Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC619173
Mihara, J.
Defendant Roberto Solorio Cortes was charged with two counts of committing a lewd and lascivious act upon a child under 14 years of age (Pen. Code, § 288, subd. (a) - counts one and two), and two counts of committing a lewd and lascivious act upon a child 14 to 15 years of age (§ 288, subd. (c)(1) - counts three and four). In connection with counts one and two, the information alleged that defendant had a prior sex offense conviction within the meaning of the “One Strike” law (§ 667.61, subds. (a), (d)), and had previously been convicted of a lewd and lascivious act upon a child under the age of 14 (§ 1203.066, subd. (a)(5)). The information also alleged a prior strike conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12). Pursuant to a negotiated agreement, defendant pleaded no contest to count one and admitted the allegations in connection with that count. The trial court granted the prosecutor’s motion to dismiss counts two through four and the prior strike conviction allegation. The trial court sentenced defendant to state prison for a term of 25 years to life. On appeal, defendant contends that his counsel’s refusal to file a plea withdrawal motion deprived him of his right to the effective assistance of counsel and his fundamental right to withdraw his plea. He also contends that the trial court erred in denying his Marsden motion. We find no error and affirm.
All further statutory references are to the Penal Code.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
I. Statement of Facts
A. and her family visited defendant, who was the husband of her grandfather’s sister, a few times a year. In 2003, A., who was then 12 years old, was sleeping on the couch in defendant’s trailer. She woke up and felt defendant touch her breast over her clothing. A few months later, defendant again touched her breast over her clothing and sucked on her ear. Defendant also touched her breast and sucked on her ear during a subsequent visit. A. then told her friend, Monique, that defendant had been touching her.
On Thanksgiving Day in 2005, A. was sleeping on the couch when defendant touched her vagina over her clothing. He also touched and kissed A.’s breast. When A.’s mother, who was sleeping on the floor, rolled over, defendant left the room. Shortly thereafter, defendant returned, touched A.’s vagina and her breast, and moved A.’s hand onto his penis.
II. Discussion
Defendant contends that he was deprived of his right to the effective assistance of counsel as well as his fundamental right to seek withdrawal of his plea. He also contends that the trial court erred in denying his Marsden motion.
A. Background
Prior to sentencing, defense counsel informed the trial court that defendant requested a hearing pursuant to People v. Smith (1993) 6 Cal.4th 684 (Smith). After the courtroom was cleared, defendant told the trial court that he wanted to go to trial, because he was innocent of the charges and he had witnesses who would testify that the victim lied. He explained that he “took the deal,” because he was worried about a possible sentence of 100 years. However, he now wanted “the truth to come out.” He had also “found out it was somebody else in her past that apparently did something to her.”
In Smith, supra, 6 Cal.4th at p. 696, the California Supreme Court held that the Marsden standard applies to motions for the substitution of counsel both before and after entry of the defendant’s plea of guilty or no contest.
In response to the court’s questioning, defendant acknowledged that he had given the information about potential witnesses to his defense counsel, and that defense counsel had obtained statements from these witnesses. However, defense counsel had not told defendant the content of those statements. Defendant also stated that defense counsel had explained defendant’s options and that the prosecutor’s only offer was 25 years to life. After defendant entered his plea, he decided that 25 years to life was “too much.” According to defendant, his counsel kept him informed about his case and “did a good job.”
Defense counsel stated that his office had investigated witnesses, including family members, who provided statements that were not “that compelling.” Defense counsel did not anticipate calling them to the witness stand, but he had decided that he would make the final decision at the time of trial. Defense counsel told defendant what the mandatory minimum sentence would be if he were convicted of all the charges, and that the only offer of 25 years to life was significantly less than the mandatory minimum sentence defendant would receive if he were convicted of all the charges. Defense counsel also advised defendant that it was “very likely” that his prior conviction would be admitted into evidence, and they discussed the likely impact that this evidence would have on his case. Defense counsel was able to communicate very well with defendant, and he always kept him informed about the status of his case.
Defendant reiterated that he was innocent of the charges, and stated that he had passed a polygraph test three times. Though defendant had a prior conviction almost 20 years ago, he asserted that he was not the same person. He again stated that the victim was not telling the truth.
The trial court denied defendant relief, stating: “Based on the information that has been presented to the Court, primarily by Mr. Cortes but confirmed by Mr. McMahon [defense counsel], and that is that there doesn’t seem to be any real disagreement on the critical issue that the Court has to decide. That is, that Mr. Cortes has said that Mr. McMahon kept him informed during the course of the litigation, that he did a good job, that Mr. McMahon and his office investigated the witnesses, that there was going to be a strategic decision made probably at the time of trial which frequently comes up as to which witnesses are called, but some of those witnesses probably weren’t going to be very helpful, but that was going to be kind of a last minute call which is the way things happen because things change during the course of trial. So the Court sees that as perfectly proper strategy on the part of good defense counsel. [¶] Mr. McMahon properly advised Mr. Cortes of the maximum time he could face if he were convicted. He advised him properly of what the time was that was being proposed as a negotiated resolution between Mr. Cortes and Mr. McMahon, the district attorney, and the Court, of 25 years to life. [¶] Mr. Cortes has indicated to the Court that he pondered that situation before he decided he was going to go forward with that proposed top/bottom resolution of the case, the sentencing of 25 years to life. And it was only after the plea that Mr. Cortes felt that he wanted to go to trial, that he was innocent, and that this fits in to what is colloquially referred to as buyer’s remorse. [¶] This hearing is to determine whether Mr. McMahon has done anything improper in the representation of Mr. Cortes. Mr. Cortes, by his own statements, has indicated to the Court, and the Court accepts those, that Mr. McMahon has done an excellent job representing Mr. Cortes and that Mr. Cortes’ desire today to withdraw his plea is simply based on the fact that he’s now changed his mind. That’s not a basis to withdraw a plea. [¶] At the time the Court took the plea, we spent a considerable period of time -- you might remember, Mr. Cortes -- where I advised you of your constitutional rights, I advised you of the maximum penalty, and I asked questions as to whether or not you understood what you were doing, et cetera. You were given time before the plea was taken to determine whether or not that was what you really wanted to do, and the long and the short of it was, it was what you wanted to do at the time, and you went ahead with the plea. [¶] Now simply deciding after the fact that you want to withdraw your plea only because you feel you want to go to trial and you don’t want to take the plea anymore is not a basis to do so. [¶] The Court will make a finding that there is no ineffective assistance of counsel. Quite the contrary. The Court finds that the representation has been of the highest order and the motion is denied.”
B. Certificate of Probable Cause
The People argue that this appeal must be dismissed, because defendant failed to obtain a certificate of probable cause pursuant to section 1237.5. They assert that “by complaining that defense counsel had rendered ineffective assistance by refusing to move to withdraw the no contest plea because he was factually innocent of the charges, [he] was, in substance, challenging the validity of his no contest plea.”
The rule governing a defendant’s right to appeal is stated in section 1237.5, which provides: “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere,... except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] The trial court has executed and filed a certificate of probable for such appeal with the clerk of the court.” (See also California Rules of Court, rule 8.304.) However, “[t]he defendant may take an appeal without a statement of certificate grounds or a certificate of probable cause if he does so solely on noncertificate grounds, which go to postplea matters not challenging his plea’s validity and/or matters involving a search or seizure whose lawfulness was contested pursuant to section 1538.5.” (People v. Mendez (1999) 19 Cal.4th 1084, 1096, italics added.)
This court’s decision in People v. Vera (2004) 122 Cal.App.4th 970 (Vera) is instructive. In Vera, the defendant brought a postplea Marsden motion in which he claimed that he wanted substitute counsel. This court held that this postplea issue did not implicate the validity of the plea, and thus a certificate of probable cause was not required. (Vera, at p. 978.) The Vera court reasoned: “In People v. Smith (1993) 6 Cal.4th 684 (Smith), the California Supreme Court stated, ‘It is the very nature of a Marsden motion, at whatever stage it is made, that the trial court must determine whether counsel has been providing competent representation. Whenever the motion is made, the inquiry is forward-looking in the sense that counsel would be substituted in order to provide effective assistance in the future. But the decision must always be based on what happened in the past.’ ” (Vera, at p. 978.)
Here, defendant brought a postplea motion to substitute counsel on the ground that he wanted to withdraw his plea. On appeal, he is not challenging the denial of a motion to withdraw a plea, which would have required a certificate of probable cause (In re Chavez (2003) 30 Cal.4th 643, 651), because no such motion was ever made. Instead, defendant contends that he was deprived of the effective assistance of counsel when counsel did not file a motion to withdraw his plea, and that the trial court erred in denying his Marsden motion. Accordingly, defendant was not required to obtain a certificate of probable cause.
C. Ineffective Assistance of Counsel
Defendant contends that counsel’s “refusal to file a plea withdrawal motion based on factual innocence denied [his] fundamental right to seek the plea’s withdrawal and the right to effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments.”
“In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Second, he must show prejudice flowing from counsel’s performance or lack thereof.... (In re Avena (1996) 12 Cal.4th 694, 721.)” (People v. Williams (1997) 16 Cal.4th 153, 215.)
A defendant may move to withdraw his or her plea, at any time before judgment, on a showing of good cause. (§ 1018.) “Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea.” (People v. Cruz (1974) 12 Cal.3d 562, 566.) Though a criminal defendant is entitled to competent representation in the presentation of a motion to withdraw a plea, appointed counsel may properly decline to bring a motion without merit. (See Smith, supra, 6 Cal.4th at p. 696.) The California Supreme Court observed that even if substitute counsel is appointed for the purpose of investigating a motion to withdraw a plea, “[w]hether, after such appointment, any particular motion should actually be made will, of course, be determined by the new attorney.” (Ibid.)
Here, defendant has failed to show that a competent attorney would have brought a motion to withdraw defendant’s plea. The trial court found that defendant’s claim of innocence constituted “buyer’s remorse.” The record fully supports this finding. The trial court conducted an extensive voir dire of defendant before he entered his no contest plea, and defendant did not express any confusion or hesitation in waiving his constitutional rights and entering his plea. At that time, the parties also stipulated that there was a factual basis contained in the preliminary hearing transcript for defendant’s plea. Though defendant asserted that he had witnesses who would testify on his behalf, defense counsel had concluded that their statements were not “that compelling.” “To the extent there was a credibility question between defendant and counsel at the hearing, the court was ‘entitled to accept counsel’s explanation.’ ” (Smith, supra, 6 Cal.4th at p. 696, quoting People v. Webster (1991) 54 Cal.3d 411, 436 (Webster).) Thus, there was no other evidence to support defendant’s claim. Since “[p]leas are not set aside simply because defendants change their minds” (In re Vargas (2000) 83 Cal.App.4th 1125, 1143), and defendant has failed to articulate any other basis on which to bring a motion to withdraw his plea, defense counsel did not render ineffective assistance by failing to bring a plea withdrawal motion.
Relying on People v. Brown (1986) 179 Cal.App.3d 207 (Brown) and People v. Osorio (1987) 194 Cal.App.3d 183 (Osorio), defendant also argues that he had a fundamental right to make the decision to seek withdrawal of his plea. In Brown, the trial court failed to evaluate whether substitution of counsel was required to protect the defendant’s rights. This court remanded the case for a motion to withdraw the plea and for a Marsden motion, if necessary. (Brown, at p. 216.) Though this court stated that defense counsel “may, and when appropriate, should advise against the decision, but the defendant should have the final word on whether to seek withdrawal” (Brown, at p. 215), it also noted that it was not suggesting that defense counsel was compelled to make a “motion which, in counsel’s good faith opinion, [was] frivolous or when to do so would compromise accepted ethical standards.” (Brown, at p. 216.) In Osorio, defense counsel indicated that 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 agreement. (Osorio, at p. 186.) Relying on Brown, the appellate court remanded to allow the defendant to bring a motion to withdraw the plea for which counsel admitted there was a “colorable basis.” (Osorio, at pp. 188-189.) However, both Brown and Osorio precede Smith, supra, 6 Cal.4th 684, 696, in which our Supreme Court noted that it is defense counsel’s decision whether to bring a motion to withdraw the plea. Moreover, the present case is factually distinguishable from Brown and Osorio. Here, the trial court evaluated defendant’s allegations against his counsel during the Marsden hearing, and found that counsel had not rendered ineffective assistance.
D. Motion to Substitute Counsel
Defendant also contends that the trial court erred in denying his “Marsden motion for counsel’s failure to file a plea withdrawal motion.”
“The court should deny a request for new counsel at any stage unless it is satisfied that the defendant has made the required showing. This lies within the exercise of the trial court’s discretion, which will not be overturned on appeal absent a clear abuse of that discretion.” (Smith, supra, 6 Cal.4th at p. 696.) “The court must allow the defendant to express any specific complaints about the attorney and the attorney to respond accordingly.” (Smith, at p. 694.) Substitute counsel should be appointed only “if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation].” (Smith, at p. 696.) “Denial of the motion is not an abuse of discretion unless the defendant has shown that failure to replace the appointed attorney would ‘substantially impair’ the defendant’s right to assistance of counsel.” (Webster, supra, 54 Cal.3d at p. 435.)
In the present case, defendant has failed to meet his burden. Defendant was provided an opportunity to articulate his concerns. As previously discussed, defendant failed to show that defense counsel had provided ineffective assistance in failing to bring the plea withdrawal motion. Accordingly, the trial court did not abuse its discretion in denying his motion to substitute counsel.
III. Disposition
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J., McAdams, J.