Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC810399.
McAdams, J.
Defendant pleaded no contest to one count of domestic battery and admitted that he had personally used a deadly weapon in the commission of the crime in exchange for a probationary sentence on the condition, among others, that he serve six months in the county jail. (Pen. Code, §§ 273.5, subd. (a), 12022, subd. (b)(1).) This appeal follows the denial of his motion to withdraw his plea and the issuance of a certificate of probable cause. (§ 1237.5.) The sole question on appeal is whether his appointed attorney rendered ineffective of counsel by failing to litigate defendant’s motion to withdraw his plea. We find no ineffective assistance of counsel and will affirm.
Unless otherwise indicated, all further statutory references are to the Penal Code.
STATEMENT OF FACTS
Historical Facts
On July 6, 2008, San Jose police officers were called to the scene of a domestic disturbance at a residence. They made contact with a woman who had an injury near her left eye. The injury consisted of redness, swelling, bruising, and a small laceration with blood just under the left eye. The woman complained of pain to her left eye. The woman told police that defendant, her boyfriend of two years, had become upset when he learned that she intended to move to a different city, and he yelled at her and at her four-year-old daughter. The woman refused to explain how she came by her injury, but her daughter told the police that she saw defendant hit her mother with a wooden board. After her daughter told the police what had happened, the woman admitted that defendant had hit her with the board and gave details of the fight. When the woman threatened to call the police, defendant fled. Defendant was arrested upon his return to the scene.
Procedural Facts
On July 30, 2008, defendant appeared with counsel before the Honorable Ronald T. Lisk for change of plea. At that time, Judge Lisk informed defendant that as he understood the plea bargain, defendant was to admit the felony charge of violating section 273.5, subdivision (a) and the deadly weapon allegation under section 12022, subdivision (b)(1), “with a promise that he will not be sent to state prison and that he will receive a jail sentence. Ten months is the most that he would receive. He could receive less. Requires a full report. Judge Pennypacker is to do the sentencing.”
Judge Lisk informed defendant that the plea to the charge and the admission of the deadly weapon enhancement would result in a “strike prior” which would make him ineligible for probation and double his punishment if he were to commit another felony in the future.
Defense counsel asked “if we could just have a moment?” and a break was taken. Following off-the-record discussions between the district attorney and defense counsel, the district attorney informed the court on the record that a modification of the bargain had occurred off the record because there had been “an honest miscommunication about this case” during the prior plea negotiations in that “the defendant was obviously not aware based on the off-the-record discussion that this would result in a strike on his record, a potential 80-percent prison commitment on his next felony case.” To ameliorate the misunderstanding, the district attorney was now offering “a six-month top-bottom, no R.C.P., no early release programs, no other programs other than straight time in the county jail. So it’s a slight modification to the agreement, but the defendant will still be pleading as charged, and now he’s fully aware of all of the consequences of that plea.”
Judge Lisk asked the prosecutor if Judge Pennypacker was willing to sentence defendant in accordance with that bargain, because he was not willing to do so, given defendant’s criminal history. The prosecutor assured the court that Judge Pennypacker was prepared to do so.
The court then advised defendant of the rights he would be waiving by changing his plea. Defendant waived his rights. Defendant answered “No, I’m not,” when asked whether he was under the influence of any alcohol, drug, or medicine that affected his ability to understand what he was doing. Defendant answered “No,” when asked if anybody had forced him “to do this today.” Defendant answered “Yes,” when asked if he had had enough time to discuss the case and its consequences with his attorney. Defendant stated he understood that the sentencing judge was not bound by the terms of the plea, but if the judge did not follow the terms of the plea defendant could withdraw his plea and the matter would be reset for preliminary hearing. Defendant pleaded no contest to the substantive charge and admitted that he used a wooden stick. The court found that “this defendant understands and freely waives his constitutional rights; the defendant understands the nature of the crimes, the charge, the consequences of the plea; the pleas today are free and voluntary.” The matter was continued to September 10, 2008, for sentencing before Judge Pennypacker.
On September 10, 2008, Judge Pennypacker reviewed the terms of the re-negotiated plea bargain with the prosecutor before sending the prosecutor out of the courtroom and conducting a Marsden hearing. Defendant explained that “things changed” going from one courtroom to another, causing “major confusion.” His attorney had never mentioned anything about a strike. When they were in Judge Pennypacker’s courtroom, his attorney had advised him to take the deal, and that doing so would spare his daughter from testifying. Then, “I walk from this courtroom to that courtroom to take this deal, and now he tells me don’t do it.” Defense counsel did explain to him the consequences of the strike, which he “didn’t really understand.” It didn’t really “sink in” until he got back to the jail, and then he felt he had made a big mistake.
People v. Marsden (1970) 2 Cal.3d 118.
Asked by Judge Pennypacker why he did not stop the proceedings from going forward, defendant explained “I was looking at the fact that my daughter didn’t want to be put on the stand. She’s four years old.” Defendant concluded by saying that, although in the past he had always followed his lawyers’ advice to plead out, in this case he had decided he “was going to plead not guilty all the way through this thing.” But then he was talked into pleading guilty and pulling his time waiver, even though “[t]hat’s not what I felt I should do.” He “felt like here’s someone who it’s his job to help us, I felt at the same time being misled.”
Defense counsel explained that after discussing the facts of the case with defendant, he suggested that defendant offer “to plead to a felony 273.5” in exchange for as “little time as possible,” and they had negotiated the 10-month offer. But when they went over to Judge Lisk’s department to take the plea, he learned that the prosecutor wanted defendant to admit the deadly weapon allegation, “[t]hat was never negotiated with the district attorney or the court.” The district attorney had assumed that defendant would be admitting the allegation, and defense counsel had taken it for granted that the prosecutor would not be requesting that. When the judge began to voir dire defendant on the language that would make the conviction a strike, “that’s where I stopped it. I said, oh wait, that was not part of the deal. We took a break and I informed Mr. Plumeau of the change in circumstances, that I didn’t inform him that... he’d be pleading to a strike. [¶] At that point I did advise Mr. Plumeau not to accept the offer, that wasn’t what we negotiated, and I informed him he should not be pleading to a strike not on this case. [¶] What ended up happening is because there was really no meeting of the minds between defense and the prosecutor, in my opinion it appeared that Mr. Plumeau was leaning towards taking the [10 month] offer anyway..., and he was going to admit the strike. And I think I proposed to him that had I known he was pleading to a strike I would have used that as leverage to get him less time. And that being said I think he’s the one that proposed getting less time and that’s when I negotiated with the district attorney the six month offer.... So we proposed the same offer but with a six month sentence..., and we took the plea for that.”
Defense counsel acknowledged that in advising defendant not to admit the strike language, he did tell defendant “that the situation could be worse.” However, defendant informed him that he did not want his daughter to testify, and defense counsel believed that was one of the reasons defendant “was going to take the offer anyway. We discussed the new negotiated plea that involved him pleading to a strike, and he went ahead and accepted that against my advice.”
The court inquired if defendant had anything else to add. Defendant said that he knew he had “a pretty big jacket,” and he had “been doing this for a long time,” but whenever he went to court his ears would get hot and he didn’t “understand half the stuff that’s going on. I go on overflow.” He said he had been in jail for two and a half or three years, had not been sleeping, the food was bad, and he “really didn’t understand what was going on.”
The court found that defense counsel had rendered competent representation and denied the Marsden motion. The court added that “subject to discussions with the district attorney,” it was inclined to allow defendant to withdraw his plea at a later date. “And the reason for that is that I don’t want to have people in a situation where they’re not going to be completely compliant with the way things should be.” However, the court wanted defendant and defense counsel “to think about it” and discuss the risk defendant would be running of exposing himself to “quite a bit of time” if he withdrew his plea. The court continued the matter to September 19.
On September 19, the matter was continued to September 24, then September 26, for a status hearing before Judge Pennypacker. On September 26, the case was transferred to Judge Lisk. After the case was called, the prosecutor asked to approach. Following an unreported discussion at the bench, the court announced that it would hear a Marsden motion and closed the courtroom.
The court commenced the Marsden hearing by inquiring about defendant’s basis for requesting to set aside his plea. Defendant responded that “Right now I’d like to just have the Court get a transcript of what happened at the last proceeding.” The court indicated that was not necessary. “You’d have to make a claim that your plea was obtained on July 30th, ’08, either due [to] fraud, misrepresentation, things of which you had no control over. There has to be some basis to set aside the plea. You just can’t say, Well, I have buyer’s remorse. I’m sorry. I don’t like the deal.” Defendant responded: “I thought I already did that with Judge Pennypacker.”
Judge Lisk indicated that since he had taken the plea, he would hear defendant’s reasons for wanting to set aside the plea. Defendant reiterated the reasons he had given Judge Pennypacker. He added: “And I just don’t think that this is a strike-able offense. And I fail to – the biggest thing is from courtroom to courtroom how much things changed from what I was being told and what my family was being told, and my defense attorney did not mention – well, he didn’t even know the strike was there until we got to your courtroom.” Defendant concluded by saying that because of the lack of sleep, he was “stressed” and “too tired to ask all the right questions. I was not in the right state of mind. I really did not understand what was happening at the time.”
After the Marsden hearing, in open court, Judge Lisk indicated he had heard “a part two Marsden Hearing,” which he was denying because there had been no request to remove defense counsel. The court then told defendant, “[Y]ou’ll have to repeat now in [the prosecutor’s] presence the reason why you want to set aside the plea.” The court then summarized defendant’s offer of proof, and asked the prosecutor to “refresh [its] recollection” about what had occurred at the change of plea hearing.
The prosecutor recounted his recollections of the change of plea hearing. He acknowledged that he and defense counsel had discussed a disposition in front of Judge Pennypacker, and that the “offer changed as we walked across the hallway,” but that there was a “conversation” between defendant and his attorney, and between defense counsel and the prosecutor and a new agreement was struck. “[B]ecause [defendant] explicitly knew and was told he was pleading to a strike, he received a lower jail sentence. So I think that was actually bargained for in the change of plea.”
The court asked the prosecutor if he had seen the letter from the complaining witness in which she recanted her accusation and now said it was an accident. He said that he had. The court asked if he found that unusual. He said that he did not. The court agreed it was “something I have seen before.”
Neither defendant nor trial counsel made any statement in open court in support of the motion to withdraw the plea.
The court denied the motion and proceeded to sentencing, after defense counsel waived formal arraignment for sentencing and stated “None,” when asked by the court “Any legal cause?” The court suspended imposition of sentence and placed defendant on three years of formal probation on various terms and conditions including that he serve six months in the county jail.
DISCUSSION
Defendant contends that trial counsel rendered ineffective assistance of counsel by failing to assist defendant in making a motion to withdraw his plea. “[I]t was improper for [defendant] here to be forced to articulate and argue his motion to withdraw his plea while his court-appointed counsel stood silently by his side.” We disagree.
“A defendant seeking relief on the basis of ineffective assistance of counsel must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel’s failings.” (People v. Price (1991) 1 Cal.4th 324, 440; People v. Anderson (2001) 25 Cal.4th 543, 569.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (People v. Anderson, supra, 25 Cal.4th at p. 569, internal quotation marks omitted; see also Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Pope (1979) 23 Cal.3d 412, 426.) Finally, “ ‘trial counsel’s tactical decisions are accorded substantial deference [citations],... A reviewing court will not second-guess trial counsel’s reasonable tactical decisions.’ ” (People v. Riel (2000) 22 Cal.4th 1153, 1185.) For that reason, “[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,]... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,’ the claim on appeal must be rejected.” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266, internal quotation marks omitted, quoting People v. Pope, supra, 23 Cal.3d at p. 426.)
Defendant’s argument relies chiefly on this court’s opinion in People v. Brown (1986) 179 Cal.App.3d 207 (Brown). In Brown, trial counsel informed the trial court at sentencing that her client wanted to withdraw his previously entered pleas, but that she was not making the motion for him, because she did not believe there was any legal basis for it. The court gave defendant leave to “speak.” (Id. at p. 211.) Defendant stated that he “wasn’t in the right frame of mind” when he entered his pleas and asked the trial court if he could withdraw his plea. (Ibid.) The court solicited comment from the district attorney and defense counsel. When defense counsel again declined to speak on defendant’s behalf, defendant asked if he could “get another lawyer to represent” him. (Id. at p. 212.) The court denied the request to relieve counsel. Then, adverting to its recollection of the plea hearing, the court stated that it “saw nothing occur that would, in any way, require a setting aside of the pleas entered.” (Id. at p. 213.) Interrupting the court one last time, defendant stated that “a death... had [him] shook up” and his attorney didn’t know how to go about the case. (Ibid.) The court denied the motion.
On these facts, the Brown court concluded that the defendant was “deprived of his right to make an effective motion to withdraw his plea of nolo contendere.” (Brown, supra, 179 Cal.App.3d at p. 213.) We explained that it was “improper to permit defendant to bring his motion in pro. per. while he was still represented by counsel and he had not waived his right to counsel.” (Id. at pp. 214-215.) “Defendant was entitled to have the motion presented to the court by his attorney of record.” (Id. at p. 215.) We reversed and remanded to allow the defendant to bring a motion to withdraw his plea and directed the trial court to hold a Marsden hearing if trial counsel still refused to present the motion. However, this court also acknowledged that counsel is not compelled to make a motion which, in counsel’s good faith opinion, is frivolous or when to do so would compromise accepted ethical standards.
In People v. Johnson (2009) 47 Cal.4th 668 (Johnson), our Supreme Court recently discussed Brown in the context of requiring a defendant to obtain a certificate of probable cause before appealing on the grounds that his or her trial attorney rendered ineffective assistance of counsel in connection with the defendant’s request to withdraw a plea. The Johnson court observed that the Brown court had “reversed and remanded for the limited purpose of permitting the defendant to make a motion to withdraw the plea, with the assistance of counsel, and did so without addressing whether counsel’s failure to argue the motion was prejudicial.” (Johnson, at pp. 683-684.) The Supreme Court assumed without deciding “that the holding of Brown is correct and that no showing of prejudice is required to support a claim based upon counsel’s refusal to present a defendant’s withdrawal motion.” (Id. at p. 684.) But the Court further observed that “even in a case in which the defendant seeks to withdraw the plea and counsel does not assist the defendant in presenting the motion, factual issues may exist as to whether counsel failed to participate in the motion for some allegedly invalid reason or instead refused for a valid reason, such as the lack of nonfrivolous grounds. Generally, if it cannot be determined from the record whether counsel had a reasonable strategic basis for acting or failing to act in the manner challenged, a claim of ineffective assistance ‘is more appropriately decided in a habeas corpus proceeding.’ (People v. Mendoza Tello [supra,] 15 Cal.4th [at pp.] 266-267 [claim that trial counsel rendered ineffective assistance in failing to make a motion to suppress evidence was not suitable for resolution on appeal, because the record did not show the reasons for counsel’s failure to do so].)” (Id. at pp. 684-685.)
In our view, defendant’s reliance on Brown is misplaced for two interrelated reasons. First, Brown is distinguishable because, in this case, the trial court held Marsden hearings and determined that defendant’s appointed attorney had not rendered ineffective assistance of counsel in the plea proceedings which gave rise to defendant’s desire to withdraw his plea, whereas in Brown the trial court denied defendant’s request to relieve counsel without first holding a Marsden hearing to explore defendant’s apparent conflict with his attorney. The remedy in that case was to remand for a new motion to withdraw the plea, with counsel’s assistance, or a Marsden motion, if counsel again declined to argue the motion. At any Marsden hearing, the trial court was to “attempt to determine the basis of the conflict and decide, in its discretion, whether substitute counsel should be appointed to represent the defendant.” (Brown, supra, 179 Cal.App.3d at p. 216.) The Brown court did not purport to hold that original trial counsel must assist defendant with his motion, or that substitute counsel must make the motion if original counsel will not. On the contrary, case law is now clear that even in cases where substitute counsel is appointed to investigate the grounds for making a motion to withdraw the plea, it is counsel who must make an informed decision to bring the motion or forgo bringing it. (People v. Smith (1993) 6 Cal.4th 684, 695-696 [“when a defendant satisfies the trial court that adequate grounds exist, substitute counsel should be appointed. Substitute counsel could then investigate a possible motion to withdraw the plea or a motion for new trial based upon alleged ineffective assistance of counsel. Whether, after such appointment, any particular motion should actually be made will, of course, be determined by the new attorney”].) In this sense, defendant has already had the only remedy that Brown could afford him.
Second, the record here does not permit us make the determination that counsel failed to participate in the motion out of incompetence, rather than because of a valid concern for ethics or lack of nonfrivolous grounds. So far as this record shows, the issue of plea withdrawal was first raised in the context of a Marsden motion to fire trial counsel because of the confusion caused in defendant’s mind by the conflicting advice trial counsel gave defendant during the change of plea proceedings. At the first Marsden hearing, trial counsel explained his reasons for acting as he did, and both defendant and trial counsel also shone light on defendant’s reasons, independent of any confusion, for wanting to accept the re-negotiated plea bargain against counsel’s advice: his desire to spare his four-year-old daughter the ordeal of testifying.
At the second Marsden hearing, defendant’s comments revealed that, in addition to his other stated reasons for wanting to withdraw his plea, he simply did not believe his conduct should have resulted in a “strike-able offense.” In addition, although defendant did not mention it as a reason for wanting to withdraw his plea, the record reveals that the complaining witness had recanted since the taking of the plea, and that this fact was known to all concerned.
In denying the Marsden motions, the trial judges expressly found that trial counsel had not rendered ineffective assistance during the change of plea hearing, and implicitly found that there was no “breakdown in the attorney-client relationship of such magnitude as to jeopardize the defendant’s right to effective assistance of counsel.” (People v. Robles (1970) 2 Cal.3d 205, 215.) The correctness of those rulings is not challenged by defendant on appeal.
Although the first court did indicate that it was “leaning towards allowing” defendant to withdraw his plea, if he made such a motion, its reasons for that inclination appear to be pragmatic only, and the court continued the matter for one week to give defendant and his counsel ample opportunity to discuss the pros and cons of plea withdrawal. The record on appeal does not, of course, reveal the substance of the attorney-client consultation. It only shows that, after such consultation, defense counsel remained silent during the second Marsden hearing and at the subsequent hearing on the motion to withdraw the plea, at which time defendant also remained silent. Given the evidence in the record tending to show that defendant had reasons other than confusion for desiring the withdrawal of his plea and admission, and consistent with Mendoza-Tello, we cannot assume, on this record, that counsel’s silence was the result of incompetence, rather than of legitimate concerns about the merits or ethics of defendant’s motion. Defendant has not demonstrated ineffective assistance of counsel.
CONCLUSION
Defendant has not demonstrated ineffective assistance of counsel on direct appeal with this record.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Elia, Acting P.J., Mihara, J.