Opinion
D057513 Super. Ct. No. SCD220741
08-02-2011
THE PEOPLE, Plaintiff and Respondent, v. SEAN CORY DEAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Michael T. Smyth, Judge. Judgment affirmed.
As part of a negotiated plea agreement, Sean Cory Dean pleaded guilty to driving under the influence causing injury, with the attached allegations that: (1) within the last ten years he was convicted of driving under the influence; (2) he had a blood alcohol level of 0.15 percent or more; (3) he caused great bodily injury to the victims; and (4) he proximately caused injury to more than one victim. The change of plea form stated that Dean understood that the trial court gave a "[six] year lid with full consideration to all options presented at the time of sentencing."
Prior to sentencing, Dean moved to withdraw his guilty plea, which the court heard in the form of a motion to replace defense counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). The trial court found there was no basis to substitute counsel, and denied the motion to withdraw the plea. It later imposed a seven year prison term, suspended execution of sentence, and placed Dean on five years of formal probation.
Dean contends the trial court abused its discretion when it denied his motion to withdraw his guilty plea on grounds other than ineffective assistance of counsel, arguing that he was not represented by an attorney who could advocate on his behalf. We disagree and affirm the judgment.
PROCEDURAL BACKGROUND
The trial court appointed the alternate public defender to investigate a motion to withdraw Dean's guilty plea. The alternate public defender moved to be relieved and the public defender reappointed, arguing that case law required that the trial court conduct a Marsden hearing to evaluate the viability of a motion to withdraw a plea, and to grant the motion to relieve counsel should grounds exist to withdraw the plea.
The trial court agreed, reappointed the public defender, and cleared the courtroom for the Marsden hearing. At the hearing, the trial court instructed Dean to address why he believed he should be entitled to withdraw his plea, and any misunderstandings he may have had regarding the plea. Dean complained that defense counsel notified him of plea deals that he was not willing to accept, failed to provide regular updates on the progress of his case, and that he suffered from "racing thoughts" and could not sleep. Defense counsel addressed these complaints to the court. The trial court reviewed the plea hearing transcript, which included discussions regarding the prosecution's sentencing options and the plea agreement. The trial court also noted that it accepted the plea after Dean stated he had not taken any drugs or alcohol in the past 24 hours. The trial court found Dean had not been denied the right to effective assistance of counsel, and denied his request to withdraw his plea, stating that there were no grounds for withdrawal. Dean appeals and has obtained a certificate of probable cause.
DISCUSSION
Dean concedes that the trial court properly held a Marsden hearing to the extent he sought to withdraw his plea based on an alleged conflict with his attorney or ineffective assistance of counsel. He also concedes the trial court properly denied his request for substitute counsel to the extent he sought to withdraw his plea based on ineffective assistance of counsel.
Dean contends, however, that the trial court abused its discretion by considering the merits of his motion to withdraw his plea on grounds other than ineffective assistance of counsel because his attorney did not argue the merits of these other grounds during the Marsden hearing. As a result, Dean asserts he was denied the right to counsel. He claims the matter should be remanded to the trial court so that an attorney can file and argue a motion to withdraw his plea on grounds other than ineffective assistance of counsel; namely, that the deal he thought he was agreeing to was not the deal he signed, and that he had been taking medication that impaired his ability to understand the terms of the plea. We disagree.
A defendant may move to withdraw his or her plea, at any time before judgment, on a showing of good cause. (Pen. Code, § 1018.) "Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea." (People v. Cruz (1974) 12 Cal.3d 562, 566.) Though a criminal defendant is entitled to competent representation in the presentation of a motion to withdraw a plea, appointed counsel may properly decline to bring a motion without merit. (See People v. Smith (1993) 6 Cal.4th 684, 696.) If, however, defendant demonstrates that grounds for the motion exist, then the court should appoint substitute counsel. (Id. at pp. 695-696.) Defense counsel's refusal to present a motion to withdraw a plea does not amount to abandonment of the client if the motion would "involve potential compromise of legal or ethical standards." (People v. McLeod (1989) 210 Cal.App.3d 585, 587, 589-590.) The court's decision whether to allow a defendant to withdraw a guilty plea is discretionary, and we will not disturb it absent a showing the trial court has abused its discretion. (People v. Mickens (1995) 38 Cal.App.4th 1557, 1561.)
Here, although never expressly stated on the record, it appears that defense counsel refused to file a motion to withdraw Dean's guilty plea on any ground because counsel considered such a motion to be without merit. At the Marsden hearing, the trial court heard from defendant and his defense counsel, and read the transcript of the change of plea hearing. The trial court then denied Dean's motion to have new counsel, impliedly determining that any motion to withdraw the plea lacked merit.
Relying on People v. Brown (1986) 179 Cal.App.3d 207 (Brown), Dean contends he was denied the assistance of counsel at a critical stage of the proceedings when the trial court forced him to argue the merits of his request to withdraw his plea. Brown is distinguishable because in that case the defendant had a nonfrivolous basis for a motion to withdraw the plea. In Brown, defense counsel informed the court at sentencing that the defendant wanted to withdraw his plea, but that she was not making the motion for him. (Id. at p. 211.) The defendant asked the trial court if he could withdraw his plea and obtain another attorney, but the trial court refused. (Id. at pp. 211-213.) The Court of Appeal determined that the defendant's motion to withdraw his plea was not frivolous, and therefore counsel should not have refused to bring it. (Id. at p. 216.)
The Brown court further reasoned that "[i]t was improper to permit defendant to bring his motion in pro. per. while he was still represented by counsel and he had not waived his right to counsel." (Brown, supra, 179 Cal.App.3d at pp. 214-215.) The court 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 with instructions for a Marsden hearing should counsel continue to refuse to bring the motion. (Id. at pp. 216-217.) In so holding, the court, however, also emphasized that it was not suggesting that counsel is required to make a frivolous motion. (Id. at p. 216.)
Here, unlike in Brown, the trial court conducted a lengthy inquiry into Dean's reasons for wanting to withdraw his plea and heard from defense counsel regarding Dean's complaints. It then reviewed the transcript of the change of plea hearing and found there was no legal basis for withdrawing the plea, i.e., that such a motion would be frivolous. Dean did not argue, and thus has not shown that the trial court erred when it determined that any motion to withdraw the plea lacked merit. In any event, we conclude Dean did not have colorable grounds to withdraw his plea.
At the change of plea hearing, the prosecutor explained the People's position on the case and Dean's possible exposure if the matter proceeded to trial. The trial court recessed the matter over lunch to allow the parties to talk. When the matter reconvened, the court noted that it had a signed and initialed change of plea form. Before accepting the plea, the trial court confirmed that Dean had reviewed the plea with counsel, understood everything, and had not taken any drugs or alcohol in the past 24 hours. The trial court also told Dean that in exchange for his guilty plea on count 1 and attached allegations, the prosecution would dismiss the remaining charges, but that the court would determine the appropriate penalty, including whether he should go to prison or receive probation, but that if it sentenced Dean to prison it would not be for more than six years. Dean replied that he understood and had not been promised anything different.
The trial court imposed a seven year prison term, suspended execution of sentence, and placed Dean on five years of formal probation. After taking a recess, the prosecutor, defense counsel and the court all agreed that the sentence did not violate the six year "lid" noted in the change of plea form because the court had not sentenced Dean to prison. This record refutes Dean's claims that he did not understand the terms of the plea and that the sentence he received varied from the plea. Thus, the trial court properly found there was no legal basis for withdrawing the plea. Under these circumstances, Dean was not deprived of his right to assistance of counsel in making a motion to withdraw the plea.
DISPOSITION
The judgment is affirmed.
MCINTYRE, J. WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.