Filed 8/23/18 P. v. Thomas CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Melinda Elizabeth Thomas was charged with possession of methamphetamine while armed with a loaded firearm and—with two co-defendants— cultivation of and possessing marijuana for sale. Thomas entered a no contest plea to the felony methamphetamine count, and the co-defendants pled to misdemeanors. With advice of counsel, Thomas executed a rights waiver. The trial court found her plea to be knowing and voluntary, advised her that the co-defendants would receive benefits, but did not secure an Ibarra waiver. Before sentencing, Thomas sought to withdraw her plea, but her newly-appointed counsel found no lawful basis for the motion. Thomas was sentenced pursuant to the plea agreement. On appeal, Thomas contends her plea was involuntary, appointed counsel was ineffective, and sentencing counsel had a conflict. We disagree and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

During the execution of a search warrant in Thomas’s home—in her bedroom—law enforcement found a purse containing methamphetamine, a pouch with a bag containing methamphetamine, and at the headboard of the bed two loaded shotguns and one loaded revolver. Cannabis and 109 growing marijuana plants were also seized. Thomas was charged with possession of methamphetamine while armed with a loaded firearm. (Health & Saf. Code, § 11370.1, subd. (a); (Count 1).) Thomas and two co-defendants were charged with possession of marijuana for sale (Health & Saf. Code, § 11359; (Count 2)) and cultivation of marijuana (Health & Saf. Code, § 11358; (Count 3)). Since a co-defendant was represented by the office of the public defender, the court appointed the office of the alternate defender to represent Thomas. Hearing and trial dates were continued to allow Thomas to address medical issues, including cancer treatment.

The People offered the three defendants a global resolution in which Thomas would plead no contest to Count 1, and the co-defendants would plead no contest to misdemeanors, which they readily accepted. Initially, Thomas objected to the gun charge, preferring one of the marijuana offenses. Two days before trial was to commence, after a meeting among the three defendants and their counsel, Thomas accepted the offer to plead to Count 1, in exchange for a probationary sentence in lieu of state prison.

When she entered the plea, Thomas, with advice of counsel, executed the felony Tahl waiver of rights form in which she acknowledged that she understood and waived all her rights. (In re Tahl (1969) 1 Cal.3d 122 (Tahl).) The trial court stated “there are certain benefits to the co-defendants”[1], and found that Thomas’s plea was entered voluntarily with a knowing and intelligent waiver of her rights, but did not obtain an Ibarra waiver. (In re Ibarra (1983) 34 Cal.3d 277 (Ibarra).) During her probation interview and in a letter to the court, Thomas stated her intent to withdraw her plea. She wrote “I was not in my right mind. . . . [and] the DA . . . h[as] targeted medical[ly] ill people.” On the date for sentencing, Thomas reiterated her request to withdraw her plea. In response to the court’s inquiry about the basis for her request, Thomas’s counsel said that the co-defendants—who, having been sentenced, were not in jeopardy—would no longer blame Thomas. Thomas told the court that at the time of the plea, she felt “very pressured”; “didn’t fill that [plea] form out”; and “d[id]n’t even know what happened.” In response, the court postponed sentencing to allow her to retain counsel.

In the interim, Thomas failed to appear, a no-bail bench warrant issued, and the People filed a felony complaint charging her with failure to appear on her own recognizance. When Thomas did appear, she reiterated her intention to retain private counsel, and, as a consequence, the court continued the matter repeatedly over seven weeks to give her an opportunity to do so. When she did not hire a lawyer, the court appointed counsel to opine whether there were grounds to withdraw the plea and—if so—to file the motion. The alternate defender was not relieved on the underlying case. At the same hearing, appointed counsel represented Thomas at her arraignment on the failure to appear felony complaint. Appointed counsel met with Thomas, reviewed the file including the transcript of the plea hearing, researched the issue and, at the next calling of the case, stated: “In my opinion, Miss Thomas does not have a lawful basis to withdraw her plea at this time.” The court relieved appointed counsel. The People dismissed the failure to appear complaint. An attorney from the alternate defender—albeit not the attorney who represented her previously— conferred with Thomas and advised the court that she was ready to proceed with sentencing. The court sentenced Thomas to probation, and—instead of the 120 days in jail recommended by the probation report—she was sentenced to 60 days in the county jail.

DISCUSSION

Thomas filed a timely appeal for which the trial court issued a certificate of probable cause. She contends that failure to give the Ibarra admonition and to secure her agreement was error, and her plea was not voluntary. She also claims appointed counsel was ineffective for failing to pursue the motion to withdraw the plea and, at sentencing, the alternate defender had a conflict. We disagree and find no legal basis for her to withdraw the voluntary plea.

1. Legal Principles

1. Ibarra Inquiry and Involuntariness of Plea

Where the People offer a plea to multiple defendants, “the trial court must determine whether the plea is being entered into pursuant to a ‘package deal’ bargain, and, if so, conduct an inquiry into possible coercive forces prior to accepting the guilty plea.” (Ibarra, supra, 34 Cal.3d at p. 287.) The purpose of the inquiry is to determine whether, under the totality of the circumstances, unduly coercive forces rendered a plea resulting from a “package deal” involuntary. (Ibid.) The court must be satisfied inter alia that: the prosecution has not misrepresented facts to the defendant; there is a factual basis for the plea; unduly coercive factors did not compel the plea; and leniency to the third party was an insignificant factor in the defendant’s decision. (Id. at pp. 288–290.) The court’s failure to address these issues on the record is merely the first step in our analysis. “Since the duty of inquiry . . . is prophylactic in character, and not constitutionally compelled, the . . . requirement of prejudice governs on appeal. [Citation.] In seeking to set aside a plea as involuntary . . . an appellant must point to facts to show not only the lack of an inquiry but also the involuntary character of his plea.” (Id. at p. 290 & fn. 6.)

2. Ineffective Assistance of Counsel

The two-part Strickland v. Washington (1984) 466 U.S. 668, test applies to claims of ineffective assistance of counsel during the plea negotiation process. (Lafler v. Cooper (2012) 566 U.S. 156, 163 (Lafler); Hill v. Lockhart (1985) 474 U.S. 52, 58–59 (Hill); In re John P. Alvernaz (1992) 2 Cal.4th at pp. 933–934 (Alvernaz).) To establish such a claim, a defendant must show (1) that defense counsel’s performance fell below an objective standard of reasonableness under the prevailing norms of practice, and (2) a reasonable probability that, but for the ineffective performance, the result would have been more favorable to the defendant. (Hill, supra, 474 U.S. at pp. 58–59; Alvernaz, supra, at pp. 936–937.)

Claims of constitutionally deficient representation may arise where ineffective representation results in a decision to plead guilty, or—as in this instance—the decision not to seek to withdraw a guilty plea. (Lafler, supra, 566 U.S. at pp. 164–165; Alvernaz, supra, 2 Cal.4th at pp. 934–935.) However, “[j]udicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” (Strickland v. Washington, supra, 466 U.S. at pp. 689–690.)

3. Conflict-free Counsel at Sentencing

Where a defendant claims that appointed counsel is not providing adequate representation or that there was an irreconcilable conflict which could result in ineffective representation, the court must conduct a Marsden hearing. (People v. Marsden (1970) 2 Cal.3d 118 (Marsden); People v. Sanchez (2011) 53 Cal.4th 80, 89 (Sanchez).) “[A] trial court is obligated to conduct a Marsden hearing on whether to discharge counsel for all purposes and appoint new counsel when a criminal defendant indicates after conviction a desire to withdraw his plea on the ground that his current counsel provided ineffective assistance only when there is ‘at least some clear indication by defendant,’ either personally or through his current counsel, that defendant ‘wants a substitute attorney.’ ” (Sanchez, supra, 53 Cal.4th at pp. 89–90.)

2. Analysis

1. Ibarra Inquiry and Involuntariness of Plea and Ineffective Assistance of Counsel

Upon a showing of good cause, a trial court may permit a defendant who was represented by counsel to withdraw her guilty plea; the provision is to be liberally construed to promote justice. (Pen. Code, § 1018.) When Thomas sought to withdraw her plea, and she was unable to hire an attorney, the court appointed counsel to investigate the basis for her request. Thomas challenges both the voluntariness of her plea and appointed counsel’s effectiveness in advising Thomas and the trial court that there was no legal basis to move to withdraw the plea. To reach her conclusion, appointed counsel conferred with Thomas and reviewed the record including the transcript in which the plea was entered, which reflects that the trial court did not engage in the Ibarra colloquy. The court’s failure to address some, but not all, of the Ibarra factors does not, in and of itself, constitute good cause to withdraw a plea.

At the time of the plea, the court reviewed the Tahl plea form—executed by Thomas and her counsel—in which Thomas acknowledged that she had an opportunity to discuss with counsel anything important to her case, including, the facts, the offenses, any defenses, her rights and their waiver, and the plea consequences and that she waived those rights. She attested that: “No one has made any threats; used any force against me; my family or my loved ones; or made any promises to me, except as listed in this form, in order to convince me to plead guilty or no contest.” After familiarizing himself with the facts of the case and the People’s offer, the trial judge said he would accept a non-state prison probationary sentence for Thomas and that it appeared to be a difficult case for the defense. The court reiterated that there was a factual basis for the plea and acknowledged that the co-defendants were receiving benefits, but did not ask Thomas whether that leniency was a significant factor in her decision. In the Tahl form, Thomas stated that she had not been subjected to any threats or force and that she offered her plea freely and voluntarily; however, the judge did not ask her to confirm those statements in open court. Upon accepting the plea, the court found her plea and waiver were freely and voluntarily made.

In seeking to withdraw her plea, Thomas never claimed that she was coerced. Her initial request by letter to the court via the probation department claimed “[she] was not in [her] right mind” and malicious prosecution by the District Attorney. Nor did her attorney attribute the withdrawal request to coercion, but rather, to the possibility that a co-defendant—freed of jeopardy for a felony by having pled to the misdemeanor—who previously blamed Thomas would change his position. On the record before us, there is no evidence that the plea for a probationary sentence to avoid a possible prison term was the result of coercion. That conclusion is buttressed by the independent analysis by appointed counsel who—with the benefit of the record, discussions with Thomas and her research of “numerous cases”—advised the court that there was no legal basis to move to withdraw the plea. We find no prejudice to support Thomas’s request.

Nor has she demonstrated that appointed counsel was ineffective in advising her not to seek to withdraw a guilty plea where the risk was conviction and a state prison sentence. To prevail on that claim Thomas would have to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” (Strickland v. Washington, supra, 466 U.S. at p. 689.) The record is devoid of any evidence of coercion. Had her plea been withdrawn, Thomas confronted the prospect of a trial for possession of methamphetamine while armed with a loaded firearm where the methamphetamine was seized pursuant to a search warrant from both a purse and a plastic bag within a pouch found in her bedroom, and two loaded shotguns and one loaded revolver were found at the headboard of the bed. Cannabis, 109 growing marijuana plants, and items used to remove THC and to package marijuana for sale were seized subjecting her to exposure for possession of marijuana for sale (Health & Saf. Code, § 11359) and cultivation of marijuana (Health & Saf. Code, § 11358). If Thomas had been convicted of Count 1 at trial and denied probation, she was subject to serving her sentence in state prison—rather than locally. (Pen. Code, § 1170, subd. (h)(5).) Appointed counsel knew that the probation officer recommended a 120-day county jail sentence (for which Thomas would only serve 60 days). (Pen. Code, § 4019.) While there was no assurance that the judge would accept the recommendation, the prospect of serving only 60 days in county jail, also supports the reasonableness of appointed counsel’s advice not to withdraw the plea. (Strickland, supra, at p. 690.) The absence of good cause to support the motion to withdraw the plea coupled with the risks of conviction at trial are consistent with the strategy appointed counsel pursued and Thomas accepted before she abandoned her request to withdraw her plea. Thomas has not demonstrated that defense counsel’s performance fell below an objective standard of reasonableness under the prevailing norms of practice. (Hill, supra, 474 U.S. at pp. 58–59; Alvernaz, supra, 2 Cal.4th at pp. 936–937.) Having failed to overcome the first hurdle, Thomas cannot prevail on her ineffectiveness claim.

She fares no better on the second prong: prejudice. To establish prejudice, a defendant must prove there is a reasonable probability that, but for counsel’s deficient performance, the defendant would have pursued the alternate course—here a felony trial with state prison exposure—rather than the probationary sentence she received.

(Alvernaz, supra, 2 Cal.4th at pp. 937–938.) While Thomas expresses dissatisfaction in the outcome, she has never stated a desire to have gone to trial on all three counts. Neither appointed counsel nor we could know the likely outcome of a trial on the three counts. But Thomas bears the burden of demonstrating “a reasonable probability that, but for the ineffective performance, the result would have been more favorable to the defendant.” (Hill, supra, 474 U.S. at pp. 58–59; Alvernaz, supra, at pp. 936–937.) Given the abundance of evidence as to each count, Thomas’s hope that one—or possibly both—of the co-defendants who benefited from the misdemeanor convictions would testify accepting culpability for all of the drugs, firearms and attendant conduct and that a jury would believe them and acquit Thomas is conjecture in which we will not indulge.

2. Conflict-free Counsel at Sentencing

Thomas’s appellate claim that the office of the alternate defender—which continued to represent her at the sentencing hearing after the appointed counsel stated that there was no basis to move to withdraw the plea—is equally unpersuasive. At the trial court, Thomas never claimed that the alternate defender was not providing adequate representation or that they had a conflict—let alone an irreconcilable one— which could result in ineffective representation. (Sanchez, supra, 53 Cal.4th at p. 89.) Nor did Thomas request the appointment of substitute counsel, and, as a result, the court did not conduct a Marsden hearing. (Marsden, supra, 2 Cal.3d 118.) Absent a request from Thomas, and under the facts of this case, the trial court was not required to conduct a Marsden hearing.

At the hearing at which she asked to withdraw her plea, Thomas stated her intent to retain counsel. The court continued the matter repeatedly over seven weeks to give her an opportunity to do so. When she did not, the court appointed counsel to opine whether there were grounds to withdraw the plea and—if so—to file the motion, but did not relieve the alternate defender. Thomas cites Sanchez for the proposition that appointing counsel without relieving the alternate defender is disapproved. (Sanchez, supra, 53 Cal.4th at p. 90.) But that reliance is misplaced. Unlike Sanchez, whose desire to withdraw his plea was grounded on claimed ineffective assistance of counsel (id. at pp. 89–90), Thomas predicated her request variously on a co-defendant’s possible supportive testimony, the District Attorney’s alleged malice and her not being in her “right mind’’—none of which was attributable to attorneys in the office of the alternate defender. When appointed counsel announced the lack of a legal basis to withdraw the plea, Thomas conferred with the attorney from the office of the alternate defender who announced they were ready to proceed with sentencing. The record is replete with instances where Thomas addressed the court directly with her opinions about the case, her health, and her desires, but she never requested appointment of substitute counsel. There is no evidence that she received ineffective assistance at sentencing. Indeed, the judge’s decision—to halve the probation officer’s recommendation of 120 days in county jail—followed immediately from Thomas’s and her attorney’s allocution. The claim of conflicted counsel and request for re-sentencing preceded by a Marsden hearing are not supported by the record.

DISPOSITION

The judgment is affirmed.

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Ross, J.*

We concur:

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Siggins, P.J.

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Jenkins, J.

A149315