People v. Murillo CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD235095
- Trial judge
- Charles G. Rogers
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Cynthia Aaron, Joan K. Irion
Analysis
The trial court denied Murillo's Marsden motion to replace counsel and vacate his guilty pleas, and sentenced him to 36 years in prison. The Court of Appeal affirmed the judgment, finding no arguable issues on appeal and noting that challenges to the validity of the plea were barred due to the lack of a certificate of probable cause.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of Marsden motion to replace counsel and vacate guilty plea“The trial court properly denied his request to relieve counsel and to vacate his guilty plea.” | unclear | correct | agree with court The court affirmed the denial, noting the motion was based on a factual contention (acts committed in Mexico) that had already been addressed and resolved by the trial court's finding of a factual basis for the plea. The appellate court found no error in the trial court's decision to deny the motion to vacate the plea or replace counsel at that stage. |
Challenge to validity of guilty plea“Murillo did not obtain a certificate of probable cause as required by section 1237.5 and thus cannot challenge the validity of his plea.” | de novo | correct | agree with court The court held that because Murillo failed to obtain a certificate of probable cause under Penal Code section 1237.5, he was procedurally barred from challenging the validity of his guilty plea on direct appeal. This is a standard procedural requirement for appealing a guilty plea in California. |
Ineffective assistance of counsel claim“Murillo's remedy, if any, is by way of petition for writ of habeas corpus, filed in the trial court.” | unclear | correct | agree with court The court declined to address the ineffective assistance of counsel claim on direct appeal because it was based on 'off the record' material not present in the appellate record. The court correctly identified that such claims, which require factual development, are properly raised in a petition for writ of habeas corpus. |
Authorities
- relied: People v. Panizzon (1996) 13 Cal.4th 68 — A defendant who pleads guilty must obtain a certificate of probable cause to challenge the validity of the plea on direct appeal.
- relied: People v. Mendoza Tello (1997) 15 Cal.4th 264 — Claims of ineffective assistance of counsel that are not fully developed in the record on appeal are properly raised in a petition for writ of habeas corpus.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Appellate counsel must review the record for arguable issues when they believe no issues exist, and the court must independently review the record.
- relied: Anders v. California (1967) 386 U.S. 738 — Appellate counsel may file a brief identifying possible but not arguable issues and request permission to withdraw, subject to court review.
- relied: People v. Marsden (1970) 2 Cal.3d 118 — A defendant has a right to substitute counsel if there is a conflict of interest or a breakdown in the attorney-client relationship, but the trial court has discretion in ruling on such motions.
The appellate opinion: sound — The opinion is sound because it correctly applies the procedural bar of section 1237.5 to preclude review of the plea's validity and correctly identifies habeas corpus as the proper vehicle for off-record ineffective assistance claims. The Wende/Anders review was conducted as required, and the court found no arguable issues in the record.
How this analysis was made · dispute it
unusual dispositionThe trial court accepted Murillo's negotiated guilty pleas to three counts of forcible child molestation and one count of lewd acts on a minor, denied his post-plea Marsden motion and request to vacate the pleas, and sentenced him to the agreed 36-year term with fines and fees. On appeal, with a Wende brief from counsel and a supplemental brief from Murillo, the Court of Appeal held the plea-validity challenge barred for lack of a certificate of probable cause, found the Marsden denial proper, relegated the ineffective-assistance claim to habeas, found no arguable issues on independent review, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of post-plea Marsden motion seeking to relieve appointed counsel and vacate the guilty pleas“The trial court properly denied his request to relieve counsel and to vacate his guilty plea.” | unclear | correct | agree with court The court read the Marsden transcript and found the motion rested solely on Murillo's claim that count 2 was committed in Mexico, an issue already litigated at the preliminary hearing and in limine and resolved against him with an express factual-basis finding. The conclusion is defensible, though the opinion does not state the abuse-of-discretion standard or discuss whether a certificate of probable cause was needed to attack a Marsden ruling aimed at withdrawing a plea. |
Acceptance of guilty pleas and finding of factual basis (challenge to validity of plea)“Murillo did not obtain a certificate of probable cause as required by section 1237.5 and thus cannot challenge the validity of his plea.” | de novo | not reached | agree with court Section 1237.5 and Panizzon bar an appellate attack on the validity of a guilty plea absent a certificate of probable cause; Murillo's request was denied. The court correctly treated the factual-basis and plea-validity claims as non-cognizable while noting the record shows the trial court read the preliminary hearing transcript and found a factual basis. |
Claim of ineffective assistance of counsel regarding pre-plea investigation“That is, there is nothing in the record on which we could assess the adequacy of counsel's preplea investigation.” | unclear | not reached | agree with court Murillo himself labeled the claim as resting on off-the-record matters; under Mendoza Tello such claims are properly raised by habeas petition rather than direct appeal. The court correctly declined to reach it and expressly reserved any view on the merits. |
Imposition of sentence, court security and facilities fees, and conduct credits (Wende independent review)“We have reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738 and have not found any arguable appellate issues.” | unclear | correct | unsure Counsel flagged possible issues about fee amounts for counts predating statutory changes and conduct credits; the court conducted the required independent review and found nothing arguable. The opinion gives no analysis of those two points, so the result cannot be independently verified from the opinion, but nothing in the recited record suggests error. |
Authorities
- relied: People v. Marsden (1970) 2 Cal.3d 118 — A defendant seeking substitution of appointed counsel must be permitted to state the reasons for dissatisfaction and the court must inquire into them.
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed counsel finds no arguable issues, the appellate court must independently review the entire record for arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed appellate counsel who finds an appeal frivolous must file a brief referring to anything in the record that might arguably support the appeal.
- relied: People v. Panizzon (1996) 13 Cal.4th 68 — Absent a certificate of probable cause under section 1237.5, a defendant may not appeal issues going to the validity of a guilty plea, including a negotiated sentence.
- relied: People v. Mendoza Tello (1997) 15 Cal.4th 264 — Ineffective assistance claims that depend on matters outside the appellate record should be raised by petition for writ of habeas corpus rather than on direct appeal.
- missed: People v. Johnson (2009) 47 Cal.4th 668 — A challenge to the denial of a post-plea Marsden motion brought to obtain counsel to move to withdraw the plea is in substance an attack on the plea's validity and requires a certificate of probable cause.
The appellate opinion: sound with gaps — The court correctly applied the certificate-of-probable-cause bar, properly routed the off-record ineffective-assistance claim to habeas, and performed the required Wende review while addressing the supplemental brief. It did not state the standard of review for the Marsden ruling, gave only a conclusory basis for upholding it, and did not consider whether that post-plea Marsden challenge itself required a certificate under Johnson, though none of these gaps affects the result.
Opinion
Filed 1/29/14 P. v. Murillo 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, D064485
Plaintiff and Respondent, v. (Super. Ct. No. SCD235095)
REY ARMANDO MURILLO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Charles G.
Rogers, Judge. Affirmed.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Respondent.
Rey Armando Murillo was charged in a fourth amended information with 22 felony counts of sex offenses involving children. He entered into a plea agreement, under the terms of which he pleaded guilty to three counts of forcible child molestation (Pen. Code,1 § 288, subd. (b)(1)), and one count of lewd acts upon a minor (§ 288, subd. (a)).
Murillo also admitted the acts involved substantial sexual conduct and agreed to a prison sentence of 36 years.
Prior to sentencing Murillo filed a motion under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), seeking to replace appointed counsel and seeking to set aside his guilty pleas. Both motions were denied. Thereafter the court sentenced Murillo to a determinate term of 36 years in prison in accordance with the plea agreement.
Murillo filed a timely notice of appeal and requested a certificate of probable cause (§ 1237.5). The request for a certificate of probable cause was denied.
Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), raising possible, but not arguable issues. We offered Murillo the opportunity to file his own brief on appeal, and he has done so. We will consider his contentions below.
STATEMENT OF FACTS
This conviction arises from a guilty plea. Thus we take the summary from the probation report. The offenses at issue here involve Murillo's molestation of his daughter from age 6 through age 13.
Murillo's plea occurred after the jury in his trial had been impaneled. Prior to his plea the trial court engaged in lengthy discussions with Murillo and fully advised him of 1 All further statutory references are to the Penal Code unless otherwise specified. 2 his rights. The parties agreed that the transcript of the preliminary hearing would be used by the trial court as the factual basis for the guilty pleas.
At the sentencing hearing probation was denied and Murillo was sentenced to a prison term of 36 years. In addition the court imposed a restitution fine of $300, a security fee of $40 for each count, and a court facilities fee of $30 for each count. There were no objections to the imposition of the sentence or fees imposed.
DISCUSSION
I
MURILLO'S CONTENTIONS
Murillo raises issues "on the record" and "off the record." As to the on the record issues, Murillo asks that we determine if there was a factual basis for his plea and whether the court erred in denying his Marsden motion.
The record demonstrates the trial court utilized the transcript of the preliminary hearing to determine the factual basis for the pleas and that the court had read the transcript and found a factual basis.
In sum, Murillo's supplemental brief, and his discussions with the court at the July 11, 2013 Marsden hearing involved his contention he was in Mexico when he committed the acts alleged in count 2 of the information. That issue had been the subject of an in limine motion and motions at the preliminary hearing. The trial court expressly found there was a factual basis for finding the acts in count 2 were committed in California.
3 Murillo did not obtain a certificate of probable cause as required by section 1237.5 and thus cannot challenge the validity of his plea. (People v. Panizzon (1996) 13 Cal.4th 68, 75.) With regard to the denial of his Marsden motion brought after the plea, we have read the transcript of that motion. Again it was based on Murillo's contention his counsel had misled him about his plea because count 2 was committed in Mexico.
The trial court properly denied his request to relieve counsel and to vacate his guilty plea.
Murillo's request for this court to "look into" the question of effective assistance of counsel is candidly listed as "off the record" material. That is, there is nothing in the record on which we could assess the adequacy of counsel's preplea investigation.
Accordingly, Murillo's remedy, if any, is by way of petition for writ of habeas corpus, filed in the trial court. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.) We offer no opinion on the possible merits of such issue.
II
WENDE BRIEF
As we have indicated, appellate counsel has filed a brief indicating he is unable to identify any argument for reversal and asks this court to review the record for error as mandated by Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S. 738, the brief identifies the possible, but not arguable issues:
1. Whether the amounts of the court security and facility fees were properly imposed on counts which were committed prior to changes in the law?
2. Whether Murillo received appropriate conduct credits?
4 We have reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738 and have not found any arguable appellate issues.
Competent counsel has represented Murillo on this appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
AARON, J.
IRION, J.
Cites, in this corpus
- People v. Mendoza Tello S055184 · 1997-04-17
- People v. Panizzon S046141 · 1996-04-18
- People v. Wende Crim. 20851 · 1979-10-12
- People v. Marsden Crim. 14119 · 1970-02-26