Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 09F8386
ROBIE, J.
On September 19, 2008, in Ventura County, defendant Alan Dale Griffith pled guilty to one count of corporal injury to a spouse and three counts of cruelty to a child by inflicting injury. Defendant also admitted a great bodily injury enhancement. On October 20, 2008, the court suspended imposition of sentence and released defendant on probation for 48 months. The court also dismissed a remaining count of criminal threats. Defendant later moved to Shasta County and the Superior Court of Shasta County agreed to accept jurisdiction over defendant’s probation.
On August 10, 2010, the court terminated defendant’s probation and sentenced him to an aggregate seven years in prison: three years for corporal injury to a spouse and four years for the great bodily injury enhancement. Defendant then remained in county jail because of credit calculation problems. On August 24, 2010, defendant made a Marsden motion because he wanted new counsel to withdraw his plea. The trial court was unclear as to whether defendant had a right to withdraw his plea after sentencing. When asked, defense counsel said he could not find any authority that would allow defendant to withdraw his plea. The court then dropped defendant’s Marsden motion from the calendar.
People v. Marsden (1970) 2 Cal.3d 118.
Defendant now appeals, contending the court erred in failing to conduct a Marsden hearing. Defendant, however, did not obtain a certificate of probable cause and since his appeal challenges the validity of his plea, we must dismiss this appeal.
DISCUSSION
Defendant contends the trial court erred when it failed to conduct a Marsden hearing into defense counsel’s failure to file a motion to withdraw defendant’s plea. The People contend this appeal should be dismissed because defendant did not obtain a certificate of probable cause. We agree with the People.
No appeal may be taken from a conviction based on a plea of guilty or no contest unless the defendant has requested and obtained a certificate of probable cause. (Pen. Code, § 1237.5.) However, a defendant need not obtain a certificate of probable cause if “the appeal is based on... [¶] [g]rounds 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 People v. Panizzon (1996) 13 Cal.4th 68, 76, the California Supreme Court concluded that “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 [Penal Code] section 1237.5.” The focus is on what “‘the defendant is challenging, not the time or manner in which the challenge is made.’” (Ibid.)
The California Supreme Court provided further guidance in People v. Johnson (2009) 47 Cal.4th 668. In Johnson, the court dismissed a noncertificate appeal in which the defendant “claimed he was deprived of his right to the effective assistance of counsel... because counsel made no attempt to support [the] defendant’s motion to withdraw his plea.” (Id. at p. 675.) The Supreme Court affirmed. (Id. at p. 685.) The court noted that“[w]hether the appeal seeks a ruling by the appellate court that the guilty plea was invalid, or merely seeks an order for further proceedings aimed at obtaining a ruling by the trial court that the plea was invalid, the primary purpose of [Penal Code] section 1237.5 is met by requiring a certificate of probable cause for an appeal whose purpose is, ultimately, to invalidate a plea of guilty or no contest.” (Id. at p. 682.) Because the defendant contended that his counsel was ineffective at his hearing to withdraw his plea, any reversal would have resulted in further proceedings aimed at obtaining a ruling by the trial court that the plea was invalid; accordingly, a certificate of probable cause was required.
Here, defendant contends the trial court erred when it failed to hear his Marsden motion. Defendant argues “the record does not make it clear that the purpose, and only purpose, of the Marsden hearing would be to consider appointment of new counsel to present a motion to withdraw the plea.” Defendant is mistaken. At the beginning of the Marsden hearing, the court asked defense counsel, “[m]y understanding is that you put it on for a Marsden hearing because [defendant] wanted to make a motion to withdraw his plea. Am I correct?” Defense counsel responded, “[y]es.” This exchange explains that, although defendant had moved to substitute counsel, the purpose of his motion was to obtain new counsel in order to then move to withdraw his plea. Because the purpose behind defendant’s Marsden motion was to withdraw his plea, any reversal in the present appeal would result in further proceedings aimed at obtaining a ruling by the trial court that the plea was invalid. The Supreme Court’s decision in Johnson is dispositive.
Defendant tries to distinguish Johnson by noting that there “the trial court actually heard and denied a motion to withdraw a plea.” According to defendant, this is a meaningful distinction because the Supreme Court “could observe whether defense counsel argued the matter properly, and if not, whether the defendant was prejudiced.” Defendant is mistaken. The Johnson court based its decision on the policy behind Penal Code section 1237.5, which is to prevent frivolous appeals. (People v. Johnson, supra, 47 Cal.4th at p. 677.) The court never analyzed whether counsel argued the motion to withdraw properly. In fact, the court noted that if counsel’s effectiveness cannot be determined from the record, a more appropriate place to decide the matter would be in a habeas corpus proceeding and not on appeal. (Id. at p. 684.) Johnson is applicable to defendant’s case.
Further, this case is analogous to People v. Emery (2006) 140 Cal.App.4th 560, which the Johnson court explicitly supported. (People v. Johnson, supra, 47 Cal.4th at p. 681.) In Emery, this court held that an appellate challenge to the trial court’s denial of a continuance was in substance a challenge to the validity of the plea when the continuance was sought to investigate the withdrawal of the defendant’s plea. (Emery, at p. 562.) Like the defendant in Emery who sought a continuance to investigate the withdrawal of his plea, here defendant seeks new counsel to bring a motion to withdraw his plea. In both cases a reversal would result in further proceedings aimed at invalidating the plea.
We conclude that defendant’s appellate claims are “in substance a challenge to the validity of [his] plea.” (People v. Panizzon, supra, 13 Cal.4th at p. 76.) As defendant failed to obtain a certificate of probable cause, his appeal must be dismissed.
DISPOSITION
The appeal is dismissed.
We concur: HULL, Acting P. J., DUARTE, J.