Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Before Vartabedian, Acting P.J., Harris, J., and Kane, J.
APPEAL from a judgment of the Superior Court of Merced County. Brian L. McCabe, Judge.
Syda Kosofsky, 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, Lloyd G. Carter, William Kim and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
In September 2004, appellant Kao Kuang Saechao pled no contest to possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) and battery on a spouse (Pen. Code, § 243, subd. (e)(1)), and admitted an allegation that he had served a prison term for a prior felony conviction (Pen. Code, § 667.5, subd. (b)). In November 2004, the court imposed a prison term of four years, consisting of the three-year upper term on the firearm possession offense and one year on the prior prison term enhancement; suspended execution of sentence; and placed appellant on five years’ probation.
In February 2006, appellant’s appointed attorney indicated to the court that appellant wished to withdraw his 2004 plea. Later in that proceeding, the court revoked appellant’s probation and appointed another attorney to represent appellant for the limited purpose of determining whether a legal basis existed for the withdrawal of the plea. In June 2006, the newly appointed attorney reported to the court that no such basis existed, at which point the court found appellant to be in violation of probation and imposed the previously suspended prison term.
Initially, appellant’s appointed appellate counsel filed an opening brief which summarized the pertinent facts, with citations to the record, raised no issues, and asked that this court independently review the record. (People v. Wende (1979) 25 Cal.3d. 436.) Thereafter, this court directed the parties to submit briefing on certain issues. In response, appellant, through counsel, filed a brief in which he argues the trial court erred in: (1) appointing a second counsel to determine whether a basis existed for the withdrawal of appellant’s plea, (2) failing to direct appellant’s counsel to seek an order allowing appellant to withdraw his plea; (3) failing to conduct an inquiry into the basis for appellant’s claim that he should be allowed to withdraw his plea; and (4) appointing a second counsel without relieving the first appointed counsel. We will reverse and remand for further proceedings.
BACKGROUND
On September 21, 2004, in Merced County Superior Court case No. 29028 (case No. 29028), appellant executed an “ADVISEMENT OR RIGHTS, WAIVER, AND PLEA FORM FOR FELONIES” (change of plea form) in which he indicated, by placing his initials in the spaces corresponding to printed statements, that he understood that the consequences of a plea of guilty or no contest could include, inter alia, a prison sentence, being “subjected to a 4 year period of parole” and receiving “4 YRS CDC SUSPENDED TIME.”
That same date, as indicated above, appellant pled no contest to possession of a firearm by a felon and spousal battery. He was represented by attorney William Davis. Prior to entering his plea, appellant, responding to questions from the court, indicated, inter alia, that his initials and signature were on the “change of plea form,” he read the “contents of [the] form,” he discussed the contents of the form with his attorney and he understood the “the court … is going to sentence [appellant] to four years in CDC[.]”
As is also indicated above, in November 2004, the court imposed a four-year prison term, suspended execution of sentence and placed appellant on five years’ probation. Shortly after the court imposed sentence, appellant stated: “I out of the country for three felony probation, not five year. [Sic.] This is too much. Five-year.” A discussion between the court, appellant, the prosecutor and defense counsel ensued, which concluded as follows:
“THE COURT: I find nothing in the plea form that sets his probationary period. And I just set it at five years.
“THE DEFENDANT: I want to take my plea back.
“MR. DAVIS: You don’t get to take your plea back.
“THE DEFENDANT: Why not[?]
“MR. DAVIS: Go in the room. We’ll talk about it.”
More than 14 months later, on January 23, 2006, appellant appeared in court in Merced County Superior Court case Nos. MM-205022 and MF-41967, represented by attorney Richard Berger. Mr. Berger noted that Mr. Davis was not present and asked that the matters be continued. The court set a hearing date of January 25.
Further references to dates of events are to dates in 2006.
Appellant appeared in court on all three cases on January 25. Also present was Mr. Berger. The marshal advised the court that Mr. Davis was in another department and intended to return. Shortly thereafter, Mr. Berger told the court that appellant “feels a little frustrated,” at which point appellant stated, “Yeah. I really don’t feel my lawyer’s doing the job that I deserve . . . in this case. [¶] I would like to know if it’s possible for the Court to grant me another lawyer ….” The court stated the matter would be continued to January 27, for a motion for the appointment of substitute counsel. The prosecutor remarked that appellant had not articulated whether he was “upset” with either Mr. Davis, Mr. Berger or both attorneys. Further discussion ensued, after which appellant stated: “I do not money [sic] to hire my own lawyer at this time. I do wish that Mr. Davis remain my lawyer.”
On January 27, the matter was continued to February 1.
On February 1, appellant appeared in court along with Mr. Davis and Mr. Berger. Mr. Davis, referring to case No. 29028, told the court: “The only matter[] I have is violation of probation. [¶ After speaking with [appellant], it’s apparent he wants to try to withdraw that plea which I believe would have to be a writ of [coram nobis]. [¶] I’m requesting other Counsel be appointed to look into that for him.” Shortly thereafter, the court revoked probation in case No. 29028, appointed the Law Firm of Morse and Pfeiff for the “limited” purpose of addressing the “issue of the writ” in case No. 29028, set February 7 “for confirmation of writ Counsel” in that case and set February 8 for further proceedings in the other two cases.
On February 7, appellant appeared in court with Mr. Berger. Also present in court was attorney Marc Garcia. The court, addressing Mr. Garcia, stated that Mr. Davis had been appointed “for the limited purpose of withdrawal, but [had] disqualified himself, and so he has somebody in line for conflict Counsel.” Mr. Garcia stated, “I’ll take it,” and the court set a hearing date of February 15.
On February 15, the matter was set for further proceedings on March 10. The minute order for the February 15 proceeding listed Mr. Garcia as appellant’s counsel.
In a letter received by the court on March 10, appellant asked that “cases MF38193 and MF41976” [sic] be consolidated, and asked for a jury trial. Appellant stated further, “I am requesting this … because at the time of my deal, I did not fully comprehend nor did I have a complete understanding (to what I was signing)!! Also, I would like to say that I do not fully understand or comprehend the [E]nglish language very well.”
On March 23, appellant appeared in court, represented by Mr. Garcia in case No. 29028 and by Mr. Berger in Merced Superior Court case No. 29966 (case No. 29966). An interpreter was also present. At the outset of the proceeding, Mr. Garcia informed the court that “[appellant’s] case includes an element where he’s had some hearing problems, hearing loss,” and that according to the interpreter, appellant was “requesting some device … to help him hear.” Later in the proceeding, appellant told the court, in pertinent part: “I like to inform the Court, because I am not [A]merican, and I don’t speak the language well, and they didn’t -- I didn’t have an interpreter for me at the time. [¶] … I’m referring back to the year 2000 [sic] when I was in court and they did not gave [sic] me a certified interpreter. [¶ They put me in prison for misdemeanor assault that I was not aware of.... [¶] What I’m saying, the other interpreter did not translate correctly for me the information that was passed on to me. . . . [¶] That’s why I misunderstood about my parole term. I thought it was just one year.”
Shortly thereafter, Mr. Garcia told the court appellant had “explained to [Mr. Garcia] what he believes are the issues for the writ,” and that he (Mr. Garcia) was “looking into those issues.” At Mr. Garcia’s request, the court continued the matter.
In a letter dated April 4 and received by the court April 6, appellant stated he had surgery on both ears and was “requesting help under the A.D.A., American Disabilities Act, due to the fact that I am over 70% deaf,” and “there has been more than one occurrence where I have misunderstood what is being agreed to.” Appellant asked that he be allowed to use headphones in court.
On April 6, Mr. Garcia told the court the following: Mr. Berger represented appellant in case No. 29966, Mr. Davis represented appellant in case No. 29028; Mr. Garcia had been investigating whether appellant’s plea in case No. 29028 could be “undone,” Mr. Garcia had received medical records from appellant’s doctor regarding “this hearing issue [appellant] has,” he (Mr. Garcia) had put in calls to the doctor and he (Mr. Garcia) was “awaiting a conversation before [he could] make a final recommendation.”
Shortly thereafter, the court stated: “Mr. Davis represents [appellant in case No. 29028]. The record will reflect Mr. Davis is relieved and Mr. Garcia is the attorney of record. [¶] Mr. Garcia is in the process of investigating this case for the purpose of determining whether or not there’s a factual or legal basis for him to withdraw the plea. [¶] If Mr. Garcia determines there is a legal and factual basis for determining the plea -- or withdrawing the plea, he will file such a motion. [¶] If he’s not, he will advise the Court and the Court would then reinstate Mr. Davis as his attorney.” At Mr. Garcia’s request, the court continued the matter to April 25. On that date the matter was continued to April 26.
On April 26, Mr. Garcia told the court: “Your Honor, my analysis with regards to [appellant’s] plan in his estimation revolved around [a] couple of separate issues. [¶] One of the issues that I looked into thoroughly was whether or not [appellant] understood the terms and conditions of the plea that was entered in case number 29028 in which he entered a plea, Mr. Davis was Counsel on that date, that felony plea was entered September 21st, 2004, and speaking to interim [sic] witnesses, including Mr. Davis, [appellant], reviewing the Advisement of the Rights Waiver and Plea Form, and the transcript of the plea, and also taking into consideration [appellant’s] familiarity with the criminal justice system, based on his prior history in that system, I found those claims to lack the merit and legal standard needed to have a cognizable clam for a writ. [¶] The other issue that came up … was, and there was recently, is the issue of his hearing loss. [¶] I’ve received medical records, the doctor’s indications were that he has progressive hearing loss recently. [¶] However, the critical time period would have been in September of 2004. [¶] I’ve spoken to [appellant] personally early on in my representation of him, I found there are not meritorious grounds for which [appellant] to have a cognizable claim for a writ. [Sic.] [¶] Therefore, your Honor, based on my analysis of the case, I find that there are no legally cognizable grounds upon which [appellant] can file a writ.” Shortly thereafter, the court relieved Mr. Garcia as counsel for appellant and confirmed May 2 as the trial date in case No. 29966.
According to a minute order in case No. 29028, on May 18, the court ordered that “[t]his matter is referred to the Law Office of Morse, Pheiff and Garcia, administrators, for appointment of next conflict counsel.” A minute order dated June 5 states: “Subsequent to the court hearing: Conflict administrators inform the clerk that Jeff Tenenbaum, CPD[,] has been appointed to represent the defendant in this matter.”
Appellant appeared for sentencing in case No. 29028 on June 30, represented by attorney Jeffrey Tenenbaum. At that proceeding, the following exchange took place:
“THE DEFENDANT: In 2004[,] I only know that I had misdemeanor probation. I didn’t know that I was on felony probation. I didn’t know that there was a judgment suspended on me at that time.
“[Prosecutor]: The confusion might be, Your Honor, he was placed on probation for a felony, being [a] felon in possession of a firearm, and a misdemeanor 243(e)(1).
“THE DEFENDANT: I didn’t understand that and I didn’t hear very well either. That’s part of the confusion I had. Is it possible that court can allow me to withdraw my plea so I can enter [a] not guilty plea for that?
“THE COURT: If the court’s not mistaken, you’ve already gone down that road before and the court appointed a counsel to review this matter for you. [¶] … [¶]
“[Prosecutor]: [Mr. Garcia] conducted an extensive investigation into the circumstances surrounding the underlying plea. And based on his representation to the court, there was no legal basis for [appellant] to withdraw his plea.
“THE COURT: And that was on April 26, 2006, the writ of coram [nobis] was denied after extensive investigation by Marc Garcia who was specifically appointed to represent you regarding that matter.”
Shortly after this exchange, the court imposed sentence.
DISCUSSION
Appellant first argues that the trial court, in appointing counsel for the limited purpose of determining whether grounds existed for withdrawing appellant’s plea, improperly delegated its judicial function. The People concede the point. We agree.
As this court stated in People v. Eastman (2007) 146 Cal.App.4th 688, 697, when a court “appoint[s] [second counsel] to determine for the court whether there was a legal or factual basis for withdrawal of the plea, the court cannot abandon its own constitutional and statutory obligations to make the ultimate determination itself based upon the relevant facts and law of which the court is made aware by some legally sanctioned procedure. (Cal. Const., art. 6, § 1 [the judicial power of the State is vested in the courts]; Code Civ. Proc., § 170 [a judge has a duty to decide any proceeding in which he or she is not disqualified]; People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 721 [powers of nonjudicial officers are constitutionally limited; findings and recommendations of such officers must be independently reviewed by the court and are not binding until adopted by the court]; Hosford v. Henry (1951) 107 Cal.App.2d 765, 772 [a court cannot delegate its own fact-finding powers].)”
Appellant also argues, “The trial court erred in failing to (1) direct appellant’s attorney of record to prepare and present a petition for writ of error coram nobis, or in any other way, seek an order allowing appellant to withdraw his plea and (2) conduct an inquiry into the basis for any request by appellant to withdraw the plea.” On this point, we find instructive People v. Brown (1986) 179 Cal.App.3d 207 (Brown) and People v. Osorio (1987) 194 Cal.App.3d 183 (Osorio).
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 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 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.” (Ibid.) 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 indicated there was good cause, but refused, in “‘good conscience,’” to bring the motion because withdrawal of the plea would result in reinstatement of counts dropped under the plea agreement. (Id. at p. 186.) On appeal, this court determined that the case should be remanded to allow defendant to bring a motion to withdraw the plea. (Id. at pp. 188-189.)
See People v. Marsden (1970) 2 Cal.3d 118.
As the People acknowledge, Brown and Osorio teach that a criminal defendant has a right to make a motion withdraw his or her plea, and to be represented by counsel in the effort, if nonfrivolous grounds exist for withdrawing the plea. The People argue, however, that the court did not err in not directing counsel to present a motion in the instant case because (1) “it appears that ‘Mr. Davis … disqualified himself’” and “[t]hat disqualification appears to have been accepted by the trial court so the court was in no position to order him to move to withdraw appellant’s plea”; “the court’s failure to ask appellant to articulate his reasons for wishing to withdraw his plea did not prevent appellant from making known his grounds for withdrawal of his plea”; and (3) the record shows that “the grounds for appellant’s motion to withdraw were known and frivolous.” We disagree.
“The writ of error coram nobis is an appropriate procedure for a postjudgment challenge to a guilty plea allegedly induced by mistake, fraud, or coercion.” (People v. Chaklader (1994) 24 Cal.App.4th 407, 409.) In this opinion, we use the word “motion” in its broadest sense to include any request for an order, including a petition for writ of error coram nobis.
First, as to the People’s claim that Mr. Davis disqualified himself, the record indicates he did no more than the attorneys in Brown and Osorio, i.e., express an unwillingness to represent his client in an effort to withdraw a plea. Second, the People’s claim that appellant himself could have voiced his reasons for wanting to withdraw his plea ignores the principle that under Brown and Osorio, a criminal defendant has the right to be represented by counsel in presenting a nonfrivolous motion to withdraw a plea. Finally, we reject the People’s argument that the record demonstrates that appellant’s grounds for asking to withdraw his plea are frivolous. As best we can determine, appellant indicated on multiple occasions, the first at the time of his sentencing in 2004, that he did not understand at the time he entered his plea that he would be subject to a five-year probationary period. We note that the change of plea form did not specifically mention the length of the probationary period, appellant claimed to have difficulty understanding the English language and in some proceedings, he utilized the services of a Mien interpreter. We offer no opinion as to how a claim raised by appellant that he should be allowed to withdraw his plea should be decided. We state only that insofar as the record reveals, the basis for such a claim is not frivolous.
The People argue that “[t]o the extent that error occurred, … it was harmless beyond a reasonable doubt.” Specifically, the People argue, in effect, that the record establishes beyond a reasonable doubt that appellant’s grounds for withdrawal of his plea are without merit. We disagree, for the same reasons we find that the record does not establish that a motion to withdraw appellant’s plea would have been frivolous. (Cf. Brown, supra, 179 Cal.App.3d at pp. 211, 213, 216 [nonfrivolous basis for withdrawal of plea established where defendant told court that at the time he entered his plea he “wasn’t in the right frame of mind” because “a death … had [him] shook up”].)
Finally, the People argue that the instant appeal should be dismissed because “[appellant’s] argument amounts to an attack on the plea itself, and appellant has not obtained a certificate of probable cause [under Penal Code section 1237.5] ” 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.) We disagree.
In Osorio, the court concluded 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, a certificate of probable cause was not required to raise the issue. (Osorio, supra, 194 Cal.App.3d at pp. 186-187.) Appellant seeks the same relief here. Thus the current appeal does not “in substance” challenge the validity of the plea. (Id. at p. 187.) This matter should be remanded to allow appellant to make a motion to withdraw his plea. If counsel declines to represent appellant, the trial court, as in Brown, “should hold a hearing, attempt to determine the basis of the conflict and decide, in its discretion, whether substitute counsel should be appointed to represent defendant.” (Brown, supra, 179 Cal.App.3d at p. 216.) We note again that counsel is not required to make a frivolous motion or “compromise accepted ethical standards.” (Ibid.)
Because we reverse the judgment for the reasons discussed above, we need not address appellant’s contentions that the court erred in failing to conduct an inquiry into the basis of appellant’s request to withdraw his plea and in appointing second counsel without relieving first counsel.
DISPOSITION
The judgment is reversed and the cause remanded to the superior court to permit 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.