Filed 4/30/18 P. v. Hutcherson CA5


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

DARTAGNAN TADARYL HUTCHERSON,

Defendant and Appellant.

F075367

(Super. Ct. No. F16905526)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Jonathan M. Skiles, Judge.
Gordon B. Scott, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Caely E. Fallini, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-


Dartagnan Tadaryl Hutcherson (appellant) contends his drug and firearm possession conviction must be reversed because the trial court failed to conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) after appellant filed a presentence motion, listing a desire for a Marsden hearing, as a basis to withdraw his plea. Because the motion was, in substance, a challenge to the validity of the plea itself, we dismiss the appeal for failing to obtain a certificate of probable cause. (Pen. Code, § 1237.5.)
BACKGROUND
Executing a search warrant of appellant’s home on April 7, 2016, Fresno Police found appellant in the bathroom flushing the toilet. Officers observed appellant drop a plastic baggie containing methamphetamine onto the ground and found three small baggies of methamphetamine floating in the toilet bowl. Appellant was the only person in the home, where the officers also discovered a semi-automatic handgun, $258 in cash, a cell phone, a scale, two boxes of plastic baggies, a shirt with more methamphetamine and cash in a pocket, and two baggies containing marijuana. The cell phone contained messages referring to narcotics sales.
On November 28, 2016, pursuant to a plea agreement in exchange for a maximum six-year prison sentence and the dismissal of additional charges, appellant pled no contest to possession of methamphetamine for sale (Health & Saf. Code, § 11378), with an enhancement for being personally armed with a firearm (§ 12022, subd. (c)), and possession of firearm by a felon (§ 29800, subd. (a)(1)).
At the initial sentencing hearing on January 6, 2017, appellant immediately made an oral motion to withdraw his plea. The trial court denied the request, noting there was no current motion before the court and even if there were, there was no legal basis to grant such a motion. The trial court then granted the defense’s motion for a continuance.
On February 10, 2017, before a different trial judge, appellant made another oral motion to withdraw his plea. Appellant’s counsel stated he had not found any legal basis for appellant to withdraw his plea, but suggested the court appoint alternate counsel to research the issue and advise appellant. After the trial court agreed, appellant responded, “I’d rather represent myself pro per and withdraw my plea today.” The trial judge rejected the motion and set the matter out before the original trial judge, noting that if appellant wanted to file a motion to withdraw his plea, the People required the opportunity to respond.
Appellant renewed his request to withdraw his plea at sentencing before the original trial judge on February 15, 2017. Noting the motion had already been denied on January 6, 2017, the trial court initially refused to entertain the motion and proceeded to solicit arguments from counsel on sentencing. Appellant repeatedly interjected, demanding he be allowed to withdraw his plea. The trial court then stated:
“For the record I have read the letter that was just submitted to the court by Mr. Hutcherson and it is in large part a conditional request to withdraw the plea, but the court is unaware of any facts or circumstances that would justify that. The court went over the change of plea in detail with the defendant at the time that the plea was taken. Defendant entered a knowing and voluntary plea and the court finds no basis for the plea to be [withdrawn].”
The trial court then proceeded to sentence petitioner to a five-year prison term, with two additional years running concurrently.
Appellant filed a timely notice of appeal along with a request for a certificate of probable cause. In the request, appellant stated he wanted to withdraw his plea, he never received a hearing on his request, counsel “coached” him into accepting the plea, and he made the wrong choice by entering a no contest plea. He also complained in the certificate request that his counsel admitted to the court that there were no grounds to withdraw his plea, which appellant felt constituted “clear proof that my lawyer is 100 percent against me” amounting to ineffective assistance of counsel. The trial court denied the request for certificate of probable cause.
DISCUSSION
Appellant contends the trial court failed to consider his request for a Marsden hearing in the letter he submitted to the court on February 15, 2017, in connection with his request to withdraw his plea. Appellant asserts that denying the motion to substitute counsel without giving him the opportunity to catalogue acts and events beyond the observation of the trial judge deprived him of a fair trial. (Marsden, supra, 2 Cal.3d at p. 126.) Appellant admits the trial court denied his request for a certificate of probable cause, but argues a certificate was not required here because he made his Marsden request after entering his plea and he did not challenge its validity. (People v. Vera (2004) 122 Cal.App.4th 970, 978.)
Section 1237.5 provides that a criminal defendant may only appeal from a plea of guilty or nolo contendere where: (a) the defendant files a written statement presenting “reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings,” and (b) the trial court executes and files a certificate of probable cause. A certificate is not required, however, where the appeal is based on the denial of a motion to suppress evidence or on grounds that arose after entry of the plea that do not affect the plea’s validity. (§ 1538.5; Cal. Rules of Court, rule 8.304(b)(4).)
As our Supreme Court has explained, “The purpose for requiring a certificate of probable cause is to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty and nolo contendere pleas.” (People v. Panizzon (1996) 13 Cal.4th 68, 75 (Panizzon).)
“It has long been established that issues going to the validity of a plea require compliance with section 1237.5. [Citation.] Thus, for example, a certificate must be obtained when a defendant claims that a plea was induced by misrepresentations of a fundamental nature [citation] or that the plea was entered at a time when the defendant was mentally incompetent [citation]. Similarly, a certificate is required when a defendant claims that warnings regarding the effect of a guilty plea on the right to appeal were inadequate.” (Panizzon, supra, 13 Cal.4th at p. 76.)
In determining whether the certificate mandated under section 1237.5 applies, courts must look to the “substance of the appeal.” In doing so, “the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.” (Panizzon, supra, 13 Cal.4th at p. 76.)
In the present case, appellant or his counsel asked the trial court to withdraw appellant’s plea at least 12 different times at the three most recent court hearings. Although appellant had previously requested a Marsden hearing in October 2016—leading to the appointment of his most recent counsel—appellant never made such a request before the trial court again. Instead, appellant relies on a single sentence appearing at the end of his February 15, 2017, handwritten letter to the court restating his desire to withdraw his plea, concluding, “I will represent myself. I want a marden [sic] motion.” But even that written request appears in the context of appellant complaining about counsel’s recommendation to accept the plea offer, and only after appellant repeatedly stated he wanted to withdraw his plea. Viewing the brief Marsden reference—along with appellant’s repeated oral requests at the last three hearings—the substance of appellant’s request was to withdraw his plea, not to appoint substitute counsel. Indeed, appellant repeatedly stated he wished to proceed pro per rather than accept the appointment of new counsel.
As appellant’s request for certificate of probable cause further confirms, the basis for the current appeal is in substance a challenge to the validity of the plea itself. Appellant’s failure to obtain a certificate therefore bars him from appellate review. (§ 1237.5.)
DISPOSITION
The appeal is dismissed based on the lack of a certificate of probable cause.