Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F04908958-2, James L. Quaschnick, Judge.
Rita Barker, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Gomes, J.
On June 16, 2006, appellant Tony Leroy Willis pled no contest to 12 felony counts and five misdemeanor counts, and admitted two “strike” and 10 enhancement allegations. On September 1, appellant, without the assistance of counsel, moved to withdraw his pleas, and the court denied the motion; struck counts 2 through 7 and the arming, on-bail, and prior prison term enhancements; credited appellant with time served on each of the misdemeanors (counts 14, 15, 16 and 18); and imposed a prison term of 25 years to life on count 1 and concurrent 25-years-to-life terms on each of counts 8, 9, 11, 12 and 13. On count 10, the court imposed, and stayed pursuant to section 654, a term of 25 years to life.
All references to dates of events are to dates in 2006.
We use the term “strike” as a synonym for “prior felony conviction” within the meaning of the “three strikes” law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12). All statutory references are to the Penal Code.
Appellant pled no contest to five counts of receiving stolen property (§ 496, subd. (a); counts 2-5, 13), two counts of unlawful taking or driving a motor vehicle (Veh. Code, § 10851, subd. (a); counts 6, 8), two counts of possession of a firearm by a felon (§ 12021, subd. (a)(1); counts 7, 10), and individual counts of the following offenses: resisting a peace officer resulting in serious bodily injury (§ 148.10; count 1), evading a peace officer (Veh. Code, § 2800.2, subd. (a); count 9), possession of ammunition by a felon (§ 12316, subd. (b)(1); count 11), possession of methamphetamine while armed with firearm (Health & Saf. Code, § 11370.1, subd. (a); count 12), misdemeanor battery (§ 242; count 14), misdemeanor resisting a peace officer (§ 148, subd. (a)(1); count 16) misdemeanor possession of marijuana (Health & Saf. Code, § 11357, subd. (c); count 18) and possession of a device used for unlawfully smoking a controlled substance (Health & Saf. Code, § 11364; count 15), also a misdemeanor. He admitted the enhancement allegations of the following: he was released from custody on bail or his own recognizance at the time he committed the offenses charged in counts 1, 8, 9, 10, 11 and 13 (§ 12022.1), he was armed with a shotgun in the commission of the offenses charged in counts 8 and 9 (§ 12022, subd. (a)(1)) and he had served two separate prison terms of prior felony convictions (§ 667.5, subd. (b)).
On appeal, appellant contends (1) the court erred in failing to either grant his motion to withdraw his plea or, “at the very least,” appoint substitute counsel to present appellant’s motion to withdraw his plea, and (2) the court erred in failing to stay execution of sentence on the count 11 offense (possession of ammunition by a felon in violation of section 12316, subdivision (b)(1)) pursuant to section 654. We will reverse and remand for further proceedings.
PROCEDURAL BACKGROUND
On June 16, appellant executed a plea waiver form in which he indicated he would enter a “straight up plea” to counts 1 through 16 and 18 and admit “enhancements and prison priors (including strikes)” in exchange for an “Indicated sent[ence]” of 25 years to life. At the hearing that day, defense counsel told the court that appellant was “fully aware” that if found guilty of the “numerous” charged felony counts, appellant could receive multiple consecutive 25 years to life terms, and appellant acknowledged, in response to questioning by the court, that he understood that under the plea agreement, he “will be sentenced” to 25 years to life in prison. Later in that proceeding appellant entered his pleas and admissions.
On September 1, at the sentencing hearing, appellant, through his counsel, moved to strike both his “strike priors.” The court, noting that pursuant to the plea agreement, six felonies were being dismissed, stated “I don’t see how the defendant could possibly ask this court to strike 2 strikes ….” Shortly after the court asked if there was any legal cause why sentence should not be pronounced, appellant himself stated he was “under the impression” on June 16, and was “told by counsel,” that the court would strike one of appellant’s strikes and impose a sentence of 19 years 4 months, “with 80 percent.”
A discussion followed in which appellant insisted several times that it was his understanding that he would receive a sentence of 19 years 4 months, and stated he “never would have signed for the deal if [counsel] didn’t tell [him] that.” Defense counsel told the court, “I never informed my client that any one or both strikes would be stricken under the plea agreement that we reached. I never informed him of that.”
The following exchange ensued:
“THE COURT: … Would you rather go to trial and face 100 years to life? [¶] … [¶] You have your option, if you want to withdraw your plea and go to trial and if you’re convicted of these offenses
“THE DEFENDANT: Yeah. [¶] … [¶]
“THE COURT: You would go to prison for 100 years to life.
“THE DEFENDANT: Yeah, I want to withdraw. At least I’d have a fair trial then.”
A short time later, appellant repeated that he wanted to withdraw his plea, and the court responded, “Well, I’m not going to let you withdraw your plea. This plea was entered in good faith by myself and by you and your attorney and the District Attorney.” The court then asked appellant if, on June 16, he told the court of his understanding when he was “told that [he would] go to prison for twenty-five years to life[.]” Appellant responded, “I didn’t think there was any reason to, Your Honor. I thought that was already an understanding.” The court responded that it did not believe appellant.
At that point, the prosecutor explained that, with presentence credits, the determinate portion of the term would be approximately 22 years. Appellant responded “[b]ut still the life is still on there,” and “I never would have pleaded to that, Your Honor.”
At that point, defense counsel acknowledged that the court had stated an indicated sentence of 25 years to life, but told the court, in an effort to explain how appellant might have come to the understanding that he would receive a sentence of approximately 19 years, that he (counsel) had told the prosecutor previously assigned to the case “that if I could get my client 19 years, he would take it ….”
Thereafter, appellant repeated several more times that he was told his sentence would be 19 years 4 months. The court repeated that it did not believe appellant, and imposed sentence.
DISCUSSION
As indicated above, appellant contends the court erred in failing to either grant his motion to withdraw his plea or, “at the very least,” appoint substitute counsel to present appellant’s motion to withdraw his plea. We agree with appellant’s latter point. We are guided by the following cases: People v. Brown (1986) 179 Cal.App.3d 207, People v. Osorio (1987) 194 Cal.App.3d 183 and People v. Garcia (1991) 227 Cal.App.3d 1377.
In Brown, trial counsel informed the court at sentencing that the defendant wanted to withdraw his plea, but that in her opinion, there was no “legal basis” for such a motion, and she was not making the motion for him. (People v. Brown, supra, 179 Cal.App.3d at p. 211.) The defendant told the court that at the time he entered his plea, he “wasn’t in the right frame of mind” (id. at p. 211) because “a death had [him] shook up” (id. at p. 213). He 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, noting that a criminal defendant has a “right to be represented by counsel at all stages of the proceedings” (id. at p. 214), concluded that the defendant was “deprived of his right to make an effective motion to withdraw his plea” (id. at p. 213) and remanded the case to allow the defendant, represented by counsel, to move to withdraw his plea, with instructions for a Marsden hearing should counsel continue to refuse to bring the motion (id. at p. 216). In so holding, the court stated that it was not suggesting that counsel is required to make a frivolous motion or “compromise accepted ethical standards.” (Id. at p. 216.)
Osorio followed Brown. There, the defendant stated at sentencing he wanted to withdraw his plea because “‘he didn’t understand what he was pleading to.’” (People v. Osorio, supra, 194 Cal.App.3d at p. 186). Trial counsel “specifically represented to the trial court that there appeared to be good grounds for a motion to withdraw the plea,” but refused, in “‘good conscience,’” to bring the motion because withdrawal of the plea would result in reinstatement of counts dropped under the plea agreement. (Id. at p. 188.) On appeal, this court cited and discussed Brown, and, referring to Brown, stated, “We believe that counsel’s representation to the court that there was a colorable basis for the motion to withdraw the guilty plea requires a similar disposition of the present appeal.” (Id. at p. 189.) This court remanded the case to allow defendant to bring a motion to withdraw the plea. (Ibid.)
In Garcia, which followed Osorio, the defendant made a motion for substitute counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 in which he detailed various alleged failings by defense counsel. (People v. Garcia, supra, 227 Cal.App.3d at p. 1373.) The court denied the motion. Thereafter, at sentencing, the defendant made various statements (id. at pp. 1373-1374) which the appellate court interpreted as a motion to withdraw the plea based on the instances of alleged ineffective assistance of counsel previously raised by the defendant (id. at p. 1377). Under those circumstances, the Garcia court stated: “[T]here should be a limited exception to the general rule articulated in Brown. To hold otherwise would place the attorney in an intolerable position, requiring him to assert his own incompetence and thereby creating a conflict of interest between the client’s interests and that of the attorney.” (Id. at p. 1377.) Where a defendant seeks to withdraw a plea on the ground of ineffective assistance of counsel, the court stated, it should employ the following procedure: “The trial court should first elicit and consider the defendant’s reasons for believing he has been ineffectively represented, making such inquiries of the defendant and trial counsel as appear necessary in open court or, if the trial court deems necessary, at an in camera hearing. [Citation.] If the defendant ‘presents a colorable claim that he was ineffectively represented,’ the trial court should appoint new counsel ‘to fully investigate and present the motion.’ [Citation.] … If the defendant does not present a colorable claim, the court may deny the motion without providing for new counsel.” (Ibid., fn. omitted.)
Our Supreme Court, in People v. Smith (1993) 6 Cal.4th 684, 694-696, disapproved any implication in Garcia that the standard for appointing substitute counsel at the postconviction stage differs from the usual standard.
From Brown, Osorio and Garcia, we glean the following. A criminal defendant has a right to make a motion to withdraw his or her plea, and to be represented by counsel in the effort, if nonfrivolous grounds exist for withdrawing the plea. (People v. Brown, supra, 179 Cal.App.3d at pp. 213-216, People v. Osorio, supra, 194 Cal.App.3d at pp. 188-189). Where counsel refuses to present a nonfrivolous motion to withdraw the plea, the remedy, generally, is a remand to allow the defendant, represented by counsel, to move to withdraw his or her plea, with the proviso that if, on remand, counsel persists in his refusal, “the trial court should hold a hearing, attempt to determine the basis for the conflict and decide, in its discretion, whether substitute counsel should be appointed to represent the defendant.” (People v. Brown, supra, 179 Cal.App.3d at p. 216.) However, where “the gravamen of the motion for withdrawal rest[s] on allegations which are properly characterized as claims of ineffective representation,” the alternative procedure described in Garcia is appropriate. (People v. Garcia, supra, 227 Cal.App.3d at p. 1377.)
Appellant here insisted that he wanted to withdraw his plea and stated a nonfrivolous ground, viz., that based on what his counsel told him, he thought the maximum sentence he could receive was 19 years 4 months. (People v. Cruz (1974) 12 Cal.3d 562, 566 [duress or any other factor overcoming a defendant’s exercise of free judgment at the time of the plea may constitute good cause for withdrawal of plea].) However, appellant did not have the benefit of counsel in presenting this motion. Defense counsel, for his part, suggested that appellant may have, in fact, failed to understand that he would receive a life term, but strongly implied that he (counsel) did not advise appellant incorrectly. Given that appellant and defense counsel are at odds on this point, it appears that the basis for appellant’s plea withdrawal motion is, as in Garcia, inadequate representation. Accordingly, we will remand with directions to the trial court to hold a hearing of the nature suggested in Garcia. The trial court shall then either (1) exercise its discretion to appoint new counsel to represent appellant on a motion to withdraw his plea, (2) direct existing counsel to make such a motion, (3) reinstate the judgment, or (4) proceed otherwise as authorized by law.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for further proceedings consistent with this opinion.
Because we reverse, we need not address appellant’s challenge to his sentence.