Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Nos. F05901739-3 & F06906257, Jeffrey Y. Hamilton, Judge.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Wiseman, J., and Cornell, J.
OPINION
As set forth more fully in the margin, pursuant to a plea agreement covering two separate cases, appellant Dae Henderson pled guilty to 19 felony offenses, and admitted multiple “strike” and enhancement allegations. The court struck six of appellant’s prior felony conviction allegations and imposed a sentence of 49 years 8 months, calculated as set forth in the margin.
All statutory references are to the Penal Code.
The sentence in case No. 257 was calculated as follows: six years on count 1, representing the three-year midterm, doubled pursuant to the three strikes law (§§ 667, subd. (e)(1); 1170.12, subd. (c)(1)); 10 years on the count 1 firearm use enhancement; two years on each of counts 13, 17, 18 and 19, representing one-third of the midterm, doubled; and three years four months on the firearm use enhancements associated with those counts, representing one-third of the 10-year term, doubled. The sentence in case No. 739-3 was calculated as follows: on count 1, two years, representing one-third of the midterm, doubled; three years four months on the count 1 firearm use enhancement, representing one-third of the 10-year term, doubled; and two years on the on-bail enhancement. The court also imposed five years on the single remaining prior serious felony enhancement, and stayed execution of sentence on the remaining offenses pursuant to section 654.
Prior to entering his plea, appellant made a so-called Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3rd 531 (Pitchess)) for discovery of police personnel records of complaints against two police officers. After holding an in camera hearing on the motion, the court ruled that the requested records did not exist.
On appeal, appellant (1) contends his attorney refused to present a motion to withdraw appellant’s plea, in violation of appellant’s right to have his attorney present such a motion, and (2) asks this court to review the sealed transcript of the in camera hearing on appellant’s Pitchess motion to determine whether the court properly denied discovery.
We will reverse and remand for further proceedings.
The facts of the instant offenses are not relevant to the issues raised on appeal. Therefore, we will forgo recitation of those facts.
Appellant appeared in court on September 1, 2006, with his attorney, Franz Criego, at which time appellant entered his pleas and admissions. The court set the matter for sentencing, and following a continuance, on November 30, 2006, appellant again appeared with attorney Criego, who informed the court that appellant “wishes to make a motion to withdraw his previously entered plea of [no contest].” Criego further told the court, “My client has stated to me that his plea was entered under duress and as such I understand that the transcripts need to be ordered, and I will be submitting without making formal written motion.” The matter was set for January 17, 2007, and on that date continued to January 24, 2007. On that date, Criego stated that the matter had been “set for Marsden and a motion to withdraw plea,” but the transcripts had not been prepared. The matter was set for January 31, 2007, and following two more continuances, Criego and appellant appeared in court on February 8, 2007.
A motion for the substitution of appointed counsel on the ground that the current attorney is providing inadequate representation is commonly called a Marsden motion. (People v.. Hart (1999) 20 Cal.4th 546, 603.) In People v. Marsden(1970) 2 Cal.3d 118 (Marsden), the California Supreme Court ruled that when a criminal defendant requests a new appointed attorney, a trial court must conduct a proceeding in which it gives the defendant an opportunity to explain the basis for the contention that counsel is not providing adequate representation. (Id. at pp. 123-125.) The proceeding is commonly called a Marsden hearing.
On that date, at the outset of a proceeding with the prosecutor absent, Criego told the court, “My understanding before we commenced the last time Mr. Henderson was in court he was requesting a [Marsden] hearing so I believe we are ready to proceed as to the [Marsden] hearing.” At that point, the court noted that it had “closed the courtroom,” and asked appellant if it was his “desire to go forward with a [Marsden] hearing[,]” i.e., “[a] hearing that indicates you’re not satisfied with your counsel.” Appellant refused to answer. Later in the hearing, the court again asked appellant if he had any complaints about Criego’s representation, and appellant again remained silent. Thereafter, the court ruled, “The [Marsden] motion[,] such as it is[,] is denied. Reopen the courtroom.”
It appears that the following proceeding occurred after the denial of the Marsden motion. With the prosecutor present, the court noted appellant’s cases “are on for motion to withdraw plea,” and shortly after that Criego told the court the following: “I reviewed the transcripts and I note there’s [an] absence of failure to advise Mr. Henderson of his Constitutional rights. There’s an absence of failure to specify or advise Mr. Henderson as to the plea bargain. There’s an absence of failure to specify the direct consequences of the plea. There’s an absence of any improper inducements noted on the record. There’s an absence of any illegal sentence…. [T]here appears to be no credible issue for the motion to withdraw the plea…. In addition the plea bargain does not allow for my client under these circumstances to withdraw his plea …. Finally neither the Court … nor the prosecution has repudiated any term of the plea bargain and therefore … I cannot say the motion to withdraw the plea at this time is a credible motion.”
The court ruled, “Based on the comments of counsel … [and] on the Court’s review of the change of plea transcript[,] … the Court finds no valid basis upon which to allow the withdrawal of [appellant’s] plea …. [Appellant’s] motion to withdraw the plea [is] denied.”
In his notice of appeal, appellant requested that the court issue a certificate of probable cause. (Pen. Code, § 1237.5). The court denied the request.
DISCUSSION
Failure to Appoint Separate Counsel for Motion to Withdraw Plea
Appellant argues as follows: he had a right to have his motion to withdraw his plea presented by counsel; he was denied this right by his counsel’s refusal to present the motion; and therefore the court erred in failing to appoint separate counsel for the express purpose of investigating and presenting such a motion. Appellant bases this argument in large part on People v. Brown (1986) 179 Cal.App.3d 207 (Brown).
The People counter that the absence of a certificate of probable cause precludes appellate review, and that in any event, appellant’s claim fails on the merits. We first address the merits of appellant’s argument.
Counsel’s Refusal to Present the Plea Withdrawal Motion
In Brown, trial counsel informed the court at sentencing that the defendant wanted to withdraw his plea, but that in her opinion, there was no “legal basis” for such a motion, and she was not making the motion for him. (Brown, supra, 179 Cal.App.3d at p. 211.) The defendant told the court that at the time he entered his plea, he “wasn’t in the right frame of mind” (ibid.) because “a death had [him] shook up” (id. at p. 213). He asked the trial court if he could withdraw his plea and obtain another attorney, but the trial court refused to grant either request. (Id. at pp. 211-213.) The appellate court, noting that a criminal defendant has a “right to be represented by counsel at all stages of the proceedings” (id. at p. 214), concluded that the defendant was “deprived of his right to make an effective motion to withdraw his plea” (id. at p. 213) and remanded the case to allow the defendant, represented by counsel, to move to withdraw his plea, with instructions for a Marsden hearing should counsel continue to refuse to bring the motion (id. at p. 216). In so holding, the court stated that it was not suggesting that counsel is required to make a frivolous motion or “compromise accepted ethical standards.” (Id. at p. 216.)
People v. Osorio (1987) 194 Cal.App.3d 183 (Osorio) followed Brown. There, the defendant stated at sentencing he wanted to withdraw his plea because “‘he didn’t understand what he was pleading to.’” (Osorio, supra, 194 Cal.App.3d at p. 186). Trial counsel “specifically represented to the trial court that there appeared to be good grounds for a motion to withdraw the plea, but refused,” (id. at p. 188) in “ ‘good conscience,’ ” to bring the motion because withdrawal of the plea would result in reinstatement of counts dropped under the plea agreement. (Ibid.) On appeal, this court cited and discussed Brown, and, referring to Brown, stated, “We believe that counsel’s representation to the court that there was a color able basis for the motion to withdraw the guilty plea requires a similar disposition of the present appeal.” (Osorio, supra, 194 Cal.App.3d at p. 189.) This court remanded the case to allow defendant to bring a motion to withdraw the plea. (Ibid.)
Thus, Brown and Osorio teach that a criminal defendant has a right to make a motion to withdraw his or her plea, and to be represented by counsel in the effort, if non frivolous grounds exist for withdrawing the plea.
The People do not discuss Brown but seek to distinguish Osorio on the ground that in that case there was no plea withdrawal motion whereas here “appellant had the full benefit of a motion to withdraw his plea.” We disagree. Appellant did not have the “benefit” of a plea withdrawal motion because defense counsel here did not argue that the motion should be granted. Rather, counsel did no more than explain to the court his reasons for concluding such a motion was not “credible.” As in Osorio and Brown, defense counsel in the instant case refused to present a plea withdrawal motion.
The People also contend the court did not err in failing to appoint separate counsel to present a plea withdrawal motion because the court properly denied appellant’s motion to appoint substitute counsel pursuant to Marsden, supra, 2 Cal.3d 118, and no more is required. We agree there was no error in the denial of appellant’s Marsden motion, but this does not support the People’s argument. The record indicates appellant’s Marsden motion, such as it was, was heard before defense counsel refused to present appellant’s motion to withdraw the plea, and at the Marsden hearing appellant said nothing and defense counsel made no mention of, nor in any way indicated, he would refuse to present a motion to withdraw appellant’s plea. Because defense counsel had not refused to present appellant’s plea withdrawal motion at the time of the Marsden hearing, the denial of the Marsden motion has no bearing on the issue of appellant’s right to have counsel represent him in his motion to withdraw his plea.
Our inquiry as to the merits of appellant’s argument does not end here, however; the question remains as to whether defense counsel refused to present a non frivolous motion. We note that in Brown, the defendant told the court that because of a recent death, at the time of his plea he was upset and not “in the right frame of mind.” (Brown, supra, 179 Cal.App.3d at p. 211.) Thus, non frivolous grounds for a motion to withdraw the plea appeared on the record. (People v. Cruz (1974) 12 Cal.3d 562, 566 [duress or any other factor overcoming a defendant’s exercise of free judgment at the time of the plea may constitute good cause for withdrawal of plea].) In Osorio, similarly, the defendant told the court “‘he didn’t understand what he was pleading to,” and defense counsel acknowledged that color able grounds for withdrawing the plea existed. (Osorio, supra, 194 Cal.App.3d at p. 186).
The showing here regarding the grounds urged by appellant for withdrawing his plea is not as strong, because we have only defense counsel’s terse statement that appellant claimed his no contest plea was the result of “duress.” Unlike Brown and Osorio, here there is no indication of the facts, if any existed, underlying the duress claim.
However, it is not clear what efforts, if any, counsel made to determine the basis of appellant’s claim of duress in addition to counsel’s review of the reporter’s transcript of the plea proceeding. Such a review could be sufficient to reach the conclusion that it was not likely that a plea withdrawal motion would be granted, and it appears that this is the conclusion counsel did in fact reach. However, a review of the transcript would not likely uncover the kind of statements made by the defendants in Brown and Osorio regarding, and the factors affecting, appellant’s mental state at the time he entered his plea.
We emphasize that we have no way of determining from the record whether or not counsel, in addition to reviewing the plea proceeding transcript, attempted to ascertain from appellant the basis of his claim of duress. But, as indicated above, duress may constitute good cause for the withdrawal of a plea of guilty or no contest, and thus we are left with a record which indicates a potentially color able basis for a plea withdrawal motion. And although counsel detailed for the court various factors that militated against the granting of a plea withdrawal motion, he did not provide the court with any indication that he had concluded, or from which we can conclude, that appellant’s claim of duress was frivolous. In this connection, we note that counsel told the court he saw no basis for a “credible motion,” a statement similar to that of the defense counsel in Brown who indicated she saw no “legal basis” for the withdrawal of the defendant’s plea. (Brown, supra, 179 Cal.App.3d at p. 211)
On this record, we deem it appropriate to follow Brown and Osorio, and remand to allow appellant, represented by counsel, to move to withdraw his plea, with instructions for a Marsden hearing should counsel continue to refuse to bring the motion (Brown, supra, 179 Cal.App.3d at p. 216).
Certificate of Probable Cause
“An appeal following a guilty or no contest plea which challenges the validity of the plea is not operative unless the defendant obtains a certificate of probable cause pursuant to Penal Code section 1237.5.” (People v. McEwan (2007) 147 Cal.App.4th 173, 175.) The People argue that appellant’s claim that the court erred in failing to appoint separate counsel for the express purpose of investigating and presenting a motion to withdraw appellant’s plea is not cognizable on appeal because appellant did not obtain a certificate of probable cause and appellant’s argument is, in substance, an attack on the validity of his plea. The People base this claim on the principle that if an appellate challenge “is in substance a challenge to the validity of the plea,” “the appeal [is] subject to the requirements of section 1237.5.” (People v. Panizzon (1996) 13 Cal.4th 68, 76.) There is no merit to the People’s contention.
In Osorio, the court stated that where a motion for withdrawal of the plea has been made in which it is alleged there is good cause for withdrawing the plea based on events “leading up to the plea itself,” and the motion is denied, “appeal from the denial … is tantamount to an attack on the validity of the plea itself,” and therefore compliance with section 1237.5 is required. (Osorio, supra, 194 Cal.App.3d at p. 187.) However, the court in Osorio held that the defendant’s appeal was an “attack[] [on] the failure of counsel to file a motion in the first instance,” and the relief requested by the defendant--remand to permit the defendant to file a motion to withdraw the plea--did not attack the validity of the plea. Therefore, the court further held, a certificate of probable cause was not required to raise the issue. (Ibid.) Appellant too argues that defense counsel did not present his motion to withdraw the plea, and he seeks the same relief as that sought by the defendant in Osorio. Thus, the instant appeal does not in substance challenge the validity of the plea.
The People place some reliance on People v. Emery (2006) 140 Cal.App.4th 560. In that case, the defendant argued on appeal that the trial court erred by denying his request to continue the sentencing hearing so his counsel could investigate whether grounds existed to withdraw the defendant’s no contest plea. However, the defendant did not obtain a certificate of probable cause. In holding that the appeal should be dismissed, the court reasoned “that in challenging the trial court’s refusal to grant the continuance motion, defendant is in substance challenging the validity of the plea, which requires a certificate of probable cause as a prerequisite to appeal.” (Id. at p. 564.)
The court “disagreed with the reasoning of Osorio,” stating, “The sole basis for the appeal in Osorio was the claim that trial counsel was ineffective in refusing to file a motion to withdraw the appellant’s guilty plea. [Citation.] The validity of that claim of error was dependent upon the validity of the guilty plea. In substance, the claim of error was an attack on the plea itself. Hence, a certificate of probable cause should have been required.” (People v. Emery, supra, 140 Cal.App.4th at p. 565.)
We respectfully disagree with the Emery critique of Osorio. Here, as demonstrated above, the error complained of is counsel’s failure to present the motion to withdraw the plea. As in Osorio, consideration of that claim of error does not require consideration of the validity of the plea, and the remedy for the error is not to vacate the plea, but to remand for further proceedings. We therefore conclude, as did this court in Osorio in analogous circumstances, that the instant appeal is not a challenge to the validity of the plea, and therefore a certificate of probable cause was not required.
Pitchess Motion
Appellant asks this court to review the sealed transcript of the in camera hearing on appellant’s Pitchess motion to determine whether the court properly denied discovery. We have done so. (People v. Hughes (2002) 27 Cal.4th 287, 330 [appellate court may examine record of in camera proceeding and determine whether trial court abused its discretion in refusing discovery request]; People v. Mooc (2001) 26 Cal.4th 1216, 1229 [same].) Based on that review, we have concluded there was no abuse of discretion.
The People argue that appellant’s request for independent review of the record of the in camera proceeding is precluded by appellant’s failure to obtain a certificate of probable cause. Alternatively, the People concede that if this request is properly before us, such review is proper. We assume without deciding that appellant’s request is cognizable on appeal.
DISPOSITION
The judgment is reversed for the limited purpose of permitting appellant within 30 days after the remittitur is filed in the trial court to make a motion to withdraw his plea of no contest in a manner consistent with the views expressed in this opinion. If the superior court grants such a motion, the superior court shall reinstate the original charges, if the prosecution so moves, and proceed to trial or make other appropriate dispositions. If no such motion to withdraw the no contest plea is filed by appellant within the time limit set forth above, or if the motion to withdraw appellant’s plea is denied, the superior court is directed to reinstate the original judgment.
In Fresno County Superior Court case No. F06906257 (case No. 257), appellant pled no contest to six counts of second degree robbery (§§ 211, 212.5, subd. (c); counts 1, 2, 13, 17, 18, 19), three counts of assault with a firearm (§ 245, subd. (a)(2); counts 3, 4, 14), two counts of second degree burglary (§§ 459, 460, subd. (b); counts 5, 15) and individual counts of possession of a firearm by a person previously convicted of a felony (§ 12021, subd. (a)(1); count 6), possession of ammunition by a person prohibited from possessing a firearm (§ 12316, subd. (b)(1); count 7), possession of a concealed firearm in a vehicle (§ 12025, subd. (a)(1); count 8), carrying a loaded firearm (§ 12031, subd. (a)(1); count 9) and dissuading a crime victim from reporting the crime (§ 136.1, subd. (b)(1); count 16). In addition, appellant admitted special allegations that in committing the offenses charged in counts 1, 2, 13, 17, 18 and 19, he personally used a firearm (§ 12022.53, subd. (b)).
In Fresno County Superior Court case No. F05901739-3 (case No. 739-3) appellant pled no contest to two counts of second degree robbery (§§ 211, 212.5, subd. (c); counts 1, 2) and one count of possession of a firearm by a person previously convicted of a felony (§ 12021, subd. (a)(1); count 3), and admitted allegations that in committing the offenses charged in counts 1 and 2 he personally used a firearm (§ 12022.53, subd. (b)) and that he was released on bail in case No. 739-3 at the time he committed all of the case No. 257 offenses (§ 12022.1) .
Finally, appellant admitted special allegations that he had suffered seven prior felony convictions, each of which qualified as a “strike,” i.e., a prior felony conviction that subjects a defendant to the increased punishment specified in the “three strikes” law (§§ 667, subds. (b)-(i); 1170.12), and two of which qualified as serious felony convictions within the meaning of section 667, subdivision (a)(1); and that he had served a prison term for a prior felony conviction (§ 667.5, subd. (b)).