Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. C9676028
McAdams, J.
1. Introduction
On appeal, defendant Ralph Aceves complains that the trial court erred by summarily denying his requests at sentencing to withdraw his guilty plea and for substitute appointed counsel. Pursuant to a previously accepted court offer, the court sentenced defendant, then age 78, to 13 years in prison on six counts of aggravated lewd touching of a child under 14 years of age (Pen. Code, § 288, subd. (b)(1)) between March 1989 and December 1993, with an admitted prior rape conviction. For the reasons stated below, we will remand for a hearing on defendant’s request for substitute counsel after concluding that defendant was not required to obtain a certificate of probable cause.
The details of the crimes, involving defendant’s paternal granddaughter, are irrelevant to the issues on appeal.
2. Proceedings
At a hearing on February 27, 2006, defendant agreed to accept the court’s above-described “offer” over the prosecutor’s objection. Since the court did not allow a no contest plea, defendant pleaded guilty as charged and admitted the prior conviction.
Two months later, at sentencing, defendant’s appointed attorney, a deputy public defender, advised the court that “Mr. Aceves has indicated to me he would like to make a motion to withdraw his plea. And I don’t know if he is going to address the Court about that or not.”
“THE COURT. Well, you are counsel of record, so I will hear from you. But in your considered opinion, is there a basis upon which to file a motion – a legal basis upon which to file a motion to withdraw the plea?
“[DEFENSE COUNSEL]. No, Your Honor.
“THE COURT. So there is no legal cause. So the Court can then impose sentence at this point.”
The court proceeded to impose the agreed sentence. Eventually, defendant spoke up as follows.
“THE DEFENDANT. Judge, I think I have legal reason to enter a plea of not guilty.
“THE COURT. I understand that, Mr. Aceves. However, I have already asked counsel whether or not legal grounds exist. And in her opinion, they don’t, so your request is denied. [¶] Anything further?
“THE DEFENDANT. Why can’t I have another counsel?
“THE COURT. Request is denied.”
The notice of appeal filed by defendant recites that it “is based on grounds that arose after entry of the plea and does not affect the validity of the plea.”
3. The request for new counsel
In order to safeguard a criminal defendant’s constitutional right to the effective assistance of counsel, trial courts must be sensitive to circumstances indicating that this right is in jeopardy due to the performance of appointed counsel or a deterioration of the attorney-client relationship. The trial court is obliged to listen to a defendant’s complaints about the quality of counsel’s representation when it appears that a defendant desires appointment of a substitute counsel. (People v. Marsden (1970) 2 Cal.3d 118, 123-124 (Marsden).)
The defendant is not required to make a formal motion requesting substitute counsel. (People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8 (Lucky).) “The semantics employed by a lay person in asserting a constitutional right should not be given undue weight in determining the protection to be accorded that right.” (Marsden, supra, 2 Cal.3d at p. 124.) A trial court’s duty of inquiry is triggered when a defendant provides some clear indication that he or she wants a substitute appointed attorney. (Lucky, supra, 45 Cal.3d at p. 281, fn. 8; People v. Mendoza (2000) 24 Cal.4th 130, 157; People v. Dickey (2005) 35 Cal.4th 884, 920; contra, People v. Leonard (2000) 78 Cal.App.4th 776, 787 [“A trial court’s duty to conduct theinquiry arises ‘only when the defendant asserts directly or by implication that his counsel’s performance has been so inadequate as to deny him his constitutional right to effective counsel’ ”].) The duty of inquiry is not triggered when there merely “appears to be a difference of opinion between a defendant and his attorney over trial tactics.” (Lucky, supra, 45 Cal.3d at p. 281.) “Mere grumbling” about counsel’s failures is insufficient to invoke a Marsden hearing. (People v. Lee (2002) 95 Cal.App.4th 772, 780.)
In our view, defendant’s question, “Why can’t I have another counsel?” was a clear enough indication that he wanted another attorney appointed. (Cf. People v. Kelley (1997) 52 Cal.App.4th 568, 580; People v. Hill (1983) 148 Cal.App.3d 744, 752-753.) The trial court erred in disregarding this request without asking at least why defendant believed another attorney should be appointed.
While no reason was given for the denial, the timing of the request in the middle of sentencing would not be a good reason for denying it. “A criminal defendant is entitled to raise his or her dissatisfaction with counsel at any point in the trial when it becomes clear that the defendant’s right to effective legal representation has been compromised by a deteriorating attorney-client relationship.” (People v. Roldan (2005) 35 Cal.4th 646, 681.)
People v. Smith (1993) 6 Cal.4th 684 (Smith) explained: “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. For the reasons identified in People v. Fosselman [(1983)] 33 Cal.3d [572] at pages 582-583, 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.” (Id. at pp. 695-696.)
In Smith, defense counsel filed a motion to withdraw a guilty plea explaining the defendant’s belief that he had been pressured by counsel to plead guilty. Counsel also filed a formal Marsden motion. (Smith, supra, 6 Cal.4th 684 at pp. 687-688.) The issue on appeal was what standard trial courts should apply to postconviction motions for substitute counsel. (Id. at p. 693.) Smith held 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.” (Id. at p. 696.) In reaching this decision, Smith at page 696 disapproved of a prior decision of this court, People v. Garcia (1991) 227 Cal.App.3d 1369.
It is also improper to deny a request for substitute counsel based on the court’s observations of counsel’s performance without “listening to [a defendant’s] reasons for requesting a change of attorneys.” (Marsden, supra, 2 Cal.3d at p. 123.)
As this court has previously concluded, the proper remedy when a trial court has ignored a defendant’s request for a substitute attorney is a remand limited to conducting a Marsden hearing. (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1401.) What occurs next depends upon whether the trial court deems the defendant to be entitled to appointment of a new attorney. As explained in Smith, “[s]ubstitute counsel could then investigate a possible motion to withdraw the plea.” (Smith, supra, 6 Cal.4th 684, 695.)
4. Denial of the request to withdraw the guilty plea
On appeal, defendant claims that the “trial court erred by failing to provide [defendant] an adequate opportunity to articulate his reasons for wishing to withdraw his plea.”
Defendant invokes a line of authority originating with this court’s decision in People v. Brown (1986) 179 Cal.App.3d 207 (Brown). In that case, after the defendant had entered a guilty plea, at sentencing defense counsel announced that the defendant would like to make a motion to withdraw a guilty plea. We summarized the ensuing colloquy as follows. “Defendant desired to withdraw his plea but his attorney refused to make such motion on defendant’s behalf apparently believing there was no legal basis for it. Although he was granted permission to ‘speak,’ defendant did not represent himself. As the trial court found, there was ‘no hiat[u]s in representation.’ The court summarily denied defendant’s request for substitute counsel and denied his ‘motion’ to withdraw the plea.” (Id. at p. 213.)
Brown reasoned as follows. Defense counsel has a right to control the proceedings and a duty to advise the client, but ultimately it is the defendant’s decision whether to enter a plea of guilty and whether to bring a motion to withdraw a guilty plea. (Brown, supra, 179 Cal.App.3d at p. 215.) So long as a defendant is represented, it is counsel’s obligation to present a motion to withdraw a guilty plea. (Ibid.) “It was improper to permit defendant to bring his motion in pro. per. while he was still represented by counsel.” (Id. at p. 214.) We noted that counsel is not required to bring “a motion which, in counsel’s good faith opinion, is frivolous or when to do so would compromise accepted ethical standards,” and observed that such facts were not before the court. (Id. at p. 216.)
Brown concluded: “It is again noted defendant did request the appointment of substitute counsel when his attorney declined to represent him in the motion to withdraw his plea. Should counsel’s refusal persist upon remand, the trial court should hold a hearing, attempt to determine the basis of the conflict and decide, in its discretion, whether substitute counsel should be appointed to represent the defendant. (People v. Marsden [supra,] 2 Cal.3d 118.)” (Brown, supra, 179 Cal.App.3d at p. 216.)
Brown thus indicates that when a defense attorney refuses on the record to obey his or her client’s desire to make a motion to withdraw a guilty plea, the appropriate course for the trial court is not to entertain a motion to withdraw by the defendant, but to ascertain whether there are grounds under Marsden to appoint a substitute counsel.
Brown was followed by People v. Osorio (1987) 194 Cal.App.3d 183 (Osorio), a case in which the “defense counsel specifically represented to the trial court that there appeared to be good grounds for a motion to withdraw the plea. However, counsel said he could not submit such a motion ‘in good conscience’ apparently because of the potential for a vastly increased maximum sentence upon conviction of all of the original counts.” (Id. at p. 188.) Based on these facts, the court concluded that the disposition must be similar to that in Brown. (People v. Osorio, at p. 189.)
Based on this authority, defendant argues that the trial court should have inquired into his reasons for wanting to withdraw his guilty plea. This is not the course of action Brown proposed. The trial court in this case properly declined to entertain a motion to withdraw made by defendant personally. But the trial court failed to conduct a Marsden inquiry when confronted with counsel’s refusal to honor her obligation to present defendant’s motion.
The Attorney General asserts that we should deem this case to fit within the exception in Brown that a defense attorney is not required to make a frivolous motion to withdraw a guilty plea. He contends that we must presume this is what counsel meant in saying that she did not believe there was a legal basis for the motion. However, this is not how we understood almost identical language in Brown itself. In that case, the defense attorney stated, “ ‘I am not making that motion on his behalf. I don’t believe there is any legal basis at this time for him to move the court to withdraw his plea.’ ” (Brown, supra, 179 Cal.App.3d at p. 211.) We did not regard this as a suggestion that a motion to withdraw would be frivolous. (Id. at p. 216.)
The statement here was not like the one we confronted later in People v. McLeod (1989) 210 Cal.App.3d 585, when defense counsel announced the defendant’s desire to make a motion to withdraw his guilty plea and explained, “ ‘I advised him I could not represent him during that proceedings due to the nature of the proceeding.’ ” (Id. at p. 587.) We interpreted that statement as indicating that counsel could not make the motion on ethical grounds and we excused counsel’s omission to make the motion on that basis. (Id. at p. 590.)
Another court found that the defense attorney had essentially identified a motion to withdraw as frivolous by saying that he could not make out a viable claim of ineffective assistance while the prior attorney was on vacation. (People v. Makabali (1993) 14 Cal.App.4th 847, 852-853.) In that case, however, the attorney who made that statement had specifically been appointed to make a motion to withdraw a guilty plea after the defendant’s original attorney had refused to make a motion to withdraw the guilty plea based on his own ineffectiveness. (Id. at p. 850.) Here, there has been no inquiry into the reasons for defendant’s request for another attorney.
The Attorney General here accurately observes that “nothing in the record suggests that defense counsel refused to bring a potentially viable motion to withdraw the plea.” It appears to us that the reason for this deficit is that the trial court ignored its obligation to conduct a Marsden inquiry when defendant asked, “Why can’t I have another attorney?”
5. Certificate of probable cause
The Attorney General asserts that defendant is unable to pursue these issues on appeal because he did not obtain a certificate of probable cause from the trial court after pleading guilty.
In People v. Lloyd (1998) 17 Cal.4th 658, the California Supreme Court explained that Penal Code “Section 1237.5 states the general rule: A defendant may not take an appeal from a judgment of conviction entered on a plea of guilty or nolo contendere unless: (1) the defendant himself has ‘filed with the trial court a written statement, executed under oath or penalty of perjury[,] showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings’; and (2) the trial court has ‘executed and filed a certificate of probable cause for such appeal with the county clerk.’” (Id. at p. 663.) The court noted that the statute was implemented by former Rule of Court 31(d), now 8.304 (since January 1, 2007).
The court continued: “Section 1237.5 has been held to admit an exception to the general rule: A defendant may take an appeal from a judgment of conviction entered on a plea of guilty or nolo contendere without a statement of grounds by the defendant and a certificate of probable cause by the trial court if he (1) ‘seek[s] appellate review of the validity of a search or seizure’ contested ‘under section 1538.5’ of the Penal Code (People v. West (1970) 3 Cal.3d 595, 601; accord, People v. Panizzon [(1996)] 13 Cal.4th [68] at p. 74; People v. Jones [(1995)] 10 Cal.4th [1102] at p. 1106); or (2) ‘assert[s] only that errors occurred in the . . . adversary hearings conducted by the trial court for the purpose of determining the degree of the crime and the penalty to be imposed,’ and does ‘not attempt[ ] to challenge the validity of’ the ‘plea’ itself (People v. Ward (1967) 66 Cal.2d 571, 574; accord, People v. Panizzon, supra, 13 Cal.4th at p. 74; People v. Jones, supra, 10 Cal.4th at p. 1106).
“As we also recently explained in Panizzon and Jones, the second paragraph of rule 31(d) implements this exception to the general rule by providing as follows: An appeal of this sort may be taken without a statement of grounds by the defendant and a certificate of probable cause by the trial court if it is ‘based solely upon grounds (1) occurring after entry of the plea which do not challenge its validity or (2) involving a search or seizure, the validity of which was contested pursuant to section 1538.5 of the Penal Code’; it does not become ‘operative,’ however, ‘unless the notice of appeal states that it is based upon such grounds.’ (Rule 31(d); see People v. Panizzon, supra, 13 Cal.4th at p. 75; People v. Jones, supra, 10 Cal.4th at pp. 1106-1107.)” (People v. Lloyd, supra, 17 Cal.4th at pp. 663-664.)
People v. Ribero (1971) 4 Cal.3d 55 stated, “In determining the applicability of [Penal Code] section 1237.5, the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made. . . . If a defendant challenges the validity of his plea by way of a motion to withdraw the plea, he cannot avoid the requirements of section 1237.5 by labeling the denial of the motion as an error in a proceeding subsequent to the plea.” (Id. at pp. 63-64, fn. omitted.) “[A] defendant who has filed a motion to withdraw a guilty plea that has been denied by the trial court still must secure a certificate of probable cause in order to challenge on appeal the validity of the guilty plea.” (In re Chavez (2003) 30 Cal.4th 643, 651.)
The California Supreme Court has considered in several cases whether a defendant’s appellate contentions essentially challenged the validity of the guilty plea. In People v. Panizzon, supra, 13 Cal.4th 68, the defendant entered a plea to several offenses with a sentence of life plus 12 years with the possibility of parole. (Id. at p. 73.) On appeal, the defendant sought to argue that “his sentence was disproportionate to the sentences imposed upon his codefendants and thereby violative of the federal and state constitutional prohibitions against cruel and unusual punishment.” (Id. at p. 74, fn. omitted.) The court concluded that a certificate was required, because “a challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself.” (Id. at p. 79.)
In People v. Shelton (2006) 37 Cal.4th 759, the defendant entered a plea to two charges under an agreement that his sentence would not exceed a certain maximum, or “lid.” (Id. at p. 764.) At sentencing, the defendant argued that the maximum sentence was precluded by Penal Code section 654. The California Supreme Court concluded that, while the defendant’s plea agreement had reserved the right to argue for a sentence below the lid, he had not reserved the right to challenge the lid sentence itself under section 654. Accordingly, the defendant needed a certificate to renew his section 654 argument on appeal. (Id. at pp. 768-769.)
On the other hand, no certificate is required when a defendant has reserved his right to argue that a lower term was more reasonable, despite agreeing that a higher maximum term could be imposed. (People v. Buttram (2003) 30 Cal.4th 773, 787.)
None of these California Supreme Court cases involved a post-plea Marsden request. In this case, although defendant attempts to challenge the denial of his motion to withdraw his guilty plea, we do not see that such a motion was actually made. We understand his essential challenge to be to the denial of his post-plea request for substitute counsel. As defendant points out, this court has previously concluded that no certificate is required in order to challenge the denial of a post-plea Marsden request, since it does not necessarily implicate the validity of the guilty plea. (People v. Vera (2004) 122 Cal.App.4th 970, 978 (Vera).) On the other hand, a challenge to defense counsel’s pre-plea ineffectiveness does require a certificate of probable cause. (People v. Stubbs (1998) 61 Cal.App.4th 243, 244-245.)
The Attorney General relies on People v. Emery (2006) 140 Cal.App.4th 560 as requiring a certificate. In that case, at the sentencing hearing, the defendant made a motion for a continuance to investigate the assault victim’s changing stories to ascertain whether he should make a motion to withdraw his no contest plea. The appellate court concluded that, “in substance, the [continuance] motion was a challenge to the validity of the plea and admissions,” requiring a certificate of probable cause. (Id. at p. 565.)
In reaching this conclusion, the Third District Court of Appeal criticized the Osorio decision by the Fifth District Court of Appeal. “The sole basis for the appeal in Osorio was the claim that trial counsel was ineffective in refusing to file a motion to withdraw the appellant’s guilty plea. (Osorio, supra, 194 Cal.App.3d at p. 185.) The validity of that claim of error was dependent upon the validity of the guilty plea. In substance, the claim of error was an attack on the plea itself. Hence, a certificate of probable cause should have been required.” (People v. Emery, supra, 140 Cal.App.4th at p. 565.)
We read Osorio differently. Osorio, relying on Brown, identified two potential problems for remand, the absence of a Marsden inquiry and the failure by defense counsel to make a potentially meritorious motion to withdraw a guilty plea. As we explained in Vera, quoting Smith, regarding the Marsden motion, “ ‘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.’ ” (Vera, supra, 122 Cal.App.4th at p. 978.)
In the present case, since the trial court summarily rejected defendant’s request for substitute counsel, it would be mere speculation as to why defendant made this request. We refuse to presume that defendant’s complaints necessarily related to the validity of the guilty plea. Though his complaints about counsel must necessarily relate to her past performance, defendant had a continuing right to counsel’s effective assistance. We reaffirm our conclusion that the denial of a post-plea Marsden request can be challenged on appeal without a certificate of probable cause.
Disposition
The judgment is reversed. The case is remanded for the trial court to conduct an inquiry into defendant’s reasons for requesting substitute counsel. If defendant fails to
establish that he is entitled to substitute counsel, the trial court should reinstate the judgment. If defendant carries his burden, the court should appoint substitute counsel.
WE CONCUR: Bamattre-Manoukian, Acting P.J. Duffy, J.