P. v. Guillory
Filed 4/25/07 P. v. Guillory CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE, Plaintiff and Respondent, v. PHILLIP M. GUILLORY, Defendant and Appellant. | C053021 (Super. Ct. No. 05F06654) |
On the day set for trial, defendant Phillip Guillory pleaded no contest to a count of inflicting corporal injury on a cohabitant (with an enhancement for personally inflicting great bodily injury) and admitted recidivist allegations. The total prison term was to be 12 years.
On the date set for imposition of sentence, defense counsel stated that the defendant was interested in withdrawing his plea. Defense counsel had explained there is a narrow legal standard for such a motion, but the defendant wanted the opportunity to consult with another attorney whom he had contacted. The other attorney addressed the court, requesting a continuance of one day to speak with the defendant on the issue. The trial court stated that it would proceed with sentencing; if the defendant were to retain the attorney and, after conferring with the defendant, the attorney wanted to file some motion based on grounds to recall the sentence, it would be willing to entertain the motion. The other attorney noted that there was new evidence in the form of an affidavit from the victim that she had fabricated her account. The court noted there was independent corroborative evidence and it did not find a recanting victim of domestic violence to be highly persuasive. The prosecutor also noted that the parties and the court took the victims inconsistencies into account in discussing the plea. The court then imposed sentence in accord with the negotiated disposition (despite the probation officers recommendation for a longer sentence).
The defendant filed his notice of appeal, but did not obtain a certificate of probable cause from the trial court. (Pen. Code, 1237.5.) We denied his request to deem that he had obtained the certificate, or to allow him leave to obtain one belatedly from the trial court.
The defendant contends on appeal that the denial of the continuance request from the defendants prospective attorney was the vehicle resulting in the denial of [his] right to counsel of his choice. We shall dismiss the appeal.
Discussion
A criminal appeal from a plea of guilty or no contest may proceed only with a certificate of probable cause unless it involves an issue relating to the suppression of evidence or postplea proceedings relating to the degree of the crime or the sentence. (People v. Panizzon (1996) 13 Cal.4th 68, 74-75.)
People v. Emery (2006) 140 Cal.App.4th 560 reiterated that the focus in determining the viability of such an appeal is on the substance of a defendants arguments, not the manner in which the defendant chose to characterize them; [i]f the challenge is in substance an attack on the validity of the plea, [the] defendant must obtain a certificate of probable cause. (Id. at p. 565.) While the contention raised on appeal was a denial of due process in failing to grant trial counsels request for a continuance of unspecified length to determine whether the victims recantation was a basis to withdraw the plea, the merits of that argument rested directly on the validity of the plea and as a result a certificate of probable cause was necessary to pursue the appeal. (Ibid.)
The defendants efforts to distinguish between People v. Emery and the present case are not persuasive. The only purpose for a continuance in People v. Emery was investigating a basis to set aside the plea. Eliminating the validity of the plea from the equation eliminated any prejudice from the claim of error. In the present case, the only purpose for the defendant to consult with a new attorney was to decide whether to withdraw his plea. Invoking the right to counsel is merely a sterile exercise in abstract constitutional rights in the absence of considering the validity of his plea. As a result, his appeal cannot proceed in the absence of a certificate of probable cause.
The defendant suggests in his reply brief that the court violated his right to seek substitution of appointed counsel. (People v. Marsden (1970) 2 Cal.3d 118.) The perfunctory and tardy nature of this claim absolves us of any duty to provide a plenary response. (People v. Oates (2004) 32 Cal.4th 1048, 1068, fn. 10; People v. Taylor (2004) 119 Cal.App.4th 628, 642.) As a result, we simply note that the court learned the substance of the defendants apparent disagreement with his appointed counsels opinion on the lack of merit in his wish to withdraw his plea, and expressed its belief that appointed counsel was correct. Nothing more was necessary to preserve the defendants right to replace appointed counsel.
Disposition
The appeal is dismissed.
DAVIS, Acting P.J.
We concur:
NICHOLSON , J.
BUTZ , J.
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