Filed 3/13/13 P. v. Harrell 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                            F064136
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. MF009702A)
                   v.

DEREK DWAYNE HARRELL,                                                                    OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Cory J.
Woodward, Judge.
         Elizabeth Campbell, 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, Carlos A. Martinez and Kari L.
Ricci, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

         *Before     Wiseman, Acting P.J., Levy, J., and Peña, J.
       Based on his guilty plea, defendant Derek Dwayne Harrell was convicted of
driving under the influence with prior convictions of driving under the influence. At
several different court appearances, Harrell asked for substitution of counsel, and in each
instance the court held a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 and
denied the request. At the sentencing hearing, Harrell denied that he wished to withdraw
his plea, but stated that he wanted the record to show that, as he had said during the
Marsden hearings, he entered the plea only because of his trial counsel’s unsatisfactory
performance. Now Harrell argues that these remarks during the sentencing hearing
should have been viewed as another request for substitution of counsel and that the court
erred by not conducting another Marsden hearing. We disagree and will affirm the
judgment.
                     FACTUAL AND PROCEDURAL HISTORIES
       Harrell was seen by a sheriff’s deputy driving on the wrong side of the road while
talking on a cell phone. The deputy pulled Harrell over and summoned a highway patrol
officer to assist. The highway patrol officer observed that Harrell smelled of alcohol and
had bloodshot eyes; and Harrell told him he had drunk a quart of beer. Two breath tests
showed blood alcohol levels of .19 percent and .17 percent.
       The district attorney filed an information charging Harrell as follows: Count 1,
violating Vehicle Code section 23152, subdivision (a)1 (driving under the influence of
alcohol or drugs), within 10 years of a prior conviction under that section that was
punished as a felony under section 23550 (§ 23550.5); count 2, violating section 23152,
subdivision (b) (driving with a blood alcohol content of .08 percent or greater), within 10
years of a prior conviction under that section that was punished as a felony under
section 23550 (§ 23550.5); and count 3, driving with a suspended license (§ 14601.2,


       1Subsequent   statutory references are to the Vehicle Code unless otherwise
indicated.



                                             2.
subd. (a)). The information alleged that Harrell was convicted of driving under the
influence in 2004 and 2010 and served a prison term for each of those convictions within
the meaning of Penal Code section 667.5, subdivision (b).
       Harrell made Marsden motions at the pre-preliminary hearing on September 26,
2011, the preliminary hearing on September 28, 2011, a motion hearing on November 8,
2011, and the readiness hearing on November 22, 2011. In each instance, the court
conducted a closed Marsden hearing and denied the motion.
       On November 22, 2011, Harrell accepted a plea agreement. He pleaded guilty to
count 1 and admitted one prior prison term in exchange for a stipulated prison term of
three years (the middle term of two years for count 1 plus a one-year enhancement for the
prison prior) and the dismissal of the remaining counts and allegations.
       Harrell appeared for sentencing on December 20, 2011. The court began by
saying it had seen, in the probation officer’s report, that Harrell had expressed a desire to
withdraw his plea. (The probation officer’s report included Harrell’s remark to the
probation officer: “‘I want to take my plea back.’” The court asked Harrell’s counsel
about this. Harrell’s counsel said, “I discussed that with Mr. Harrell, and he does not
want to make that request. He does want to go forward with sentencing today.” The
court then had the following exchange with Harrell:

            “THE COURT: Okay. Well, then, first of all, Mr. Harrell, do you
       remember telling the probation officer that?

              “THE DEFENDANT: Yes, I did.

              “THE COURT: But—have you changed your mind?

              “THE DEFENDANT: No. I just would like to address the Court
       before you proceed with sentencing.

               “THE COURT: Okay. You will have a chance to do that, and then
       the last thing then that I will cover with you is you did enter your plea
       before Judge Benavides. You have the right to have the—to be sentenced
       by Judge Benavides who is not here today. If you are willing to give up
       that right, I can proceed to sentencing. [¶] Are you willing to do that, sir?


                                              3.
       “THE DEFENDANT: Yes.

      “THE COURT: Okay. All right. Then let me ask then. [¶]
[Defense counsel], any legal reason why sentencing cannot proceed today?

       “[DEFENSE COUNSEL]: None.

       “THE COURT: All right. So let’s begin then. [¶] Mr. Harrell,
comments that you are going to make are hopefully comments that you
want me to consider in terms of your sentencing here. You have agreed to
a stipulated term, so it’s not as though I am going to be going up or down,
but I will certainly give you your opportunity to make comment to the
Court.

        “THE DEFENDANT: All right. Your Honor, excuse me. Please
allow the record to reflect that although the defendant in this case, myself,
knowingly and willingly and voluntarily accepted this deal, it should also
reflect that the decision I have made in regards to the plea deal was made
under duress stress. In the past I have made several efforts to discontinue
representation by [defense counsel]. However, all requests were to no avail
for reasons I do not understand. The record should also reflect that had
[defense counsel] provided an adequate representation, I would not have
accepted this deal.

      “[THE PROSECUTOR]: Your Honor, may I interject. This …
appears to be going in the direction of a Marsden motion and I wonder if
I—prosecution should be here, if that’s where we are going on this.

       “THE COURT: All right. Mr. Harrell, one of the first things you
said earlier is that you entered the plea under duress and stress, and that’s
one of the things that—well, that’s one of the things that would prevent this
plea from going through. So if you are making comments to that extent,
that’s what you truly believe, then we are back to the point where we need
to consider whether you are going to withdraw your plea.

        “THE DEFENDANT: Well, like I said—like I stated in my letter
here is that I knowingly and willingly accepted the deal, but under duress
stress because—I mean—I have asked—had several Marsden hearings for
[defense counsel] to be removed from my case.

       “THE COURT: Right.

      “THE DEFENDANT: Because he was inadequate and basically I
am just setting this up for my appeal, that’s all I am doing.


                                     4.
              “THE COURT: All right. This is not a current Marsden motion. So
       we’ll just go ahead and proceed with your statement, sir.

               “THE DEFENDANT: Thank you. [¶] Okay. I said, however, all
       requests were made—all requests were to no avail for reasons I do not
       understand. The record would also—should also reflect that had [defense
       counsel] provided an adequate representation, I would not have accepted
       this deal and therefore would have exercised my right to a speedy trial.
       Had [defense counsel] put forth the significant effort into locating evidence,
       interviewing witnesses and etcetera, my case would have gone to trial and
       possibly considering the evidence that would have been presented a jury
       may have reached a verdict in the favor of the defense, and basically, I’m
       just—you know, I had to take this deal, this three years’ deal. I was forced
       to go to trial with [defense counsel]. He didn’t—he claimed that he got
       statements from my bank, my bank to help me with proving the evidence—
       knowing about where I was when this officer said I was in one place. I am
       not a legal—I am not a lawyer, so I don’t really know what’s going on in
       the situation, but I do know that I want to appeal.

             “THE COURT: All right. Court certainly understands that the
       statement that Mr. Harrell has made today is for purposes of his appeal, and
       consequently I will proceed with sentencing at this time.”
At this point, defense counsel interjected to make sure Harrell did not want to withdraw
his plea:

              “[DEFENSE COUNSEL]: Your Honor, before we go much farther
       with the sentencing, I would like to comment that I have advised Mr.
       Harrell that with the entry of a plea if he does choose to go forward with the
       sentencing, he would lose any Appellate rights based on that plea with
       certain limitations, which I have explained to him. [¶] And I think it would
       behoove the Court just to make extra certain that it is Mr. Harrell’s desire to
       go forward with sentencing and that he is not expressing his desire at this
       time to withdraw the plea.

             “THE COURT: Okay. Well, Mr. Harrell, I think—that’s how I
       understand what you have said. [¶] You understand you do not have to
       proceed with sentencing today? [¶] Do you understand that, sir?

              “THE DEFENDANT: Yeah, I do understand that.




                                             5.
              “THE COURT: All right. And you understand, of course, that if
       you—if there were grounds to withdraw your plea, that ultimately you
       could have a trial in the matter? [¶] Do you understand that?

              “THE DEFENDANT: I do understand that, however—

               “THE COURT: Hold on. Let me say I do understand what you
       have told us so far that you have entered this plea because you think that it
       is the best thing to do given the results that you have had in your
       conversations with your lawyer.

               “THE DEFENDANT: Well, like I said, I was going to be forced to
       go to trial with somebody who didn’t want to adequately represent me,
       which is [defense counsel].

              “THE COURT: All right.

               “THE DEFENDANT: So what am I going to do? I mean going to
       trial with somebody who I know is going do dump me because he has
       shown me even said it in court that he didn’t care of my case. He said he
       didn’t give a fuck about my case. With that being said, I mean I—I let Mr.
       Benavides know that he said that, but he got in front of the Court and do
       what he always do.

              “THE COURT: Okay. All right. Okay. Now, I know those
       concerns have all been addressed at the appropriate Marsden hearings. So I
       just want to make double sure that you want to go ahead and go through
       with your plea agreement: That’s what you want to do, right?

              “THE DEFENDANT: One more question, sir. I do—like I said in
       my letter, I said that I didn’t want to—I’m not appealing this sentence. I
       am appealing the ineffective assistance of counsel from [defense counsel].
       I know my Appellate rights are still good for that.

              “THE COURT: Okay. That’s how I understood you, and I think it’s
       very clear on the record that that’s what is taking place today.”
       The court then imposed the stipulated three-year sentence. Harrell applied for and
obtained a certificate of probable cause to appeal.
                                      DISCUSSION
       “[A] trial court is obligated to conduct a Marsden hearing on whether to discharge
counsel for all purposes and appoint new counsel when a criminal defendant indicates


                                             6.
after conviction a desire to withdraw his plea on the ground that his current counsel
provided ineffective assistance only when there is ‘at least some clear indication by
defendant,’ either personally or through his current counsel, that defendant ‘wants a
substitute attorney.’ [Citation.]” (People v. Sanchez (2011) 53 Cal.4th 80, 89-90.)
       Harrell contends that his remarks at the sentencing hearing satisfied this standard.
We do not agree. Harrell stated that he wanted the record to reflect that he would not
have pleaded guilty if his counsel had not been ineffective, but that because all his
Marsden motions had been denied, he was stuck with his present counsel and preferred,
under those circumstances, to proceed with sentencing under the plea agreement. He did
not claim there were new reasons for substitution of counsel or even that he wanted an
opportunity to reiterate the old, rejected reasons; and he makes no attempt to resurrect
those reasons in this appeal. He neither indicated a desire to withdraw his plea at the
sentencing hearing nor made any clear indication that he was attempting to extend his
fruitless efforts to obtain a new attorney. The trial court was correct when it stated that
Harrell was not making a new Marsden motion. A fifth Marsden hearing was not
required.
                                      DISPOSITION
       The judgment is affirmed.




                                              7.
