Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ORIGINAL PROCEEDINGS in mandate. Los Angeles County Super. Ct. No. BA268682, Judith L. Champagne, Judge. Petition denied.
David M. Thompson, under appointment by the Court of Appeal, for Petitioner.
No appearance for Respondent.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Kathy S. Pomerantz, Deputy Attorneys General, for Real Party in Interest.
KLEIN, P. J.
Salvardor P. Melendez seeks a writ of mandate directing the trial court to grant his request for a certificate of probable cause. Briefly stated, pursuant to a plea bargain, Melendez entered a plea of no contest to attempted murder with firearm and criminal street gang enhancements. At the sentencing hearing, Melendez’s attorney requested a continuance to permit Melendez’s family to hire new counsel, who assertedly would file a motion to set aside Melendez’s no contest plea. The trial court granted a two-week continuance but, when new counsel failed to appear, denied a request for a second continuance and sentenced Melendez pursuant to the plea bargain. Melendez filed a notice of appeal in which he requested a certificate of probable cause, alleging the trial court erroneously denied the request for a continuance to permit Melendez to hire an attorney who would file a motion to set aside Melendez’s no contest plea. The trial court failed to act on the request for a certificate of probable cause.
Melendez then filed a petition for writ of mandate in this court seeking an order directing the trial court to issue a certificate of probable cause. After we initially denied Melendez’s writ petition on procedural grounds, the Supreme Court remanded the matter with directions that we determine whether Melendez was required to obtain a certificate of probable cause and, if so, whether the trial court should have granted the request.
Upon further consideration, we conclude Melendez did not need a certificate of probable cause to appeal the denial of his request for a continuance to retain new counsel. Absent an actual motion to withdraw the plea, the request for a continuance did not attack the validity of the plea. Consequently, no certificate of probable cause was needed to appeal the denial of the continuance request. We therefore deny the writ petition as moot.
FACTUAL AND PROCEDURAL BACKGROUND
1. Pre-plea proceedings.
An information filed November 2, 2004, charged Melendez with attempted willful, deliberate and premeditated murder in which he personally discharged a firearm causing great bodily injury and dissuading a witness by force or fear. (Pen. Code, §§ 664/187, 12022.53, subd. (b), 136.1, subd. (c)(1).) The information alleged both offenses were committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(A).
We have taken judicial notice of the record in Melendez’s appeal from the judgment following his conviction of these offenses in case No. B190010, which presently is pending before this court.
Subsequent unspecified statutory references are to the Penal Code.
Melendez initially was represented by court appointed counsel. Approximately one year after the information was filed, on day 6 of the 10-day trailing period for trial, private counsel Simon Aval substituted in as counsel of record for Melendez and the trial court granted Melendez’s request for a continuance to November 7, 2005, for jury trial. The matter was continued numerous times thereafter for jury trial.
On January 24, 2006, Aval indicated Melendez had agreed to the People’s offer of a plea bargain, which would be withdrawn if Melendez did not accept it that day. The bargain involved Melendez pleading no contest to attempted murder, without the willful, deliberate and premeditated allegation, and admitting the personal discharge of a firearm within the meaning of section 12022.53, subdivision (c), as opposed to the charged enhancement under subdivision (d), and admitting the criminal street gang enhancement. In exchange, the trial court would sentence Melendez to the upper term of 9 years for attempted murder plus 20 years for the firearm enhancement.
Responding to Aval’s implication the People had made a one-day offer to Melendez that would be rescinded if Melendez did not accept it, the prosecutor indicated his predecessor offered Melendez the plea bargain approximately one month earlier. Thus, Melendez had not been rushed into accepting the deal. The trial court thereafter accepted Melendez’s no contest plea and admissions, then continued the matter to February 28, 2006, for sentencing.
2. Post plea proceedings in the trial court.
On February 28, 2006, Aval indicated he had received a telephone call from Attorney Fay Arfa, who had been contacted by Melendez’s family. Aval stated Arfa was hopeful she would be retained to represent Melendez and requested a 30-day continuance of the sentencing hearing to allow Arfa to file a motion to withdraw Melendez’s plea. The trial court granted a two-week continuance to March 14, 2005 and indicated, “If Ms. Arfa is retained and comes in and can be prepared within a reasonable amount of time, then I will allow the substitution.”
At the start of the March 14, 2006 sentencing hearing, Aval indicated Melendez’s family was in court and they had what appeared to be a retainer agreement signed by Arfa and the family. However, the family had not yet paid Arfa and she refused to accept a portion of the retainer. Aval indicated he, personally, was ready for sentencing but saw no prejudice to the People in granting a further two-week continuance given that Melendez faced a long prison term and his family was making a good-faith effort to retain Arfa.
The trial court responded, “It is not two weeks. This is an ongoing matter.” The trial court indicated the case had languished for two years and ultimately reached a disposition on January 24, 2006. “[N]obody rushed into this. This was a plea that we entered into . . . six weeks ago. It isn’t a matter of, let’s give him two weeks. It has been months and months in the making and then six weeks since he entered his plea.” After the trial court denied the request, Aval indicated, “just so we are clear I am not arguing my client’s right to withdraw his plea. That is for the new counsel to do all on whenever ground she deems appropriate.” The trial court noted counsel’s objection, then sentenced Melendez pursuant to the plea agreement.
3. Appellate proceedings.
On March 20, 2006, Melendez filed a notice of appeal assertedly based on matters occurring after the plea. The notice of appeal also indicated the appeal challenged the validity of the plea and requested a certificate of probable cause. As grounds for issuance of a certificate of probable cause, Melendez argued the plea was illegal because he “wanted more time to hire an attorney to withdraw his plea.” The record on appeal indicates the trial court failed to rule on Melendez’s request for a certificate of probable cause.
On November 14, 2006, Melendez filed a petition for writ of mandate in this court seeking an order directing the trial court to grant the request for a certificate of probable cause. We denied the petition on November 29, 2006.
On February 14, 2007, the Supreme Court transferred the matter to this court with directions to consider whether Melendez was required to obtain a certificate of probable cause and, if so, whether a certificate of probable cause should have been issued.
DISCUSSION
1. Relevant statutory provisions and case law.
Section 1237.5 provides a defendant may not appeal from a judgment of conviction following a plea of guilty or no contest unless the defendant has obtained from the trial court a certificate of probable cause for the appeal based upon a showing there are reasonable constitutional, jurisdictional or other grounds for the appeal going to the legality of the proceedings. (People v. Shelton (2006) 37 Cal.4th 759, 766; In re Chavez (2003) 30 Cal.4th 643, 651; People v. Mendez (1999) 19 Cal.4th 1084, 1095.)
The requirement of a certificate of probable cause is intended “ ‘ “to promote judicial economy” [citation] “by screening out wholly frivolous guilty [and no contest] plea appeals before time and money are spent” on such matters as the preparation of the record on appeal [citation], the appointment of appellate counsel [citation], and, of course, consideration and decision of the appeal itself.’ [Citations.]” (In re Chavez, supra, 30 Cal.4th at p. 651.) If the request for a certificate of probable cause presents any cognizable issue for appeal which is not clearly frivolous, the trial court abuses its discretion in failing to issue the certificate. (People v. Holland (1978) 23 Cal.3d 77, 84; People v. Ribero (1971) 4 Cal.3d 55, 63, fn. 4.)
Notwithstanding section 1237.5, two types of issues may be raised on appeal following a guilty or no contest plea without first obtaining a certificate of probable cause. These “noncertificate” grounds include issues relating to the denial of a motion to suppress evidence under section 1538.5, and issues arising after entry of the plea that do not challenge its validity. (See People v. Buttram (2003) 30 Cal.4th 773, 780; Cal. Rules of Court, rule 8.304(b)(4).) In determining whether section 1237.5 applies, “the critical inquiry is whether a challenge . . . is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5. [Citation.]” (People v. Panizzon (1996) 13 Cal.4th 68, 76.)
With these principles in mind, we turn to the case at hand.
2. Melendez did not need a certificate of probable cause to appeal the denial of the request for a continuance of the sentencing hearing.
As indicated above, attacks on the validity of a plea require compliance with section 1237.5. Therefore, had Melendez actually sought to withdraw the plea, a certificate of probable cause would have been required to seek appellate review of the denial of that motion. (People v. Buttram, supra, 30 Cal.4th at p. 781.) However, Melendez never got to the point of seeking to withdraw the plea. Rather, he requested only a continuance to retain new counsel. In such a circumstance, the request for a continuance cannot be seen as equivalent to an attack on the validity of the plea. Consequently, Melendez was not required to obtain a certificate of probable cause in order to appeal the denial of his request for a continuance.
A motion to withdraw a guilty plea is governed by section 1018 which, as relevant here, provides: “On application of the defendant at any time before judgment . . . the court may . . . for 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.) “Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea,” but must be shown by “clear and convincing evidence.” (People v. Cruz (1974) 12 Cal.3d 562, 566.)
Our conclusion finds support in the case law. In People v. Osorio (1987) 194 Cal.App.3d 183 , the defendant pleaded guilty and later advised the trial court he wished to withdraw his plea. (Id. at pp. 185-186.) Defense counsel indicated there was good cause for a motion to withdraw the defendant’s plea, but refused to bring the motion in “good conscience” because it would result in reinstatement of counts dropped under the plea bargain. (Id. at pp. 185-186, 188.) On appeal, the defendant asserted defense counsel had provided ineffective assistance in refusing to move for withdrawal of the plea. (Id. at p. 185.)
Osorio concluded the relief requested by the defendant – remand to permit the defendant to file a motion to withdraw the plea – did not attack the validity of the plea. Therefore, a certificate of probable cause was not required to raise the issue. (People v. Osorio, supra, 194 Cal.App.3d at pp. 186-187.) Osorio noted the appeal attacked defense counsel’s failure to file the motion in the first instance. “The relief requested does not require that we pass upon the validity of the guilty plea. Accordingly, the appeal addresses only the events occurring after the plea and the requirements of section 1237.5 are not applicable.” (Id. at pp. 187-188.)
In People v. Vera (2004) 122 Cal.App.4th 970, the defendant made a postplea Marsden motion (People v. Marsden (1970) 2 Cal.3d 118), complaining that defense counsel had improperly investigated the case in several respects. (People v. Vera, supra, at pp. 975-976.) Vera concluded the defendant did not need a certificate of probable cause to raise these issues on appeal, even though “some of defendant’s complaints pertained to his trial counsel’s preplea conduct.” (Id. at p. 978.) Citing Osorio, Vera concluded “[a] determination that defendant is entitled to substitute counsel has no necessary implication for his no contest plea, which plea stands until a motion to withdraw it is made and granted.” (Ibid.)
Here, as in Osoria and Vera, Melendez never made a motion to withdraw his no contest plea and never stated the basis upon which he sought to set aside the plea. Thus, there was no attack on the validity of the plea, either in fact or in substance. Because Melendez’s request for a continuance to hire new counsel who might thereafter file a motion to withdraw Melendez’s no contest plea did not attack the validity of the plea, a certificate of probable cause was not required to appeal the denial of the request of a continuance. That request was merely a motion made after the entry of the plea which did not attack the validity of the plea.
The People, relying on People v. Emery (2006) 140 Cal.App.4th 560, 565, argue Melendez’s request for a continuance to permit his family to retain new counsel to file a motion to withdraw the no contest plea, in effect, challenged the validity of the plea and requires a certificate of probable cause. However, in Emery defense counsel indicated the motion to withdraw the defendant’s plea of no contest to a charge of inflicting corporal injury upon his spouse would be based on the victim’s recantation of her statements to the police that, on the night of the incident, the defendant accused her of cheating and then repeatedly stabbed her. Thus, although defense counsel in Emery did not move to set aside the plea, the result in Emery may be explained by construing the request for a continuance as including what amounted to an informal oral motion for new trial based on the victim’s recantation. In the present case, no grounds for withdrawing the no contest plea were presented to the trial court. Thus, there was no attack on the plea, either directly or in substance. Accordingly, Emery is distinguishable.
Emery noted, in a footnote, that, contrary to appellate counsel’s assertion, the defendant had not moved to withdraw his plea but asked only for a continuance to allow investigation of such a motion. (People v. Emery, supra, 140 Cal.App.4th at p. 564, fn. 1.) Nonetheless, in Emery the trial court was advised of the basis for the motion, namely, recantation of the abuse allegations by the victim. It is well settled that such recantations are viewed with suspicion (In re Hall (1981) 30 Cal.3d 408, 418; In re Weber (1974) 11 Cal.3d 703, 722) and, where the recanting victim is a member of the defendant’s family, this rule would appear to be especially applicable.
Here, notwithstanding Aval’s stated purpose in seeking the continuance on Melendez’s behalf, or Melendez’s framing of the issue in his request for a certificate of probable cause, Arfa never appeared and Melendez never delineated any basis for the motion to withdraw the plea. Accordingly, we agree with the rule stated in Osorio and Vera and conclude Melendez did not require a certificate of probable cause in order to appeal the trial court’s denial of his request for a continuance of the sentencing hearing.
We therefore need not address whether the trial court erred in refusing to issue a certificate of probable cause.
DISPOSITION
The petition for writ of mandate is denied as moot.
We concur: KITCHING, J., ALDRICH, J.