Opinion
C097253
09-07-2023
THE PEOPLE, Plaintiff and Respondent, v. JESSICA MAELYNN BULLOCK, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. CRF22-01008
EARL, P. J.Defendant Jessica Maelynn Bullock pleaded no contest to one count of assault with a deadly weapon. The remaining charges were dismissed, and the trial court sentenced defendant to the stipulated low term of two years in state prison. At the sentencing hearing, defendant moved to withdraw her plea claiming duress and that she was pressured by counsel into taking the plea. The trial court ultimately denied her motion.
On appeal defendant contends the trial court erred because it did not hold a Marsden hearing based on her statement of being under duress and feeling pressured by counsel. The People argue that her appeal is not cognizable because she failed to obtain a certificate of probable cause from the trial court. We agree with the People and will dismiss the appeal.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
BACKGROUND
Because they are not relevant to any issue on appeal, the underlying substantive facts are not recounted here. We will begin with the relevant procedural facts.
Defendant pleaded no contest to assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) At the plea hearing, the trial court specifically asked defendant whether she was satisfied with counsel's representation. Defendant answered that she was satisfied.
Undesignated statutory references are to the Penal Code.
At the sentencing hearing, defense counsel informed the court that defendant wished to withdraw her plea "[o]n the basis of duress and that she was pressured into it by counsel." The trial court asked defense counsel if he was asking the court to appoint new counsel to investigate the issue. Defense counsel answered "Absolutely," and the trial court appointed a new attorney to investigate the motion to withdraw the plea. The trial court set the matter for further proceedings.
On August 22, 2022, new counsel informed the trial court there were no grounds for a motion to withdraw the plea. The trial court noted it had also reviewed the plea transcript and found no error in the entry of the plea. Accordingly, the trial court denied the motion to withdraw the plea and proceeded to sentencing with defendant's original attorney again representing her. Defendant did not object to continued representation by her original attorney. The trial court sentenced defendant to the stipulated sentence of two years in state prison, awarded presentence custody credits, and ordered defendant to pay mandatory fines and fees.
Defendant submitted a timely notice of appeal asserting she was challenging "the validity of the plea or admission" and completed the request for certificate of probable cause asserting she was pressured into signing the plea deal. The trial court denied her request finding that it did "not demonstrate reasonable, constitutional, jurisdictional or other grounds as to the legality of the proceedings."
Defendant filed another notice of appeal, this time checking the box indicating that the appeal was "based on the sentence or other matters occurring after the plea that do not affect the validity of the plea." In her second request for certificate of probable cause, she asserted she was appealing the sentence imposed. The trial court denied the request for a certificate of probable cause.
In this court, defendant filed a motion to construe the notice of appeal and to seek a certificate of probable cause. Defendant requested that the notice of appeal "be construed to include that it challenges the validity of the plea or admission." Counsel sought the motion because defendant "cannot contest the validity of [her no contest] plea without a certificate of probable cause." We granted the motion construing the notice of appeal to include the challenge to the validity of the plea but denied authorization to seek a certificate of probable cause.
Defendant renewed her request to seek a certificate of probable cause, because the denial "may preclude [defendant] from appealing the trial court's denial of her request to withdraw her plea." We denied that request as well.
DISCUSSION
On appeal, defendant contends that the trial court erred in not conducting a Marsden hearing, when the trial court was advised that she entered her plea under duress and felt pressured by counsel. She further contends that the trial court's failure to do so denied her Sixth Amendment right to competent counsel. The People argue that defendant's appeal should be dismissed because she did not obtain a certificate of probable cause. Defendant makes no argument as to the requirement of a certificate of probable cause and did not respond to the People's brief. We agree with the People.
When a defendant files an appeal following a plea of guilty or no contest, they are generally required to obtain a certificate of probable cause. (§ 1237.5.) Postplea claims that do not challenge the validity of the plea are exempt from the certificate requirement. (People v. Cuevas (2008) 44 Cal.4th 374, 379.) "In determining whether section 1237.5 applies to a challenge of a sentence imposed after a plea of guilty or no contest, courts must look to the substance of the appeal: 'the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.' [Citation.] Hence, the critical inquiry is whether a challenge to the sentence is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5." (People v. Panizzon (1996) 13 Cal.4th 68, 76.)
A defendant is not required to obtain a certificate of probable cause to challenge a trial court's denial of a postplea Marsden motion, even if some of the complaints relate to trial counsel's preplea conduct. (People v. Vera (2004) 122 Cal.App.4th 970, 978.) However, "a defendant must obtain a certificate of probable cause in order to appeal from the denial of a motion to withdraw a guilty plea, even though such a motion involves a proceeding that occurs after the guilty plea." (People v. Johnson (2009) 47 Cal.4th 668, 679.)
The issue then is whether we should construe defendant's motion to withdraw her plea as a Marsden motion. In a Marsden motion, a defendant seeks appointment of a new attorney based on their claim that appointed counsel is incompetent or ineffective. (Marsden, supra, 2 Cal.3d at pp. 123-126.) No formal or specific language is necessary to ask for a Marsden hearing. (Id. at p. 124.) A trial court is obligated to conduct a Marsden hearing only when there is at least some clear indication by the defendant that they want substitute counsel. (People v. Sanchez (2011) 53 Cal.4th 80, 89-90.)
Other than defendant's attorney advising the trial court that defendant felt pressured by counsel into taking the plea, defendant did not indicate she was dissatisfied with counsel's representation, claim counsel was inadequate or ineffective, or ask to have counsel relieved. Nothing in the record suggests defendant was seeking substitute counsel. To the contrary, as part of the plea colloquy, defendant was specifically asked whether she was satisfied with her counsel's representation, and she answered yes. Additionally, when her original attorney continued representation after the denial of defendant's request to withdraw her plea, defendant raised no objection.
We discern no basis in the record for construing defendant's motion to withdraw her plea as a Marsden motion. This conclusion is bolstered by the fact that in her multiple attempts to obtain a certificate of probable cause, defendant did not assert she received ineffective assistance of counsel or sought substitute counsel; rather, she consistently stated she wanted to challenge the validity of her plea. Accordingly, we conclude defendant's appellate claims are "in substance a challenge to the validity of [her] plea." (People v. Panizzon, supra, 13 Cal.4th at p. 76.) As such, defendant was required to obtain a certificate of probable cause and since she failed to do so, defendant's appeal must be dismissed.
DISPOSITION
The appeal is dismissed.
We concur: DUARTE, J., HORST, J. [*]
[*] Judge of the Placer County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.