Filed 1/29/14 P. v. Carter CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D062981

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCE319256)

DWAYNE COLEMAN CARTER,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, John M.

Thompson, Judge. Reversed and remanded.

         Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine

Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.

         Defendant and appellant Dwayne Coleman Carter was charged with 13 counts of

various theft and conspiracy offenses, and was represented by appointed counsel, when

he entered into a plea agreement in July 2012. (People v. West (1970) 3 Cal.3d 595.) In
exchange for an indicated sentence of six years four months, Carter pleaded guilty to two

counts of first degree residential burglary (counts 2 & 3), and to unlawfully taking or

driving a vehicle with an enhancement for a prior conviction (count 4). (Pen. Code,1 §§

459/460 & 667.5(c)(21); 459; Veh. Code, § 10851, subd. (a); § 666.5, subd. (a).)

       At the next two hearings, Carter's requests to withdraw his guilty plea, for a

continuance to retain private counsel, or alternatively, to replace appointed counsel2 or to

allow him to represent himself at sentencing, were denied. (Faretta v. California (1975)

422 U.S. 806 (Faretta).) Carter was sentenced according to the plea bargain. He

requested and received a certificate of probable cause from the trial court. (§ 1237.5.)

       On appeal, Carter contends the trial court erred and abused its discretion in

denying his requests to bring a motion to challenge the validity of the guilty plea, either

through counsel or in propria persona. Carter sought to argue that the plea bargain was

invalid because he had not been correctly advised by his counsel or the court of the

maximum sentence to which he was exposed, either on the total number of counts

charged, or on the pleaded counts. He thus argues his consent to the plea bargain was

ineffective, his requests to challenge it and to represent himself at sentencing were

timely, and the trial court abused its discretion in denying him those opportunities.

Further, to attack the merits of the judgment and sentence imposed, he contends the court

incorrectly applied section 654 at sentencing, and that certain errors were made in

imposing fines and restitution.


1      All further statutory references are to the Penal Code unless otherwise specified.

2      People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
                                          2
       In People v. Miller (2007) 153 Cal.App.4th 1015, 1024 (Miller), the court stated

that for Faretta purposes, sentencing is regarded as a posttrial proceeding separate and

distinct from trial. (See Leversen v. Superior Court (1983) 34 Cal.3d 530, 540 [posttrial

proceedings include sentencing]; People v. Winbush (1988) 205 Cal.App.3d 987, 991

[defendant can make Marsden motion posttrial, either for sentencing or a new trial

motion].)

       Under all the relevant circumstances, we find the trial court abused its discretion

when it denied Carter the right to bring a motion to withdraw his guilty plea, either

through counsel or in propria persona. During the September and October 2012

sentencing hearings, the court should have recognized from Carter's requests (to

substitute or relieve counsel or to represent himself at sentencing) that they raised

obviously substantial issues on whether his guilty plea had been entered under an

accurate advisement of his sentencing exposure, and the requests were made in a

reasonably timely manner. Since the record shows the trial court, after holding the

Marsden hearing, denied Carter a continuance to prepare to represent himself (while also

stating it would have allowed him a continuance before sentencing if he were to retain

private counsel), this decision represents an abuse of discretion in denying a reasonably

timely Faretta request, under all these circumstances. (Miller, supra, 153 Cal.App.4th

1015, 1021-1022.)

       We reverse the judgment of conviction with directions to allow further appropriate

proceedings, which may include a hearing on Carter's motion to withdraw the guilty plea,

and/or any renewed request for self-representation. Because of these conclusions, we


                                              3
need not resolve the other sentencing issues that Carter has argued on appeal. (Pt. IV,

post.)

                                               I

              STANDARDS GOVERNING WITHDRAWAL OF GUILTY PLEA;
                            ISSUES PRESENTED

         "In all guilty plea and submission cases the defendant shall be advised of the direct

consequences of conviction such as the permissible range of punishment provided by

statute . . . ." (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605.) In People v.

McClellan (1993) 6 Cal.4th 367, 374-376 (McClellan), the court decided the remedies, if

any, that are to be afforded where the trial court, prior to accepting a guilty plea, failed to

provide the defendant with complete and accurate advice concerning the direct

consequences of such a plea. The Supreme Court explained that resolution of whether a

guilty plea should be set aside on appeal requires consideration of these related, distinct

legal principles: "(1) The first principle concerns the necessary advisements whenever a

defendant pleads guilty, whether or not the guilty plea is part of the plea bargain. The

defendant must be admonished of and waive his constitutional rights. [Citations.]

. . . [T]he defendant must be advised of the direct consequences of the plea. [Citation.]

[¶] (2) The second principle is that the parties must adhere to the terms of a plea bargain."

(Id. at p. 375, italics added.)

         A defendant moving to withdraw a guilty plea must demonstrate good cause.

(§ 1018.) "It is the defendant's burden to produce evidence of good cause by clear and

convincing evidence." (People v. Wharton (1991) 53 Cal.3d 522, 585; People v. Nance

(1991) 1 Cal.App.4th 1453, 1456.)
                                               4
       The appellate courts will reverse a trial court's decision on granting or denying a

defendant's motion to withdraw a guilty plea where an abuse of the court's discretion has

been clearly shown. (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796.) A

trial court abuses its discretion if it "exercises discretion in an arbitrary, capricious or

patently absurd manner resulting in a manifest miscarriage of justice." (People v. Shaw

(1998) 64 Cal.App.4th 492, 496.)

       Carter was not allowed to bring a motion to withdraw his guilty plea for purposes

of litigating his assertion that he was led to mistakenly believe he was exposed to a

maximum 20 year sentence on all counts, and that his potential sentence on the pleaded

counts was 12 years, whereas the correct set of exposures was less in both respects (and

those amounts are still disputed by the parties). On appeal, we examine the

circumstances leading to that result: first, at the September 2012 sentencing hearing, and

next, at the October 2012 proceedings which included a Marsden hearing and a denial of

Carter's request to represent himself. We summarize the showings made at these various

hearings and then evaluate the trial court's exercise of discretion in dealing with his

appellate claims on these related legal issues.

                                               II

                             NEGOTIATIONS AND HEARINGS

       Since this appeal only addresses Carter's efforts to withdraw his guilty plea and to

seek self-representation, and those issues are dispositive, we will omit the traditional

statement of facts about the charged offenses. It is sufficient for us to note that Carter

and a codefendant were charged with a total of 13 counts arising out of two residential


                                                5
burglaries and an associated vehicle theft (car stolen from one of the burglarized homes),

and resisting arrest. In a separate case, Carter was also facing a misdemeanor charge of

driving under the influence of intoxicants (DUI).

       At the July 2012 hearing, Carter (advised by appointed counsel George Cretton)

entered into a plea agreement in order to mitigate his sentence, and he initialed a change

of plea form, reflecting that the maximum sentence to which he was exposed on the

pleaded counts was 12 years. The court indicated that sentence would be imposed for six

years four months in state prison, although there was no stipulated sentence placed on the

record. Carter responded to the court's questions, indicating that he understood the plea

and was making it willingly. The other counts were stricken and the matter was

continued for further proceedings and sentencing.

       At the next hearing on September 4, 2012, Carter's appointed attorney notified the

court that Carter had had discussions with various people and now believed that the

negotiated sentence was excessive. He was seeking a continuance of sentencing, so that

he could retain private counsel and move to withdraw his guilty plea. Carter told counsel

and the court that he had not received copies of discovery material that he requested. The

court continued the matter for 30 days, explaining that the proper procedure would be to

hold a Marsden hearing at that time to inquire into the reasons that Carter wanted to

replace trial counsel, or to allow his new retained counsel, if any, to appear. (People v.

Sanchez (2011) 53 Cal.4th 80, 89-90 (Sanchez) [a trial court must conduct a Marsden

hearing on whether to discharge counsel and appoint new counsel when the defendant

indicates, after conviction, a desire to withdraw his plea on grounds of ineffective


                                             6
assistance of current counsel, "only when there is 'at least some clear indication by

defendant' . . . , that defendant 'wants a substitute attorney.' "].)

       On October 5, 2012, the probation officer filed a report stating that although the

change of plea form Carter had signed advised him his maximum exposure in the matter

was 12 years, "it appears that his actual exposure is 8 years, 4 months." The probation

officer recommended imposing a six-year four-month term on counts 2, 3, and 4. The

trial judge read and signed the report.

       At the October 5, 2012 hearing, defense counsel again informed the court that

Carter wished to withdraw his plea and was seeking a Marsden hearing on removing trial

counsel. The court held such a hearing, and the sealed transcript has been made part of

this record. The court said that Attorney Cretton had told him during discussions that

Carter's maximum exposure on the complaint was approximately 20 years. Carter

presented a letter to the court expressing his reasons for his desire to replace his counsel

and to withdraw his guilty plea. The letter was accepted as an exhibit to the motions.3

       At the Marsden hearing, Carter stated that he had not received discovery material

that he wanted, and he had been pressured and intimidated by his counsel into signing an

"obviously excessive" plea bargain. The court said that Attorney Cretton's 20-year

estimate of the maximum sentence to be received was probably accurate, and even if

Carter did not get the maximum after trial, he would likely have received about 14 or 15

years, whereas the deal was for six years four months. Carter admitted that he was not

100 percent innocent, but continued to claim his codefendant was primarily responsible,

3     On our own motion, we augmented the record to include a copy of this letter,
which was attached as an exhibit to the sentencing briefs and sealed by the trial court.
                                             7
Carter had not received discovery material he needed to examine, and he believed that

defense counsel was overly embroiled with the individual deputy district attorney and

hence, was taking out his problems on Carter.

       In response, defense counsel stated that discovery material had been delivered to

Carter's mother's house, there was delay when Carter did not show up for court, and

Carter's codefendant did not have much of a prior criminal history and was receiving a

lighter sentence, and this was making Carter unhappy. The court concluded that there

was nothing brought forward to support Carter's claims that he had been pressured into

taking some plea, and denied the request to remove appointed counsel. Carter responded,

"[there was] a big misunderstanding."

       The court then proceeded with the rest of the motion hearing, and at Carter's

request, read the letter Carter had written and accepted it as an exhibit to the hearing.

The court noted that Carter was requesting another continuance to retain private counsel,

or to evaluate whether certain pending legislation before the electorate in November

would in any way impact his case. The court stated it could possibly grant a 60-day

continuance for Carter to retain private counsel to review the case. However, the People

objected and the court decided not to grant a continuance, but to proceed to sentencing.

       Next, the court heard Carter's request for self-representation at sentencing pursuant

to Faretta, supra, 422 U.S. 806. At the request of the court, Carter's appointed counsel

assisted him in filling out a form for a Lopez4 waiver of counsel. (Faretta, supra, 422

U.S. 806.) Defense counsel and the court then discussed the probation report's


4      People v. Lopez (1977) 71 Cal.App.3d 568 (Lopez).
                                          8
recommendation for concurrent versus consecutive sentencing on the count of car theft,

and the prosecution did not object to a finding that the vehicle theft was factually part of

one transaction at one of the burglarized houses. (§ 654.) The court modified the

probation report's recommendation accordingly.

       After receiving the completed waiver of counsel form, which (erroneously) recites

that Carter was exposed to a maximum sentence of 21 years 4 months on the pleaded

counts, the court questioned Carter about it and made a finding that he was capable of

self-representation. The court next ruled that the request was timely only if Carter were

prepared to immediately represent himself at sentencing, but if he needed a continuance

for sentencing, then the request at the commencement of this sentencing hearing would

be denied as untimely, because the People and the court were prepared to proceed, and

there had been one continuance already (from September). The court did not expressly

ask for Carter's consent to proceed in pro. per.

       Once the request for self-representation was denied, Attorney Cretton remained as

counsel of record, and the court immediately sentenced Carter pursuant to the plea

agreement. The court ordered credit for time served, resolved the trailing misdemeanor

DUI count, and ordered restitution as set forth in the probation report.

       Carter appealed, requesting a certificate of probable cause on the grounds he did

not get a fair sentence for various reasons, and stating, "I am asking the court to allow me

to serve six years with one strike at 50-65% [of time served credit]." The trial court

granted the certificate.




                                              9
                                               III

                    EFFECT OF CARTER'S REQUESTS FOR RELIEF

                                    A. Preliminary Issues

       Taking this sequence of events as a whole, we apply accepted standards to

determine if the trial court's decision to proceed on the plea bargain, without hearing a

motion to withdraw the guilty plea, was an abuse of the court's discretion. (People v.

Superior Court (Giron), supra, 11 Cal.3d 793, 796.) We examine the record on the legal

advice Carter received, at various times, on both the maximum sentence exposure and the

maximum pleaded counts exposure. We treat this determination on the motions, which

affected Carter's constitutional rights, as presenting mixed questions of law and fact.

(People v. Cromer (2001) 24 Cal.4th 889, 901 (Cromer); People v. Louis (1986) 42

Cal.3d 969, 984-985 (Louis).) In such a case," the first inquiry is a matter of determining

the historical facts"; and second, "application of an objective, constitutionally based legal

test to the historical facts." (Cromer, supra, at p. 900.) We independently review the

trial court's application of legal standards to the established facts. (Id. at p. 901.)

       At the outset, we disagree with the People's assertion that Carter has forfeited any

claim on appeal that he was misadvised about his maximum possible custody

commitment, by failing to so object before sentencing. (See People v. Hester (2000) 22

Cal.4th 290, 295 [for the proposition that Carter accepted a plea bargain and thus waived

any challenge to section 654 rights]; Cal. Rules of Court, rule 4.412(b) [agreement to

sentence abandons section 654 claim].) However, this record does not show that Carter




                                               10
stipulated to any precise prison term, but rather shows that only an indicated sentence

was offered.

       In any case, the whole point of Carter's appeal is that he did not object because he

was misadvised in that precise respect. He was entitled to rely on his counsel's

evaluation of the offered plea bargain. (In re Alvernaz (1992) 2 Cal.4th 924, 933.) Carter

has sufficiently demonstrated that he might have acted differently if apprised of the true

exposure, thus showing prejudice in accepting this deal. (See McClellan, supra,

6 Cal.4th 367, 378 [where a trial court misadvises a defendant entering a plea of guilty

about the consequences of the plea, the defendant must show prejudice from the error].)

Moreover, the grounds he stated in applying for the probable cause certificate were

appropriately broad. (People v. Hoffard (1995) 10 Cal.4th 1170, 1178-1180.)

    B. Differing Estimates in Record About Potential Custody Consequences of Plea

       As of the time of the plea in July, the record is somewhat unclear, but it is

essentially not now disputed that Carter's appointed counsel told him that he faced a term

of approximately 20 years in prison if he went to trial on all 13 charges and then received

the maximum possible sentence. On his plea form, a maximum exposure of 12 years for

the three guilty plea charges was stated. It is also essentially not disputed that defense

counsel's calculation did not sufficiently consider the effects of section 654 on these

closely related charges.

       On the October 2012 Faretta waiver document, after a partial list of charges to

which he was pleading guilty, Carter listed the maximum punishment to be imposed on

conviction of those counts as 21 years 4 months.


                                             11
       In the October 2012 probation report, the officer states that Carter was mistakenly

told his exposure on the pleaded counts was a maximum of 12 years, but the actual

exposure was calculated there at eight years four months.

       In the opening and reply briefs on appeal, Carter estimates the maximum sentence

on the pleaded counts was seven years four months (allowing for the operation of § 654).

Carter's estimate of the maximum exposure on all counts is now placed at nine years.

       In the respondent's brief, the People calculate the maximum sentence on all counts

was at least 12 years (not 20). On the pleaded counts, the People apparently adhere to

this 12-year maximum as well, as had been stated on the change of plea form.

       All of this disagreement in the record on the terms Carter faced cannot and need

not be resolved at this time, but it does bolster his position that he entered into the plea

based on misunderstandings about both of his maximum potential sentences, on all

counts and on his pleaded counts as well.

   C. Issues at the October 5, 2012 Hearing; Self-Representation Request; Timeliness

       At the outset of the October 2012 hearing, Carter again requested to withdraw his

plea. The court gave him the opportunity to raise issues on whether there were any

grounds to replace counsel. "[I]f the defendant makes a showing during a Marsden

hearing that his right to counsel has been 'substantially impaired' [citation], substitute

counsel must be appointed as attorney of record for all purposes." (Sanchez, supra, 53

Cal.4th 80, 90.) Such a Marsden motion ruling is vested in the sound discretion of the

trial court and will not be overturned on appeal in the absence of a clear showing the trial

court abused its discretion. (People v. Barnett (1998) 17 Cal.4th 1044, 1085.) It is not


                                              12
appropriate, however, to decide this case solely upon the Marsden issues, which were

only part of the overall picture.

       During the Marsden hearing, the trial court reiterated that defense counsel had

reported the complaint carried a maximum term of "about 20 years." The trial court

accepted the defense assessment of "about 20 years" as probably correct, and stated that

even if Carter did not receive that maximum after trial, he would probably receive a

sentence in the 14 or 15-year range, or more than the current plea agreement. However,

the record now suggests that the maximum on all counts would have been more like 12

years, so the 14 or 15-year maximum being discussed was not supported by the record.

This Marsden ruling is thus not fully supported by the record.

       Turning to the related issue of self-representation under Faretta, Carter's right to

represent himself was subject to the requirements that his decision to do so was

voluntarily and intelligently made, and reasonably timely. (Faretta, supra, 422 U.S. 806;

People v. Mayfield (1997) 14 Cal.4th 668, 809.) An erroneous denial of a timely, well

supported request is reversible per se. (People v. Dent (2003) 30 Cal.4th 213, 217.)

       On timeliness of a Faretta request, it is established that "once a defendant has

chosen to proceed to trial represented by counsel, the decision whether to permit the

defendant to discharge his attorney and represent himself is left to the trial court's sound

discretion." (Miller, supra, 153 Cal.App.4th at p. 1022, italics added, citing People v.

Windham (1977) 19 Cal.3d 121, 128 (Windham).) In Miller, the court analyzed the

discretionary factors for deciding motions for self-representation made during trial, but in

terms of motions that were made before sentencing. The court found that the adverse


                                             13
consequences of a potential disruption of proceedings already in progress "simply does

not apply to sentencing hearings, which are separate proceedings from the trial and occur

after the trial has been completed. This is not to say that every request for self-

representation at sentencing will be timely. Much as a request to represent oneself at trial

must be made a reasonable time before trial commences, the request for self-

representation at sentencing must be made within a reasonable time prior to

commencement of the sentencing hearing." (Miller, supra, at pp. 1023-1024.)

       In exercising its discretion on an untimely Faretta request, the court should

consider such factors as the "quality of counsel's representation of the defendant, the

defendant's prior proclivity to substitute counsel, the reasons for the request, the length

and stage of the proceedings, and the disruption or delay which might reasonably be

expected to follow the granting of such a motion." (Windham, supra, 19 Cal.3d 121,

128-129.) None of these factors in this record shows an extremely problematic case that

would have weighed against granting the Faretta request. Rather, the trial court was

made aware there were substantial questions about the quality of the legal representation

Carter had received, and the proceedings were not unduly lengthy or well advanced at

this stage. Carter had been in custody since March, pleaded guilty in July, and

challenged the plea in September and October 2012. Any delay involved in allowing a

motion to withdraw the plea, or for preparation for sentencing, could have been easily

managed, but the trial court mistakenly ignored its discretionary obligation to do so here.

       Overall, Carter has shown enough evidence of good cause to support the making

of a challenge to the plea. (People v. Wharton, supra, 53 Cal.3d 522, 585.) His requests


                                             14
to withdraw his plea, for reasons related to asserted problems with his legal

representation, were potentially meritorious and were raised as soon as possible after the

plea and during proceedings and preparation for sentencing. Sentencing had not

commenced as scheduled in September 2012, because the trial court agreed to wait 30

days to see if Carter could retain private counsel. The court had "some clear indication

by defendant" that he wanted a substitute attorney, and for reasons related to the validity

of the plea. (Sanchez, supra, 53 Cal.4th 80, 89-90.)

       We are troubled that the trial court stated before the Marsden hearing that it would

have allowed a continuance for private counsel to be obtained, but it later effectively

disallowed a sentencing continuance for this obviously unprepared pro. per. defendant,

who consistently had tried to bring potential problems with the plea to the court's

attention, since shortly after the change of plea hearing. Instead, immediate sentencing

was required. Although a request for self-representation at sentencing must be made

within a reasonable time prior to commencement of the sentencing hearing, this October

2012 sentencing hearing was being combined with closely related requests for relief, all

based on Carter's protests about the validity of the plea and the information he was

provided. (Miller, supra, 153 Cal.App.4th at pp. 1023-1024; Sanchez, supra, 53 Cal.4th

80, 90 [issue is whether his right to counsel had been "substantially impaired"].)

       Once Carter's Marsden request to relieve appointed counsel was denied, he

apparently made the Faretta request as a last resort. When the trial court took his

completed waiver of counsel form, it disregarded an obvious error in it, reciting that he

was exposed to a maximum sentence of 21 years 4 months on the pleaded counts. On


                                             15
review of questions about plea withdrawal, the appellate court "must adopt the trial

court's factual findings if substantial evidence supports them." (People v. Fairbank

(1997) 16 Cal.4th 1223, 1254.) But here, the terms of the plea agreement in this case and

its indicated sentence were evidently arrived at under material factual misinterpretations.

Carter's level of exposure to custody on all counts arguably ranged between 9 and 20

years, or on the pleaded counts, the range was arguably between seven years four months

or 12 years.

        Applying the relevant legal standards to the established facts, we deem the Faretta

request to be a reasonably timely one, because it was made on the background of the

interrelated issues being considered in September and October 2012, prior to the actual

sentencing decisions. (See Louis, supra, 42 Cal.3d 969, 984-985.) At this juncture, we

do not address whether there is a factual basis for the plea or whether it may stand, but

merely decide that this trial court decision effectively denying any hearing on a motion to

withdraw the plea is reversible, as an abuse of discretion. (People v. Shaw, supra, 64

Cal.App.4th 492, 496.) The record does not show the trial court had an adequate basis to

find that Carter's guilty plea was knowing, intelligent, and voluntary, in light of the

multiple errors regarding the consequences of possible convictions, whether by trial or by

plea.




                                             16
                                           IV

                     REMAINING APPELLATE ISSUES; REMAND

      In light of the above conclusions, we decline to address potential issues regarding

sentencing and the imposition of fines and fees. Those matters can be addressed if

appropriate on remand.

                                     DISPOSITION

      The judgment is reversed and the matter is remanded for such further proceedings

as may be appropriate.



                                                                           HUFFMAN, J.

WE CONCUR:


              McCONNELL, P. J.


                         AARON, J.




                                           17
