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People v. Marlin11/30/2004
a claim that his attorney was ineffective for failing to present the defense that defendant thought he might have had. He knowingly gave up that defense in order to take advantage of a plea bargain. He cannot revive it now by claiming his attorney was ineffective for not presenting it.
The above notwithstanding, out of an abundance of caution and in order to avoid, perhaps, a later petition for a writ of habeas corpus, we address the merits of the claim of ineffective assistance of counsel.
In all, defendant's contentions regarding the post plea proceedings and his claim of ineffective assistance of counsel have presented a moving target. The first two arguments in defendant's opening brief asserted the trial court's actions, once defendant stated dissatisfaction with his plea agreement, in some manner violated the California Supreme Court's holding in Marsden, supra, 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44. By the time of oral argument defendant realized that Marsden has no bearing on this matter because defendant's attorney was retained and not appointed. Sensibly, defendant now agrees that, to the extent his arguments depended on Marsden, they were in error.
*6 Instead, at the time of oral argument, defendant urged us to decide that, at the point during the post plea discussions when defendant alleged ineffective assistance of counsel, the trial judge was required to advise defendant that the procedural vehicle defendant needed was not a Marsden motion but a motion for a continuance in order to retain new counsel. We are confident the trial court did not have that obligation, but even if it did, defendant ultimately could not have prevailed on the motion for the reasons we are about to set forth.
Preliminarily, we might consider defendant's most recent argument (that he should have been advised he needed to make a motion for a continuance) waived because it was not set forth with specificity in his opening brief. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546, 35 Cal.Rptr.2d 574.) But since, by careful reading of the brief, we can glimpse defendant's fundamental complaint, the matter is best resolved by addressing it fully.
As we understand it, defendant's argument is this: The trial judge should have told defendant the proper procedure for the relief he sought was a motion for a continuance in order to obtain new counsel. And, had defendant known that and had he made that motion, it would necessarily have been granted because he could have demonstrated ineffective assistance of counsel, which would have required the court to allow him to withdraw his earlier plea. Specifically, as discussed above, the assistance he received from his attorney was ineffective because the attorney failed to investigate whether Jeanette A. was speeding at the time of the accident, whether she had time to react to avoid the collision, whether she had room to maneuver around defendant's car, and whether her car experienced brake fade. Had his attorney done that, he argues, defendant would have been able to successfully defend against the charges brought against him.
Defendant's argument depends on a flawed premise, that is, that he was not guilty of a crime because Jeanette A. might have avoided the accident. For that reason, we reject it.
It is well established that a crime victim's contributory negligence is not a defense. (People v. Harris (1975) 52 Cal.App.3d 419, 426-427, 125 Cal.Rptr. 40; People v. Rodgers (1949) 94 Cal.App.2d 166, 167, 210 P.2d 71; People v. Marconi (1931) 118 Cal.App. 683, 687-688, 5 P.2d 974; see generally 1 LaFave, Substantive Criminal Law (2d ed.2003) § 6.5(c), pp. 509- 510 (LaFave).) But, defendant counters, the information he sought to develop goes to the fundamental question of ca
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