Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Santa Barbara Edward H. Bullard, Judge Super. Ct. No. 1235888.
California Appellate Project, Jonathan B. Steiner, Executive Director, Richard B. Lennon, Staff Attorney, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, David Zarmi, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Kathy Ann Nimcheski appeals the judgment entered after she pled no contest to possession of methamphetamine for sale (Health & Saf. Code, § 11378). Imposition of sentence was suspended and she was placed on five years formal probation with the condition that she serve 90 days in county jail. Nimcheski contends she was deprived of her right to counsel in connection with her request to withdraw her plea. We affirm.
FACTS
Because Nimcheski pled no contest, the relevant facts are derived from the preliminary hearing transcript. On April 28, 2007, narcotics detectives from the Santa Barbara County Sheriff's Department executed a search warrant at a mobile home in Lompoc. Upon entering the premises, the detectives saw Nimcheski in the living room and heard a toilet flushing down the hall. One of the detectives forced entry into the locked bathroom and encountered codefendant James Terrones Morales as he was attempting to flush a plastic bag containing bindles of methamphetamine down the toilet. A digital scale and large plastic bag containing methamphetamine residue were found on the dining room table. When Nimcheski was questioned, it was apparent that she was under the influence of methamphetamine.
Morales is not a party to this appeal.
The detective who received the evidence from the arresting officers testified that each of the bindles contained between one-half of a gram and one gram of methamphetamine. According to the detective, the amount of methamphetamine contained in the bindles, the manner of packaging, and the "assembly-like fashion" in which unused bindles were lined up on the bathroom sink were all consistent with the conclusion that the methamphetamine was intended for sale.
DISCUSSION
Nimcheski contends that her conviction must be reversed because she was deprived of her constitutional right to counsel at a critical stage of the proceedings. Specifically, Nimcheski claims that the attorney appointed to assist her for the limited purpose of determining whether she had grounds to withdraw her plea did not actually represent her in that capacity. We disagree.
The People do not dispute Nimcheski's assertion that her appeal lies notwithstanding the absence of a certificate of probable cause. (See People v. Earp (2008) 160 Cal.App.4th 1223, 1228.)
At the original sentencing hearing held on December 13, 2007, Nimcheski's appointed attorney, David Bixby, informed the court that Nimcheski "would like to have somebody appointed to assist her in the possibility of withdrawing [her] plea" and stated "I believe that the person that the court would be appointing would be Mr. Charles Biely." The prosecutor responded: "I believe that common practice is for the court to appoint another attorney to consider whether there are grounds to withdraw her plea. I assume by Mr. Bixby's request . . . that he doesn't have any, in his mind, legal grounds other than the possibility of some sort of attorney/client issue which the client is requesting the court to appoint someone else."
The court proceeded to hear other matters while Bixby contacted Biely. When the matter was recalled later that morning, the court continued sentencing to December 20 and appointed Biely "for the limited purposes of researching any issue as to a motion to withdraw the plea and for any reason why sentencing should not proceed on the 20th." After Bixby verified that he had spoken to Biely on the telephone, the court ordered Bixby to "give [Biely] your files and information." Bixby also immediately complied with the court's order to give Nimcheski Biely's contact information.
At the December 20 hearing, Biely stated: "[T]he court appointed me last week to review the file to determine whether or not there was sufficient grounds to withdraw a plea that had been previously entered. [¶] I have researched Mr. Bixby's file and have also looked through the court file and find no legal case upon which a plea may be withdrawn." Bixby subsequently appeared to "supplement [Biely's] comment" and stated he was concerned about Nimcheski's well-being because she had mental health issues that rendered her "very susceptible to" the influence of others. The court made no formal findings on the issue of plea withdrawal, and proceeded to sentence Nimcheski the following day.
According to Nimcheski, she was effectively without representation "in the plea withdrawal proceedings" because the court did not expressly state that Biely was appointed to represent her in those proceedings, and the record does not affirmatively establish that he ever consulted with her on the matter. The fact that the record may not establish the absence of error is not, however, a legitimate grounds for reversal. "The very settled rule of appellate review is a trial court's order/judgment is presumed to be correct, error is never presumed, and the appealing party must affirmatively demonstrate error on the face of the record. [Citations.]" (People v. Davis (1996) 50 Cal.App.4th 168, 172.) Although the record may not affirmatively establish that Biely understood the scope of his representation, neither does it establish that he lacked that understanding. We presume that Biely's statement that there was no legitimate basis for a motion to withdraw the plea was an expression of his "'good faith opinion'" that such a motion would be frivolous. (People v. Makabali (1993) 14 Cal.App.4th 847, 853.).
Nimcheski's reliance on People v. Earp, supra, 160 Cal.App.4th 1223, is misplaced. In that case, the defendant's attorney withdrew from representation for all purposes after declaring a conflict of interest, then was reappointed without substitute counsel present after deciding that no conflict actually existed. (Id., at pp. 1228-1229.) Here, Bixby did not formally declare a conflict and never withdrew from representation. Moreover, he did not proceed to represent Nimcheski at the December 20 hearing until after Biely had appeared on her behalf and informed the court there were no legitimate grounds for her to seek to withdraw her plea. Because Nimcheski was fully represented throughout the proceedings by either Bixby or Biely, her claim that she was deprived of the right to counsel fails.
The judgment is affirmed.
We concur YEGAN, Acting P.J., COFFEE, J.