Opinion
NOT TO BE PUBLISHED
Sup.Ct. No. 06F06456
MORRISON, JUDGE
Pursuant to a plea agreement, defendant pleaded no contest to one count of a lewd or lascivious act upon a child of 15 years old when he was 10 years older than the child. (Pen. Code, § 288, subd. (c)(1).) Two other counts were dismissed and defendant was sentenced to the upper term of three years. At sentencing, defendant wanted to withdraw his plea. On appeal, defendant contends the trial court erred in failing to hold a Marsden hearing after defense counsel failed to bring the motion to withdraw the plea. Defendant contends he received ineffective assistance of counsel. We agree with the People that defendant is in effect challenging the validity of his plea and such a contention is not cognizable on appeal without a certificate of probable cause. (Pen. Code, § 1237.5.) We dismiss the appeal.
In People v. Marsden (1970) 2 Cal.3d 118, the court held that when a criminal defendant seeks a new attorney based on a claim he has received ineffective assistance of counsel from appointed counsel, the court must inquire into the reasons for defendant’s dissatisfaction with counsel.
FACTS
The 15-year-old victim boarded a Greyhound bus in Portland for the trip to Sacramento. She had a breathing tube in her throat and spoke in a soft whisper. During the trip, defendant sat next to her; on three separate occasions, he touched her in a lewd manner. The third time, which occurred 30 or 40 minutes from the Sacramento area, the victim awoke to find defendant had his hand over hers on his crotch trying to undo his zipper.
Defendant, who was 49, was charged with three counts of lewd or lascivious behavior upon a 15-year-old child.
The victim was vague and somewhat inconsistent about when the touchings occurred, raising an issue of whether they happened in California or Oregon. The defense moved to dismiss the complaint for lack of jurisdiction. The court denied the motion.
The parties reached an agreement. Defendant pleaded no contest to the third count and the other two counts were dismissed. The parties stipulated to an upper term of three years in prison. Before accepting the plea, the trial court advised defendant of his rights, and confirmed that defendant had not been promised anything or threatened in any way to change his plea, and that he was not under the influence of anything.
One week later at sentencing, defense counsel indicated defendant wanted to withdraw his plea. When the court asked on what grounds, defendant responded he had been misled and was not told everything. Further, he knew he could win because of a jurisdictional problem. Defense counsel explained the jurisdictional issue and that he had filed a motion under Penal Code section 995 and lost. Counsel indicated the issue pertained more to the first two counts, which were dismissed.
Defendant then claimed he was under the influence of drugs when he entered his plea; he had been given some medication by mistake. The court reminded defendant it had asked that question and defendant had said no. Defendant responded he was not “thinking right at the time.” The court was skeptical because defendant had answered a series of questions in manner indicating he understood everything he was being asked. The court asked if defendant had cold feet.
Defense counsel indicated for the record that defendant had appeared competent and eager to take the deal. If counsel thought defendant did not know what was going on, counsel would not have let defendant change his plea.
The court proceeded to sentence defendant to the upper term of three years.
DISCUSSION
Defendant contends he was denied effective assistance of counsel because he was forced to bring the motion to withdraw his plea himself, although he was represented by counsel. Faced with this evidence of ineffective assistance of counsel, which was compounded when counsel spoke against defendant’s motion, defendant contends the trial court erred in failing to conduct a Marsden hearing.
The People contend this appeal should be dismissed because defendant did not obtain a certificate of probable cause. We agree.
Penal Code section 1237.5 requires a certificate of probable cause for an appeal from a plea of guilty or nolo contendere (no contest). A defendant does not, however, need a certificate of probable cause if the appeal is based on “grounds that arose after entry of the plea and do not affect the plea’s validity.” (Cal. Rules of Court, rule 8.304(b)(4)(B).)
In determining whether section 1237.5 applies to a particular appeal after entry of a plea, courts must look to the substance of the appeal; “‘the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.’ [Citation.]” (People v. Panizzon (1996) 13 Cal.4th 68, 76.) The critical inquiry is whether the challenge is in substance a challenge to the validity of the plea. (Ibid.)
Defendant contends he is not challenging the validity of his plea; rather, he is challenging the trial court’s failure to hold a Marsden hearing to explore the issue of ineffective assistance of counsel. He asserts he is not required to obtain a certificate of probable cause, relying on People v. Osorio (1987) 194 Cal.App.3d 183.
In Osorio, defendant pleaded to one drug charge and three others were dismissed. At sentencing he wanted to withdraw his plea. Counsel refused to bring the motion, although there might be grounds, because defendant’s maximum exposure would be tripled. (People v. Osorio, supra, 194 Cal.App.3d 183, 186.) The court sentenced defendant pursuant to the plea bargain and defendant appealed. The Court of Appeal declined to dismiss the appeal for lack of a certificate of probable cause. It noted that a motion to withdraw the plea could be based on events leading up to the plea or activities after the plea, such as failure to sentence in accordance with the plea. Only the former situation required a certificate of probable cause. Since no motion to withdraw the plea had been filed, the court was not required to pass on the validity of the plea. The appeal addressed only events after the plea and no certificate of probable cause was required. (Id. at p. 187.) The judgment was set aside to permit defendant to make a motion to withdraw his plea. (Id. at p. 189.)
This court disagreed with Osorio, supra, 194 Cal.App.3d 183, in People v. Emery (2006) 140 Cal.App.4th 560. In Emery, defendant contended the trial court erred in denying his request for a continuance so his counsel could investigate grounds for withdrawing defendant’s no contest plea. (Id. at p. 564.) In finding a certificate of probable cause was necessary, this court relied on Panizzon, supra, 13 Cal.4th 68, and found the substance of the motion for a continuance was a challenge to the plea. (People v. Emery, supra, at p. 565.) We disagreed with Osorio because in that case, the validity of the claim of error (counsel’s failure to file a motion to withdraw the plea) was dependent on the validity of the plea and thus was an attack on the plea itself. (Ibid.)
We followed Emery in People v. Caravajal (2007) 157 Cal.App.4th 1483, and dismissed an appeal for lack of a certificate of probable cause where defendant contended, as here, that the trial court erred in failing to hold a Marsden hearing. In Caravajal, after defendant pled no contest, his counsel moved to withdraw the plea on the basis defendant had not understood its consequences. An indigent defense panel attorney was appointed, who later informed the court there was no basis to withdraw the plea. Defendant withdrew his motion. At sentencing, defendant appeared with his original attorney. That counsel informed the court defendant wished to withdraw his plea. The court denied the motion. (Id. at pp. 1485-1486.)
On appeal defendant claimed the trial court erred by failing to hold a Marsden hearing “‘to determine the basis for his request for new counsel and for his motion to withdraw his plea.’” (People v. Caravajal, supra, 157 Cal.App.4th at p. 1486.) We discerned no basis for construing defendant’s motion to withdraw his plea as a Marsden motion. Since defendant’s appellate claims were in substance a challenge to the validity of his plea, he needed a certificate of probable cause to raise them. (Id. at p. 1487.)
Here, defendant purports to claim ineffective assistance of counsel because his efforts to withdraw his plea--on the bases that he was misled, the court lacked jurisdiction, or he was under the influence of medication at the time of the plea--were unsuccessful. We continue to apply the analysis of Emery, supra, 140 Cal.App.4th 560, and Caravajal, supra, 157 Cal.App.4th 1483,because that analysis is consistent with Panizzon, supra, 13 Cal.4th 68, which was decided after Osorio, supra, 194 Cal.App.3d 183 . As in Emery, defendant’s appellate claim is dependent on the validity of his plea. As in Caravajal, we discern no basis to construe defendant’s motion to withdraw his plea as a request for a Marsden hearing. In substance, defendant is attacking the validity of the plea. Accordingly, he must comply with the requirements of Penal Code section 1237.5. (People v. Panizzon, supra, at p. 76.) As he failed to obtain a certificate of probable cause, his appeal must be dismissed.
DISPOSITION
The appeal is dismissed.
We concur: RAYE, Acting P.J., CANTIL-SAKAUYE, J.