P. v. Gonzalez

Filed 10/11/06 P. v. Gonzalez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 Armando Ruben Gonzalez appeals a judgment following his guilty plea. On appeal, defendant asserts he was deprived of the effective assistance of counsel during a critical stage in the proceedings, because the trial court erred in failing to appoint new counsel to investigate the validity of a motion to withdraw the plea and/or present such a motion. In addition, defendant argues his counsel had an irreconcilable conflict of interest, and that the trial court erred in ordering him to pay a court security fee pursuant to Penal Code section 1465.8. We find the imposition of the security fee was improper, and modify the judgment accordingly.

Statement of the Case[1]

In February 2005, a second amended complaint was filed alleging that defendant committed first-degree murder of victim Jose Torres (Pen. Code, § 187 - count 1),[2] that defendant personally used a deadly or dangerous weapon, a screwdriver, in the commission of the offense (§ 12022, subd. (b)(1)), and that the crime was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). Counts 2 and 3 alleged that co-defendants committed assault with a deadly weapon by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), as to victims Miguel Verdusco and Alex Becerril, and that these crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). Counts 4 and 5 alleged that another codefendant committed assault with a deadly weapon, a bat (§ 245, subd. (a)(1)), also for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)).

On February 8, 2005, after waiver of formal arraignment on the charges and before preliminary examination, defendant entered into a negotiated disposition of a plea of guilty to the lesser offense of second degree murder, and admission of the weapon and gang enhancements, for an agreed prison sentence of 15 years to life. Sentencing for all defendants was negotiated as a packaged disposition. Two of the codefendants received four years credit for time served and were released.

In April 2005, defendant was sentenced to 15 years to life in prison. Defendant was also ordered to pay a court security fee in the amount of $20 pursuant to section 1465.8

In May 2005, defendant filed a timely notice of appeal and an application for a certificate of probable cause. The application for certificate of probable cause was granted in June 2005.

Discussion

Defendant asserts he was deprived of the effective assistance of counsel during a critical stage in the proceedings, because the trial court erred in failing to appoint new counsel to investigate the validity of a motion to withdraw the plea and/or present such a motion. In addition, defendant argues his counsel had an irreconcilable conflict of interest, and that the trial court erred in ordering him to pay a security fee pursuant to Penal Code section 1465.8.

Motion to Withdraw the Plea

Following the entry of his plea, defendant was scheduled to be sentenced on April 15, 2005. Defendant filed a motion to continue sentencing, and in the declaration accompanying his motion, his counsel stated: “[Defendant] asked me more than one month ago to go and see him in the jail and answer a number of questions relating to fundamental issues about his decision to enter his plea in this case.”

At the hearing on the motion to continue sentencing, defendant’s counsel explained to the court that he did not know of a viable reason for a motion to withdraw the plea, but he also stated that he had not addressed some of the questions . . . defendant had raised with him previously. Defendant’s counsel stated: “I have to take some of the responsibility for not having answered some of the questions that [defendant] had. . . . I feel to some extent his inability to address the issue to motion [sic] to withdraw his plea is not something that was adequately addressed.”

Defendant’s counsel further indicated to the court that he believed defendant should be represented by another attorney who could provide his or her independent opinion on the viability of a motion to withdraw his plea, and that he (defendant’s counsel) was attempting to have the conflicts administration appoint another attorney for defendant. The district attorney objected, and the court denied defendant’s request for a continuance and instead, proceeded with the scheduled sentencing.

Defendant argues he received ineffective assistance from his counsel in connection with a potential motion to withdraw his guilty plea. Specifically, defendant asserts his counsel failed to adequately investigate whether he had a colorable basis to withdraw his plea.

In order to establish a claim of ineffective assistance of counsel, “[T]he defendant must show counsel’s performance fell below a standard of reasonable competence, and that prejudice resulted. [Citations.] When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.] Even where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice, i.e., that ‘ “ ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ “ ‘ [Citations.]” (People v. Anderson (2001) 25 Cal.4th 543, 569, see Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Pope (1979) 23 Cal.3d 412, 426.)

A defendant may move to withdraw his plea, at any time before judgment, on a showing of good cause. (§ 1018.) “ ‘ “[T]he withdrawal of such a plea rests in the sound discretion of the trial court and may not be disturbed unless the trial court has abused its discretion.” ‘ “ (People v. Wharton (1991) 53 Cal.3d 522, 585.) Although criminal defendants are entitled to competent representation in the presentation of a motion to withdraw a plea, appointed counsel may properly decline “to make a motion which, in counsel’s good faith opinion, is frivolous or when to do so would compromise accepted ethical standards.” (People v. Brown (1986) 179 Cal.App.3d 207, 216 (Brown); see Smith (1993) 6 Cal.4th 684, 696 [recognizing counsel’s authority to decide whether to bring a motion to withdraw a plea].)

Defendant cites two cases in support of his claim--People v. Brown, supra, 179 Cal.App.3d 207 and People v. Osorio (1987) 194 Cal.App.3d 183 (Osorio). In Brown, trial counsel informed the court at sentencing that the defendant wanted to withdraw his plea, but that she was not making the motion for him. (Brown, supra, 179 Cal.App.3d at p. 211.) The defendant asked the trial court if he could withdraw his plea and obtain another attorney, but the trial court refused to grant either request. (Id. at pp. 211-213.) The appellate court noted that the defendant’s motion to withdraw his plea was not frivolous, and held that counsel should not have refused to bring it. (Id. at p. 216.) The court concluded that the defendant was “deprived of his right to make an effective motion to withdraw his plea” and remanded the case with instructions for a Marsden hearing should counsel continue to refuse to bring the motion. (Id. at pp. 213-216.) In so holding, the court stated that it was not suggesting that counsel is required to make a frivolous motion. (Id. at p. 216.)

Osorio followed Brown. In Osorio, the defendant stated at sentencing that he wanted to withdraw his plea. (Osorio, supra, 194 Cal.App.3d at pp. 185-186.) Trial counsel indicated there was good cause, but refused to bring the motion in “ ‘good conscience’ “ because it would result in reinstatement of counts dropped under the plea bargain. (Id. at p. 186.) On appeal, the court determined that the case should be remanded to allow defendant to bring a motion to withdraw the plea. (Id. at pp. 188-189.) Both cases therefore involved counsel’s refusal to bring a potentially meritorious motion to withdraw the defendant’s plea.

The primary distinction between the present case and both Brown and Osorio, is that here, defendant’s counsel did not refuse to bring a potentially viable motion to withdraw the plea. Indeed, although defendant’s counsel represented to the court that he did not “answer some of the questions [defendant] had,” he also told the court that he was unable to identify a viable basis for a motion to withdraw his plea. In no way did defendant’s counsel refuse to bring a potentially meritorious motion to withdraw a plea for defendant.

Defendant has not demonstrated on appeal that he was deprived effective assistance of counsel in connection with a motion to withdraw his plea. Defendant’s counsel told the court he was not able to find a viable basis for a motion to withdraw his plea-he did not refuse to bring colorable motion.

There is nothing in the record to indicate that his counsel’s performance fell below the standard of reasonable competence. Because we find there was no deficient performance, we need not consider whether defendant suffered prejudice.

Conflict of Interest

Defendant asserts he was deprived effective assistance of counsel because he and his counsel had a conflict of interest in connection with defendant’s entry of his plea.

A criminal defendant’s right to effective assistance of counsel, guaranteed by both the federal and state Constitutions, includes the right to representation free from conflicts of interest. To establish a violation of this right under the state Constitution, however, a defendant needs to demonstrate that an actual conflict of interest adversely affected his lawyer’s performance. (People v. Sanchez (1995) 12 Cal.4th 1, 45; People v. Kirkpatrick (1994) 7 Cal.4th 988, 1009.) The record should support an “ ‘informed speculation’ “ that counsel’s representation was adversely affected by the claimed conflict of interest. (People v. Sanchez, supra, 12 Cal.4th at p. 45; People v. Kirkpatrick, supra, 7 Cal.4th at p. 1009.)

As to what constitutes a conflict of interest, the Supreme Court stated in People v. Jones (1991) 53 Cal.3d 1115, “Conflicts of interest may arise in various factual settings. Broadly, they ‘embrace all situations in which an attorney’s loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or by his own interests.’ “ (Id. at p.1134, quoting People v. Bonin (1989) 47 Cal.3d 808, 835.)

In this case, defendant asserts the conflict in this case was due to this counsel’s behavior surrounding defendant’s decision to enter a plea. Specifically, defendant argues he was under the influence of psychological coercion when he decided to enter his plea, and his counsel did not adequately investigate the coercion. The conflict arises from defendant’s counsel’s inability to evaluate the issue of his own incompetence surrounding the investigation of coercion.

By our review of the record, we do not find that defendant has established he and his counsel had a conflict of interest in relation to defendant’s entry of his plea in this case. We note that while in this appeal defendant claims he was under psychological coercion to plead no contest due to the package nature of the deal, and to benefit his young nephew who was also a codefendant, there is nothing in the trial court record to indicate that defendant felt coerced at the time he entered his plea. Indeed, at the change of plea hearing, the court conducted a full voir dire of defendant, and made a finding that defendant was informed of the charges against him, his rights and the consequences of the plea. In addition, the court specifically questioned defendant about the voluntariness of his plea, and whether or not he was pleading to help a codefendant, to which defendant responded he was pleading voluntarily. Defendant never represented to the court that he was under psychological coercion to plead guilty.

Defendant bases his argument of conflict on the fact that his mother sent a letter to the court after his plea but before sentencing indicating that defendant did not commit the crime, and he only pleaded to protect his nephew who was offered credit for time served as part of the package deal. However, while defendant’s mother may have been of the opinion that defendant pleaded to protect a family member, there is no indication that defendant also felt that way.

Defendant has failed to demonstrate that he and his counsel had an actual or potential conflict of interest related to defendant’s entry of plea in this case.

Court Security Fee

Defendant asserts that the trial court erred in imposing a $20 security fee under section 1465.8, because the incident on which the conviction is based occurred before the effective date to the statute. Defendant’s argument is based on section 3, which provides: “No part of [the Penal Code] is retroactive, unless expressly so declared.” This, defendant contends, prohibits the retroactive application of a law in the absence of a clear indication by the Legislature that it intended the law to be applied retroactively.

Section 1465.8, which applies a $20 court security fee to “every conviction for a criminal offense” (§ 1465.8, subd. (a)(1)), became effective on August 17, 2003. (Stats. 2003, ch. 159, §§ 25, 27, pp. 1, 23, 24.) The crime in this case occurred on May 22, 2002, and defendant pleaded no contest on February 8, 2005 and was sentenced on April 15, 2005.

“It is well settled that a new statute is presumed to operate prospectively absent an express declaration of retrospectivity or a clear indication that the electorate, or the Legislature, intended otherwise.” (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287.) If the wording of the statue is unclear, the legislative history must “clearly” indicate that the Legislature intended the law to be retroactive in order for it to have retroactive application. (Preston v. State Bd. of Equalization (2001) 25 Cal.4th 197, 221-222.)

The text of section 1465.8 is silent on the question of retroactivity. Nor is the legislative history unequivocally clear that the statute should have retroactive effect. Section 1465.8 was included as part of fiscal legislation, passed to effectuate the 2003-2004 State budget. (Stats. 2003, ch. 159, § 25; see People v. Wallace (2004) 120 Cal.App.4th 867, 871-873 discussing Assembly Bill 1759, of which section 1465.8 was a part.) There is no indication that retroactivity was ever considered.

Subsequent to the initial filing of the briefs in this case, the Supreme Court granted review of the two cases upon which the parties primarily rely in this appeal. In People v. Carmichael (2006) 135 Cal.App.4th 937 (Carmichael), Division Two of the First District held that imposition of the $20 security fee pursuant to section 1465.8 to crimes that occurred before the effective statute was improper, because such fee is a new legal consequence attached to the offense for which a defendant is convicted, and therefore, increases the defendant’s liability for conduct that occurred before the effective date of the statute.

In People v. Alford (2006) 137 Cal.App.4th 612, upon which the People rely, Division One of the First District disagreed with Carmichael, and held that the provisions of section 1465.8 were intended to apply retroactively. The primary basis for the Alford court’s reasoning was that the security fee is administrative rather than penal, and as such its imposition does not amount to greater punishment for a defendant.

In light of the fact that both cases are currently under review by our Supreme Court, we cannot rely upon either as law in rendering our decision in this case. However, we agree in principal with the rationale of Carmichael: There is no clear indication the Legislature intended section 1465.8 to be applied retroactively. Therefore, any retroactive application of the law violates section 3.

Here, defendant committed the offense in 2002, and pleaded no contest in 2005. The trial court imposed sentence in 2005. Section 1465.8 was not effective until 2003, after defendant committed the crime in this case. Since we have concluded that the Legislature did not intend the statute to have retroactive effect, it was error to apply it in this case, and should be stricken.

Disposition

The judgment is modified to strike the $20 court security fee imposed pursuant to section 1465.8, subdivision (a)(1). The clerk of the superior court is ordered to prepare a corrected abstract of judgment, striking the court security fee. Once the corrected abstract of judgment has been prepared, the clerk is ordered to forward it to the Department of Corrections. As modified, 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 statutory references are to the Penal Code.