People v. Carramusa CA4/1 ( 2021 )

Filed 4/22/21 P. v. Carramusa 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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, D076632
Plaintiff and Respondent,
v. (Super. Ct. No. SCD270824)
CHRISTOPHER CARRAMUSA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Runston G. Maino, Judge. Reversed and remanded with directions.
Alex Coolman, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C.
Ragland and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff
and Respondent.
Christopher Carramusa pled guilty to one count of first degree burglary
(Pen. Code, § 459),1 and admitted a prior strike under the Three Strikes law
(§§ 667, subd. (b)-(i), 668, 1170.12), a prior serious felony (§§ 667, subd. (a)(1),
668, 1192.7, subd. (c)), and four prison priors (§§ 667.5, subd. (b), 668). The
plea agreement left the determination of Carramusa’s sentence to the
discretion of the trial court. The trial court declined to strike Carramusa’s
prior strike, and it sentenced Carramusa to an upper-term sentence of 17
years in prison.
On March 5, 2019, we issued an opinion in Carramusa’s first appeal in
this matter. (People v. Carramusa (Mar. 5, 2019, D073484).) Due to the post-
sentencing change in law enacted by Senate Bill No. 1393 (Stats. 2018,
ch. 1013, §§ 1-2), we remanded to the trial court to decide whether to exercise
its discretion to strike the five-year enhancement for Carramusa’s prior
serious felony (§ 667, subd. (a)(1)).
On the same day, we issued an order summarily denying Carramusa’s
petition for writ of habeas corpus, which alleged ineffective assistance of
counsel. (In re Carramusa (Mar. 5, 2019, D074746).) Carramusa premised
his habeas petition on the fact that between the date of Carramusa’s guilty
plea on December 12, 2017, and his sentencing on January 23, 2018, our
Supreme Court decided People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo).
The habeas petition argued that defense counsel should have advised
Carramusa to withdraw his guilty plea because, under Gallardo, the People
would no longer be able to prove that Carramusa incurred a prior strike and
a prior serious felony. Both the prior strike and prior serious felony were
1 All further statutory references are to the Penal Code unless otherwise
noted.
2
based on Carramusa’s guilty plea, in 1994, to the offense of battery with
serious bodily injury. (§ 243, subd. (d).)
Our order summarily denying the habeas petition set forth two grounds
for our conclusion that Carramusa had not made a prima facie case for relief.
First, we observed that the habeas petition was not ripe because, on remand
from Carramusa’s appeal, defense counsel “may, before judgment, attempt to
take further action with respect to Carramusa’s plea.” Second, we stated
that, as we interpreted Gallardo, even if defense counsel had sought to
withdraw Carramusa’s guilty plea so that the People would be required to
prove the strike and the serious felony, the People would have been able to
prove those enhancements by relying on the preliminary hearing transcript
from Carramusa’s 1994 battery prosecution.2 We premised our conclusion on
the documents presented by the People at the sentencing hearing, which we
described as showing that “Carramusa’s guilty plea for the 1994 battery
conviction expressly incorporated the preliminary hearing transcript.”
On remand, the trial court made two rulings. First, it denied
Carramusa’s request, pursuant to People v. Marsden (1970) 2 Cal.3d 118(Marsden), to substitute appointed counsel. Second, it declined to exercise its
discretion to strike the five-year enhancement for Carramusa’s prior serious
felony. During the proceedings on remand, defense counsel did not attempt
to withdraw Carramusa’s guilty plea.
In this appeal, Carramusa makes two arguments. First, Carramusa
contends that defense counsel was ineffective because, on remand, he did not
advise Carramusa to bring a motion to withdraw his guilty plea in light of
2 Carramusa requests that we take judicial notice of the habeas petition
filed in case No. D074746, as well as our March 5, 2019 summary denial of
that petition. We grant the request. (Evid. Code, § 452, subd. (d).)
3
Gallardo, which, if granted, would have required the People to prove that
Carramusa’s 1994 battery conviction qualified as a strike and prior serious
felony. Second, Carramusa argues that during the Marsden hearing, the trial
court improperly denied his request to substitute appointed counsel.3
We conclude that because the record shows that in conducting the
Marsden hearing, the trial court was not aware of the items that Carramusa
was attempting to rely upon to support his request for substitute appointed
counsel, Carramusa did not receive a full and adequate Marsden hearing.
Accordingly, we reverse the judgment and remand for a renewed Marsden
hearing. Following the renewed Marsden hearing, and regardless of its
outcome, Carramusa may file a motion to withdraw his guilty plea if he
chooses to do so. If no such motion is filed, or if the motion is denied, the trial
court shall reinstate the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A. Carramusa’s Guilty Plea and Sentencing
According to the probation officer’s report, a house was burglarized
during the afternoon of November 29, 2016, and over $80,000 in jewelry was
taken.4 Police eventually identified Carramusa as a suspect based on
security camera footage and telephone records.
3 Carramusa has also filed a petition for a writ of habeas corpus (Case
No. D077952), in which he argues that defense counsel was ineffective for
failing to advise him to withdraw his guilty plea in light of Gallardo.
Simultaneously with this opinion, we are issuing an order denying the
habeas petition on the ground that it is not ripe in light of our disposition of
this appeal.
4 Because Carramusa pled guilty, we based our recitation of the facts on
the probation officer’s report.
4
An amended information charged Carramusa with one count of first
degree burglary of an inhabited dwelling. (§§ 459, 460, subd. (a).) The
information also alleged that Carramusa incurred numerous probation-denial
prior felony convictions (§ 1203, subd. (e)(4)), four prior prison terms
(§§ 667.5, subd. (b), 668), a prior serious felony (§§ 667, subd. (a)(1), 668,
1192.7, subd. (c)), and a prior strike (§§ 667, subds. (b)-(i), 668, 1170.12).
On December 12, 2017, Carramusa pled guilty and made admissions to
everything that was alleged in the amended information: burglary of an
inhabited dwelling, the probation-denial prior felony convictions (§ 1203,
subd. (e)(4)), four prior prison terms (§§ 667.5, subd. (b), 668), a prior serious
felony (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and a prior strike (§§ 667,
subds. (b)-(i), 668, 1170.12). The plea agreement contained no deal regarding
Carramusa’s sentence.
According to the amended information, both the prior strike and the
prior serious felony were based on Carramusa’s 1994 conviction for battery
with serious bodily injury. (§ 243, subd. (d).) At the sentencing hearing, the
trial court expressed concern over whether there was a factual basis for
Carramusa’s admission that he incurred a prior strike and prior serious
felony. The trial court’s concern arose because Carramusa’s 1994 conviction
for battery with serious bodily injury would qualify as a strike and serious
felony only if it was a “felony in which the defendant personally inflict[ed]
great bodily injury on any person, other than an accomplice.” (§ 1192.7,
subd. (c)(8).)5 Thus, a conviction for battery with serious bodily injury would
5 A strike under the Three Strikes law includes a defendant’s conviction
for a “serious felony” as that term is defined in section 1192.7, subdivision (c).
(§ 667, subd. (d)(1).) The same definition of “serious felony” is used to
determine whether a defendant has incurred a prior serious felony for the
5
only qualify as a “serious felony” for the purpose of the Three Strikes law or
the five-year enhancement in section 667, subdivision (a)(1), if it was
“personally inflicted” by Carramusa and the victim was not an accomplice.6
The prosecutor addressed the trial court’s concerns by presenting
documentation from the 1994 battery prosecution and giving the following
explanation:
“The last time that we appeared for the originally scheduled
sentencing date Your Honor expressed some concern about the
nature of Mr. Carramusa’s 1994 conviction. As a result I
contacted the Riverside County records department.
purpose of the five-year enhancement in section 667, subdivision (a)(1).
(§ 667, subd. (a)(4).) As relevant here, section 1192.7, subdivision (c)(8)
defines a serious felony as “any felony in which the defendant personally
inflicts great bodily injury on any person, other than an accomplice.”
Battery is defined as “any willful and unlawful use of force or violence
upon the person of another” (§ 242), and section 243, subdivision (d) sets forth
the punishment that applies when “a battery is committed against any
person and serious bodily injury is inflicted on the person.” (§ 243, subd. (d).)
As it is possible to be convicted of battery on a theory of aiding and abetting
(§ 31), and because it is possible to commit battery on an accomplice, a person
could be convicted of battery with serious bodily injury without being
convicted of a “felony in which the defendant personally inflicts great bodily
injury on any person, other than an accomplice.” (§ 1192.7, subd. (c)(8).)
6 In arguing that counsel was ineffective, Carramusa has not expressly
raised the issue of whether a conviction for a battery causing “serious bodily
injury” is sufficient to establish a prior conviction in which the defendant
inflicted “great bodily injury” as that term is used in section 1192.7,
subdivision (c)(8). We therefore need not, and do not, consider the issue.
(See People v. Santana (2013) 56 Cal.4th 999, 1008-1009 [“We recognize that
the terms ‘serious bodily injury’ and ‘great bodily injury’ have been described
as ‘ “ ‘essential[ly] equivalent’ ” ’ . . . and as having ‘substantially the same
meaning’ . . . However, the terms in fact ‘have separate and distinct
statutory definitions.’ . . . This distinction may make a difference when
evaluating jury instructions that provide different definitions for the two
terms,” citations omitted].)
6
Unfortunately much of the original record had been purged in
light of the age of the conviction; however, they were able to
provide a certified copy of the minute order from the time of Mr.
Carramusa’s original plea in 1994. That is now marked as court’s
Exhibit One. On page five of that document it specifically states
that he pled to a violation of Penal Code section 243(d) and that
the factual basis was based on the preliminary hearing
transcript. After speaking with the Riverside County DA’s office
they were able to locate a certified copy of the original
preliminary hearing transcript. I provided that for defense
counsel, and I am now admitting it as court’s Exhibit Two. Based
on our review of the transcript, the transcript does clearly
establish that Mr. Carramusa personally inflicted great bodily
injury, not on an accomplice, but rather on another and,
therefore, it does constitute a strike. I will be admitting both of
those as court’s Exhibits One and Two.”7
On January 23, 2018, the trial court denied Carramusa’s motion to
strike his prior strike, and it sentenced Carramusa to a prison term of 17
years. The 17-year term was based on the upper term of six years for the
burglary, doubled to 12 years based on Carramusa’s prior strike, plus five
years for the prior serious felony. The trial court exercised its discretion to
strike the four one-year enhancements for Carramusa’s prior prison terms.
B. Carramusa’s First Appeal and Habeas Petition
Carramusa appealed from the judgment. He argued that the trial court
abused its discretion in declining to strike his prior strike and that, due to a
change in the law after he was sentenced (Sen. Bill No. 1393, Stats. 2018,
7 We have reviewed both of the exhibits presented by the prosecutor.
The exhibits contain neither Carramusa’s written plea agreement for the
1994 conviction nor the transcript from the 1994 plea hearing. The
prosecutor’s representation that “the factual basis was based on the
preliminary hearing,” is premised on court minutes from 1994 stating
“Counsel stipulate: FACTUAL BASIS TAKEN FROM PRELIM HRG
TRANSCRIPT.”
7
ch. 1013, §§ 1-2), we should remand this matter for the trial court to decide
whether to exercise its discretion to strike the five-year enhancement for
Carramusa’s prior serious felony. We reversed the judgment for the purpose
of remanding to the trial court with directions that it decide whether to
exercise its discretion to strike the five-year enhancement for Carramusa’s
prior serious felony conviction. (People v. Carramusa (Mar. 5, 2019,
D073484).)
On the same day that we issued our opinion on Carramusa’s appeal, we
also issued an order summarily denying Carramusa’s petition for habeas
corpus. (In re Carramusa (Mar. 5, 2019, D074746).) Carramusa’s habeas
petition argued that defense counsel, Deputy Public Defender Warren Den,
had provided ineffective assistance because he did not advise Carramusa to
withdraw his guilty plea prior to sentencing based on our Supreme Court’s
opinion in Gallardo, supra, 4 Cal.5th 120.
Gallardo was issued nine days after Carramusa’s guilty plea. In
Gallardo our Supreme Court significantly limited the materials that a trial
court could consult in determining the nature of a prior conviction consistent
with the Sixth Amendment to the United States Constitution, as interpreted
in Apprendi v. New Jersey (2000) 530 U.S. 466, 490. As Gallardo explained,
“we now hold that a court considering whether to impose an increased
sentence based on a prior qualifying conviction may not determine the
‘nature or basis’ of the prior conviction based on its independent conclusions
about what facts or conduct ‘realistically’ supported the conviction.
[Citation.] That inquiry invades the jury’s province by permitting the court
to make disputed findings about ‘what a trial showed, or a plea proceeding
revealed, about the defendant’s underlying conduct.’ [Citation.] The court’s
role is, rather, limited to identifying those facts that were established by
8
virtue of the conviction itself—that is, facts the jury was necessarily required
to find to render a guilty verdict, or that the defendant admitted as the
factual basis for a guilty plea.” (Gallardo, supra, 4 Cal.5th at p. 136.) Thus,
had the trial court been required to apply Gallardo when deciding whether
Carramusa’s 1994 battery conviction qualified as a serious felony, it would
have been limited to the “facts . . . [Carramusa] admitted as the factual basis
for [the 1994] guilty plea.” (Ibid.)
In his habeas petition, Carramusa argued that the documentation
relating to his 1994 conviction that the trial court referenced at the December
12, 2017 plea hearing did not satisfy the strict requirements of Gallardo
because Carramusa, in 1994, did not admit the facts that made the battery a
serious felony, namely that he personally inflicted great bodily injury and the
victim was not an accomplice. Based on that premise, the habeas petition
argued that “[r]easonable counsel would have moved to withdraw petitioner’s
admission that his prior conviction for battery was a serious felony after the
California Supreme Court issued Gallardo, 4 Cal.5th 120.” As the petition
argued, “trial counsel did not . . . explain to [Carramusa] he could move to
withdraw his admission based on Gallardo at sentencing. . . . At petitioner’s
sentencing hearing, trial counsel neither brought Gallardo to the trial court’s
attention nor moved to withdraw petitioner’s admission. . . . As such, trial
counsel’s assistance was ineffective and subjected appellant to an enhanced
sentence no longer valid at law.” As the petition pointed out, “Had trial
counsel moved to withdraw petitioner’s admission and the trial court properly
found the facts petitioner necessarily admitted in 1994 fall short of
establishing his battery was serious, the strictest sentence petitioner could
have received for this case would have been 10 years (i.e., the upper term of
six years for first degree burglary plus an additional year for each of
9
appellant’s prison priors), which is a significantly lower sentence than 17
plus years he received below.”8
Our order summarily denying Carramusa’s habeas petition set forth
two grounds for the denial. First, we observed that because a motion to
withdraw a guilty plea may be made at any time before judgment (§ 1018),
“the habeas corpus petition alleging ineffective assistance of counsel is not
yet ripe, as defense counsel may, before judgment, attempt to take further
action with respect to Carramusa’s plea.” Second, we explained that
Carramusa had not established a prima facie case for relief because it
appeared that even under Gallardo, the trial court would be able to refer to
the 1994 preliminary hearing transcript to determine the factual basis for the
1994 battery conviction. In so doing, we characterized Gallardo as holding
that “when the prior conviction at issue involved a guilty plea in which the
defendant expressly incorporated the preliminary hearing transcript as the
factual basis for the guilty plea, the trial court was permitted to look to that
8 We note the Legislature amended section 667.5, subdivision (b),
effective January 1, 2020, to restrict the category of offenses that give rise to
a one-year enhancement for a prior prison term. (Stats. 2019, ch. 590, § 1.)
Thus, under current law, Carramusa is eligible for a one-year enhancement
only if the prior prison term was based on a “sexually violent offense.”
(§ 667.5, subd. (b).) In light of Carramusa’s criminal history, as identified in
the amended information and the probation officer’s report, it appears that
only one of Carramusa’s four prison priors (from a 2001 conviction for
violations of §§ 288a, subd. (b)(2) and 288, subd. (c)(1)) may have been based
on a sexually violent offense. (§§ 667.5, subd. (b), 6600, subd. (b).)
Accordingly, if Carramusa was granted leave to withdraw his guilty plea and
the People were unable to prove that the 1994 battery conviction was a prior
strike and a prior serious felony, Carramusa would be eligible for a total
prison sentence of no more than seven years. That seven-year sentence
would be based on a six-year upper-term sentence for the burglary conviction
and a one-year enhancement for the 2001 prison prior.
10
preliminary hearing transcript to establish the nature of the conviction.”
Next, we stated that “according to documents contained in the record and
submitted to the trial court, Carramusa’s guilty plea for the 1994 battery
conviction expressly incorporated the preliminary hearing transcript.” We
therefore concluded that “under Gallardo, if the People were required to
prove that the 1994 battery conviction was a ‘felony in which the defendant
personally inflict[ed] great bodily injury on any person, other than an
accomplice’ (§ 1192.7, subd. (c)(8)), they would be able to do so based on the
preliminary hearing transcript, which shows that Carramusa personally
inflicted the injury and that the victim was not an accomplice.”9
C. Proceedings After Remand
On March 11, 2019, following our opinion remanding this matter to the
superior court, the same deputy public defender, Mr. Den, was reappointed as
counsel for Carramusa.
Shortly thereafter, Carramusa sent correspondence to the trial court, in
which he asked for substitute appointed counsel. Specifically, Carramusa
sent two letters, both of which are dated March 31, 2019, and were file-
stamped by the superior court on May 14, 2019.
One of the letters is handwritten. The other is typewritten. The
typewritten letter reproduces some, but not all, of the content of the
handwritten letter.10 The handwritten letter states as follows:
9 Carramusa’s appellate counsel served Mr. Den with Carramusa’s
habeas petition when it was filed in 2018. However, this court did not serve
Mr. Den with the March 5, 2019 order summarily denying the habeas
petition.
10 Carramusa’s typewritten letter set forth the following grounds for
conflict with defense counsel: “1. Warren Den failed to withdraw my plea of
11
“I would like to respectfully request that the Court assign
me new counsel due to a serious conflict with my counsel of
record (Mr. Den).
“The conflict reasons being:
“1) Mr. Den failed to withdraw my plea of ‘guilty’ after it
was decided that this Court would not accept the plea deal
offered to me by the prosecutor of record, and again after the
Calif. Supr. Court issued a decision on Peo. v. G[*] (2017) 4
Cal.5th 120.
“2) Because Mr. Den failed to cooperated [sic] with my
appeal attorney . . . after successive attempts on her part (calls,
letters and emails) to contact him. Under Calif. Bar rule
requiring cooperation: State Bar Formal Opinion # 1992-127.
“I would like to thank the court for its consideration of this
matter and would respectfully request a ruling on this issue prior
to my appearance before the Court for Appeal Opinion #D073484,
so that I may confer with said counsel.”11
The trial court received our remittitur on May 9, 2019, and held a
hearing on May 21, 2019, at which Carramusa was not present. The minute
order from that hearing indicates that an order to produce Carramusa from
prison would be issued, and it stated “[d]efendant’s request for new counsel to
be addressed at [the] next hearing.”
guilty after it was decided that this court would not accept the plea deal
offered to me by the Prosecutor of record. [¶] 2. Mr. Den failed to cooperate
with my appeal attorney . . . after numerous attempts on her part (calls,
letters and emails) all ignored.”
11 The bracketed asterisk in the letter indicates where the text appears to
have been cut off at the margin when the letter was copied. Based on the
case citation provided, there is no doubt that the letter refers to People v.
Gallardo (2017) 4 Cal.5th 120.
12
At the next hearing on July 9, 2019, the trial court conducted a
Marsden hearing with Carramusa and Mr. Den in attendance. The trial
court began the Marsden hearing by asking Carramusa to state “what you
think has gone wrong between you and your attorney that makes you think
he can’t properly represent you.” The trial court advised Carramusa,
however, that even if counsel “may not have a bedside manner that you like,”
that “[d]oesn’t mean that they’re incompetent.” The following discussion then
took place:
“[CARRAMUSA]: I don’t think he’s incompetent, sir. It was just
my appellate attorney advised me to ask him to step down
because he didn’t call her back via e-mail. Any letters that she
sent to him, he never responded to. So she said that if I could get
new counsel because he was—if he didn’t do his job. This is the
reasons that she gave me because I just didn’t know right
offhand.
“THE COURT: Thanks. Okay. Yes, I have read the Court of
Appeal briefs. I don’t remember what they said, but I do
remember it was the actual decision by the Court of Appeal. All
right.
“[CARRAMUSA]: I couldn’t remember completely either. On top
of it, I’m already nervous as it is. It’s hard to speak by itself.
“THE COURT: I take it your main complaint against your
attorney here is that when this case went up on appeal, he didn’t
properly communicate with your appellate attorney; is that right?
“[CARRAMUSA]: Yes, Your Honor.
“THE COURT: Okay. I’m just wondering two things[.] Number
one, how that would have affected [appellate counsel]. Do you
have anything from her saying that she thinks that because Mr.
Den didn’t communicate with her, that caused a problem with the
Court of Appeal?
13
“[CARRAMUSA]: It was—I think it's right there. There’s a
letter from my wife that the deputies handed to you. That was
the reason being why she suggested for me to seek new counsel.
“THE COURT: Very good. Let me hear from counsel and see if
you know anything about this.”12
When the trial court turned to Mr. Den for comment, Mr. Den’s
comments indicate that he believed Carramusa was dissatisfied with him
because he did not receive any leniency from the trial court during
sentencing, even though Carramusa pled guilty and admitted all of the
allegations in the amended information. Mr. Den explained, “due to the
outcome of the case, it did affect me professionally and personally. I had to
sort of step back and sort of wonder and question my own professional
judgment in how the ultimate outcome of the case was.” Mr. Den stated, “I
did speak with Mr. Carramusa yesterday, and I explained to him what—how
I was feeling after the sentencing date. And I explained to him, and I also
apologized to him.”
The trial court stated, “You know, I’ve read over the Court of Appeal
opinion which was unpublished which sustained the conviction and the
sentence. I didn’t see anything in there that indicated to me that there was
even a hint of incompetence of counsel. I know it’s difficult for everyone to
judge their own case. Did you see anything in that opinion, or do you know
12 Appellate counsel made a request to augment the appellate record with
the “letter that is referred to in the Marsden transcript” “detailing the
reasons why new counsel should be appointed.” We granted the motion to
augment, directing the superior court to transmit “the letter referenced
during the hearing held pursuant to People v. Marsden (1970) 2 Cal.3d 118.”
No such letter was transmitted from the superior court. We accordingly infer
that no such document is contained in the superior court file.
14
anything that would lead you to think the Court of Appeal was thinking
along those lines?” Mr. Den did not bring the allegation of ineffective
assistance of counsel in the habeas petition to the trial court’s attention.
Instead, he replied, “Anytime the attorney gets it wrong, that's always time
for a reflection and contemplation about your own practice, but I did the best
that I could at the time.”
The trial court and Mr. Den then held the following discussion, based
on their assumption that Carramusa’s dissatisfaction with Mr. Den’s
representation was based on the fact that Carramusa received a lengthier
sentence than he expected when he entered his guilty plea:
“THE COURT: Yeah. I think one of the big issues here was the
prosecutor thought this was an 11-year case.
“MR. DEN: Correct.
“THE COURT: After I looked at everything, even though it was a
plea, and I give great consideration to an early plea, I made it 17
years.
“MR. DEN: Usually when I do get it wrong, I really am not
wrong by that kind of amount. So it was surprising to me, but
obviously I respect the Court’s decision.
“THE COURT: Even if it’s wrong, I made it.”
Carramusa interjected to explain that when he entered his guilty plea,
he understood based on a “miscommunication” with Mr. Den that he was
“signing for 11, no more than 11,” that is, a total sentence of no more than 11
years. Carramusa stated, “When that hit us the way it did, it was a big blow.
I didn’t really understand it. So at the time they put the appeal in and
everything, I was just hoping to God I could come back and do the best I can
with whatever.”
15
The trial court then explained that after reviewing the plea agreement
and the transcript from the sentencing hearing, it was satisfied “that I made
it clear there was no promise to you that I was thinking along certain lines. I
know that there was just no promise.” The trial court denied Carramusa’s
Marsden motion with the following statement: “Mr. Carramusa, I’m going to
deny the Marsden. I think your attorney has done a good job in representing
you both at the sentencing, and the Court of Appeal decision indicates to me
that there was nothing that he did that in any way injured you at the Court
of Appeal. The fact that maybe he didn’t communicate as well as he should
have with the Court of Appeal attorney, I don’t think that’s all that
important. The reasons why they’re not all that important is when a case
goes up on appeal, you just look at a written record. The thoughts and
processes aren’t part of the Court of Appeal.”
Immediately after denying the Marsden motion, the trial court opened
the courtroom to the public and proceeded to consider whether to exercise its
discretion to strike the five-year enhancement for Carramusa’s prior serious
felony. (§ 667, subd. (a)(1).) Mr. Den made no mention of a possible motion
to withdraw Carramusa’s guilty plea to take advantage of the standards for
proving a prior conviction now set forth in Gallardo. The trial court declined
to exercise its discretion to strike the five-year enhancement for Carramusa’s
prior serious felony, and it reinstated Carramusa’s 17-year sentence.
After Mr. Den inadvertently failed to file a timely notice of appeal, we
granted Carramusa’s request for a constructive notice of appeal.
II.
DISCUSSION
Carramusa presents two arguments in this appeal. First, he contends
that the trial court improperly denied his Marsden motion. Second, he
contends that he received ineffective assistance of counsel because Mr. Den
16
did not attempt, on remand, to file a motion to withdraw Carramusa’s guilty
plea so that he could take advantage of the new requirements for establishing
a prior conviction as set forth in Gallardo, supra, 4 Cal.5th 120. We turn first
to the Marsden motion.
A. The Failure to Provide Carramusa With a Full and Adequate Marsden
Hearing Requires Reversal
1. Applicable Legal Principles
“ ‘When a defendant seeks substitution of appointed counsel pursuant
to People v. Marsden, supra, 2 Cal.3d 118, “the trial court must permit the
defendant to explain the basis of his contention and to relate specific
instances of inadequate performance. A defendant is entitled to relief if the
record clearly shows that the appointed counsel is not providing adequate
representation or that defendant and counsel have become embroiled in such
an irreconcilable conflict that ineffective representation is likely to result.” ’
[Citation.] ‘A trial court should grant a defendant’s Marsden motion only
when the defendant has made “a substantial showing that failure to order
substitution is likely to result in constitutionally inadequate
representation.” ’ [Citation.] ‘We review the denial of a Marsden motion for
abuse of discretion.’ ” (People v. Streeter (2012) 54 Cal.4th 205, 230.)
Further, as particularly relevant here, “[w]hen reviewing whether the trial
court abused its discretion in denying a Marsden motion, we consider
whether it made an adequate inquiry into the defendant’s complaints.”
(People v. Mungia (2008) 44 Cal.4th 1101, 1128 (Mungia).)
The type of inquiry required in a Marsden hearing was first addressed
in Marsden itself. There, the defendant sought a ruling on whether he was
receiving competent representation. In considering the issue, the trial court
did not allow the defendant to explain the basis for his dissatisfaction with
counsel, even though the defendant asked that he be permitted to describe
17
specific instances. Instead, the trial court improperly denied relief based on
the court’s observation of counsel during the proceedings. (Marsden, supra, 2
Cal.3d at pp. 121-122.) In the course of explaining the type of inquiry that a
trial court should conduct, our Supreme Court noted that a court should not
“disregard[ ] the defendant’s lay status and his admitted ignorance of the
law. . . . The semantics employed by a lay person in asserting a
constitutional right should not be given undue weight in determining the
protection to be accorded that right.” (Id. at p. 124.) Marsden also indicated
that because a layperson’s request for substitute counsel is involved, a trial
court may attempt to assist a defendant in articulating the basis for the
request. As Marsden noted, “although defendant was represented by counsel,
he was groping for the proper manner in which to demonstrate the alleged
lack of competence of his attorney, and the trial judge would have been well
within the bounds of judicial propriety in giving any helpful suggestion which
might have aided defendant in the presentation of his complaint.” (Id. at
p. 126.)
Following Marsden, our Supreme Court has on numerous occasions
considered whether a trial court followed adequate procedures during a
hearing at which a defendant sought to substitute appointed counsel. As one
court has summarized the relevant authority, “Marsden and its progeny
require that when a defendant complains about the adequacy of appointed
counsel, the trial court permit the defendant to articulate his causes of
dissatisfaction and, if any of them suggest ineffective assistance, to conduct
an inquiry sufficient to ascertain whether counsel is in fact rendering
effective assistance. [Citations.] If the defendant states facts sufficient to
raise a question about counsel’s effectiveness, the court must question
18
counsel as necessary to ascertain their veracity.” (People v. Eastman (2007)
146 Cal.App.4th 688, 695.)
2. Carramusa Did Not Receive a Full and Adequate Marsden
Hearing
In challenging the trial court’s denial of his Marsden motion,
Carramusa focuses on the outcome of the proceeding. Specifically,
Carramusa contends that based on his handwritten letter and the arguments
he presented in his habeas petition, the trial court could come to no other
conclusion than that Carramusa had an irreconcilable conflict with Mr. Den
due to the fact that Mr. Den declined to file a motion to withdraw
Carramusa’s guilty plea. As Carramusa explains, had Mr. Den successfully
moved to withdraw the guilty plea, Carramusa could then require the People
to prove his prior strike and prior serious felony under the standards set
forth in Gallardo, supra, 4 Cal.5th 120.
Carramusa’s argument is misdirected because it assumes that in ruling
on the Marsden motion, the trial court had the opportunity to consider both
(1) the content of Carramusa’s handwritten letter; and (2) the existence of
Carramusa’s habeas petition. We find no indication in the record that the
trial court was aware of or able to consider either of those items when it ruled
on the Marsden motion.13 Thus, we cannot conclude, as Carramusa
13 Indeed, in explaining to Carramusa that Mr. Den’s failure to
communicate with appellate counsel was unimportant because “[t]he
thoughts and processes aren’t part of the Court of Appeal,” the trial court
strongly suggested that it had no knowledge that Carramusa had also filed a
habeas petition. The trial court would not have made such a statement had
it known about the habeas petition because, in a habeas corpus proceeding,
evidence about defense counsel’s tactical reasons for taking a specific action
can be submitted and may be relevant to the outcome. (See People v.
Wilson (1992) 3 Cal.4th 926, 936 [“[A] claim of ineffective assistance is more
19
advocates, that the trial court was required to conclude, based on the
information it considered at the Marsden hearing, that an irreconcilable
conflict existed between Carramusa and Mr. Den.
However, that observation does not end our inquiry. An appellate
court’s review of a ruling denying a Marsden motion is not limited to
examining whether the trial court reasonably concluded, based on the
information presented, that defense counsel provided competent
representation and that there was no irreconcilable conflict. We must also
review “whether [the trial court] made an adequate inquiry into the
defendant’s complaints.” (Mungia, supra, 44 Cal.4th at p. 1128.) Here, as we
will explain, it appears that through no fault of its own, the trial court did not
conduct a full and adequate inquiry into the grounds that Carramusa
advanced for his request to substitute appointed counsel.
We turn to the transcript of the Marsden hearing for our analysis. The
transcript shows that the trial court proceeded at the outset by asking
Carramusa to explain the basis for his request to substitute appointed
counsel. In responding, Carramusa immediately struggled to articulate the
basis for his Marsden motion and indicated that he wanted to rely on the
grounds that appellate counsel had identified for asking to substitute
appointed counsel. Among other things, Carramusa stated that he “couldn’t
remember completely,” that he was “nervous as it is,” and that it was “hard to
speak by itself.”
appropriately made in a habeas corpus proceeding, in which the attorney has
the opportunity to explain the reasons for his or her conduct. ‘Having
afforded the trial attorney an opportunity to explain, courts are in a position
to intelligently evaluate whether counsel’s acts or omissions were within the
range of reasonable competence.’ ”].)
20
Carramusa sought to refer to a letter that he believed the bailiff had
handed to the trial court, which Carramusa described as showing “the reason
being why [appellate counsel] suggested for me to seek new counsel.”
However, no such letter is contained in the superior court file even though, at
the end of the Marsden hearing, the trial court stated, “You did give me a
letter. Did you want to have this as part of the court record here?” and
Carramusa responded affirmatively. We infer from subsequent comments
made at the hearing that Carramusa wrongly assumed that the letter the
bailiff handed to the trial court described appellate counsel’s reasons for
recommending that Carramusa seek substitute appointed counsel. Instead,
it appears that the bailiff handed the trial court a different letter. That letter
was written by Carramusa to support his request that the trial court strike
the five-year enhancement for the prior serious felony, and it expressed
Carramusa’s remorse for the burglary and his desire to make restitution to
the victims. The letter is included in the appellate record and is file stamped
July 9, 2019, the date of the Marsden hearing. As the letter does not describe
appellate counsel’s advice that Carramusa seek substitute counsel, it cannot
be the letter that Carramusa believed the bailiff was handing to the trial
court.
Although the trial court made a diligent attempt to understand the
basis on which appellate counsel had advised Carramusa to seek substitute
appointed counsel, and Carramusa did his best to try to explain the grounds
that appellate counsel identified for him, a series of circumstances appear to
have frustrated the ability of the trial court to fully understand the basis for
Carramusa’s request. First, as we have explained, it appears that
Carramusa believed the bailiff was handing the trial court a letter explaining
21
appellate counsel’s reasons for recommending that Carramusa seek
substitute counsel, but the trial court did not receive that letter.
Second, the trial court does not appear to have been aware of
Carramusa’s handwritten letter dated March 31, 2019. Although the letter
was filed on May 14, 2019, we see no indication in the record that the letter
was part of the materials that the trial court reviewed during the July 9,
2019 Marsden hearing. If the trial court had consulted Carramusa’s
handwritten letter during the Marsden hearing, it could have asked follow-up
questions to both Carramusa and Mr. Den to attempt to ascertain what
Carramusa meant when he stated that he had a conflict with defense counsel
because “Mr. Den failed to withdraw my plea of ‘guilty’ . . . after the Calif.
Supr. Court issued a decision on Peo. v. G (2017) 4 Cal.5th 120.” (See People
v. Miranda (1987) 44 Cal.3d 57, 77 [“The failure to ask follow-up questions
may make it more difficult for a trial court to thoughtfully exercise its
discretion in a manner required by Marsden,” and “[a]dditional questioning
may assist the court in assessing the merit or lack thereof of a defendant’s
motion.”].) The response to follow-up questions about the handwritten letter
would likely have caused the trial court to understand that Carramusa’s
request for substitute counsel was, in part, based on Mr. Den’s failure to
advise Carramusa to bring a motion to withdraw his guilty plea after
Gallardo was issued.
Finally, we see no indication in the record that the trial court was
aware of either Carramusa’s 2018 habeas petition or our order summarily
denying that petition. The trial court made no mention of having reviewed
any materials from the habeas corpus proceeding, and Mr. Den did not bring
the habeas corpus proceeding to the trial court’s attention, even when the
trial court asked if Mr. Den perceived any “hint” of incompetent
22
representation in the materials filed in the Court of Appeal. Had the trial
court been made aware of the basis for Carramusa’s habeas petition, the trial
court likely would have understood that Carramusa’s request for substitute
counsel was, in part, based on an alleged conflict with Mr. Den arising from
Mr. Den’s failure to file a motion to withdraw Carramusa’s guilty plea in
light of Gallardo. In addition, had the trial court known that Carramusa
filed a habeas petition, it would have understood the significance of
Carramusa’s complaint that Mr. Den was ineffective by failing to
communicate with appellate counsel.
In light of the three items that the trial court could have considered
during the Marsden hearing, but did not, we conclude that Carramusa did
not receive a full and adequate Marsden hearing. As in Marsden, Carramusa
was a layperson “groping for the proper manner in which to demonstrate the
alleged lack of competence of his attorney” (Marsden, supra, 2 Cal.3d at
p. 126), and he should have been permitted to rely on his March 31, 2019
handwritten letter and statements from appellate counsel when seeking to
articulate why he wanted a new attorney. The inadvertent omission of
(1) the letter that Carramusa believed the bailiff was handing to the trial
court; (2) Carramusa’s handwritten letter which included the citation to
Gallardo; and (3) any awareness of Carramusa’s habeas petition, all
combined to deprive Carramusa of his ability, as a layperson, to effectively
explain the basis for his request for substitute counsel.
3. The Lack of a Full and Adequate Marsden Hearing Was
Prejudicial
Having concluded that Carramusa did not obtain a full and adequate
Marsden hearing, we must determine whether the error was prejudicial and
requires reversal.
23
“Marsden does not establish a rule of per se reversible error.
[Citations.] Where there is Marsden error, we must reverse, unless the
record shows beyond a reasonable doubt that the defendant was not
prejudiced.” (People v. Knight (2015) 239 Cal.App.4th 1, 9.)
The People contend that any error arising from the Marsden hearing
was harmless to the extent that Carramusa’s Marsden motion was based on
the argument that Mr. Den should have brought a motion to withdraw
Carramusa’s guilty plea. If Mr. Den had successfully moved to allow
Carramusa to withdraw his guilty plea, Carramusa could have required the
People to prove his prior strike and prior serious felony based on the
standards set forth in Gallardo, supra, 4 Cal.5th 120. However, accordingly
to the People, success on a motion to withdraw the plea ultimately would not
have made any difference for Carramusa’s sentence. The People point out
that in our March 5, 2019 order summarily denying Carramusa’s habeas
petition, we stated that even under Gallardo, the People still will be able to
prove Carramusa’s prior strike and prior serious felony. Thus, as the People
argue, even if they were put to their proof under Gallardo after Carramusa
withdrew his plea, Carramusa would receive the same sentence.
Although we understand the People’s argument, we reject it because it
depends on the premise that our March 5, 2019 habeas order continues to
govern this matter. “[T]he summary denial of a habeas corpus petition does
not establish law of the case and does not have a res judicata effect in future
proceedings.” (Gomez v. Superior Court (2012) 54 Cal.4th 293, 305, fn. 6; see
also Kowis v. Howard (1992) 3 Cal.4th 888, 895 [“A short statement or
citation explaining the basis for the summary denial does not transform the
denial into a decision of a cause entitled to law of the case effect.”].) On
24
further review, we do not believe that our March 5, 2019 order should be the
last word on how Gallardo applies in this matter.
Our March 5, 2019 order contained the following explanation as one of
the two grounds for our denial of Carramusa’s habeas petition:
“[E]ven if defense counsel had moved to withdraw Carramusa’s
guilty plea so as to require the People to prove that the 1994
battery conviction was a strike and a serious felony, the People
could have relied on the preliminary hearing transcript from the
1994 proceeding under an exception set forth in Gallardo.
Specifically, Gallardo indicated that when the prior conviction at
issue involved a guilty plea in which the defendant expressly
incorporated the preliminary hearing transcript as the factual
basis for the guilty plea, the trial court was permitted to look to
that preliminary hearing transcript to establish the nature of the
conviction. (Gallardo, supra, 4 Cal.5th at p. 136 [the trial court
improperly relied on a preliminary hearing transcript when
‘[n]othing in the record shows that defendant adopted the
preliminary hearing testimony as supplying the factual basis for
her guilty plea’].) Here, according to documents contained in the
record and submitted to the trial court, Carramusa’s guilty plea
for the 1994 battery conviction expressly incorporated the
preliminary hearing transcript. Accordingly, under Gallardo, if
the People were required to prove that the 1994 battery
conviction was a ‘felony in which the defendant personally
inflict[ed] great bodily injury on any person, other than an
accomplice’ (§ 1192.7, subd. (c)(8)), they would be able to do so
based on the preliminary hearing transcript, which shows that
Carramusa personally inflicted the injury and that the victim
was not an accomplice.”
We no longer endorse this analysis for two reasons.
First, we were inexact in characterizing the documentation from
Carramusa’s 1994 plea hearing. We stated that “according to documents
contained in the record and submitted to the trial court, Carramusa’s guilty
plea for the 1994 battery conviction expressly incorporated the preliminary
hearing transcript.” We failed to highlight that the only documentation from
25
the 1994 plea hearing that the trial court had before it was a single minute
order. The trial court did not review the transcript from the 1994 plea
hearing or any other documentation, such as Carramusa’s 1994 written plea
agreement. The minute order itself says nothing about whether Carramusa
personally made any factual admissions on the record or in his plea
agreement. Instead, in describing the basis for the guilty plea, the minute
order makes only a single statement. “Counsel stipulate: FACTUAL BASIS
TAKEN FROM PRELIM HRG TRANSCRIPT.”
The minute order’s reference to counsel’s stipulation is significant in
that the trial court is “limited to identifying those facts that were established
by virtue of the conviction itself—that is, facts the jury was necessarily
required to find to render a guilty verdict, or that the defendant admitted as
the factual basis for a guilty plea.” (Gallardo, supra, 4 Cal.5th at p. 136,
italics added.) Gallardo states that the defendant must make the admission.
It is unclear from the minute order whether that occurred.14
We note that on December 12, 2017, when the People submitted the
documentation from Carramusa’s 1994 battery conviction, Gallardo had not
yet issued. Under then-existing authority, the trial court was permitted to
look to the preliminary hearing transcript from Carramusa’s 1994 battery
conviction to ascertain whether “the conviction realistically may have been
based on conduct that would not constitute a serious felony under California
law.” (People v. McGee (2006) 38 Cal.4th 682, 706.) It is possible that, in
14 This court has previously held that, under Gallardo, a trial court may
consider specific factual admissions that a defendant makes on the record
during a plea hearing. (In re Scott (2020) 49 Cal.App.5th 1003, 1019-1021,
review granted Aug. 12, 2020, S262716.) Here, the record does not permit
the type of inquiry conducted in Scott because the trial court was not
presented with a transcript from Carramusa’s 1994 plea hearing.
26
light of Gallardo, the People will be able to locate additional documentation
from the plea hearing for the 1994 battery conviction. Therefore, it would be
premature for us to opine on whether, if Carramusa was granted leave to
withdraw his guilty plea, the People would be able to prove that Carramusa
incurred a strike and a serious felony.
Second, our March 5, 2019 order characterized Gallardo as indicating
“that when the prior conviction at issue involved a guilty plea in which the
defendant expressly incorporated the preliminary hearing transcript as the
factual basis for the guilty plea, the trial court was permitted to look to that
preliminary hearing transcript to establish the nature of the conviction.” We
based this statement on Gallardo’s factual observation that “[n]othing in the
record shows that defendant adopted the preliminary hearing testimony as
supplying the factual basis for her guilty plea.” (Gallardo, supra, 4 Cal.5th at
p. 136.) As we will explain, upon further review, we believe we overstated
Gallardo’s holding.
In Gallardo, the issue was whether the trial court improperly relied on
a preliminary hearing transcript to determine that the defendant used a
deadly weapon in committing an assault. (Gallardo, supra, 4 Cal.5th at
p. 123.) Our Supreme Court explained, “Defendant did not specify that she
used a deadly weapon when entering her guilty plea. The trial court’s sole
basis for concluding that defendant used a deadly weapon was a transcript
from a preliminary hearing at which the victim testified that defendant had
used a knife during their altercation. Nothing in the record shows that
defendant adopted the preliminary hearing testimony as supplying the
factual basis for her guilty plea.” (Id. at p. 136.) Gallardo concluded that it
was improper for the trial court to have relied on the preliminary hearing
transcript because “at least in the absence of any pertinent admissions, the
27
sentencing court can only guess at whether, by pleading guilty to a violation
of Penal Code section 245, subd. (a)(1), defendant was also acknowledging the
truth of the testimony [in the preliminary hearing transcript] indicating that
she had committed the assault with a knife.” (Id. at p. 137, italics added.)
Because the issue was not presented by the facts of the case, Gallardo
did not address the circumstances under which a defendant’s reference to a
preliminary hearing transcript during a plea hearing will be sufficient to
establish that the defendant admitted the facts testified to during the
preliminary hearing. (Gallardo, supra, 4 Cal.5th at p. 136.) Gallardo stated
that “in the absence of any pertinent admissions” the trial court should not
have relied on the preliminary hearing transcript (id. at p. 137, italics added),
but it failed to describe the type of “pertinent admissions” that would be
sufficient to allow the trial court to do so. In our view, the proper approach to
that question remains open pending further guidance from our Supreme
Court. Indeed, it is possible that the significance of a preliminary hearing
transcript will depend, at least in part, on the specific statements that a
defendant makes during a plea hearing or in a written plea agreement
concerning the preliminary hearing transcript.
In sum, in light of (1) Gallardo’s requirements for proving a prior
conviction, and (2) the limited documentation from the 1994 plea proceeding
that the People have thus far located, we cannot conclude beyond a
reasonable doubt that Carramusa would be unsuccessful in obtaining a more
favorable outcome were we to remand to permit him to renew his Marsden
motion to obtain substitute counsel. Accordingly, we will reverse the
judgment and remand for a renewed Marsden hearing. Following the
renewed Marsden hearing, and regardless of its outcome, Carramusa may file
28
a motion to withdraw his guilty plea if he chooses to do so.15 If no such
motion is filed, or if the motion is denied, the trial court shall reinstate the
judgment.16
B. The Issue of Whether Defense Counsel Was Ineffective Is Not Ripe for
Review In Light of Our Disposition Remanding for a Renewed Marsden
Hearing
Carramusa’s second contention on appeal is that he received ineffective
assistance of counsel in violation of his constitutional rights. (Strickland v.
Washington (1984) 466 U.S. 668, 684-686; People v. Doolin (2009) 45 Cal.4th
390, 417.) Specifically, Carramusa contends that Mr. Den should have
advised him to withdraw his guilty plea in light of Gallardo.
Because we will reverse the judgment and remand for a renewed
Marsden hearing, Carramusa’s contention that the judgment should be
reversed due to ineffective assistance from counsel is not yet ripe for review.
15 Section 1018 states in relevant part, “On application of the defendant
at any time before judgment . . . the court may . . . for a good cause shown,
permit the plea of guilty to be withdrawn and a plea of not guilty substituted.
. . . This section shall be liberally construed to effect these objects and to
promote justice.” (§ 1018.)
16 In People v. Sanchez (2011) 53 Cal.4th 80, 92-93, our Supreme Court
approved the following disposition when it reversed the judgment based on
the trial court’s failure to hold a Marsden hearing for a defendant who wished
to withdraw his plea: “ ‘(1) the court shall hold a hearing on [defendant]’s
Marsden motion concerning his representation by the public defender’s office;
(2) if the court finds that [defendant] has shown that a failure to replace his
appointed attorney would substantially impair his right to assistance of
counsel, the court shall appoint new counsel to represent him and shall
entertain such applications as newly appointed counsel may make; and (3) if
newly appointed counsel makes no motions, any motions made are denied, or
[defendant]’s Marsden motion is denied, the court shall reinstate the
judgment.’ ” In this case, our disposition differs somewhat in that Mr. Den
may end up filing a motion on remand.
29
Further proceedings on remand may make the issue moot or may provide
additional evidence concerning the nature of defense counsel’s
representation. We therefore do not, and need not, reach the issue of
whether Mr. Den provided constitutionally ineffective assistance.
30
DISPOSITION
The judgment is reversed, and the matter is remanded for a renewed
Marsden hearing. Following the renewed Marsden hearing, and regardless of
its outcome, Carramusa may file a motion to withdraw his guilty plea if he
chooses to do so. If no such motion is filed, or if the motion is denied, the trial
court shall reinstate the judgment.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
DATO, J.
31