Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 210971
ELIA, J.Appellant contends that the trial court erred at his sentencing hearing in denying appellant's request for a continuance to retain private counsel and defense counsel's request for continuance to file a motion to withdraw his plea. Appellant further contends that his sentence was unauthorized in that the trial court used an enhancement as the base term. We reverse to permit appellant to move to withdraw his plea and for the trial court to correct the sentence.
Background
On December 22, 2003, appellant, a member of the Norteno gang Vario Horseshoe, was riding in a van with other gang members. Upon seeing a member of a rival Sureno gang, appellant left the van and shot the victim in the back six times. The victim died from these injuries. Because appellant had turned 16 years old a little over two weeks earlier, he was prosecuted as an adult. (Welf. & Inst. Code, § 602, subd. (b)(1).)
On February 2, 2006, appellant pleaded guilty to second degree murder and admitted enhancements alleging that the crime had been committed for the benefit of a criminal street gang and that appellant had personally used a firearm in the commission of the offense. (Pen. Code, §§ 187, 186.22, subd. (b)(1)(C), 12022.53, subds. (b), (c), (d), and (e)(1).) The trial court described the plea agreement saying, "Mr. Gonzales will be pleading guilty to the crime of second-degree murder as described in Count 1 of the first amended Indictment. He will admit the gang allegation pursuant to 186.22 (b)(1)(c). He'll admit both of the Welfare and Institutions Code allegations, 707(d)(1) and the 602(b)(1) allegations and further admit that he personally used the handgun in the course of this crime pursuant to 12022.5(b)(1). [¶] The sentencing understanding is that the defendant will serve a ten-year determinate term for the handgun and that consecutively to that, he will serve the indeterminate term prescribed by law, which is life with a minimum of 15 years."
The prosecutor said, "it would be the People's requirement on that plea that he waive his future appellate rights in this case." This may have been to avoid an appeal challenging the denial of appellant's motions concerning discovery, severance, and the suppression of appellant's statement to the police. Defense counsel told the court that he had discussed the waiver of appellate rights with appellant and had "told him that that would be a requirement." The court asked appellant, "is this what you want to do?" and appellant answered, "Yes, sir."
The hearing on the motion to suppress appellant's statement to the police was heavily litigated, consuming several days of court time, and was based, in part, on appellant's "ADHD affliction and lack of medication for same; [and appellant's] youth, minimal education and low intelligence."
In explaining the consequences of the plea to appellant, the court said, "Normally, people who are convicted of a felony have the right to appeal to a higher court, the Court of Appeal, concerning legal or other problems with their case. Because of the negotiated disposition in this case, you will be giving up any right that you have to appeal." Appellant indicated that he understood and waived that right.
On April 10, 2006, the court held the sentencing hearing. Appellant requested a Marsden hearing. At the Marsden hearing, appellant and defense counsel explained that when appellant accepted the negotiated disposition appellant was under the impression that he would be eligible for parole on the 15 year-to-life term after 13 years. Discussing the matter with other inmates later, appellant had been told that "lifers don't get out." Defense counsel told the court that he had informed appellant that it was rare for parole to be granted to those convicted of murder, but that that policy might change. Defense counsel said that he had done some "preliminary research" concerning appellant's "ADHD and low IQ [that] might be of assistance in setting aside [the plea]." The trial court denied appellant's Marsden motion.
People v. Marsden (1970) 2 Cal.3d 118.
When the trial court proceeded to sentencing, defense counsel told the court that appellant "has indicated to me that he wants time to seek private counsel to represent him." Counsel also requested "the opportunity to investigate and research an issue having to do with setting aside his plea." The prosecutor did not oppose the request.
The trial court said, "Mr. Gonzales has had two years of representation. He's been free to seek new counsel at any time. He's not chosen to do that. He's made a number of choices in this case, and I don't think that amounts to good cause for a continuance. [¶] Further, additional research for potential motions, I suppose, can be ongoing. But nothing I have heard or seen suggests to me there's a substantial likelihood of success. I don't know that that's a requirement that I find. In any event, there's no good cause shown for the continuance, and the request for continuance is denied."
When he had an opportunity to address the court, appellant said, "I don't know what's going on right now. I don't. I don't acknowledge this Court right now, and I wish to leave if I can. I do not want to be sentenced. And I do not -- I want time. I do not want to let you or whoever -- I don't understand this whole case, and you guys are about to throw me away." The trial court said "When you elected to plead guilty, you understood -- I found then and I find now that you understood what you were doing."
The trial court asked if anyone from the victim's family was present who wished to address the court and received no response. The court sentenced appellant to serve a determinate 10-year sentence for the Penal Code section 12022.5, subdivision (a) enhancement and said "That is what he will serve first." The court said "Consecutive to that term" was the 15-years-to life term for the second degree murder. The court said, "So the total commitment is 15-to-life consecutive to ten years."
The victim's father had told the probation officer that he would "not attend sentencing as Court appearances are difficult for him and he fears retaliation from other gang members."
Waiver of Appellate Rights
Appellant challenges the trial court's denial, at the time of the sentencing hearing, of his motion for a continuance to retain private counsel and defense counsel's motion for a continuance to investigate grounds for a motion to withdraw the plea.
Respondent argues, "Appellant's claims are not cognizable on appeal given his waiver of the right to appeal." Respondent states that appellant's waiver of his right to appeal was "knowing, intelligent, and voluntary."
"A defendant may waive the right to appeal as part of a plea bargain where the waiver is knowing, intelligent and voluntary. [Citation.] A broad or general waiver of appeal rights ordinarily includes error occurring before but not after the waiver because the defendant could not knowingly and intelligently waive the right to appeal any unforeseen or unknown future error. [Citation.] Thus, a waiver of appeal rights does not apply to ' "possible future error" [that] is outside the defendant's contemplation and knowledge at the time the waiver is made.' [Citations.]" (People v. Mumm (2002) 98 Cal.App.4th 812, 815.)
Respondent argues that "Appellant's first two claims on appeal are based on appellant's dissatisfaction with defense counsel and with the terms of his plea . . . [and] [b]oth alleged errors occurred before appellant waived his right to appeal." This argument is based on a mischaracterization of appellant's claim as one that "the trial court erroneously denied his motion to withdraw his guilty plea." Appellant did not move to withdraw his plea. Although appellant indicated dissatisfaction with the plea, and defense counsel sought time to investigate the grounds for a motion to withdraw the plea, what appellant challenges here is the trial court's post-plea denial of appellant's request for a continuance to retain counsel and defense counsel's request for a continuance to investigate grounds for a motion to withdraw the plea. Appellant could not have knowingly and intelligently waived the right to raise these issues on appeal at the time he entered his plea because the trial court did not make those rulings until over two months later.
Certificate of Probable Cause
Respondent further argues that, assuming appellant has not waived his right to appeal, "his failure to obtain a certificate of probable cause precludes this court from considering his claims on appeal."
Penal Code section 1237.5 provides in relevant part: "No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, 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. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court." California Rules of Court, rule 8.304 (formerly rule 31(d)) implements section 1237.5 and states that a defendant need not comply with the requirement of a certificate of probable cause "if the notice of appeal states that the appeal is based on . . . [g]rounds that arose after entry of the plea and do not affect the plea's validity." Here, the notice of appeal states that the appeal "is based on the sentence and grounds that arose after entry of the plea and do not affect the plea's validity."
In People v. Osorio (1987) 194 Cal.App.3d 183, 187, the court stated that where a defendant seeks to withdraw a plea based on the contention that it was not knowingly and intelligently entered, "appeal from the denial of such a motion is tantamount to an attack on the validity of the plea itself. An appellant must therefore comply with the requirements of section 1237.5. [Citation.] On the other hand, if the motion to withdraw the plea is based upon activities occurring after the plea, such as an alleged failure to sentence in accordance with a plea bargain, then no probable cause certificate is required for an appeal from denial of the order. [Citation.] In the latter circumstances, the appellate court is not called upon to pass on the validity of the plea itself." Similarly, our Supreme Court has stated: "We have previously rejected the proposition that denial of a motion to withdraw a plea of guilty may always be appealed without a certificate of probable cause because it always occurs after entry of the plea. The determinative factor is when the claims upon which the motion was based arose and not when the motion to withdraw was denied." (People v. Kaanehe (1977) 19 Cal.3d 1, 8, citing People v. Ribero (1971) 4 Cal.3d 55, 63-64.)
"[A] defendant who has filed a motion to withdraw a guilty plea that has been denied by the trial court . . . must secure a certificate of probable cause in order to challenge on appeal the validity of the guilty plea." (In re Chavez (2003) 30 Cal.4th 643, 651.) As explained by the California Supreme Court, "[i]f a defendant challenges the validity of his plea by way of a motion to withdraw the plea, he cannot avoid the requirements of section 1237.5 by labelling the denial of the motion as an error in a proceeding subsequent to the plea. To hold otherwise would be to invite such motions as a matter of course, and would be wholly contrary to the purpose of section 1237.5." (People v. Ribero, supra, 4 Cal.3d at pp. 63-64, fn. omitted.)
Appellant challenges only the court's refusal to grant the continuances requested. Appellant's requested relief is that "the sentencing determination be reversed so that Gonzales can hire private counsel and have that counsel handle the sentencing hearing and present any motions he or she deems appropriate." Appellant did not ask the court to consider the substance of a motion to withdraw the plea or, by extension, the validity of the plea itself. This court's decision in People v. Vera (2004) 122 Cal.App.4th 970, is instructive. In that case, the defendant made a postplea Marsden motion, complaining of his counsel's investigation into his priors, the victim's injuries and other issues. (Id. at pp. 975-976.) The trial court-- stating its intention to give counsel an opportunity to look into some of the matters, including a Romero motion and a motion to withdraw the plea--denied the Marsden motion without prejudice to renewal and continued the case for a Romero motion and a motion to withdraw the plea. (Id. at pp. 976-977.) The defendant appealed the court's denial of the postplea Marsden motion. (Id. at p. 977.)
On appeal, we considered whether a certificate of probable cause was required. (Vera, supra, 122 Cal.App.4th at p. 977.) We observed that "[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." (Id. at p. 978.) Thus, we concluded, no certificate of probable cause was required even though "some of defendant's complaints pertained to his trial counsel's pre-plea conduct." (Ibid.) In so holding, we cited People v. Osorio, supra, 194 Cal.App.3d 183 and rejected the respondent's contention that the case was incorrectly decided. (See Vera, supra, 122 Cal.App.4th at p. 978.)
Respondent claims that Vera is distinguishable in that "all of appellant's complaints about his attorney's representation pertained to his pre-plea conduct." Respondent distinguishes Osorio in that in that case "the defendant claimed his attorney rendered ineffective assistance of counsel for failing to file a motion to withdraw his guilty plea" and the defendant "wanted to withdraw his plea based on information contained in the probation officer's report, which was prepared after the defendant pled."
Here, whether the trial court's denial of the requested continuances was an error is likewise is not based on the validity of the plea or on the merits of the motion to withdraw. We cannot, in fact, consider the merits because they were not presented to the trial court. If we find an error, the proper remedy, as in Vera, is to remand for further proceedings. The validity of the plea is not challenged until the motion is made and heard by the trial court.
Denial of Motion for Continuance to Retain Counsel
Appellant contends, "The trial court's denial of Gonzalez's request for a continuance of the sentencing for the purpose of retaining private counsel was a violation of Gonzalez's Sixth and Fourteenth Amendment rights."
A continuance in a criminal proceeding is to be granted only upon a showing of good cause. (Pen. Code, § 1050, subds.(b)-(e).) Although generally a defendant must be given a reasonable opportunity to employ and consult with counsel of his choosing, the trial court has discretion whether to grant a continuance to allow a defendant to retain private counsel. (People v. Courts (1985) 37 Cal.3d 784, 790.) "The right of a defendant to appear and defend with counsel of his choice is not absolute." (People v. Rhines (1982) 131 Cal.App.3d 498, 506; People v. Blake (1980) 105 Cal.App.3d 619, 624.) "A continuance may be denied if the accused is 'unjustifiably dilatory' in obtaining counsel, or 'if he arbitrarily chooses to substitute counsel at the time of trial.' [Citation.]" (People v. Courts, supra, 37 Cal.3d at pp. 790-791.) In deciding whether the trial court's denial of a continuance was so arbitrary as to deny due process, this court "looks to the circumstances of each case, ' "particularly in the reasons presented to the trial judge at the time the request [was] denied." ' [Citations.]" (Id. at p. 791.)
Here, appellant did not indicate to the court that he had identified counsel who was willing to take the case or that he had the necessary funds to retain private counsel. Thus, the trial court appropriately denied the requested continuance because it was "confronted with the 'uncertainties and contingencies' of an accused who simply wanted a continuance to obtain private counsel. [Citation.]" (People v. Courts, supra, 37 Cal.3d at p. 791 [error to deny continuance when defendant demonstrated he had retained counsel and established a lawyer-client relationship prior to the trial date and resetting the trial date would not have disrupted the schedule of any witness].) The trial court did not abuse its discretion in denying appellant's motion for a continuance to retain private counsel.
Denial of Motion for Continuance to File Motion to Withdraw Plea
Appellant contends, "The court's refusal to grant a continuance for the purpose of filing a motion to withdraw the plea was an abuse of discretion."
The trial court has discretion to determine whether to grant or deny a motion for continuance, and its ruling will not be disturbed unless the defendant can establish that it exceeds the bounds of reason, all circumstances being considered. (People v. Beeler (1995) 9 Cal.4th 953, 1003.) In Beeler the court found mere assertions that new evidence appeared to suggest problems with the defendant's mental state were insufficient to justify a continuance of the sentencing hearing in a death penalty case. The court noted the lengthy passage of time since the verdict, 10 months, and the lack of specific facts showing the new evidence would be helpful and could be obtained in a reasonable time. (Id. at p. 1004.)
During the Marsden hearing, appellant complained, "my understanding is not that good, and I feel that I was misled in some ways. Not really, umm, explained too right for me to understand." Defense counsel discussed an offer that had been made to appellant before certain pretrial motions were made, and his efforts to convince appellant to take that offer, and said, "I mean, at that point, to exaggerate it a bit, if I had a baseball bat, I might have used it to knock some sense into him." Apparently, the offer of a determinate term was no longer available once the pre-trial motions had been denied. Defense counsel said, "I tried to be careful with Mr. Gonzale[s] because he's so young. I tried to spend time with him. . . . I felt it was necessary, because of his youth, to try to keep him in the loop and let him know what was going on so he wouldn't be confused, to avoid exactly what's happening now."
In describing discussions defense counsel had with appellant concerning a possible motion to withdraw the plea, defense counsel said, "My own assessment is that it probably wouldn't be successful. But I did some preliminary research. One of the issues that I haven't had the opportunity to fully research is whether or not this whole situation with ADHD and low IQ might be of assistance in setting aside his conviction based on, frankly, ability to argue that he just didn't understand what was going on as much as people try to talking to him, the Court, counsel, et cetera." Counsel said that in discussing appellant's options with him, "I never really got full direction as to what to do."
Appellant told the court, "Umm, Your Honor, my understanding today, everything is – it's poor. . . . I've never been in anything like this. It's not like I know these types of things. . . . All of a sudden, right when I turned 18, everything just happened too fast. And like I said, my understanding is poor. Everything just happened so fast, it's like I don't know what is really going on."
Respondent argues, "Because appellant was not misled when he pled guilty, and there is no evidence helped as a result of duress or a mistake, appellant could not have shown just cause to warrant the trial court granting a motion to withdraw his plea." Although no motion to withdraw the plea was actually before the court, when appellant expressed his lack of understanding of the proceedings, the court said, "When you elected to plead guilty, you understood – I found then and I find now that you understood what you were doing."
To this statement, appellant replied "because he told me to say 'yes' to your questions, not on my own understanding."
Respondent argues that it was not an abuse of discretion to deny counsel's motion for a continuance "given the lack of just cause to warrant the granting of such a motion." However, the issue here is not whether a motion to withdraw the plea should have been granted. Counsel merely asked for a continuance to investigate and bring such a motion. Counsel had already had appellant interviewed by a psychiatrist "several times" to prepare for trial. Thus, presumably, it would not have taken a great deal of time to explore the issue. Counsel's remarks to the court can be fairly interpreted as acknowledging his own growing uncertainty, at the time he asked for the continuance, about appellant's actual understanding of the matters at hand at the time appellant entered his plea. Appellant's statements, as well, call into question that understanding, and his youth and counsel's representation concerning appellant's "ADHD and low IQ" support those statements. On the other hand, nothing in the record indicates that this continuance would have inconvenienced any witnesses. It appears unlikely that appellant's co-defendant had already been sentenced in that, as of the time appellant's probation report was prepared, the co-defendant's case was still set for jury trial. Furthermore, the prosecutor, when invited to comment, did not oppose the request for a continuance. The trial court's statement, "I find now that you understood what you were doing" strikes us as giving a reason for denying a motion that it was refusing counsel an opportunity to investigate and bring. Indeed, the minute order from this hearing does state "motion withdrawal plea denied."
When defense counsel asked for the continuance, only two months had passed since the entry of the plea and counsel appeared to be in possession of specific information that would be helpful to the motion and could be developed in a reasonable time. Considering all the circumstances, it was an abuse of discretion to deny defense counsel the requested continuance to investigate the grounds for a motion to withdraw the plea. We express no opinion whatsoever about the merit of any motion that might result from such an undertaking, since such a motion may never be brought.
Sentencing
The court sentenced appellant to serve the determinate 10-year sentence for the Penal Code section 12022.5, subdivision (a) enhancement and said that "Consecutive to that term" appellant would serve the 15-years-to life term for the second degree murder. The court said, "the total commitment is 15-to-life consecutive to ten years." The abstract of judgment lists the conviction for second degree murder and describes the Penal Code section 12022.5 enhancement and contains the notation that the "total term" is "15 years to life c/s 10 years."
Appellant contends, "the Court's use of the prior felony enhancement as the base term for sentencing purposes was unauthorized; the enhancement must be imposed consecutively to the base term of fifteen-years to life." Citing Penal Code section 669, respondent argues, "The trial court did not designate the ten-year term as the base term; rather, the court simply indicated that appellant was to serve this [determinate] term before serving the indeterminate term imposed for appellant's murder conviction."
Penal Code section 669 applies "[w]hen any person is convicted of two or more crimes." Here, appellant was being sentenced on one count, second degree murder, and the enhancements attached to that count. "A sentence enhancement is 'an additional term of imprisonment added to the base term.' " (People v. Jefferson (1999) 21 Cal.4th 86, 101; Cal. Rules of Court, rule 4.405.) Accordingly, the trial court had no authority to impose the enhancement as a base term.
Disposition
The judgment is reversed, and the matter is remanded to correct the sentence and for the limited purpose of permitting appellant to move to withdraw his plea with the assistance of appointed counsel. If the motion is denied or is not made within 60 days from the date the remittitur is filed, the trial court shall correct the sentence to 10 years consecutive to 15-years to life and reinstate the judgment.
WE CONCUR:
RUSHING, P. J., PREMO, J.