P. v. Rawls

Filed 8/16/07 P. v. Rawls CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Delray K. Rawls pled nolo contendere to robbery, false imprisonment, property crimes and controlled substances crimes and admitted several firearms enhancements. Before sentencing, defendant asked the court to discharge his retained counsel and appoint substitute counsel (motion for substitute counsel) to explore a motion to withdraw his no contest pleas. The trial court asked for defendants reasons for withdrawing the pleas and then denied the not-yet-formally-made withdrawal motion. The motion for substitute counsel was not addressed. The court sentenced defendant to a prison term of 16 years, four months.

FACTS

The facts are taken from the probation report. On April 24, 2005, Celestino Calderon, his wife, Juana Solario, and their 10-year-old son, met defendant and another man, later identified as Derek Forbes, to test drive a black and tan Mitsubishi Montero defendant had left parked on a San Jose street corner with a For Sale sign asking $7,000. They followed defendant in their vehicle to what they thought was defendants apartment complex to retrieve the necessary paperwork. Defendant left them outside, returned with a semiautomatic handgun, and grabbed Calderon and pushed him into his truck demanding money. Defendant took Calderons truck keys, house keys, and cell phone. Forbes pointed a chrome-colored semiautomatic gun at Solario and her son, and took her purse containing $7,000 in cash plus credit cards and identification. Hours later, the Mitsubishi, stolen from Tuan Vu, was located parked in San Jose. The license plates were also stolen.

Officers identified defendant through the use of his cell phone, after which Calderon and Solario identified defendant from a photo lineup. Thereafter, a search warrant was served on defendants residence where a Glock semiautomatic pistol with two fully loaded magazines was found. When defendant was arrested, he had 13 tablets later identified as MDMA (methylenedioxymethamphetamine) in a sandwich bag in his right front pocket, $225 in cash, and two bags of marijuana weighing 16 grams and 19.2 grams. After Miranda advisements,[1] defendant confessed, although he claimed to have used a paintball gun in the robbery.

Defendant was charged and pled no contest to two counts of second degree robbery, counts 1 and 2 (Pen. Code, 211, 212.5, subd. (c));[2] felony false imprisonment, count 3 ( 236, 237); vehicle theft, count 4 (Veh. Code, 10851); receiving stolen property, count 5 ( 496, subd. (a)); possession of a controlled substance, count 6 (Health & Saf. Code, 11377, subd. (a)); and misdemeanor possession of marijuana, count 7. (Id., 11357, subd. (c).) The information also alleges firearms enhancements pursuant to sections 12022, subdivision (a)(1), and 12022.53, subdivision (b), as to counts 1 and 2; and sections 12022.5, subdivision (a), and 12022, subdivision (a)(1), as to count 3. This appeal ensued.

ISSUE ON APPEAL

Defendant claims he was denied his Sixth Amendment right to effective assistance of counsel when the trial court denied his substitute counsel motion.

SUBSTITUTION OF COUNSEL

We have noted that the trial court never ruled on defendants substitute counsel motion but the parties proceed in this court as if it did. However, defendant also claims the courts asking him for his reasons for withdrawing his pleas and denying the motion as unfounded effectively required him to present his motion without assistance of counsel. We start there.

Defendant cites People v.Ortiz (1990) 51 Cal.3d 975, 982 (Ortiz), for the proposition that when an indigent defendant with retained counsel wishes the court to appoint substitute counsel, a Marsden-type inquiry[3] on retained counsels representation is irrelevant; the court may only inquire whether appointment of counsel would significantly prejudice^[[4]] defendant or result in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case. Defendant declares the trial courts error warrants reversal without a showing of prejudice.

1. Background

In the court below, when the case was called for sentencing, defense counsel informed the court that defendant intended to move to withdraw his guilty plea based on various issues and that she would have a conflict of interest in that pursuit. The court passed the matter to the end of the calendar so that there could be a hearing outside the presence of the district attorney. However, the district attorney was present when the court again called the matter for pronouncement of judgment. Defense counsel again interjected that her client would like to terminate her services and stated she did not believe a Marsden motion was an appropriate path. She stated her client would like to be referred to the public defender for exploration of the issues in the motion to withdraw the plea.

The trial court immediately asked, Why do you wish to withdraw your plea, Mr. Rawls? Defendant responded that he and defense counsel had a conflict of interest and that counsel told him she believed he was guilty . . . and the last time she came to visit me she was working on another case while I was talking to her. Defendant acknowledged that the sentencing and plea-taking judges were the same person, but stated that when he said that he did not understand something the judge told him during the entry of the plea, the judge told him to discuss it with his lawyer. All she said was, just say, yes. Furthermore, defendant stated, when defendant asked the judge exactly what you were saying meant[,] . . . you told me to go over it with my attorney.

The court stated that it specifically remember[ed] the plea in this matter. . . . [and] ask[ed] if you have any questions, if you do it freely and voluntarily. . . . You answered yes to all those questions.

Defendant responded, It just didnt occur to me at the time. . . . I entered the plea on the . . . basis that she told me[;] it was enter the plea today that she would retain a psych specialist and take a payment off my attorney fees. He also stated that counsel said she conducted interviews with the victims but she could not furnish any kind of evidence that she did; she did not return phone calls; and she visited him only twice since he was placed in custody and twice while he was out of custody. Finally, [s]he made promises to me . . . that my case was a program eligible case and my parents here are witnesses to that.

The court responded, [t]his is an armed robbery with a personal use of a firearm and its a serious matter--defendant was facing 18 years, four months in state prison. The court stated defendant did not present any reasons for setting aside the plea, although he was justifiably concerned about the length of the prison commitment.

Defendant responded that defense counsel made promises she could not keep and that he would just like a new attorney. I would like to withdraw my plea for the fact that she misinformed me. Counsel was not asked to respond. Without ruling on the substitute counsel motion, the court stated there were no grounds to withdraw the plea and denied the request.

2. Right to Counsel, Indigent v. Nonindigent Defendant

A defendant has the right to the effective assistance of counsel at all stages of trial, including when he seeks to withdraw a guilty plea. (People v. Brown (1986) 179 Cal.App.3d 207, 214.) A nonindigent defendant generally has the right to discharge his retained attorney, with or without cause, however, that right is not absolute since the trial court, in its discretion, may deny such a motion if the discharge will result in significant prejudice to the defendant or if it is not timely, i.e., if it will result in disruption of the orderly processes of justice. (Ortiz, supra, 51 Cal.3d at p. 983.)

An indigent defendant seeking substitution of appointed counsel must show under the Marsden standard that denial of substitution would substantially impair his constitutional right to the assistance of counsel, either because of his attorneys incompetence or lack of diligence, or because of an irreconcilable conflict. (People v. Smith (1993) 6 Cal.4th 684, 696 (Smith).) An indigent defendant, however, need not demonstrate inadequate representation by his retained attorney or identify an irreconcilable conflict between them on a timely motion to discharge his retained attorney and obtain appointed counsel. In Ortiz, the court concluded that the reasons supporting the right of a nonindigent criminal defendant to discharge his retained counsel favor extension of that right to all criminal defendants, regardless of their economic status. (Ortiz, supra, 51 Cal.3d at p. 984.)

[I]t is ordinarily appropriate to require the [indigent] defendant who is seeking to substitute one appointed counsel for another to show cause, because he is requesting duplicative representation and repetitive investigation at taxpayer expenses. That is not the case here: defendant [Ortiz] is requesting appointed counsel for the first time in connection with his retrial. Accordingly, he should be treated no differently from a defendant who qualifies for representation by, and seeks appointment of, the public defender at the outset of the proceedings against him. No additional public expense or drain on the states limited resources is at issue, nor, as long as the motion is timely, is there a risk of any undesirable opportunity to delay trials and otherwise embarrass effective prosecution of crime. (Ortiz, supra, 51 Cal.3d at p. 986, fn. omitted.)

Smith, supra, 6 Cal.4th 684, cited by both parties, is analogous to the situation presented here but is not dispositive in our situation. There, an indigent defendant sought to withdraw a guilty plea on the grounds of ineffective assistance of appointed counsel. The defendant requested the appointment of substitute counsel to assist in the withdrawal motion. The trial court asked the defendant to explain his reasons for the requests. After hearing the defendants enumeration of counsels purported defective treatment of him and the attorneys point by point responses, the trial court denied the substitution motion and the motion to withdraw the guilty plea. (Id. at p. 689.)

The California Supreme Court affirmed. When a defendant claims his guilty plea was the result of ineffective assistance of trial counsel, it may sometimes be necessary to appoint substitute counsel to develop and present the claim, given the potential conflict of interest posed to the original attorney. (Smith, supra, 6 Cal.4th at p. 694.) At the same time, [a]ppointment of counsel for the purpose of arguing that previous counsel was incompetent, without an adequate showing by defendant, can have undesirable consequences. (Id. at p. 695.) 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. (Id. at p. 696.) Accordingly, substitute counsel should be appointed when, and only when . . . the [trial] court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel. (Ibid.) The trial court must be satisfied that the first appointed attorney is not providing adequate representation, or the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. (Id. at p. 696.)

Our situation differs significantly from Smiths. Defense counsel in this case was retained, not appointed. Under the authority of Ortiz, the adequacy of attorney representation based on a Marsden-type inquiry is not the significant deciding factor in such a situation. [T]he right to counsel of choice reflects not only a defendants choice of a particular attorney, but also his decision to discharge an attorney whom he hired but no longer wishes to retain. [] . . . [] While we do require an indigent criminal defendant who is seeking to substitute one appointed attorney for another to demonstrate either that the first appointed attorney is providing inadequate representation [citations], or that he and the attorney are embroiled in irreconcilable conflict [citation], we have never required a nonindigent criminal defendant to make such a showing in order to discharge his retained counsel. (Ortiz, supra, 51 Cal.3d at pp. 983-984.)

In our case, it is clear from the trial courts stated ruling that it was not deciding the motion for substitute counsel because it was not considering prejudice to [the defendant himself] or unreasonable delay in the processes of justice. (Ortiz, supra, 51 Cal.3d at p. 987.) The court engaged in no balancing of the defendants interest in new counsel against the disruption, if any, flowing from the substitution. (People v. Lara (2001) 86 Cal.App.4th 139, 153.)

MOTION TO WITHDRAW THE PLEA

The court focused on the motion to withdraw the plea. By statute, a motion to withdraw a plea must be made before the pronouncement of judgment for a person in defendants position.[5] The court purported to decide that motion; nevertheless, the courts ruling was not a decision whether there was good cause to withdraw the plea pursuant to section 1018, because that section requires a showing by clear and convincing evidence of mistake, ignorance, or inadvertence or any other factor overreaching defendants free and clear judgment. (People v. Cruz, supra, 12 Cal.3d at p. 566.)

Looking at the circumstances of the making of the motion, retained counsels statement supports the inference that defendant had not been able to explore the grounds for withdrawal of the pleas with her because she felt advising on the issue would give rise to a conflict of interest. Consequently, defendant, untutored in the requirements for a successful showing to withdraw his plea, and unrepresented by counsel during that portion of the hearing, and not having been asked to frame his answer or refine his complaints about counsel to provide clear and convincing evidence of how counsels performance led to ignorance, mistake, or any other factor overreaching his free and clear judgment, was required to bring his own motion. The answer to why do you wish to withdraw your plea required legal expertise which defendant did not have and could not get at the moment. The sole advice defendant had received, we infer from retained counsels statement to the court, was that he should consult independent counsel on whether there were grounds to withdraw the pleas.

Insofar as the trial courts conclusion that there were no grounds for withdrawal of the guilty plea constituted an implied denial of the substitute counsel motion, the court failed to exercise judicial discretion because the court was operating under a misconception as to the legal basis for its action. (Lara, supra, 86 Cal.App.4th at pp. 163-164, 165.) The trial court should have considered, as was relevant, the possible prejudice to defendant and the timeliness of his motion. Remand for the purpose of having the trial court rule on the grounds stated in Ortiz is appropriate.

Insofar as the court purported to rule on the withdrawal motion, on the state of the record, the motion and ruling were premature and may be revisited on remand.

DISPOSITION

The judgment is reversed and the matter is remanded to the superior court for proceedings consistent with this opinion.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

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[1] Miranda v. Arizona (1966) 384 U.S. 436.

[2] Further statutory references are to the Penal Code unless otherwise stated.

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

[4] An example of prejudice occurred when a trial court refused to continue an ongoing trial for at least two months when defense counsel suffered a heart attack on the fourth day. The defendant diligently sought to retain other experienced counsel, but was told trial preparation would take at least four weeks. The trial court appointed defense counsels partner and the trial resumed over objection to both actions. The defendant was convicted. The appellate court reversed stating that continuance until original counsel could return would have been reasonable because defendant could then be tried with a codefendant; concerns about convenience of witnesses were unjustified; and the defendant made diligent efforts to retain experienced substitute counsel. (People v. Gzikowski (1982) 32 Cal.3d 580, 586-587, referring to People v. Crovedi (1966) 65 Cal.2d 199.)

[5] On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. ( 1018.) A plea of guilty or nolo contendere may be withdrawn for mistake, ignorance, or inadvertence or any other factor overreaching defendants free and clear judgment, the facts of such grounds must be established by clear and convincing evidence. (People v. Cruz (1974) 12 Cal.3d 562, 566.)