P. v. Valdivia

Filed 12/9/09 P. v. Valdivia CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Graham Anderson Cribbs and John J. Ryan,^*Judges. Modified and affirmed with directions.

Mark Ankcorn, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Melissa Mandel and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Miguel Delacruz Valdivia was convicted by a jury of three counts of robbery (Pen. Code, 211) and one count of receiving a stolen vehicle (Pen. Code, 496d). He was sentenced to a total term of five years. He contends that

(1) a Marsden^[1]hearing was inadequate and thus he was denied his right to counsel, and (2) the amount of restitution is not supported by substantial evidence. We affirm, modify to correct court security fees, and direct the trial court to conduct a restitution hearing.

BACKGROUND

In September 2007, defendant was found driving a stolen vehicle. He admitted to the police that he purchased it even though he knew it was stolen. He also admitted to driving another man around to conduct three robberies, two of which were robberies of the same store.

1. Marsden Hearing

On April 3, 2008, the trial court conducted a Marsden hearing. Defendants stated concerns were: (1) that he had not been provided documents he had asked for so he could show other inmates he was not a sexual violator; (2) he wanted to be shown proof, such as videos, of what he was being charged; (3) that while he admitted giving a ride to the robber, he did not think he should be charged with three strikes; and (4) that the stolen vehicle he was found in was not the vehicle used in the robberies.

Defense counsel confirmed that defendant had been informed of the charges and reported that his discussions have been extremely explicit, detailed and with the use of an interpreter, including explaining the difficulty in bargaining because there is no video, but he made a confession . . . . Defense counsel stated he requested the hearing because rather than enter his plea, defendant said he wanted another attorney, in particular, an attorney that speaks Spanish. Defense counsel also stated that he did not want to be relieved, he was familiar with the case, could handle it expertly, and he did not need much of defendants assistance in order to provide defendant with effective representation.

The trial court found no legal cause had been shown to relieve defendants counsel.

2. Sentencing

After the jury convicted defendant, the trial court sentenced him on August 15, 2008. The trial court set the first robbery count as the principal count and imposed the midterm of three years. For both the second and third robbery counts, the court imposed one-year sentences, one-third the midterm, both to be served consecutively. For the receipt of stolen property count, the trial court imposed a concurrent sentence of the two-year midterm.

The trial court stated, Court security fee of $200. The sentencing minute order stated, Pay $60.00 for Court Security Fee pursuant to 1465.8 (a) (1) PC. [] Div. of Adult Inst. to collect/transmit said fee to the Trial Court Trust Fund (State). The abstract of judgment does not indicate court security fees were imposed.

Victim statements of loss were not received by the time the probation report was prepared, or by the date of the hearing. According to the probation report, the police report stated that $200 and $350 were taken from the store that was robbed twice, and $875 was taken from the other store. The owner of the store that was robbed once testified that close to $900 was taken, but that he could not get exact because change from the drawer had not been reconciled. One of the cashiers of the store that was robbed twice testified that the robber took [l]ike 500 when she was working. The other cashier testified that she gave the robber everything, which she thought was about $400. The owner of the store that was robbed twice testified that the first time about $800 was taken out of the register, and about a good $600 the second time.

At the sentencing hearing, the trial court inquired as to the victims losses. The prosecutor noted the lack of loss statements, but pointed out that witnesses had testified as to loss. The prosecutor told the court his recollection was the store that had been robbed twice lost a total of $3,000, and the other store lost $900. The court then stated, It sounds like restitution is going to be in the neighborhood of $4,000. Talk to your client. Im going to reserve jurisdiction. If it is under $4,000, see if he wants to challenge that. That is what victims testified to. We are going to require proof if they make a request for restitution. Defense counsel disputed defendants knowledge of the loss and requested the amount be determined later. The court then stated, Right now the presumptive figure is around $4,000. If it is in that neighborhood, if he agrees to pay that if they submit a request and Im satisfied with the proof, Ill order it. The defendant himself then stated, Yes, Ill pay. The court then stated, Im reserving jurisdiction. If it is under $4,000, I sign the order. If it is under $4,000, the defendant has waived his right to appear or complain. Neither the sentencing minute order nor the abstract of judgment included anything regarding victim restitution.

DISCUSSION

1. Marsden

Defendant contends the trial court failed to make a proper inquiry into the conflict between him and his appointed counsel. We disagree.

A trial court is required to substitute counsel  in a situation where the record clearly shows that the first appointed counsel is not adequately representing the accused.  [Citation.] Alternatively the trial court must substitute counsel where it is demonstrated that counsel and the defendant are embroiled in an irreconcilable conflict. [Citation.] The decision to substitute counsel is within the discretion of the trial court; this court will not find an abuse of discretion unless the trial courts failure to substitute counsel would   substantially impair the defendants right to effective assistance of counsel.  [Citation.] (People v. Gutierrez (2009) 45 Cal.4th 789, 803.)   [I]f a defendants claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law.  [Citation.] (People v. Michaels (2002) 28 Cal.4th 486, 523.) When a defendant moves for substitution of appointed counsel, the court must consider any specific examples of counsels inadequate representation that the defendant wishes to enumerate. (People v. Webster (1991) 54 Cal.3d 411, 435.)

Defendants specific contention is that the trial court failed to listen to his concerns and grievances in order to determine whether client and counsel have truly reached an impasse in their working relations. Defendant emphasizes the disparity between his speaking time during the hearing and that of counsel and the court, and argues that the trial court failed to understand that a serious conflict existed. However, the record from the hearing indicates that defendant was provided an opportunity to voice his concerns, and there is no indication that the trial court did not consider defendants concerns, as illuminated further by counsels comments, in making its ruling. Accordingly, we find no abuse of discretion.

2. Restitution

Defendant contends the amount of victim restitution ordered by the trial court is not supported by substantial evidence. The record supports defendants argument to the extent that the amount of which the victims were robbed was less than $4,000. Nevertheless, the issue is ripe because the trial court did not actually order any amount of restitution. Instead, the trial court has retained jurisdiction over victim restitution and defendant waived his right to appear or complain if the amount requested is less than $4,000. However, because victim restitution is mandatory, the superior court must order victim restitution. (See Pen. Code, 1202.4, subd. (a)(3)(B); e.g., People v. Rowland (1997) 51 Cal.App.4th 1745, 17501751 [mandatory unless compelling reasons stated on the record].)

3. Court Security Fees

Although not raised by the parties, we note that the reporters transcript indicates oral pronouncement of the imposition of a $200 court security fee. While a $60 court security fee was included in the sentencing minutes, no court security fee was included in the abstract of judgment.

Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment. (Id. at pp. 387388.) Penal Code section 1465.8, subdivision (a)(1), is mandatory and provides, in relevant part, that a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense. . . . (Italics added.) Where no court security fee is imposed at all, the judgment should be modified on appeal to include the fee. (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1328.)

Accordingly, we modify the judgment to include four $20 court security fees, one for each of defendants four convictions.

DISPOSITION

The judgment is modified to include four $20 court security fees, for a total of $80.

The trial court is directed to conduct a restitution hearing.

The superior court clerk is directed to (1) amend its sentencing minute order to set the court security fee at $80 rather than $60, (2) amend the abstract of judgment to include the court security fees, and (3) forward a corrected copy of the amended abstract to the Department of Corrections and Rehabilitation.

In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

RICHLI

J.

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^* Judge Ryan is a retired judge of the Orange Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

^[1]People v. Marsden (1970) 2 Cal3d 118 (Marsden).