Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F06908727, Houry A. Sanderson, Judge.
Ross Thomas, 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, Barton E. Bowers, Maggy Krell and Julie A. Hokans, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Dawson, J., and Kane, J.
PROCEEDINGS
Appellant, Essie Patrick Bell, was charged in a criminal complaint filed November 14, 2006, with first degree murder (Pen. Code, § 187, subd. (a)). The complaint further alleged that Bell used a knife in the commission of the offense (§ 12022, subd. (b)(1)). On February 5, 2007, Bell entered into a plea agreement whereby she pled guilty to one count of voluntary manslaughter (§ 192, subd. (a)) and admitted the weapon enhancement for a maximum sentence of 12 years in prison. On May 4, 2007, the trial court sentenced Bell to the upper term of 11 years for voluntary manslaughter plus one year for the weapon enhancement, for a total prison term of 12 years. The court imposed a restitution fine and granted applicable custody credits. On June 19, 2007, Bell obtained a certificate of probable cause.
Unless otherwise indicated, all statutory references are to the Penal Code.
On appeal, Bell contends the trial court failed to grant her motion for new counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) based on her assertion that she was entitled to withdraw her plea. We requested further briefing from the parties concerning whether Bell made a colorable claim under People v. Brown (1986) 179 Cal.App.3d 207 (Brown) and People v. Osorio (1987) 194 Cal.App.3d 183 (Osorio) to obtain new counsel. We also requested further briefing as to whether the trial court failed to obtain an express waiver from Bell of her right to a jury trial on aggravating factors used by the court to impose an upper term sentence (People v. French (2008) 43 Cal.4th 36, 47-55 (French)) and whether the court used an improper aggravating factor or factors in sentencing Bell in violation of California v. Cunningham (2007) 549 U.S. 270 (Cunningham), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and People v. Black (2007) 41 Cal.4th 799 (Black).
Facts
According to the probation report, Bell was in an altercation that involved a female and the brother of the victim, Danice Allen. Allen’s brother was injured. Allen proceeded to the residence where appellant was still located and confronted her. A fight began between Bell and Allen. Witnesses did not agree as to who threw the first punch.
Bell, who was armed with a steak knife, stabbed Allen once in the heart. The fight continued down porch steps, along a walkway, and down the middle of the driveway. When police arrived, they found Bell in her car in the driveway. Bell told officers she was just moving her car in the driveway to give the police easier access. Bell told the officers she did not know why Allen was bleeding.
The police told Bell a witness had seen Bell with a knife. Bell initially laughed and said no one had seen her with a knife. When the police told Bell that Allen was going to die, Bell began to cry and said she had seen a knife by the ground. Bell remembered grabbing the knife, but not using it.
At the morgue, police found a knife blade wrapped up with some of the victim’s clothing. The cause of death was a four-inch stab wound into Allen’s heart.
First Marsden Motion
On February 5, 2007, Bell sought to relieve her counsel, Jim Lambe, pursuant to Marsden. Bell complained that she had a different plea agreement than the one she was about to enter and the prosecutor changed the agreement. Bell acknowledged the change was not Lambe’s fault. Bell explained she was confused about everything from the start and did not understand the law. According to Bell, Lambe was patient and tried to explain things to her but she still did not understand. Also, Bell felt the prosecutor was changing aspects of the plea agreement.
Lambe explained that he met with Bell in November 2006 and again in January 2007. Lambe said he told Bell in January about what he referred to as the prosecutor’s first offer, but that the prosecutor did not consider it his first offer. Lambe discussed the case in December with the prosecutor who told Lambe he would not accept involuntary manslaughter as an offer. In this initial offer, the prosecutor did not mention the weapon enhancement.
On January 22, 2007, the prosecutor made what Lambe called a second offer in which Bell would plead to voluntary manslaughter and admit the weapon enhancement. On January 31, 2007, and February 2, 2007, Lambe met with Bell in jail and she decided to accept the second offer. Lambe discussed the offer and its ramifications at length with Bell. Lambe described the most current offer was that Bell would admit voluntary manslaughter and the weapon enhancement and would waive her protections under Blakely and Cunningham. Bell would face a lid of 12 years on her sentence. Lambe explained that he did not see any aggravating factors and could understand Bell’s concern about the plea agreement.
When Lambe explained the protections Bell had under Blakely and Cunningham, she felt the rug had been pulled from under her. Lambe believed that Bell saw the plea agreement as getting worse and assured the court that he was not working with the prosecutor against his client’s interests. Lambe was concerned that Bell saw him as being a weak attorney because every time Lambe made an offer, the prosecutor’s response was to make a counteroffer that was worse. Lambe thought Bell had concerns keeping him as her counsel. Bell added nothing more and the court denied her Marsden motion.
Change of Plea Hearing
Bell executed a felony advisement, waiver of rights, and plea form. Under the terms of the plea agreement, she would admit an amended allegation of voluntary manslaughter and a weapon enhancement. Her maximum prison sentence would be 12 years. An asterisk over the maximum sentence was followed on the bottom of the first page of the form with a statement the court could consider police reports, pre-sentencing statements, and the probation report, to find one or more factors in aggravation. No express reference to Blakely and Cunningham rights, or waiving such rights, was set forth on the form.
At the change of plea hearing, the prosecutor explained that Bell would plead guilty to voluntary manslaughter with a sentencing range of three, six, or eleven years. She would admit using a knife and would waive any rights under Blakely and Cunningham. Lambe stated on the record that by waiving the protections of Blakely and Cunningham, the court could make a determination on the potential factors in aggravation although Lambe believed there were none. The court asked Bell if it was her understanding that she would admit an allegation of voluntary manslaughter and using a knife for a sentence as long as 12 years. Bell replied “yes” to the question. The trial court advised Bell of the consequences of her plea as well as of her constitutional rights pursuant to Boykin/Tahl. Bell expressly waived her right to “public jury or court trial.”
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122 (Boykin/Tahl).
The court again explained to Bell that the most exposure she faced at sentencing was 12 years. Lambe added that according to the plea form, Bell could not even receive a 12-year sentence unless the court found one or more factors in aggravation. The court recited the language on the change of plea form related to the asterisk. Bell pled guilty to voluntary manslaughter and admitted using a knife in the commission of the offense. As a factual basis for the plea, Bell admitted that she “stabbed Denise Allen fatally while in a sudden quarrel and heat of passion.”
The court then stated:
“And on the front of the Change of Plea form where it indicates that the Court can consider the police reports, sentencing report, the pre-sentence statements and pre-sentence testimony, the Court can find, if one were to be found, one or more factors in aggravation. May or may not find, I should say, one or more factors in aggravation. Is that being submitted upon by the People as well?”
The prosecutor and Lambe replied “yes” to the court’s question. Bell said nothing.
Other Post Plea Motions
Bell filed papers requesting to represent herself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta), on March 12, 2007. The court conducted a new Marsden hearing on March 12, 2007. Lambe explained to the court that there had been a breakdown in his ability to communicate effectively with Bell. The court relieved Lambe as Bell’s counsel. Bell withdrew her motion to represent herself. On March 13, 2007, Leroy Falk was substituted as Bell’s counsel. Falk sought, and was granted, a continuance for sentencing to familiarize himself with the case. Bell waived time for sentencing and the hearing was continued on March 20, 2007, and again on April 10, 2007.
Bell made a new Marsden claim against Falk on May 1, 2007. Bell complained that Falk had not visited her in jail, although she had met with him in an interview room next to the courtroom four or five times. Bell felt Falk had not properly represented her because he failed to file any papers for her to withdraw her plea. Bell thought she would be able to withdraw her plea. Bell complained of a lack of communication with Falk. Bell wanted Falk to check into a witness who went by two different names.
Bell said she wanted a 90-day observation “for justifiable homicide.” Bell also wanted Falk to look into discovery by Lambe into the juvenile records of the victim. Falk explained he agreed with Bell about visiting, but that he tried to communicate to her that she could take as long as she wanted when he saw her. Falk explained that after reviewing the change of plea form, he saw no basis for her to withdraw her plea. Falk said he explained to Bell that bringing a motion for her to withdraw her plea would be frivolous.
Falk did talk to several witnesses and was trying to get them to the sentencing hearing. Falk believed the best he could do for Bell was to prepare a statement in mitigation and argue for a shorter sentence. As for the 90-day diagnostic, Falk told Bell he could ask for that at the sentencing hearing. Falk advised Bell that she could still get a sentence of 12 years. Falk’s visits with Bell lasted between 10 to 20 minutes. Falk explained that after reviewing the police report, it would not be in Bell’s best interest to withdraw her plea because she could be convicted of second-degree murder and spend the rest of her life in jail.
Falk did not believe that justifiable homicide applied in Bell’s case. As for the victim’s criminal record, Falk asked the prosecutor to check into the records but the prosecutor reported there was nothing there. Falk discussed the police reports with Bell, but spent more time with witnesses such as Bell’s brother. Falk reiterated that a motion for Bell to withdraw her plea would be a frivolous motion. Falk said he thought Bell might have a moral basis to withdraw her plea, but he did not believe there was a legal basis for her to do so. The court denied Bell’s motion to relieve Falk as her counsel of record.
Final Marsden Motion
On May 4, 2007, Bell made her final Marsden motion. Bell said there was a conflict of interest because she wanted to withdraw her plea and Falk had not visited her much. Bell wanted to proceed on a theory of justifiable homicide. Bell explained she was “on medication, that hasn’t been looked into.” Bell said she was on an antidepressant she identified as Transidone. When the court asked why Bell was taking this medication, Bell replied she was “having depression problems, and then this incident just added to it.” Bell reiterated that she suffered from depression.
The court reporter noted this was a phonetic transcription of what Bell said.
Bell explained she did not see eye-to-eye with Falk as far as her plea. Bell did not believe she was being represented properly. Bell reiterated her complaint that Falk would not file a motion for her to withdraw her plea. Bell explained, “I feel that we should have an understanding that I was not of sound mind when I entered the plea ....” Bell thought she was instructed about different things about the plea. Bell also said she entered the plea without knowing all of the facts and tried to explain that to her counsel and she tried to explain that she was having trouble understanding at the time.
Bell filed a written declaration stating that Falk failed to confer with her, failed to communicate with her, failed to subpoena witnesses depriving her of critical evidence, failed to investigate her case, failed to prepare an affirmative defense at her preliminary hearing, failed to secure expert witnesses, failed to file a motion critical to her defense, failed to impeach prosecution witnesses, failed to present a defense, and failed to declare prejudice against the prosecutor. Bell filed a similar document in a prior Marsden motion.
Falk noted that he and the court were not bound by promises made by Lambe. Falk considered issuing a subpoena on Lambe for sentencing, but thought it would be counterproductive to do so. Falk explained that he reviewed the plea form and the change of plea transcript and found no basis for Bell to withdraw her plea. Falk explained that a 90-day diagnostic study would only be done in the context of sentencing.
The court specifically asked Falk about Bell’s reference to taking medication and being under the care of a psychologist or psychiatrist who was prescribing her medication for depression and asked Falk to address those comments by Bell. Falk replied that he did not look into this contention. Falk thought Bell wanted the benefit of what she thought was her bargain, which was a matter between Bell and Lambe. Falk said he would never tell anyone pleading to a maximum sentence of 12 years that he or she could not get such a sentence and that the most a defendant would face was a midterm sentence. Falk was not sure Lambe made those representations but this was what Bell told Falk that Lambe had said.
Bell told the court that Lambe said that if Bell “used the Cunningham and Blakely it would stop [Bell] from getting the 12 years.” After a brief recess, the trial court denied Bell’s final Marsden motion finding that there was only a disagreement as to trial tactics.
In the Marsden hearing of March 12, 2007, Bell told the court that she felt forced to sign the change of plea form because Lambe told her she could get life as opposed to a sentence of four to seven years. Bell further said at the earlier hearing that Lambe told her “the Cunningham and Blakely law would prevent the 12 or 11 years.” (Italics added.) Bell only signed the paper because Lambe kept telling her that and there were no aggravating factors. Bell told the court she was confused about everything.
Sentencing Hearing
The probation officer’s report was prepared in early March 2007. The probation officer noted the following aggravating factors: the crime involved great violence, great bodily harm, or other facts disclosing a high degree of cruelty, viciousness, or callousness; the victim was particularly vulnerable; and, the defendant was engaged in violent conduct indicating a great danger to society. The probation officer noted as mitigating factors that Bell had no prior criminal record and voluntarily acknowledged wrongdoing at arrest or at an early stage of the criminal process.
In her statement in mitigation, Bell listed the following mitigating factors: the victim was an initiator, aggressor, or provoker of the incident; the crime was committed because of an unusual circumstance unlikely to recur; the defendant had no apparent predisposition to commit the crime; the defendant has no prior record; and, the defendant voluntarily acknowledged wrongdoing prior to arrest or at an early stage of the criminal process.
At the sentencing hearing, the victim’s friends and relatives made unsworn statements to the court concerning the victim’s character and the incident. There were also unsworn statements made by witnesses concerning Bell’s good character. Bell apologized to the victim’s family.
The trial court noted that Bell had many admirable qualities. The court noted, however, that it was disturbed by certain aspects of the case. In aggravation, the court found the crime involved great violence, noting that this was repetitive because there is no homicide without great bodily harm. The court found the stab wound was to the victim’s heart and that the victim had a wound to her head that was consistent with the victim falling to the sidewalk. The court noted that a witness “testified” that Bell caused additional injury after stabbing the victim.
The court stated it was disturbed about an observation by an officer that Bell was seen in a vehicle after the attack. The court noted Bell laughed at the accusation at the scene of the incident that she possessed a knife. The court found that Bell’s denial that she possessed a knife suggested that Bell acted in a more concealed manner in using the knife.
The court found Bell’s apology to the victim’s family to be sincere and found that Bell had no prior record. The court then found that weighing all of the aggravating factors – Bell’s “potential flight,” the additional injury Bell caused the victim, and Bell’s original denial of culpability – the aggravating factors outweighed the mitigating factors. The court imposed the upper term for voluntary manslaughter.
COLORABLE CLAIM FOR NEW COUNSEL
Bell contends that she had a right to have her motion to withdraw her plea presented by her counsel, Mr. Falk, and that when he declined to do so, the court erred in failing to appoint new counsel for the purpose of investigating and presenting such a motion. We invited further briefing for the parties to specifically focus on whether Bell made a colorable claim under Brown and Osorio that would justify the appointment of new counsel. Bell argues that there is such a basis for the appointment of new counsel. Respondent describes Bell’s claim as frivolous. We disagree.
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. (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” (ibid.) because “a death … had [him] shook up.” (Id. at p. 213.) 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 Brown court, noting that a criminal defendant has a right to be represented by counsel at all stages of the proceedings, concluded that the defendant was deprived of his right to make an effective motion to withdraw his plea. (Brown, supra, 179 Cal.App.3d at pp. 213-214.) Brown 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. Brown 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, supra, 194 Cal.App.3d 183, a decision from this court, followed Brown. In Osorio, the defendant stated at sentencing that he wanted to withdraw his plea because “‘he didn’t understand what he was pleading to.’” (Id. at p. 186.) Trial counsel 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.)
Osorio, 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.” (Osorio, supra, 194 Cal.App.3d at p. 189.) We remanded the case to allow defendant to bring a motion to withdraw the plea. (Ibid.) Brown and Osorio hold that 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.
In the final Marsden hearing, Bell made multiple statements concerning her depression and potential mental illness. Bell told the court she was having depression problems and the incident made it worse. Bell also told the court that she was not of sound mind when she entered the plea and, apparently, did not understand the plea agreement. These statements were far stronger than those by the defendant in Brown who only said that he was not in the right frame of mind and that a death had shaken him up.
Bell also complained that Lambe misrepresented to her what the effect of the Cunningham decision would be. Bell further stated that she was confused concerning the terms of the plea agreement itself. Falk admitted to the court that he did not investigate Bell’s mental status and was not going to subpoena Lambe. Although Falk was not certain that Lambe had misrepresented Bell’s exposure to an upper term sentence, Falk did not plan to subpoena Lambe and, apparently, had not discussed the matter with Lambe. Bell’s assertions of confusion concerning her plea and her potential sentence are stronger than those made by the defendant in Osorio who merely asserted that he did not understand what he was pleading to.
In supplemental briefing, respondent argues there is no merit to Bell’s contention that she had a mental illness that affected her during the incident or during the change of plea hearing. As evidence, respondent points to a statement initialed by Bell in a form she executed for her Faretta motion in which she acknowledged that she was not taking medications and did not suffer from an emotional condition that would affect her ability to represent herself. If Bell was suffering from a mental or emotional illness and was not being treated for that condition, her answer to a question in a Faretta form would not necessarily be dispositive of whether a potential mental illness affected her mental state during the incident or her ability to make a voluntary plea. The lack of medical treatment for a mental or emotional illness could have affected Bell’s state of mind during the incident and/or when she changed her plea.
The question in the form asked whether Bell was currently taking any medication, including psychotropic medications, and whether Bell suffered from “any physical or emotional disease or disorder, which might make it difficult for [her] to read, write, hear, understand, speak, or otherwise act as [her] own attorney in this case?” Bell answered no to this question.
Furthermore, the question in the Faretta form was focused only on Bell’s ability to act as her own counsel. The question asked whether Bell suffered from a physical or emotional illness, not whether she suffered from a mental illness. If Bell was actually suffering from a mental illness, her ability to execute the Faretta form could also be in doubt. This may be evidence the People could use to counter an argument by Bell in a motion to withdraw her plea. Because this issue has not been factually developed, however, we do not find Bell’s answer to this question to conclusively establish that she did not suffer from a mental or emotional illness.
Bell’s assertions of a potential mental illness and confusion over the plea agreement form a colorable basis for her to pursue a motion to withdraw her plea. (Osorio, supra, 194 Cal.App.3d at p. 189). On this record, we deem it appropriate to follow Brown and Osorio, and remand this case to permit Bell, represented by counsel, to move to withdraw her plea should she still wish to do so. If Falk remains unwilling to investigate Bell’s motion to withdraw her plea, the court shall appoint new counsel. We do not know if Bell can prevail in a motion to withdraw her plea, but Bell has made a colorable basis for counsel to investigate the merits, if any, of such a motion.
In proceeding through the new Marsden hearing, we advise the court and the parties to carefully follow the appropriate procedures in evaluating the validity, if any, of Bell’s claims as set forth in our recent decisions of People v. Mendez (2008) 161 Cal.App.4th 1362, 1367-1368 (Mendez); People v. Mejia (2008) 159 Cal.App.4th 1081, 1086-1087 (Mejia); and People v. Eastman (2007) 146 Cal.App.4th 688, 695 (Eastman).) Should Falk, or new counsel, find no basis for Bell to withdraw her plea, the trial court shall employ the procedures set forth in these authorities.
Cunningham Error
After review of the record, we requested the parties to submit letter briefs addressing the Supreme Court’s recent decision in French, supra, 43 Cal.4th 36. Bell replied with a letter brief arguing that she was denied a right to a jury trial on the truth of aggravating factors employed by the trial court to give her an upper term sentence for voluntary manslaughter. Respondent contends Bell waived her Cunningham rights and that she was sentenced under the amended Determinate Sentencing Law (DSL) that took effect just prior to Bell’s sentencing making any remand for resentencing unnecessary. We find that Bell waived her right to a jury trial on aggravating factors during her change of plea hearing.
Failure to Obtain Express Waiver from Defendant
We initially note that although Bell executed a change of plea form that purported to waive her right to a jury trial for any fact used by the trial court to give her an aggravated sentence pursuant to Cunningham, Bell did not personally waive this right in open court. As noted in French, the general factual basis for the plea in that case did not establish an aggravating factor the court could use in sentencing. (French, supra, 43 Cal.4th at p. 51.) Here, Bell only admitted that she killed the victim in heat of passion. We find, however, that Bell acquiesced in counsel’s waiver of her Cunningham rights and that there was substantial compliance with section 1018.
Section 1018 provides in relevant part that: “Unless otherwise provided by law, every plea shall be entered or withdrawn by the defendant himself or herself in open court.” Numerous cases hold a defendant must personally make the admission in open court. (People v. Gauze (1975) 15 Cal.3d 709, 717; People v. Hofferber (1977) 70 Cal.App.3d 265, 268-269; People v. Vanley (1974) 41 Cal.App.3d 846, 854-855; People v. Sturdy (1965) 235 Cal.App.2d 306, 311.) A signed waiver of rights and plea form is not substantial evidence that a defendant, in fact, made the purported admission. (People v. Jones (1995) 37 Cal.App.4th 1312, 1316-1317.)
In People v. Bryant (1992) 10 Cal.App.4th 1584, this court faced a plea scenario similar to the one presented here. The trial court had elicited the defendant’s no contest plea to the charged offenses but failed to have him admit enhancement allegations in relation to three of the counts. (Id. at pp. 1593-1594.) We held that the alleged enhancements were not proven because the trial court failed to obtain an adequate admission. Thus, the finding that the defendant had admitted the allegations could not stand and the additional terms under the enhancement statutes could not be imposed. (Id. at pp. 1595-1596.)
The common exception to following the requirements of section 1018 occurs where there is substantial compliance. The defendant’s plea is considered executed in open court when he or she has verbally acquiesced in defense counsel’s acceptance of a guilty plea. (People v. Reeves (1966) 64 Cal.2d 766, 772; People v. Martin (1964) 230 Cal.App.2d 62, 63-64.) It is enough for the defendant to acknowledge affirmatively in open court that he or she wishes to admit a prior conviction occurred, even though the defendant does not formally admit the truth of the prior conviction. (See People v. Moore (1992) 8 Cal.App.4th 411, 415, 422.)
The trial court asked Bell if it was her understanding that she would admit an allegation of voluntary manslaughter and using a knife for a sentence as long as 12 years. Bell replied “yes” to the question. The trial court advised Bell of the consequences of her plea as well as of her constitutional rights pursuant to Boykin/Tahl. Bell expressly waived her right to “public jury or court trial.” The court again explained to Bell that the most exposure she faced at sentencing was 12 years. Lambe added that according to the plea form, Bell could not receive a 12-year sentence unless the court found one or more factors in aggravation. The court recited the language on the change of plea form related to the asterisk. Bell pled guilty to voluntary manslaughter and admitted using a knife in the commission of the offense.
Under the facts of the instant action, we find that Bell’s acknowledgments of the terms of the plea agreement, including the entry of her guilty plea after the court recited the language in the change of plea form related to the court’s ability to enter an upper term plea, constituted substantial compliance with Bell’s waiver of her Cunningham rights in open court in compliance with section 1018. In addition, Mr. Lambe acknowledged that his client was waiving her Cunningham rights. We therefore conclude that appellant waived her right to a jury trial on aggravating factors used by the trial court to impose the upper term for manslaughter.
DISPOSITION
The judgment is reversed for the limited purpose of the trial court to conduct a new Marsden hearing within 30 days of remand to determine whether Bell’s counsel is willing to investigate her assertion that a mental impairment affected her capacity to enter into the plea agreement, to interview Bell’s prior counsel, Mr. Lambe, and to pursue any other colorable claim Bell may have to withdraw her plea. If counsel is unwilling to investigate such a motion, the court shall find a conflict and appoint new counsel. If counsel finds no basis for Bell to withdraw her plea, the court shall make an inquiry for counsel’s reasons for not doing so in an in camera hearing pursuant to Mendez, supra, 161 Cal.App.4th 1362, 1367-1368, Mejia, supra, 159 Cal.App.4th 1081, 1086-1087, and Eastman, supra, 146 Cal.App.4th 688, 695. If no motion to withdraw the guilty plea is filed by Bell, or if Bell’s motion to withdraw her plea is denied, the superior court is directed to reinstate Bell’s conviction.