Filed 3/18/13 In re Robert X. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT


In re ROBERT X., a Person Coming
Under the Juvenile Court Law.


THE PEOPLE,                                                                            F065235

         Plaintiff and Respondent,                                        (Super. Ct. No. JL003047)

                   v.
ROBERT X.,                                                                          OPINION

         Defendant and Appellant.


                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Merced County. David W.
Moranda, Judge.
         Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.

                                                        -ooOoo-


*        Before Cornell, Acting P.J., Poochigian, J., and Detjen, J.
       On April 10, 2012,1 pursuant to a negotiated disposition, appellant, Robert X., a
minor, admitted allegations that he committed violations of Penal Code section 692
(obstructing or resisting an executive officer by means of threat or violence), a felony,
and Vehicle Code section 10852 (tampering with a motor vehicle), a misdemeanor, and
that he committed the former offense for the benefit of, at the direction of or in
association with a criminal street gang, with the specific intent to promote, further or
assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(A)). Also pursuant to
the negotiated disposition, the court dismissed two other felony allegations—street
terrorism (§ 186.22, subd. (a)) and possession of a firearm in violation of condition of
probation (§ 29815, subd. (a))—and the following five misdemeanor allegations:
resisting an officer (§ 148, subd. (a)(1)), providing false identification information to an
officer (§ 148.9, subd. (a)), possession of a deadly weapon with intent to assault
(§ 17500), possession of live ammunition (§ 29650), and possession of burglary tools
(§ 466).
       At the disposition hearing on April 24, the court continued appellant as a ward of
the court,3 placed him under the supervision of the probation department for placement in
the home of his mother, and ordered him committed to the Bear Creek Academy Youth
Treatment Program.

1      All references to dates of events are to dates in 2012.
2      Except as otherwise indicated, all statutory references are to the Penal Code.
3       Appellant was initially adjudged a ward of the juvenile court in 2009, based on
findings that he committed assault with a deadly weapon or by means of force likely to
cause great bodily injury (§ 245, subd. (a)(1)), witness or victim intimidation by force or
threat of force (§ 136.1, subd. (c)(1)), and possession of a weapon on school grounds
(§ 626.10, subd. (a)). He was readjudged a ward in 2011, based on his admissions of
allegations of first degree burglary (§§ 459, 460, subd. (a)), with a gang enhancement
(§ 186.22, subd. (b)(1)(B)), and resisting, delaying or obstructing a peace officer (§ 148,
subd. (a)(1)).


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          Appellant‟s appointed appellate counsel has filed an opening brief which
summarizes the pertinent facts, with citations to the record, raises no issues, and asks that
this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.)
Appellant has not responded to this court‟s invitation to submit additional briefing. We
affirm.
                    FACTUAL AND PROCEDURAL BACKGROUND
Facts4
          On March 14, two City of Atwater police officers, while on patrol in a patrol
vehicle, observed a car in which two of the five occupants were not wearing seat belts.
The officers attempted to stop the car, but at the point the officer driving activated his
lights and siren, the car accelerated and, with the officers in pursuit, reached speeds in
excess of 80 miles per hour by the time it reached the outskirts of the city, before
colliding with another vehicle stopped at a stop light. At that point, the occupants of the
car got out and fled on foot. Police caught three of them, including appellant. Appellant
initially gave the officers a false name. A search of the car revealed a loaded handgun on
the floor near where appellant had been sitting.
          On the night of March 3, police, responding to a report of an attempted car
burglary, made contact with Roberto Sanchez, who told officers that upon being
awakened by a noise outside his residence, he looked out the window and saw three
persons, one of whom was in the cab of his (Sanchez‟s) vehicle. Sanchez further
reported that he made a noise and the three persons fled. A short time later, at an in-field
lineup, Sanchez indentified appellant as one of the persons he had seen.




4         Our factual summary is taken from the report of the probation officer.


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Procedural Background
       Appellant entered his admissions on April 10. At the time of his admissions, he
affirmed that he was not “promised … anything to get [him] to admit to these charges
other than what we have said here,” i.e., the dismissal of allegations as set forth above; he
was not “threaten[ed] to get [him] to admit to the charges”; he was not “under the
influence of any drugs, alcohol or … prescription medication”; and he had a “clear
understanding of what [he was] doing[.]”
       At the close of the April 24 disposition hearing, the probation officer informed the
court—and defense counsel, Deputy Public Defender Richard Berger, confirmed—that
appellant was refusing to “sign his orders.” The court directed appellant to return to court
on April 26 and “sign your orders.”
       On April 26, Berger informed the court that appellant “wants to withdraw his …
admissions.” After an off-the-record discussion, the court stated that there had been a
discussion about “making a motion to allow [appellant] to withdraw his admission,” and
that it “seems appropriate … based on what I have heard so far that I appoint somebody
other than Mr. Berger to do that.” Out of concern that it not appoint the same attorney(s)
representing appellant‟s co-defendant, the court continued the matter to May 2.
       On May 2, at the outset of the proceeding, the court noted that in “conversations
… in court” on April 26, appellant “indicated there were some issues with the admission
and with certain things told to him or represented were told to him by [Berger].” The
court ordered that Berger and the public defender‟s office were relieved as counsel for
appellant, and appointed Leanna Rhodes, identified in the record as “Contract Public
Defender,” “to represent [appellant] to look into the possibility of filing a motion to
withdraw the admission.” The court set a hearing for May 9, to allow Rhodes to
investigate the matter.



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       In court on May 9, Rhodes told the court that based on her review of the
transcripts and her discussions with appellant, “I don‟t believe that there are grounds for
him to withdraw his plea.” She further stated the following: “It would appear that he‟s
not someone that‟s new to the court system .… His representations to me that he didn‟t
understand, … I don‟t believe that is true.” She believed “the plea agreement[] was in
[appellant‟s] best interest,” and she had tried unsuccessfully to convince appellant of that.
Appellant told Rhodes that Berger “promised him that he would get short-term,” but “the
record reflects that when asked whether there had been any promises made, [appellant]
did say that there were none.” There was “enough discussion about … [s]ection 69 in the
transcripts, that [appellant‟s] representation that he didn‟t know what he was pleading to,
again, I don‟t think is genuine.”
       Rhodes stated, “… the only thing that … concern[ed] [her was] whether there was
a promise that was actually made by Mr. Berger.” She told the court she had not
discussed the matter with Berger. The court directed Rhodes to do so, and set a hearing
date of May 11.
       On May 11, Rhodes reported to the court that she had spoken with Berger and that
he denied “that he had made any sort of promises to [appellant].” She stated that based
on her review of the record and her discussions with appellant and Berger, “I do not
believe that there are grounds for [appellant‟s] plea to be withdrawn.”
       At that point the court asked appellant if there was anything he “wanted to add.”
Appellant told the court the following: Berger “didn‟t explain to [appellant]” that under
the then-proposed agreement, appellant would admit the section 69 allegation. “That
wasn‟t part of the deal.” Berger told appellant, “I‟m sure that you‟re not going to do the
youth treatment program again or long time.” The “only reason” appellant “took the
deal” was that Berger “said probably just short term probably be recommended.”



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       The court stated, “I don‟t see any grounds for the withdrawal of the admission
based on what I‟ve seen,” and again invited appellant to comment. Appellant stated, “…
the only reason why I want to withdraw my admission because I admitted to a deal and
then he gave me another deal that I didn‟t know I was going to be, didn‟t think that was
going to be brought to me.”
       After further discussion in which appellant essentially repeated his claims and the
court stated that it had read the transcript of the proceeding at which appellant entered his
admissions and that it saw no grounds for appellant to withdraw his plea, appellant asked,
“Is there any way I could get a new attorney?” He added, “That‟s what I wanted to ask
for,” and asked again, “Is there any way I could get my own lawyer or attorney?” The
court explained appellant‟s right to appeal and told him that he could hire an attorney for
an appeal, or appellate counsel would be appointed for him. Notwithstanding this
explanation, there followed further discussion in which appellant asked, “But if I want to
have my own lawyer?” The court responded, “You can have your own lawyer and he can
appeal this in the Appellate Court. So you need to talk to him if that‟s what you want to
do.” There followed discussion of the filing of a notice of appeal and appellant‟s
participation in the youth treatment program, after which appellant asked, “But how do I
get my own lawyer[.]” The hearing concluded with the court‟s response: “You, I don‟t
know. You talk to your mother or whatever and try to get a lawyer and they can put it on
calendar whenever they need to.”
                                      DISCUSSION
       Following independent review of the record, we have concluded that no
reasonably arguable legal or factual issues exist. That said, we note that an instance of
harmless error occurred.
       As indicated above, on May 2, the court relieved appellant‟s appointed counsel,
Deputy Public Defender Richard Berger, and appointed attorney Leanna Rhodes as

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appellant‟s counsel. However, the court made this appointment of substitute counsel
without first conducting a hearing to determine whether appellant had shown that failure
to do so would substantially impair his right to counsel. This was error. We base this
conclusion on our Supreme Court‟s decisions in People v. Marsden (1970) 2 Cal.3d 118
(Marsden) and People v. Sanchez (2011) 53 Cal.4th 80 (Sanchez).
       As the court explained in Sanchez, “In California, 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.”‟ [Citation.] [¶] ... [¶] We recognized [in Marsden]
that „criminal defendants are entitled under the Constitution to the assistance of court-
appointed counsel if they are unable to employ private counsel.‟ [Citation.] We
explained 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,‟ that „a defendant has no absolute right to more than one appointed attorney,‟ and
that a trial court is not bound to accede to a request for substitute counsel unless the
defendant makes a „“„sufficient showing … that the right to the assistance of counsel
would be substantially impaired‟”‟ if the original attorney continued to represent the
defendant. [Citation.]” (Sanchez, supra, 53 Cal.4th at pp. 86-87, italics added.)
       In Sanchez, at the sentencing hearing, the defendant‟s deputy public defender told
the trial court that the defendant “„wishe[d]‟” to have the public defender “„explore
having his plea withdrawn.‟” (Sanchez, supra, 53 Cal.4th at p. 85.) The trial court asked
if this was something counsel could do or whether it had to appoint “„conflict counsel.‟”
(Ibid.) Appointed counsel responded “„conflict counsel cannot be appointed‟” until the
trial court held a Marsden hearing and declared a conflict. (Sanchez, at p. 85.) At the
next hearing, the trial court appointed “„conflict counsel for the sole purpose of looking
into the motion to withdraw [defendant‟s] plea.‟” (Ibid.) When “„conflict counsel‟”
reported that he found no basis for such a motion, the trial court confirmed the public

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defender‟s continued representation of defendant and proceeded with sentencing. (Id. at
p. 86.)
          The Court of Appeal reversed, finding Marsden error. (Sanchez, supra, 53 Cal.4th
at p. 86.) The Supreme Court affirmed the appellate court‟s judgment. (Id. at p. 93.)
The court held that the trial court erred in multiple respects, including “by appointing
substitute counsel without a sufficient showing that failure to appoint substitute counsel
would substantially impair or deny defendant‟s right to assistance of counsel .…” (Id. at
p. 92.)
          The juvenile court here made the same error. The court appointed Rhodes as
substitute counsel, but there is nothing in the record indicating that the court did so by
determining that such appointment was “necessary under the Marsden standard,” that is,
the record does not show that the court determined “in the exercise of its discretion, …
that [the accused] has shown that a failure to replace the appointed attorney would
substantially impair the right to assistance of counsel.” (Sanchez, supra, 53 Cal.4th at
p. 89.) The record shows only that at the May 2 hearing at which the court appointed
Rhodes, the court noted that in “conversations … in court” on April 26, appellant
“indicated there were some issues with the admission and with certain things told to him
or represented were told to him by [Deputy Public Defender Berger],” and that on
April 26 Berger stated that appellant wanted to withdraw his admissions, an off-the-
record discussion followed, and the court then indicated it would be “appropriate” to
“appoint somebody other than Mr. Berger to” bring a motion to withdraw appellant‟s
admission.
          The court‟s error, however, was not prejudicial. The denial of a Marsden hearing
is not reversible error if it is harmless beyond a reasonable doubt. (People v. Chavez
(1980) 26 Cal.3d 334, 348.) “[A] trial court‟s failure to conduct a postconviction
Marsden hearing is harmless where the defendant „has made no showing … either that

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his Marsden motion would have been granted had it been heard, or that a more favorable
result would have been achieved had the motion … been granted.‟” (People v. Reed
(2010) 183 Cal.App.4th 1137, 1148.)
      Here, although the court failed to conduct a Marsden hearing on May 2, upon
appointing Rhodes, later, on May 11, the court gave appellant ample opportunity to state
his complaints about Berger. The court heard appellant‟s complaints about Berger and
Berger‟s response to those claims, as relayed by Rhodes. The record supports the
juvenile court‟s conclusion that appellant‟s complaints were without merit and that
appellant‟s admissions were knowing and voluntary. The court‟s error in failing to
conduct a Marsden hearing earlier was harmless beyond a reasonable doubt.
                                    DISPOSITION
      The judgment is affirmed.




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