. He
was not present at the final sentencing hearing in which the court imposed the
sentence, which had been agreed upon by the parties. In short, Villareal got the
requested. His counsel of choice was
never replaced and the defendant never complained to the trial court about the
representation which he received. He has
not demonstrated any prejudice from the appointment of an additional attorney.
DISPOSITION
The
judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
NARES,
J.
McINTYRE,
J.
name="_ftn1" title="">[1] All further statutory references are to the Penal Code
unless otherwise specified.
name="_ftn2" title="">[2] People v. Marsden
(1970) 2 Cal.3d 118 (Marsden).
