Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. CM028573, CM028574, CM029266
NICHOLSON, J.
Defendant Stephen Michael Crane pled no contest to three counts and admitted an on-bail enhancement as to one of them in three consolidated cases in return for a stipulated state prison sentence of seven years four months. He then moved to withdraw his plea, claiming he had entered it under duress because his counsel was unready to defend the last filed case. After holding a Marsden hearing at which defendant and counsel testified, the court denied the motion and imposed the previously agreed sentence. We affirm.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
FACTUAL AND PROCEDURAL BACKGROUND
The Cases
On March 19, 2008, informations were filed in case Nos. CM028573 and CM028574. In case No. CM028573, defendant was accused of possessing a deadly weapon (a sap) on February 17, 2008. (Pen. Code, § 12020, subd. (a)(1) [all further undesignated statutory references are to this code].) In case No. CM028574, defendant was accused of possessing marijuana for sale (count 1; Health & Saf. Code, § 11359), possessing methamphetamine (count 2; Health & Saf. Code, § 11377, subd. (a)), and possessing drug paraphernalia (count 3; Health & Saf. Code, § 11364, subd. (a)) on January 9, 2008.
On May 15, 2008, an information was filed in case No. CM029266, accusing defendant of kidnapping (count 1; § 207, subd. (a)) and receiving stolen property (count 2; § 496, subd. (a)) on April 2, 2008. As to count 1, it was alleged that defendant personally used a firearm (a handgun). (§§ 1203.06, subd. (a)(1); 12022.5, subd. (a); 12022.53, subd. (b).) As to both counts, it was alleged that defendant committed the offenses while out of custody on the prior cases. (§ 12022.1)
The Plea Agreement
On June 25, 2008, defendant pled no contest to possession of a deadly weapon in case No. CM028573, possession of marijuana for sale in case No. CM028574, and a newly filed count of assault with a deadly weapon (a handgun) (§ 245, subd. (a)(1)) in case No. CM029266; he also admitted an on-bail enhancement as to the new count. All other counts and enhancements were dismissed. In return, defendant agreed to a total prison term of seven years four months (the four-year upper term for assault with a deadly weapon, two years consecutive for the on-bail enhancement, eight months consecutive for possession of a deadly weapon, and an additional eight months consecutive for possession of marijuana for sale), with the possibility of earning 50 percent prison credits. The trial court referred the matter to probation and set a sentencing date of July 16, 2008.
His counsel estimated defendant’s maximum exposure in case No. CM029266 alone at 21 years four months, of which at least 85 percent would have to be served because the original information alleged a violent felony (kidnapping with personal use of a firearm).
The trial court stated that the factual basis for the plea derived from the preliminary hearings in each case. For purposes of this appeal, we take the facts from the probation report, the accuracy of which defendant does not challenge.
In case No. CM028573, a sheriff’s deputy trying to locate a parolee at large on February 17, 2008, saw defendant sitting in a car at the parolee’s suspected address. Looking through the windshield, the officer saw a sap in plain view. After determining defendant was on searchable probation, the officer searched the car and seized the sap. Defendant claimed he did not know it was illegal.
In case No. CM028574, a police officer contacted defendant on January 9, 2008, as he sat in a parked car at a motel. After the officer determined (contrary to defendant’s statement) that he was on searchable probation, he admitted possessing illegal contraband. Searching the car, the officer located seven bags of marijuana, which defendant admitted he intended to sell. After he was transported to jail, officers found a glass pipe containing methamphetamine residue in the back seat of the patrol car.
In case No. CM029266, on April 2, 2008, sheriff’s deputies were called to a reported altercation between two males. The alleged victim claimed that earlier that day he had found his home burglarized, with several jackets and a shotgun taken. Later, he spotted defendant in a store wearing one of the jackets. Confronted by the victim, defendant promised to take him to where the rest of the property was stored. The victim got into defendant’s car. As defendant started to drive off, he put a gun to the victim’s head. The car traveled 10 to 15 feet while the men struggled. The victim gained possession of the gun and threw it out the window. A store clerk then reached the car and held defendant at gunpoint. The officers found that defendant was in possession of items reported stolen, including a.22-caliber revolver, a television, and a laptop. They also learned that he was on felony probation and not authorized to possess a firearm.
Defendant’s Motion to Withdraw his Plea
At the hearing on July 16, 2008, defendant advised the trial court he wished to withdraw his plea. The court continued the matter to July 30, 2008.
At the hearing on that date, defendant confirmed that he still sought to withdraw his plea: he had asked counsel “since day one” to get the gun in case No. CM029266 (which he had never touched) tested for fingerprints, but counsel had not done it. Deeming this a Marsden complaint, the trial court excused the prosecutor.
The Marsden Hearing
Defendant asserted: (1) counsel told him that unless he waived his right to a speedy trial, which he did not want to do, the gun could not be fingerprinted in time; defendant thought fingerprinting could not only help to show he did not touch the gun, but rebut the victim’s story of grabbing the gun; (2) even though counsel’s investigator had had three months to speak to defense or prosecution witnesses, she had not done it; counsel said that to follow through on this would also require waiving a speedy trial; and (3) defendant had volunteered to take a polygraph, but there had been no follow up on that either.
Defendant abandons this point on appeal.
Defendant admitted he had not given counsel and the investigator the names of any witnesses; he could not do so because the sheriff’s deputies had “let most of the witnesses just wander off into the sunset,” which created grounds for a “[Youngblood-Trombetta] motion.” However, counsel should have talked to a prosecution witness who said she had confronted someone other than defendant driving defendant’s car and apparently burglarizing her neighbor’s home.
Arizona v. Youngblood (1988) 488 U.S. 51 [102 L.Ed.2d 281]; California v. Trombetta (1984) 467 U.S. 479 [81 L.Ed.2d 413].
Defendant’s counsel, Jesus Rodriguez, testified: He had practiced criminal defense for four years, the last year under contract with Butte County to handle felonies. He had represented defendant since January 2008, when defendant already had two active felony cases. Rodriguez read the police reports, met with defendant, and prepared for preliminary hearings in all three cases based on the information defendant gave him.
Rodriguez had an expert on call in the Sacramento area who could fingerprint a firearm within two days. However, as Rodriguez had explained to defendant, because trial was set to start very soon, the fingerprinting could not occur in time for trial unless defendant waived his speedy trial right. Other things he wanted done would also require waiving that right. Counsel’s investigator had not been able to locate witnesses in the last filed case, despite several attempts, because of a major fire in the area where the incident charged in that case occurred. Counsel had moved orally to have defendant released into the investigator’s custody for purposes of seeking witnesses, but the trial court had denied the motion without prejudice. Rodriguez told defendant that because the motion was denied without prejudice, it could be renewed. If defendant had decided to go forward to trial, Rodriguez would have renewed the motion.
Despite what had not yet been done, Rodriguez was prepared for trial and made that clear to defendant. Before defendant entered his plea, Rodriguez had explained defendant’s maximum potential exposure in terms of sentencing, including credits, if he were tried and convicted.
Defendant said he had not realized the motion as to witnesses had been made and denied; he apologized for raising that point. He also said to Rodriguez: “I think as far as last time you saw me and explained everything, I think you did it right.” Nevertheless, defendant insisted he had not done the last charged crime and thought he could have proved it.
The trial court found: Facing “extremely serious charges” and “concerned about the amount of time he was going to have to do,” defendant got “a very reasonable offer to resolve the case.” The court and the parties “went through great detail on what he was facing versus what he took.” Rodriguez had provided proper representation and there were no grounds to relieve him. There were also no grounds to withdraw the plea as defendant had not been improperly induced to enter it and the sentence was not illegal. Therefore, the “Marsden motion” and the motion to withdraw the plea were denied.
DISCUSSION
Defendant contends: (1) he is entitled to withdraw his plea due to ineffective assistance of counsel; and (2) alternatively, he was entitled to receive counsel to assist him in filing a motion to withdraw the plea. We disagree.
“A defendant may move the trial court to set aside a guilty plea for good cause at any time before the entry of judgment. (Pen. Code, § 1018....) ‘Good cause’ means mistake, ignorance, fraud, duress or any other factor that overcomes the exercise of free judgment and must be shown by clear and convincing evidence. [Citation.] The grant or denial of such a withdrawal motion is ‘within the sound discretion of the trial court and must be upheld unless an abuse thereof is clearly demonstrated.’ [Citation.]” (People v. Ravaux (2006) 142 Cal.App.4th 914, 917.) “[A] reviewing court must adopt the trial court’s factual findings [on a motion to withdraw a plea] if substantial evidence supports them.” (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)
The argument that ineffective assistance of counsel constitutes good cause to withdraw a plea is forfeited if not raised below. (See People v. Rudd (1998) 63 Cal.App.4th 620, 628-629.) Defendant did not allege below that he was entitled to withdraw his plea because attorney Rodriguez was ineffective. Instead, he alleged—and Rodriguez agreed—that Rodriguez had told him certain things he wanted done could not be done in time unless he waived his right to a speedy trial, which he did not wish to do. In other words, he argued that he entered his plea involuntarily because his only other option was to give up his speedy trial right. Therefore, we address that contention, rather than the ineffective-assistance argument defendant makes for the first time now.
Defendant did not explain below why he would not waive his right to speedy trial, even if to do so offered his only hope of acquittal on the most serious charge against him. Nor does he explain it now. He merely asserts that he “faced the Hobson choice of giving up his right to a speedy trial or giving up his right to present a defense.” Yet defendants routinely waive speedy trial even without an obvious tactical purpose. If defendant thought his defense depended on Rodriguez doing the things he said he could do if he had more time, defendant’s refusal to give him the time by waiving speedy trial was irrational and inexplicable. Thus, the trial court could reasonably find (as it impliedly did) that defendant did not assert this purported dilemma in good faith, but raised it merely as a pretext to rationalize a case of buyer’s remorse.
Defendant asserts that Rodriguez did not offer any rational explanation for failing to get the gun fingerprinted as of June 25, 2008, when defendant entered his plea. He thinks there could not be a good reason because he was arraigned in case No. CM029266 on April 30, 2008, the preliminary hearing in that case was held on May 7, 2008, and Rodriguez testified that his expert could fingerprint a gun in a few days. But the record does not show that Rodriguez’s out-of-town expert was available during that time period, and we will not presume that he was.
Furthermore, defendant simply speculates that fingerprinting the gun would have helped him: “It is highly probable that, lacking [defendant’s] fingerprints or any indication that the gun was thrown from a car, [defendant] would be found not guilty of the firearm enhancements. Further, the alleged victim’s testimony would be undermined and a not guilty on the kidnap charge is also probable.” Yet defendants are often convicted in cases where fingerprinting yielded no results. Thus, defendant’s speculation is unpersuasive.
Likewise, defendant asserts as fact that the testimony of the unnamed prosecution witness he described at the hearing would have been exculpatory. Again, nothing in the record supports this speculation.
Finally, defendant asserts that if all this supposedly “available” exculpatory evidence had been “at hand” he would have proceeded to trial. But, as we have already suggested, if defendant really believed there was exculpatory evidence which required more time to obtain, his refusal to waive speedy trial was nothing short of self-sabotage. The trial court could reasonably have refused to find that defendant was so irrational.
Substantial evidence supports the trial court’s findings that defendant entered his plea voluntarily because he understood the risks of going to trial and chose instead to accept a highly favorable offer. (People v. Fairbank, supra, 16 Cal.4th at p. 1254.) The court did not abuse its discretion by denying defendant’s motion to withdraw his plea. (People v. Ravaux, supra, 142 Cal.App.4th at p. 917.)
Defendant also contends in the alternative that he was entitled to have new counsel appointed to assist him in making his motion to withdraw his plea. We are not persuaded.
“[S]ubstitute counsel should be appointed when, and only when, necessary under the Marsden standard, that is whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation].” (People v. Smith (1993) 6 Cal.4th 684, 696.)
Here, as in Smith, the trial court “fully allowed defendant to state his complaints, then carefully inquired into them[, and] [d]efense counsel responded point by point.” (People v. Smith, supra, 6 Cal.4th at p. 696.) Thus, as in Smith, the court was fully informed on the alleged grounds for defendant’s desire to withdraw his plea and to obtain new counsel, and found that defendant had not made a “proper showing” (id. at p. 695) to justify the appointment of new counsel for any purpose.
People v. Brown (1986) 179 Cal.App.3d 207 and People v. Osorio (1987) 194 Cal.App.3d 183, on which defendant relies, are distinguishable. In Brown and Osorio, counsel notified the trial court that their clients wished to withdraw their pleas but represented to the court that there was no legal basis for such a motion, and the court in each case denied relief to the defendant without having heard from the defendant himself on what grounds he sought to make the motion. (People v. Brown, supra, at pp. 211-213; People v. Osorio, supra, at p. 186.) As we have explained, the trial court here did not make this error.
DISPOSITION
The judgment is affirmed.
We concur: SIMS, Acting P. J., CANTIL-SAKAUYE, J.
Counsel opined that such a motion would have been groundless because he could not show the officers acted in bad faith. Defendant also does not mention this point on appeal.