Filed 1/29/14 P. v. Carter CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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.