Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF127055A. Colette M. Humphrey, Judge.
Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Joseph M. Cook, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Dawson, J. and Hill, J.
As part of a negotiated plea agreement, Charles Patrick Ellis pled no contest to one count of possession of methamphetamine for the purpose of sale (Health & Saf. Code, § 11378), admitted he had suffered a prior conviction that constituted a strike within the meaning of Penal Code section 667, subdivisions (b) through (i), and had served a prior prison sentence within the meaning of Penal Code section 667.5, subdivision (b).
All statutory references are to the Penal Code unless otherwise indicated.
Prior to sentencing, Ellis moved to have trial counsel replaced pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Ellis informed the trial court he wanted new counsel because he wished to move to withdraw his plea and trial counsel had refused to file a motion to do so. Trial counsel confirmed that Ellis wanted to withdraw his plea, but trial counsel refused to do so because he found no legal grounds for the motion. The trial court denied the motion and sentenced Ellis to the agreed upon term of three years eight months.
The parties agree that a defendant has the right to move to withdraw his or her plea (People v. Brown (1986) 179 Cal.App.3d 207, 215 (Brown), but an attorney has no obligation to file a merit less motion (People v. Brown (2009) 175 Cal.App.4th 1469, 1472-1473 (Brown)). A defendant does not have the right to new counsel if his attorney refuses to file a motion to withdraw his or her plea because the motion has no merit. (Ibid.) If there are good grounds for the motion, trial counsel must file and argue the motion on behalf of the defendant. (Brown, supra, 179 Cal.App.3d at p. 215.) The parties also agree the trial court has discretion when ruling on a motion to relieve counsel, and reversal is appropriate only if the trial court abuses that discretion. (People v. Smith (1993) 6 Cal.4th 684, 696 (Smith).)
The issue, therefore, is easily stated. Ellis wanted to withdraw his plea. Trial counsel refused, concluding the motion did not have any merit. The trial court heard Ellis and denied his motion to have new counsel, impliedly determining that motion to withdraw the plea lacked merit. Therefore, we must decide whether there were good grounds for the motion to withdraw Ellis’s plea. If so, the trial court abused its discretion in denying the motion for new counsel.
A defendant may withdraw his plea of guilty at any time before judgment if there is good cause to do so. (Pen. Code, § 1018.) “‘Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea.’ [Citation.]” (People v. Johnson (2009) 47 Cal.4th 668, 679 (Johnson).) Whether a defendant is granted leave to withdraw his plea is left to the sound discretion of the trial court. (Brown, supra, 175 Cal.App.4th at p. 1472.)
We begin with the events leading to Ellis’s plea. Ellis was charged with possession of methamphetamine for sale (Health & Saf. Code, § 11378), active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)), and resisting arrest (Pen. Code, § 148, subd. (a)(1)). In addition, the complaint listed enhancements for a prior conviction that constituted a strike within the meaning of section 667, subdivisions (b) through (i), a prior conviction for possession of narcotics for sale within the meaning of Health and Safety Code section 11370.2, subdivision (a), a prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a), and two prior prison sentences within the meaning of Penal Code section 667.5, subdivision (b).
The matter was set for a preliminary hearing when the parties announced that a plea agreement had been reached. Trial counsel announced the terms of the agreement. First, the People agreed to dismiss the gang allegations, including count 2, regardless of whether Ellis agreed to plead guilty. Ellis then agreed to plead guilty to possession for sale and admit the strike prior and one prior prison term. Ellis would receive the low term, doubled because of the strike prior, and one additional year because of the prior conviction, for a total term of three years eight months. When the trial court inquired, Ellis stated he wanted to accept the plea agreement. Ellis admitted he had initialed and signed a document informing him of the terms and conditions of the plea agreement. This document indicated that Ellis would receive a fixed term of three years eight months.
Ellis informed the trial court he did not have any questions about the plea agreement, but then took a short time to discuss the matter with counsel. Ellis then informed the trial court he had had adequate time with counsel, the parties stipulated to a factual basis for the plea, and the trial court accepted Ellis’s no contest plea. The remaining counts and enhancements were dismissed and the matter was set for sentencing.
At the sentencing hearing Ellis requested a Marsden hearing. After the courtroom was cleared, the trial court asked Ellis to explain the reason for requesting a new attorney. Ellis explained that he wanted to withdraw his plea because when he had agreed to the plea agreement, he was not on his prescribed medication. Ellis stated he had been diagnosed as bipolar and suffered from post traumatic stress disorder. The medication helped Ellis. Ellis claimed that because he was not on his medication, he “wasn’t aware of really what [he] was signing.” Trial counsel refused to file a motion to withdraw the plea and informed Ellis that he could fire him.
The trial court then asked trial counsel for his response. Trial counsel stated he had reviewed his file. This review indicated that at the time of the plea Ellis “appeared lucid, he was well thought, he was contemplative about the plea arrangement. He was able to weigh the options. In fact, we went to prelim, and on the morning of prelim negotiated a better offer that Mr. Ellis weighed and decided he wanted to take. [¶] He was able to understand the charges, the enhancement, the priors. He argued the validity of the priors with me as to how a strike could be a strike. He believed that if there was no personal use of a firearm and it was a non-strike, and we debated that for sometime [sic]. At the end of the process of negotiating the plea, when I signed the plea form I asked Mr. Ellis if that was what he wanted to do and if he understood everything on the form, he understood what he was doing. He told me yes, that was what he wanted to do, that he did understand what he was doing. [¶] It just appeared at the time that Mr. Ellis was well aware of his rights and what he was doing. So I don’t believe that his lack of medication has really made any difference. So I don’t think there’s a legal basis to withdraw his plea, so I did tell him today that I would not bring that motion.”
Ellis admitted he told trial counsel that he understood the proceedings when the plea was negotiated, but claimed that “in actuality, when I talked to Probation I came to find out that I really did not fully understand.” He claimed he wanted some type of drug program, but was informed he was not eligible for the California Rehabilitation Center because of his prior convictions. Ellis also claimed that if he had known at the time what the probation officer later explained to him, he would not have agreed to the plea. The only fact Ellis could identify that he claimed he did not understand was the amount of time he would be required to serve.
The trial court confirmed that Ellis’s maximum exposure was approximately 21 years. The prosecutor originally had offered seven years but, through negotiations, the prosecutor eventually agreed to three years eight months. The trial court denied the motion.
We find no abuse of discretion in denying the motion. Ellis’s claims were fully refuted by trial counsel, who provided a thorough review of the proceedings and his observations of Ellis at the time the plea was negotiated. The trial court was presented with a credibility contest: did Ellis understand the proceedings or did the lack of medication prevent him from understanding the proceedings? The trial court was in the best position to judge the credibility of Ellis and trial counsel and was entitled to accept trial counsel’s explanation of the events. (Smith, supra, 6 Cal.4th at p. 696.)
Ellis relies on two cases to support his argument. In Brown, supra, 179 Cal.App.3d 207, Brown reached an agreement on various charges and entered a no contest plea. At the sentencing hearing, trial counsel advised the trial court that Brown wished to withdraw his plea, but trial counsel would not make the motion. The trial court allowed Brown to explain why he wanted to withdraw his plea. During the colloquy, Brown asked to have different counsel appointed to defend him. Trial counsel confirmed that she continued to represent Brown and was not moving to withdraw the plea. The trial court denied the motion. (Id. at pp. 211-213.)
The appellate court held that Brown was “deprived of his right to make an effective motion to withdraw his plea” because when he moved to do so he was represented by counsel, and Brown could not make the motion himself. (Brown, supra, 179 Cal.App.3d at pp. 214-215.) While noting that trial counsel was not obligated to make a frivolous motion, the appellate court concluded that Brown was entitled to decide if he wanted to withdraw his plea and was entitled to have trial counsel make the motion. (Id. at pp. 215-216.) The matter was remanded to permit the trial court to determine whether trial counsel continued to refuse to make a motion to withdraw the plea and, if so, to hold a Marsden hearing to determine if Brown was entitled to different appointed counsel. (Brown, at p. 216.)
Here, Ellis was prevented from making a motion to withdraw his plea. The trial court, however, held a hearing to determine whether Ellis was entitled to new appointed counsel. The fact the trial court in Brown, supra, 179 Cal.App.3d 207 did not hold such a hearing distinguishes that case from the issue before us.
In People v. Osorio (1987) 194 Cal.App.3d 183 (Osorio), disapproved on other grounds in Johnson, supra, 47 Cal.4th at page 681, Osorio pled guilty pursuant to a plea agreement but moved to withdraw the plea at the sentencing hearing. Trial counsel informed the trial court that Osorio claimed he had not understand the plea proceedings, but he, trial counsel, could not, “in good conscience, ” move to withdraw the plea. The trial court proceeded directly to sentencing. (Id. at p. 186.)
This court set aside the judgment and remanded the matter to permit Osorio to file a motion to withdraw his plea if he still desired to do so. (Osorio, supra, 194 Cal.App.3d at p. 189.) In reaching this conclusion, this court noted that trial counsel represented to the trial court that good grounds existed for withdrawal of the plea, but trial counsel refused to do so, apparently because Osorio faced a longer prison term if he went to trial. Relying on Brown, supra, 179 Cal.App.3d 207, we concluded that trial counsel could not refuse to file a meritorious motion to withdraw a guilty plea if Osorio chose to do so. (Osorio, at pp. 188-189.)
The issue in this case is whether there was merit to Ellis’s proposed motion to withdraw his plea. Unlike Osorio, the trial court found there was no merit to the proposed motion, and that conclusion was amply supported by the record and was within the trial court’s discretion. Accordingly, neither Brown, supra, 179 Cal.App.3d 207 nor Osorio convinces us that there is any merit to Ellis’s argument.
DISPOSITION
The judgment is affirmed.