P. v. Meltz

Filed 7/7/06 P. v. Meltz CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Herbert J. Exarhos, Judge. Affirmed, modified, and remanded with directions.

Todd Meltz entered a negotiated guilty plea to corporal injury to a cohabitant (Pen. Code, § 273.5)^[1] with personal infliction of great bodily injury (§ 1192.7, subd. (c)(8)).

On February 24, 2005, the court suspended imposition of sentence; placed him on probation for three years, including the condition of 365 days in the sheriff's custody; and ordered him to appear in court on March 8 for execution of custody. On March 8, when Meltz did not appear in court, the court summarily revoked probation and issued a bench warrant. On July 13, Meltz was arrested on the warrant.

At a hearing on July 19, 2005, Meltz's retained counsel told the court that Meltz wanted to withdraw his guilty plea based on his dissatisfaction with counsel. The court replied, "It's not timely. The judgment has been imposed. He was sentenced, so the time to withdraw the plea was prior to the imposition of sentence, so it's not timely at this point in time." After Meltz waived his right to an evidentiary hearing and admitted violating probation, the court formally revoked probation. On August 18, it sentenced him to the three-year middle prison term.

Meltz appeals, contending the court abused its discretion by failing to determine whether good cause existed for withdrawal of his plea. The People properly concede he was entitled to have his withdrawal motion heard on the merits. Section 1018 allows a motion to withdraw a guilty plea "at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended." Here, on February 24, 2005, the court suspended imposition of sentence and ordered probation.

This did not constitute a judgment within the meaning of section 1018. (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796; People v. Miranda (2004) 123 Cal.App.4th 1124, 1131.) On July 19, fewer than five months later, Meltz asked to withdraw his plea.

Meltz additionally contends the court abused its discretion by not affording him an opportunity to be heard on his claim that counsel was ineffective and by not appointing conflict-free counsel to prepare a formal motion to withdraw the plea and represent him at the withdrawal hearing. While, contrary to Meltz's intimation, there was no request for new counsel in the court below, defense counsel did tell the court she thought that the basis of Meltz's wish to withdraw his plea was "his lack of pleasure with [counsel's] services." On remand, the trial court should first consider any claim that counsel was ineffective and whether there should be a substitution of counsel (People v. Smith (1993) 6 Cal.4th 684, 694-696) and then hold a hearing on the merits of Meltz's motion to withdraw his plea.

DISPOSITION

The judgment of conviction is affirmed. The judgment is modified to vacate the sentence. The case is remanded with directions to consider any claim that counsel was

ineffective and whether there should be a substitution of counsel (People v. Smith, supra, 6 Cal.4th at pp. 694-696) and then hold a hearing on the merits of Meltz's motion to withdraw his plea.

McINTYRE, J.

WE CONCUR:

McCONNELL, P. J.

NARES, J.

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^[1] All statutory references are to the Penal Code unless otherwise specified.