Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County, Nos. 1072252 & 1230278, Scott T. Steffen, Judge.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.
Before Cornell, Acting P.J., Gomes, J. and Hill, J.
In Stanislaus County Superior Court case No. 1072252 (case No. 1072252), appellant, Israel Garibay Covarrubias, pled no contest to voluntary manslaughter (Pen. Code, § 192, subd. (a)) and admitted allegations that in committing that offense he personally used a firearm (§ 12022.5, subd. (a)) and that he had suffered a “strike.” In Stanislaus County Superior Court case No. 1230278 (case No. 1230278), appellant pled no contest to possession of a weapon while confined in jail (§ 4502, subd. (a)) and admitted a strike allegation. At a sentencing hearing covering both cases, the court imposed a prison term of 34 years, consisting of 22 years on the substantive offense in case No. 1072252, 10 years on an arming enhancement in that case, and two years on the substantive offense in case No. 1230278.
All further statutory references are to the Penal Code unless otherwise indicated.
We use the term “strike” as a synonym for “prior felony conviction” within the meaning of the “three strikes” law (§§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
On appeal, appellant contends the court erred in refusing to allow appellant to present a motion to withdraw his plea in case No. 1072252. We will reverse and remand for further proceedings.
PROCEDURAL BACKGROUND
Appellant entered his pleas in both cases in the same proceeding on December 29, 2008. Also on that date, after appellant agreed to immediate sentencing, the court imposed the prison term as indicated above and, to allow “the Probation Department [to] look at all [appellant’s] cases and add them up to make sure [appellant] get[s] all the credits to which [he is] entitled,” set the matter for hearing on January 2, 2009, “for calculation of [presentence] credits.”
The matter was continued twice, and the hearing was held on January 23, 2009. Near the outset of that hearing, defense counsel told the court the following: Appellant “wishes to withdraw his plea” on the ground that counsel did not advise him that if he suffered a felony conviction in the future, when sentenced for that conviction his conviction of voluntary manslaughter would be a strike. However, “it is on the record that [appellant] was advised.” Moreover, before appellant entered the plea, counsel discussed with appellant that the offense did qualify as a strike, although appellant’s “recollection is different than that.” Appellant stated he “didn’t respond to [the court’s] acknowledgment on the record that it was a strike” because “he didn’t feel that was the place or time for him to make an objection or let it be known to the interpreter.”
The court responded, “There is at least a colorable argument for the motion [to withdraw the plea]” and that therefore “we need to proceed through the motion.”
Defense counsel responded that “sentencing has been done,” and therefore “there is no jurisdiction to do that in this court now.” Counsel opined that appellant “has to take a writ now postjudgment on the issue.” Counsel further stated that whether the court addressed appellant’s wish to withdraw his plea then or later, counsel could not represent appellant because he could not present appellant’s claim that counsel’s recollection of their discussions was incorrect.
The court ruled that a motion to withdraw a plea “has to be made prior to judgment,” and “[s]ince we have a judgment, the appropriate remedy... would be either a [petition for] Writ of Habeas Corpus or [a petition for] Writ of Coram No[b]is.”
Defense counsel agreed “that is legally the correct way to do it.” Counsel stated he would file the notice of appeal and “follow up and make sure... [appellant’s] rights are protected.”
The court next took up, in order, the issues of restitution and presentence credits. The court ordered restitution in the amount of $5,000 and awarded appellant 2,020 days of credits in case No. 1072252 and no credits in case No. 1230278.
DISCUSSION
As indicated above, appellant contends the court erred in refusing to allow appellant to present a motion to withdraw his plea in case No. 1072252. The People counter that such a motion was “untimely,” and therefore the court “lacked jurisdiction to grant [it].”
As the parties acknowledge, section 1018 provides, in relevant part, that a defendant may make an “application” to withdraw a plea of guilty or no contest “at any time before judgment.” (Italics added.) And as the parties also agree, in a criminal case judgment is rendered when the trial court orally pronounces sentence. (People v. Ibanez (1999) 76 Cal.App.4th 537, 543)
The parties part company on when sentence was pronounced, and thus when judgment was imposed. The People assert the court pronounced sentence and therefore rendered judgment on December 29, 2008, when the court sentenced appellant to 34 years in prison. Therefore, the People argue, when, at the proceeding the following month defense counsel announced that appellant wished to withdraw his plea, any motion to do so under section 1018 would have been untimely. Appellant argues that sentencing was not completed until the court made its award of presentence credits; appellant, through counsel, expressed his desire to withdraw his plea before the award of credits; and therefore appellant made an application to withdraw his plea in a timely manner. We conclude appellant is correct.
Neither party cites, and our independent research has not uncovered, any case that addresses the issue of precisely when judgment is pronounced when, as here, the imposition of a prison term and the award of presentence credits occur in two different proceedings. However, the essence of sentencing, when a prison term is imposed, is the conveying to the defendant the length of time he or she can expect to be imprisoned. And that information is not made known until the award of credits. Our conclusion is reinforced by the language of the statute governing presentence credits. Section 2900.5, subdivision (d) provides, in relevant part: “It shall be the duty of the court imposing the sentence to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited pursuant to [section 2900.5]. The total number of days to be credited shall be contained in the abstract of judgment.” (Italics added.) The statute’s requirements that credits be determined prior to sentencing and that such credits be reflected in the abstract of judgment suggest that judgment does not occur until the award of credits. Finally, our conclusion is consistent with the statutory command that section 1018 be “liberally construed” (§ 1018), and with the following principle: “When language which is susceptible of two constructions is used in a penal law, the policy of this state is to construe the statute as favorably to the defendant as its language and the circumstance of its application reasonably permit. The defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of a statute.” (People v. Overstreet (1986) 42 Cal.3d 891, 896.)
We turn now to the question of the proper disposition. We are guided by People v. Brown (1986) 179 Cal.App.3d 207 (Brown) and People v. Garcia (1991) 227 Cal.App.3d 1369 (Garcia).
In Brown, trial counsel informed the court at sentencing that the defendant wanted to withdraw his plea, but that in counsel’s 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). 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 hearing on a motion for the appointment of substitute counsel (Marsden hearing) should counsel continue to refuse to bring the motion (Brown, at p. 216). In so holding, the court stated that it was not suggesting that counsel was required to make a frivolous motion or “compromise accepted ethical standards.” (Id. at p. 216.)
See People v. Marsden (1970) 2 Cal.3d 118 (Marsden)
In Garcia, the defendant made a Marsden motion in which he detailed various alleged failings by defense counsel. (Garcia, supra, 227 Cal.App.3d at p. 1373.) The trial 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 defendant’s plea of no contest based on the instances of ineffective assistance previously raised by the defendant (id. at p. 1377). The court ordered remand but stated that under the circumstances of the case – where “the gravamen of the motion for withdrawal rest[s] on allegations which are properly characterized as claims of ineffective representation” – “there 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.” (Ibid.) Where a defendant seeks to withdraw a plea on the ground of ineffective assistance of counsel, the court stated, the following procedure is appropriate: “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. [Citation.]” (Ibid.)
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.
Here, defense counsel’s statement that appellant claimed that defense counsel failed to advise him that the offense to which he was pleading qualified as a strike indicates that appellant wished to withdraw his plea based on a claim of ineffective assistance of counsel. Accordingly, we will remand with directions to the trial court to hold a hearing of the nature suggested in Garcia.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for the limited purpose of permitting appellant to make a motion to withdraw his plea in a manner consistent with the views expressed in this opinion. If the motion is denied the judgment shall be reinstated.