P. v. Mohundro

Filed 10/11/06 P. v. Mohundro CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Donald Mohundro appeals a judgment following his plea of no contest to two counts of aggravated assault on a child. In this appeal, defendant asserts the trial court erred by not appointing new or separate counsel to argue the motion to withdraw his plea.

Statement of the Case[1]

In September 2004, defendant was charged with two counts of aggravated assault of a child under the age of 1 and 10 or more years younger than defendant. (Pen. Code, § 269 - counts 1 and 2),[2] continuous sexual abuse of a child under the age of 14 (§ 288.5, subd. (a) - count 3, employing, persuading, or introducing a minor’s involvement in modeling, posing, or performing sexual conduct (§ 311.4, subd. (c) - count 4), and possessing or controlling matter depicting a minor engaging in, or simulating sexual conduct (§ 311.11, subd. (a) - count 5.)

In March 2005, pursuant to a negotiated disposition, defendant pleaded no contest to two counts of aggravated assault on a child under the age of 14 and 10 or more years younger than defendant (§ 269).

In June 2005, prior to his sentencing, defendant filed a notice to “retract[]” his pleas of no contest. This filing was prepared by defendant himself, and was not through his appointed counsel. At the same time, defendant requested that a new attorney be appointed to represent him.

At defendant’s sentencing, the trial court conducted a closed hearing, and considered defendant’s requests to withdraw his plea, and for the appointment of new counsel. The court denied both requests, and sentenced defendant to 30 years to life in prison.

Defendant filed a timely notice of appeal. Discussion

Defendant contends that the trial court erred by permitting him to proceed with a motion to withdraw his plea in pro per, even though at the time he was represented by appointed counsel. Defendant further asserts that because of this error, we should remand the case back to the trial court so that his trial counsel can determine whether to pursue a motion to withdraw his plea, and, if his trial counsel will not pursue such motion, the trial court should conduct a Marsden[3] hearing to determine if new counsel should be appointed to pursue the motion.

Factual Background of Motion to Withdraw Plea

Three months after defendant entered his plea of no contest, he filed a notice regarding the “retraction plea of no contest“ on his own without the assistance of his appointed counsel. The basis of his motion was that he received ineffective assistance from his appointed counsel because she failed to meet with him, and did not present possible defenses to his case, but instead pressured him to accept a plea of no contest.

The same day as defendant filed his motion, the trial court held a closed hearing in the matter, with only defendant, his appointed counsel and court staff present, stating as follows: “At this time, we are about to commence what is referred to as a ‘Marsden hearing.’ [Defendant] has filed a document requesting a retraction of his plea and indicated he wishes to change attorneys, which for the most part contain the same bases, I would assume; and so, I’m going to treat it as such.” (Italics added.)

The court then proceeded with the Marsden motion, questioning both defendant as well as his counsel about her representation, and what problems defendant was having with her. At the conclusion of the hearing, the court made a lengthy statement on the record that included the following opinion: “I don’t see anything in this to indicate that your attorney has done anything either improper or not done enough. . . . . . . So, I’m going to deny your Marsden motion to excuse your attorney. And with the material that you have testified here today and my knowledge of the case, I am going to deny your request to withdraw your plea. It’s essentially on the same grounds.” (Italics added.)

Legal Analysis

In People v. Smith (1993) 6 Cal.4th 684 (Smith), the California Supreme Court clarified a defendant’s entitlement to appointment of a new attorney after entry of a guilty plea. The Smith court held “that the standard expressed in Marsden and its progeny applies equally preconviction and postconviction . . . .” (Id. at p. 694.) “We thus hold that substitute counsel should be appointed when, and only when, necessary under the Marsden standard, that is whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation].” (Id. at p. 696.) “Whenever the motion is made, the inquiry is forward-looking in the sense that counsel would be substituted in order to provide effective assistance in the future. But the decision must always be based on what has happened in the past.” (Id. at p. 695.)

Here, defendant sought to withdraw his plea based on his assertion that his trial counsel had not provided adequate representation, and, his decision to enter the plea of no contest was based on his counsel’s poor representation.

What sets this case apart is the fact that defendant actually filed a motion to withdraw his plea without the assistance and presumably, the acquiescence of his counsel. Because the basis of the motion was inadequate assistance of counsel, the court treated it as a Marsden hearing. Once the court found the Marsden meritless, it went on to deny the motion to withdraw the plea on the same grounds. Defendant asserts the court’s action in considering his motion to withdraw his plea that he filed in pro per but while he was represented by counsel was error.

In People v. Brown (1986) 179 Cal.App.3d 207, 214-215, this court recognized the general rule that a criminal defendant’s attorney is obliged to obey the defendant’s wish to bring a motion to withdraw a guilty plea. In People v. Garcia (1991) 227 Cal.App.3d 1369, 1377, this court recognized “a limited exception to” this general rule. An attorney cannot be expected to attack himself or herself as a basis for withdrawing a defendant’s guilty plea. (Ibid.) Accordingly, when “a defendant seeks to withdraw a plea on the ground that his attorney of record has not provided adequate representation,” the proper procedure is to first conduct a Marsden-like hearing to ascertain if the defendant is entitled to appointment of a new attorney. (Ibid.)

Smith identified the threshold issue when a defendant seeks to withdraw a guilty plea due to alleged ineffective assistance of trial counsel is whether defendant is entitled to substitute counsel to present the motion. “We stress, therefore, that the trial court should appoint substitute counsel when a proper showing has been made at any stage. A defendant is entitled to competent representation at all times, including presentation of a new trial motion or motion to withdraw a plea . . . [citation] . . . justice is expedited when the issue of counsel’s effectiveness can be resolved promptly at the trial level. In those cases in which counsel was ineffective, this is best determined early. Thus, 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. (Smith, supra, 6 Cal.4th at pp. 695-696.)

“We stress equally, however, that new counsel should not be appointed without a proper showing. A series of attorneys presenting groundless claims of incompetence at public expense, often causing delays to allow substitute counsel to become acquainted with the case, benefits no one. The court should deny a request for new counsel at any stage unless it is satisfied that the defendant made the required showing. This lies within the exercise of the trial court’s discretion, which will not be overturned on appeal absent a clear abuse of that discretion.” (Smith, supra, 6 Cal.4th at p. 695.)

Marsden and Smith rejected the notion “that a defendant may obtain substitute counsel on demand . . . .” (Smith, supra, 6 Cal.4th at p. 694.) An attorney will not be found ineffective for failing to make a motion to withdraw a guilty plea until the defendant shows some basis for making such a motion. A defense counsel cannot be faulted for failing to present a frivolous motion to withdraw a guilty plea. (See People v. Brown, supra, 179 Cal.App.3d at p. 216; see also People v. Makabali (1993) 14 Cal.App.4th 847, 853.) Thus, in determining whether to appoint substitute counsel, the trial court may evaluate the possible merit of the underlying motion that the defendant would like new counsel to bring. The court’s denial of defendant’s request for new counsel in these circumstances constitutes an implicit determination that defendant’s proposed motion to withdraw his guilty plea lacked merit.

Under the case law discussed above, the trial court in the present matter properly first addressed the issue of the appointment of substitute counsel before entertaining the issue of defendant’s request to withdraw his plea.

Contrary to defendant’s argument in this appeal, the fact that defendant filed his motion in pro per, and the court ultimately considered the merits of the motion does not itself demonstrate error. Here, defendant stated his grounds for the motion to withdraw the plea very clearly to the court--the ineffective assistance of his trial counsel. Based on the allegations of ineffective assistance, it was entirely proper for the court to consider the motion initially as a Marsden hearing. After denying the Marsden hearing, the trial court concluded that defendant’s motion to withdraw his plea also lacked merit, because it was based on the same grounds. The fact that the court considered the motion that defendant filed in pro per is of no consequence, because the court considered the merits of defendant’s allegations of ineffective assistance of counsel fully and completely.

Disposition

The judgment is affirmed.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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ELIA, J.

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[1] The underlying facts of the case are omitted because they are not relevant to the issues on appeal.

[2] All further unspecified statutory references are to the Penal Code.

[3] People v. Marsden (1970) 2 Cal.3d 118 (Marsden).