People v. Lopez, A148539

• Decision Date: 11 April 2018
• Docket Number: A148539
• Citation: 231 Cal.Rptr.3d 177,22 Cal.App.5th 40
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gabriel Elena LOPEZ, Defendant and Appellant.

22 Cal.App.5th 40

231 Cal.Rptr.3d 177

The PEOPLE, Plaintiff and Respondent,

v.Gabriel Elena LOPEZ, Defendant and Appellant.

A148539

Court of Appeal, First District, Division 1, California.

Filed April 11, 2018

Jonathan Soglin, Executive Director, First District Appellate Project, Richard Such, First District Appellate Project, for Defendant and Appellant.

Xavier Bacerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffery M. Laurence, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Karen Z. Bovarnick, Deputy Attorney General, for Plaintiff and Respondent.

Humes, P.J.

After being accused of numerous sexual offenses against his girlfriend's children, defendant Gabriel Lopez pleaded no contest to two counts of lewd acts upon a child under 14 years old and one count of rape, and he admitted a special allegation that he had committed offenses against more than one victim. The trial court sentenced him to 35 years to life in prison.

On appeal, Lopez contends the trial court erred by denying his request to discharge his retained counsel and incompletely advising him about various consequences of his plea. We conclude Lopez was denied his right to counsel of choice under People v. Ortiz (1990) 51 Cal.3d 975, 275 Cal.Rptr. 191, 800 P.2d 547 ( Ortiz ), which automatically requires reversal, and therefore do not address his remaining claims.¹

I. FACTUAL AND PROCEDURAL BACKGROUND

Lopez began dating a woman in approximately 2010.² The woman, whom we will refer to as mother, had two daughters from a previous relationship. In January 2014, the elder daughter, who was then 16 years old, reported that while mother was at work, Lopez came into her bedroom and molested her. She stated he had sucked on her breasts, performed oral sex on her, made her touch his penis, digitally penetrated her, and raped her. The younger daughter, who was then 10 years old, also reported sexual abuse. She stated Lopez had previously squeezed her buttocks, tried to kiss her, and offered her money to let him " ‘do whatever [he] want[ed] with her.’ " She claimed that he had also kissed her several other times.

Mother reported the daughters' allegations to the Napa Police Department. After the police interviewed the daughters, mother made a pretext call to Lopez during which he denied having intercourse with the older daughter but admitted to groping her, having oral sex with her, and masturbating afterward. When Lopez arrived in a public location to talk to mother, he was arrested.

Later that month, the Napa County District Attorney filed a complaint charging Lopez with nine felony counts. For his acts against the older daughter, he was charged with one count of forcible rape, one count of sexual penetration by a foreign object, and one count of forcible oral copulation against a minor over 14 years old.³ For his acts against the younger daughter, he was charged with two counts of forcible lewd acts upon a child under 14 years old, three counts of lewd acts upon a child under 14 years old, and one count of contact with a minor with the intent to commit a sexual offense.⁴

The complaint also included two special allegations that Lopez had committed offenses against more than one victim.⁵

Although Lopez was appointed a public defender at his arraignment, he soon retained private counsel, Jeffrey Hammond. Hammond first appeared in February 2014, the month after the complaint was filed, and the trial court relieved the public defender of representation. After Lopez waived his right to a preliminary hearing, the court held him to answer on all the charges and allegations. In August, he entered pleas of not guilty and denied the special allegations. The court set the trial for early December.

Over the next year, the trial was continued three times, twice at the request of the defense and once at the request of the prosecution. None of these requests were opposed. At the hearings held throughout this period, the parties consistently indicated they were attempting to resolve the case. According to Hammond, he was having difficulty meeting with Lopez because Lopez spoke Spanish, requiring an interpreter, and Lopez had been transferred back and forth between Napa County and Solano County jails.

The trial was eventually set for mid-January 2016. At a January 6 readiness conference, the prosecutor stated that the People had offered Lopez a deal under which he would receive a determinate term of 10 years and a consecutive indeterminate term of 25 years to life in prison. The prosecutor represented that, if Lopez was convicted of all the charged counts and allegations, he would face a minimum sentence of 75 years to life.

Hammond then told the trial court that Lopez wished to waive his right to a jury trial and have a court trial instead. In response to the court's questioning, Lopez said he "need[ed] to think about it." At a hearing the following day, Hammond indicated that Lopez still had not "given ... a definitive answer whether or not [he was] willing" to enter the waiver.

The next day, January 8, the parties reconvened for another readiness conference. After the trial court asked for the status, Hammond stated, "Your Honor, my client has requested that he be allowed to either retain new counsel, or in the alternative have counsel appointed to represent him." The following discussion ensued:

THE COURT: And you've been retained in this matter to represent through trial?

MR. HAMMOND: I have not be[en] retained for trial.

THE COURT: But you're the attorney of record.

MR. HAMMOND: I am the attorney of record, yes.

THE COURT: I'm really not inclined to grant that request. The matter is almost two years old. It will be two years old on January 29th. And you've been in the case since when, June?

MR. HAMMOND: I got retained pretty much from the get go.

THE COURT: From the beginning.

MR. HAMMOND: Yes.

THE COURT: Okay. And you're prepared to go to trial next week?

MR. HAMMOND: I am.

The trial court then addressed Lopez, stating, "Mr. Lopez, this is simply not the time when—when you ask for a new lawyer. We're set. This case has been pending for some time. There's been an offer that's been made I understand from the District Attorney." The court explained to Lopez that he "basically ... [had] a couple of choices here," either to accept the prosecution's offer or have a jury or court trial. Lopez stated that he understood, but when the court asked whether he wanted to accept the offer or go to trial, he said, "Right now I cannot give you a complete response yes or [no]." The court responded, "Here's the problem. Okay. Today is the day to make that decision. It's the last day to make that decision. Either later today or Monday morning you'll start your trial. And once that starts, any offer from the District Attorney is gone, unless there is some unusual circumstance that comes up."

The trial court then denied the "request to dismiss Mr. Hammond" and passed the matter to allow Lopez to consult with Hammond about the prosecution's offer. When they were back on the record, Hammond said, "Well, I thought we had an agreement, and things seem to have gone south. [¶] ... [¶] So I think my client is ... concerned about the way that the statutes read. And perhaps he doesn't understand some of the language in the statutes as they're pled in the Complaint." The court confirmed the details of the offer with the prosecutor and explained to Lopez the three charges and the multiple-victim allegation to which he would be pleading.

The trial court also explained that if Lopez accepted the prosecution's offer, he would receive a sentence of 35 years to life, and he had to "weigh ... the practical question of the likelihood that [he] might be found not guilty versus the likelihood that if [he] went to trial [he] would be found guilty and sentenced to 75 years to life." The court concluded by asking, "So is it your desire to plead no contest and accept the offer, or would you prefer to proceed to trial? Those are your options." Lopez responded, "No contest."

Lopez then pleaded no contest to two of the charges of non-forcible lewd acts upon a child under 14 years old and the charge of forcible rape. In connection with the rape charge, he also admitted the special allegation that a victim was 14 years of age or older and he committed offenses against more than one victim. On the prosecution's motion, the trial court dismissed the remaining counts and allegations. Lopez was sentenced to a total term of 35 years to life in prison, composed of a term of eight years for one of the lewd-acts counts, a consecutive term of two years for the other one, and a consecutive term of 25 years to life for the rape and accompanying special allegation.

In May 2016, Lopez appealed and requested a certificate of probable cause in propria persona. In January 2017, while his request was still pending, he filed a petition for writ of mandate in this court (Lopez v. Superior Court of Napa County , A150352). This court issued an order indicating the trial court had jurisdiction to rule on the request. The trial court then granted the request, and this court dismissed the writ petition as moot.

II. DISCUSSION

A. General Legal Standards.

Few restrictions apply when a defendant wants to discharge his or her retained counsel. The right to retained counsel of choice is generally "guaranteed under the Sixth Amendment to the federal Constitution. [Citations.] In California, this right ‘reflects not only a defendant's choice of a particular attorney, but also his [or her] decision to discharge an attorney whom he [or she] hired but no longer wishes to retain.’ " ( People v. Verdugo (2010) 50 Cal.4th 263, 310-311, 113 Cal.Rptr.3d 803, 236 P.3d 1035 ( Verdugo ), quoting Ortiz, supra , 51 Cal.3d at p. 983, 275 Cal.Rptr. 191, 800 P.2d 547 ; see also Cal. Const., art. I, § 15 ; Code Civ. Proc., § 284.) A defendant is...