P. v. Wells

Filed 5/9/06 P. v. Wells CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Frank A. Brown, Judge. Judgment reversed and remanded with directions.

Robert Dwayne Wells pleaded guilty to one count of continuous sexual abuse of a child, seven counts of committing a lewd act on a child under the age of 14, failing to register as a sex offender and related allegations. Wells's appointed public defender did not appear at the sentencing hearing; instead, another deputy public defender specially appeared and informed the court that Wells wanted to withdraw his plea. Without allowing Wells to fully explain his concerns, the trial court proceeded with the sentencing and imposed the stipulated prison term of 30 years.

Wells contends that the judgment against him must be set aside and the matter remanded to the trial court for further proceedings, including, if necessary, the appointment of new counsel and the filing of a formal motion to withdraw his plea. We agree. Accordingly, we reverse the judgment and remand the matter for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

We need not detail the activities engaged in by Wells except to note that they involved the inappropriate touching of three minors. Wells initially pleaded not guilty to all charges and allegations, to wit, seven counts of committing a lewd act on a child under the age of 14, one count each of continuous sexual abuse of a child and failure to register as a sex offender and related allegations that all counts were committed against more than one victim and that Wells engaged in substantial sexual contact with the victims.

After consulting his deputy public defender, Tamara Lave, Wells withdrew his not guilty plea and pleaded guilty to all counts and certain allegations in exchange for the dismissal of other allegations and a stipulated 30-year sentence. On the date set for sentencing, Lave was unavailable and Mary Jo Barr from the public defenders office specially appeared for Wells and notified the court that Wells wanted to withdraw his guilty plea. Barr informed the court that she reviewed the plea agreement and probation report and told Wells that she did not see any justification for withdrawing his plea, but admitted she was in an " awkward position" to evaluate any potential ineffective assistance of counsel.

After confirming that no motion to withdraw the plea had been filed, the trial court indicated it would go forward with the sentencing. Wells started to explain that he never obtained answers to some of his questions and did not understand why he had to plead to some things. Before Wells finished explaining, the court asked him whether he faced life in prison. When Wells indicated that he did, but again tried to explain, the trial court cut him off and stated it was going forward with the sentencing because no motion to withdraw the plea had been filed. Thereafter, the trial court imposed the stipulated 30-year prison term.

DISCUSSION

Wells contends that the trial court erred by failing to provide him an adequate opportunity to articulate a reason for wishing to withdraw his plea. We agree.

The right to withdraw a plea before judgment requires good cause (Pen. Code, § 1018), such as a showing of mistake, ignorance or any other factor overcoming the exercise of free judgment. (People v. Cruz (1974) 12 Cal.3d 562, 566.) " [T]he decision to seek withdrawal of a plea of guilty, just as the decision to enter such plea" is one within the defendant's power to make, although counsel may, when appropriate, advise against the decision. (People v. Brown (1986) 179 Cal.App.3d 207, 213-215 (Brown).) Thus, defense counsel is required to present a motion to withdraw unless the motion " in counsel's good faith opinion, is frivolous or when to do so would compromise accepted ethical standards." (Id. at p. 216.) For example, at the sentencing hearing, defense counsel in Brown informed the court that the defendant wanted to withdraw his plea, but represented there was no legal basis for such a motion. (Id. at p. 211.) The defendant then addressed the court and stated he was not in the " right frame of mind" at the time of his plea because he had been shaken up by a death. (Id. at pp. 211-212.) Under these circumstances, defense counsel had a duty to file the plea withdrawal motion because it would not have been frivolous, nor would it have compromised accepted ethical standards. (Id. at p. 216.)

Here, specially appearing defense counsel stated that Wells believed he did not receive adequate representation, but impliedly refused to file a motion to withdraw the plea when she represented to the court that although she had a conflict, " there seems to me to be no legal justification [for such a motion]." The court then briefly heard from the prosecutor regarding the efforts Lave undertook on Wells's behalf before Wells pleaded guilty. Wells admitted that Lave " made numerous efforts," but claimed she never answered his questions, instead putting them off by telling him that she needed to talk to her supervisor and they needed to take the plea. When Wells attempted to explain that he did not understand why he needed to plead guilty to some charges, the court cut him off as he attempted to explain the reasons why he wanted to withdraw his plea. Wells started to explain a second time, but the court interrupted him again and stated it would proceed with sentencing because no motion had been filed.

The trial court knew that Wells sought to withdraw his plea based on ineffective assistance of counsel or difficulties with counsel at the time of the plea, but it did not provide Wells an opportunity to fully explain his concerns. As such, it is unknown whether Wells could have presented facts showing Lave failed to provide adequate representation or whether " the defendant and the attorney ha[d] become embroiled in such an irreconcilable conflict that ineffective representation [was] likely to result." (People v. Smith (1993) 6 Cal.4th 684, 696.) Stated differently, the current record does not show that Barr properly refused to file a motion to withdraw Wells's guilty plea because the motion would have been frivolous or compromised accepted ethical standards. (Brown, supra, 179 Cal.App.3d at p. 216.) On further inquiry, Wells might have been able to show that he was confused, uninformed, rushed or pressured into pleading guilty to the charges.

Significantly, Barr did not represent Wells during the plea and could not possibly respond to Wells's complaints or the prosecution's assertions regarding Lave's representation of Wells at the time of the plea. Additionally, Barr essentially admitted that she had a conflict of interest, but did not suggest continuing the sentencing for the appointment of conflicts counsel or until Lave could appear and respond to Wells's complaints. Had Wells been given a full opportunity to explain his concerns, he might have been able to make a showing justifying the appointment of substitute counsel. (People v. Smith, supra, 6 Cal.4th at p. 696.)

The judgment must be reversed and the case remanded with instructions to the trial court to hear why Wells seeks to withdraw his guilty plea. Wells must be allowed to file a motion to withdraw his plea if the trial court concludes that filing such a motion would not be frivolous or compromise accepted ethical standards. (Brown, supra, 179 Cal.App.3d at p. 216.) If Wells's assertions imply a potential conflict between him and his trial counsel, independent counsel should be appointed to investigate his assertions. (People v. Smith, supra, 6 Cal.4th at pp. 694, 696.)

DISPOSITION

The judgment is reversed and the matter is remanded for the limited purpose of a hearing to determine whether Wells has any legitimate basis to withdrawal his guilty plea and further proceedings consistent with this opinion.

McINTYRE, J.

WE CONCUR:

NARES, Acting P. J.

AARON, J.

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