Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. MF46866, Carol K. Ash, Judge.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J., and Kane, J.
Pursuant to a plea agreement, appellant Victor Joseph Duran pled no contest to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), a felony, and resisting, delaying or obstructing a peace officer (Pen. Code, § 148, subd. (a)(1)), a misdemeanor, and admitted allegations that he had suffered a “strike” and had served a prison term for a prior felony conviction (§ 667.5, subd. (b)). The court imposed a prison term of five years, consisting of the two-year midterm on the felony conviction, doubled pursuant to the three strikes law (§§ 667, subd. (e)(1); 1170.12, subd. (c)(1)), and one year on the prior prison term enhancement.
All further statutory references are to the Penal Code.
We use the terms “strike,” in its noun form, and “strike conviction” as synonyms 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.
Appellant filed a timely notice of appeal and the court issued a certificate of probable cause (§ 1237.5).
On appeal, appellant contends (1) the court erred in failing to conduct a Marsden hearing at the point appellant indicated he wanted to withdraw his plea, on June 6, 2008; (2) appellant was deprived of his right to have his motion to withdraw his plea presented by counsel; and (3) the court erred in denying appellant’s Marsden motion on August 15. We will reverse and remand for further proceedings.
A motion for the appointment of substitute counsel on the ground that the current appointed counsel is providing inadequate representation is commonly called a Marsden motion. (People v. Smith (2003) 30 Cal.4th 581, 604.) In People v. Marsden (1970) 2 Cal.3d 118, the California Supreme Court ruled that when a criminal defendant requests a new appointed attorney, a trial court must conduct a proceeding in which it gives the defendant an opportunity to explain the basis for the contention that counsel is not providing adequate representation. (Id. at pp. 123-125.) The proceeding is commonly called a Marsden hearing.
References to dates of events are to dates in 2008.
PROCEDURAL BACKGROUND
In an amended information filed March 3, appellant was charged with a total of one felony and two misdemeanors, including the instant offense.
On March 4, he executed a plea waiver form in which he indicated that he agreed to plead no contest to the possession of methamphetamine charge and admit the strike and prior prison term enhancement allegations, and that “[t]he following promises [were] made to [him] in return for [his] plea: [¶] Remaining allegations dismissed[.] [¶] Midterm (2 years) doubled for strike prior conviction (4 years) and [prior prison term enhancement] (Total 5 years.)”
Later that day, in open court, prior to appellant entering his plea, the following exchange occurred:
“THE COURT:... [¶] … [¶] And the agreement is based upon your plea to [that] charge[], you would get the [midterm] of two years as to Count One. That would be doubled because of [appellant’s strike] to four years. And then you would get one more year for Enhancement Two [prior prison term enhancement]. So a total of five years at the Department of Corrections. [¶] Do you understand all of that?
“[Appellant]: Yes, I do.”
Moments later, the following exchange occurred:
“THE COURT: And other than what’s been stated regarding your sentence, has anything else been promised to you that’s causing you to change your plea to no contest?
“[Appellant]: Yeah. [¶]... [¶] Four years.
“THE COURT: But you realize you’re getting five years
“[Appellant]: Yeah, I understand.”
Appellant subsequently filed a written request that the court strike his strike. On June 8, he appeared in court for the hearing on that motion and for sentencing. The prosecutor argued that the court was without “jurisdiction” to strike the strike because appellant had agreed to a five-year term. Defense counsel, Deputy Public Defender Paul Lyon, argued that appellant had agreed to a five-year maximum sentence, which allowed the court, in the exercise of its discretion, to impose a sentence of less than five years, and that it was “not the understanding of [appellant’s] counsel that we were entering a stipulated sentence.”
A criminal defendant’s request that a court strike one or more strike convictions pursuant to section 1385 is commonly called a Romero motion. (See People v. Superior Court (Romero) (1996) 13 Cal.3d 497 (Romero).)
The court responded “that’s something you could bring up if you were going to file a motion to withdraw the plea,” and, citing the portions of the transcript quoted above, ruled: “[I]t was clear that he was entering this plea bargain with the understanding that he was going to get the five years.” The court further stated that even if the plea agreement called for a five-year maximum rather than a stipulated five-year term, the court would not exercise its discretion to strike appellant’s strike.
At that point, the court asked defense counsel if he was ready to proceed with sentencing. Defense counsel responded that he was not, and stated that appellant wished to move to withdraw his plea. Defense counsel stated that “whatever Mr. Duran’s understanding was or whatever the Court’s understanding was or whatever [the prosecutor’s] understanding was, it was not [defense counsel’s] understanding representing Mr. Duran in plea bargaining that he was agreeing to or pleading to a stipulated sentence.” The court then appointed other counsel for the sole purpose of “investigat[ing] whether there [are] grounds to withdraw the plea.”
On August 15, appellant appeared in court with Mr. Lyon and Attorney David Capron. Capron, at the outset of the proceeding, stated as follows: “Your Honor, I have reviewed the Court’s file. The Court and counsel were nice enough to provide me with copies of everything, so I’ve gone through all of it. I know there was an issue brought up regarding whether there was a stipulation by counsel to the terms of the plea bargain. It is my opinion that based upon the written form and advisement of rights, waiver and plea, which was signed by the defendant and both counsel, it states the terms of the plea, and that everyone did agree to that, and no objection was raised during the taking of the plea, and it is my opinion that there are not legal grounds for a motion to withdraw plea.” The court then relieved Mr. Capron and asked Mr. Lyon if he was ready to proceed to sentencing.
At that point, appellant stated he wanted to make a Marsden motion. Moments later, with appellant, Mr. Lyon and court personnel, the only persons present in the courtroom, the court conducted a hearing on that motion.
At the outset, in response to the court’s invitation to explain his reasons for his motion, appellant stated: “Based on the fact that Mr. Lyon misrepresented in the plea agreement, in the plea bargain process, the beginning phases, he assured me, and even though the transcript shows that, you know, that the Romero hearing was heard by you, it’s my recollection, my knowledge, Mr. Lyon informed me that you denied that. You would not hear it in your court because there was already -- plea bargains were set, and the [Romero] motion was not valid anymore because I took a stipulated plea bargain, whatever. That’s what I was informed by Mr. Lyon.”
Appellant next complained that Lyon “never” presented a Romero motion. Next, appellant stated the following: the prosecutor had offered a plea agreement under which appellant would serve four years; appellant wanted to accept the offer; but Lyon told the prosecutor, incorrectly, that appellant “refuses to take any plea bargains.” Finally, appellant asserted that he had medical problems that were not being treated while he was confined in county jail.
The court responded that “all of the things [appellant] raised... were the things that would be raised in what Mr. Capron reviewed in the motion to withdraw [the] plea.” Further, the court explained it recalled stating that the Romero motion was precluded by the plea agreement and that the court would not have granted that motion in any event. Then, after a brief exchange regarding the court’s response to appellant’s Romero motion, the court denied appellant’s Marsden motion.
At that point, Lyon asked for permission to speak, the court agreed and Lyon stated the following: “[T]here was some... negotiating” but “[b]y the time we got to trial, [the prosecutor] had refused to offer anything less than eight years.” The prosecutor stated on the record he had doubled a previous four-year offer “partly in retribution for Mr. Duran’s failure to accept the previous offers.”
Lyon further stated as follows: He believed that the plea agreement was for a five-year “lid,” rather than a stipulated term of five years, and that therefore he “still had [a] chance” to present a Romero motion. However, “that was apparently the wrong advice.... I would agree with [appellant] that that constitutes a failure to represent him and possibly a breakdown in the attorney-client relationship since he... should not have trusted my word on that particular point. I misled him and told him that he had a chance for a [Romero motion].”
The court responded, “... I believe this was the whole matter that Mr. Capron investigated....” The court then reiterated that “there was no discussion of a lid” and stated that notwithstanding the plea agreement, it had ruled on, and denied, appellant’s Romero motion on June 6.
At that point, the court repeated that it was denying appellant’s Marsden motion, at which point appellant interjected that at the time he entered his plea he was “still under the care of a … doctor” and “taking psychotropic meds for schizophrenia.” The following colloquy ensued:
“THE COURT: Did you tell that to Mr. Capron?
“[Appellant]: “Yes, I did. And everybody was like, come on. Let’s get this over with. I read, you know, just initialed and signed [the plea waiver form].... But I don’t think I made a conscious decision to weigh everything that was against me.... I was taking Wellbutrin and Remox at the time.... And taking the medication, I don’t believe that I made a conscious decision as far as everything for or against me.
“THE COURT: Again, Mr. Duran, that’s something that Mr. Capron has investigated, and he formed the opinion that there are not grounds to withdraw your plea.”
The court then concluded the Marsden hearing, the prosecutor reentered the court room and the court proceeded with sentencing.
DISCUSSION
Appellant argues he was entitled to have his motion to withdraw his plea presented to the court by counsel, and that he was deprived of this right. We agree. In reaching this conclusion, we are guided by People v. Brown (1986) 179 Cal.App.3d 207 (Brown) and People v. Osorio (1987) 194 Cal.App.3d 183 (Osorio).
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 that 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 Marsden hearing should counsel continue to refuse to bring the motion (id. at p. 216). In so holding, the court stated it was not suggesting that counsel is required to make a frivolous motion or “compromise accepted ethical standards.” (Ibid.) Osorio followed Brown. There, the defendant stated at sentencing he wanted to withdraw his plea because “‘he didn’t understand what he was pleading to ….’” (Osorio, supra, 194 Cal.App.3d at p. 186). Trial counsel “specifically 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.) On appeal, this court discussed Brown, and, referring to that case, 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 on appeal.” (Id. at p. 189.) This court remanded the case to allow defendant to bring a motion to withdraw the plea. (Ibid.)
Brown and Osorio thus teach as follows: A criminal defendant has a right to bring a nonfrivolous motion to withdraw a plea and he or she has a right to be represented by counsel in doing so, but no attorney may be compelled to bring such a motion if to do so would compromise accepted ethical standards or if the attorney believes in good faith that such a motion would be frivolous. Where a criminal defendant wishes to move to withdraw his or her plea and provides a nonfrivolous basis for doing so, an attorney may not refuse to present such a motion on the grounds that it is unlikely such a motion would be granted or that withdrawal of the plea would not be in the defendant’s best interests.
Appellant argues that the record establishes a nonfrivolous ground for withdrawing his plea, viz. that in violation of appellant’s constitutional right to the effective assistance of counsel, defense counsel incorrectly advised appellant that he could make, and the court would consider, a Romero motion. Therefore, appellant contends, he had a right to have his plea withdrawal motion presented by an attorney.
“To prevail on a claim of ineffective assistance, a defendant must show both that counsel’s performance was deficient—it fell below an objective standard of reasonableness—and that defendant was thereby prejudiced. [Citation.] Such prejudice exists only if the record shows that but for counsel’s defective performance there is a reasonable probability the result of the proceeding would have been different.” (People v. Cash (2002) 28 Cal.4th 703, 734.) “The... ‘prejudice[]’ requirement, [of a claim of ineffective assistance of counsel in the context of a defendant’s plea of guilty,]... focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” (Hill v. Lockhart (1985) 474 U.S. 52, 59, fn. omitted.)
The People argue that there were no nonfrivolous grounds for a plea withdrawal motion because “[a]ppellant was not prejudiced by counsel’s asserted error because the trial court essentially heard and denied appellant’s [Romero] motion anyway.” However, the People’s argument misconceives the applicable prejudice standard for ineffective assistance of counsel. As indicated above, prejudice is established if appellant would not have pled guilty if he had been correctly advised, i.e., that there was no chance that a Romero motion would result in a sentence of less than five years. Therefore, the relevant question is not whether or not the court would have granted appellant’s Romero motion. Rather, the determination that must be made is whether appellant would have pled guilty if he had not been incorrectly informed regarding the possibility of a successful Romero motion.
Applying the correct standard for determining prejudice, the People also argue that the record fails to establish nonfrivolous grounds for a plea withdrawal motion because the record shows that only defense counsel, not appellant, failed to understand that the plea agreement precluded any possibility of a successful Romero motion, and therefore the record does not establish that appellant was induced to plead guilty by counsel incorrectly advising him regarding the likelihood of a reduction in his sentence by means of a successful Romero motion. We disagree.
The People correctly note that Mr. Lyon’s remarks do not affirmatively demonstrate appellant was under any misapprehension regarding the likelihood of a successful Romero motion. Mr. Lyon’s statement that “whatever Mr. Duran’s understanding was[,]... it was not [defense counsel’s] understanding representing Mr. Duran in plea bargaining that he was agreeing to or pleading to a stipulated sentence” (italics added) indicates it was counsel, but not necessarily appellant, who did not know that the plea agreement doomed any chance of a successful Romero motion. However, appellant, in his opening remarks at the August 15 Marsden hearing, referred to his attorney’s “misrepresentation” of the court’s ruling that the stipulated sentence precluded appellant’s Romero motion, and stated that his attorney “assured” him. These remarks, garbled though they are, suggest, as Mr. Lyons’s indicated on June 8, that appellant pled guilty with the understanding he had agreed to a maximum sentence of five years and that he could seek to persuade the court to impose a lesser sentence.
Moreover, the record indicates a second colorable basis for a motion to withdraw appellant’s guilty plea. Appellant claimed at the Marsden hearing that his plea was not knowing and intelligent because he was under the effect of drugs at the time of his plea. (See People v. Cruz (1974) 12 Cal.3d 562, 566 [“Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea”]; cf. Brown, supra, 179 Cal.App.3d at pp. 211, 213 [defendant stated he was “shook up” and not “in the right frame of mind” at time of his plea].)
The fact that Mr. Capron determined there were no “legal grounds” to withdraw the plea does not establish the absence of an arguable basis for such a motion. Mr. Capron told the court he based his assessment on (1) appellant’s plea waiver form, which appellant executed on March 4, and, (2) apparently, the reporter’s transcript of the proceeding in which appellant entered his plea, which also occurred March 4. Mr. Capron did not indicate he spoke to appellant.
Given Mr. Capron’s apparent failure to contact appellant, it appears unlikely, if not impossible, that the attorney’s investigation would have uncovered any information regarding appellant’s claim that he was under the influence of psychotropic drugs when he entered his plea. And given that Mr. Capron limited his review to materials reflecting events as of March 4, whereas the court did not rule that appellant’s Romero motion was not properly before the court until June 8, it appears similarly impossible that Mr. Capron’s investigation would have enabled him to assess the claim that appellant would not have pled guilty had he not been misadvised regarding the prospect of success of the Romero motion.
We recognize that when, after telling the court at the August 15 Marsden hearing that he was under the influence of psychotropic drugs when he entered his plea, the court asked appellant if he told this to Mr. Capron, and appellant responded “Yes, I did. And everybody was like, come on. Let’s get this over with. I read, you know, just initialed and signed [the plea waiver form]....” (Italics added.) But appellant’s reference to the execution of the plea waiver form, immediately after his affirmative response to the court’s question, indicates that appellant actually claimed he told his attorney at the time he executed that form, Mr. Lyon, that he was under the influence of drugs. This interpretation is reinforced by the fact that when stating the basis for his opinion regarding the lack of grounds for a plea withdrawal motion, Mr. Capron said nothing about speaking with appellant and referred only to the plea withdrawal form and the lack of any objection during the taking of the plea.
Moreover, Mr. Capron’s statement that he found an absence of “legal grounds” for a plea withdrawal motion does not establish that the attorney concluded such a motion would be frivolous. His statement was similar to that of the defense counsel in Brown who indicated she saw no “legal basis” for the withdrawal of the defendant’s plea. (Brown, supra, 179 Cal.App.3d at p. 211.) On this record, we conclude the record shows nonfrivolous grounds upon which to base a motion to withdraw appellant’s plea, and the record does not show that Mr. Capron’s refusal to present the motion was based on the ground that such a motion was frivolous or the belief that presenting such a motion would compromise accepted ethical standards. Accordingly, we conclude appellant was deprived of his right to bring a motion to withdraw his plea and have it presented by counsel.
Appellant also argues that the court erred by failing to hold a Marsden hearing when at the June 8 hearing defense counsel, after indicating he had misadvised appellant prior to appellant entering his plea, stated that appellant wished to move to withdraw his plea. We agree. On this point we find instructive this court’s decisions in People v. Mejia (2008) 159 Cal.App.4th 1081 (Mejia) and People v. Eastman (2007) 146 Cal.App.4th 688 (Eastman).
In Eastman, at the sentencing hearing, defense counsel (Mr. Garcia) stated that Eastman, the defendant, wished to withdraw his plea and that he (Mr. Garcia) felt that the matter should be referred “for appointment of counsel.” (Eastman, supra, 146 Cal.App.4th at p. 691.) Mr. Garcia presented to the court a letter from Eastman’s mother stating that Mr. Garcia and the prosecutor “‘conspired’” to persuade Eastman to accept a plea bargain, by falsely telling him that his mother was going to testify against him. (Ibid.) The court appointed other counsel, who at a subsequent proceeding reported to the court that he would not present a motion to withdraw Eastman’s plea because, based on his “preparation [and] looking into [the] matter,” he “[did not] find... a legal or factual basis” for such a motion. (Id. at p. 693.) Shortly thereafter, Eastman presented the court with a letter in which he asserted that he wanted to withdraw his plea based on certain acts of “dishonesty” by the prosecutor and defense counsel, which he detailed. (Ibid.)
This court, unpersuaded by the prosecution’s argument that Eastman had not made a “clear and unequivocal request to discharge and replace his attorney” (Eastman, supra, 146 Cal.App.4th at p. 695), held that the trial court “erred in not holding a Marsden hearing and instead appointing a second attorney to investigate Eastman’s claims” (id. at p. 698). This court stated that because Eastman, in his letter, had “stated at least one specific factual complaint about [Garcia],” viz. that Garcia and the prosecutor were “acting in cahoots... when they persuaded him to accept the plea bargain by falsely telling him his mother was going to testify against him,” the trial court “was obliged to make a record that this complaint had been adequately aired and considered. [Citation.] Its failure to do so is error.” (Id. at pp. 695, 696.)
This court further stated: “Although the court appointed a second attorney to investigate whether grounds existed upon which to bring a motion to withdraw the plea, we see no basis upon which the court could discharge its duties under Marsden by doing so. Assuming the court could properly delegate its duty to inquire into the sources of Eastman’s dissatisfaction, it was still obligated to make a record sufficient to show the nature of Eastman’s grievances and the court’s response to them. While [the second attorney] reported his findings to the court, he did not detail what he found, but instead offered his own conclusions regarding the merits of Eastman’s claims. No part of this procedure satisfied the requirements of Marsden. Here, the court in effect discharged its Marsden obligation by appointing an independent attorney to investigate Eastman’s complaints about his attorney, and that attorney opined that the first had rendered effective assistance; the court simply adopted that opinion without ever putting Eastman’s complaints, or the basis for their rejection, on the record.” (Eastman, supra, 146 Cal.App.4th at pp. 696-697.)
In Mejia, at sentencing defense counsel told the court that “[a]fter consulting with [his] client,” he had determined the defendant “would like to make a motion for a new trial based in large part on [counsel’s] conduct at the trial,” but that he (counsel) “can’t do that for him.” (Mejia, supra, 159 Cal.App.4th at p. 1084.) A few moments later, counsel summarized for the court his client’s complaints about counsel’s representation. This court, rejecting the prosecution’s argument that no Marsden hearing was required because none was ever requested and there was nothing in the record “‘to suggest the trial court should have divined such an intent,’” held: “Indisputably, the record shows [the defendant] instructed his counsel to move for a new trial largely on the basis of his counsel’s performance at trial and that his counsel so informed the trial court.... That was adequate to put the trial court on notice of the defendant’s request for a Marsden hearing.” (Id. at p. 1086.) Because the defendant “‘personally instructed his appointed trial counsel to file a motion for new trial on the basis of incompetence of counsel,’... the trial court... had an ‘imperative’ duty to elicit from ‘defendant, in open court or, when appropriate, at an in camera hearing, the reasons he believes he was inadequately represented at trial.’” (Ibid.)
Thus, in neither Eastman nor Mejia did the defendant explicitly make a Marsden motion. Nonetheless, in each case this court held that the trial court erred in failing to conduct a Marsden hearing because the defendant instructed his counsel to make a motion seeking to undo a conviction (a motion for a new trial in Mejia, a motion to withdraw a plea in Eastman) on grounds that amounted to ineffective assistance of counsel. We recognize that the record does not indicate here that appellant instructed counsel to move to withdraw the plea; counsel indicated his intention to do so on his own. Nonetheless, in our view the same result should obtain here, where appellant, acting through counsel, indicated his wish to move to withdraw his plea based on counsel’s conduct prior to appellant entering his plea.
In addition, as in Eastman, the error was not mitigated by the appointment of second counsel to investigate whether grounds existed upon which to bring a motion to withdraw appellant’s plea. To paraphrase Eastman, Mr. Capron, like the second appointed attorney in Eastman, “offered his own conclusions regarding the merits of [appellant’s] claims,” and the court, as indicated by its remarks at the August 8 proceeding, “simply adopted that opinion....” (Eastman, supra, 146 Cal.App.4th at pp. 696, 697.) “No part of this procedure satisfied the requirements of Marsden.” (Id. at p. 696.) And as this court also stated in Eastman, “We note that to the extent the court appointed [a second attorney] to determine for the court whether there was a legal or factual basis for withdrawal of the plea, the court cannot abandon its own constitutional and statutory obligations to make the ultimate determination itself based upon the relevant facts and law of which the court is made aware by some legally sanctioned procedure. [Citations.]” (Id. at p. 697.) Based on these same considerations, we further conclude that the Marsden hearing eventually held on August 8 did not satisfy the requirements of Marsden.
Thus, to summarize, we conclude (1) that the court did not discharge its duties under Marsden, and (2) that appellant was deprived of his right to have a nonfrivolous plea withdrawal motion presented by counsel. We turn now to the question of remedy. We are guided by People v. Garcia (1991) 227 Cal.App.3d 1377 (Garcia).
In that case, which followed Osorio, 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 plea based on the instances of ineffective assistance of counsel previously raised by the defendant (id. at p. 1377). In Brown, the appellate court 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, supra, 179 Cal.App.3d at p. 216). But the Garcia court stated that under the circumstances of that 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.” (Garcia, supra, 227 Cal.App.3d at p. 1377.) Where a defendant seeks to withdraw a plea on the ground of ineffective assistance of counsel, the court stated, it should employ the following procedure: “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.” (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, where the record indicates that appellant wished to withdraw his plea based, at least in part, on a claim of ineffective assistance of counsel, the same procedure is appropriate. Accordingly, we will remand with directions to the trial court to hold a hearing of the nature suggested in Garcia. The trial court shall then either (1) exercise its discretion to appoint new counsel to represent appellant, (2) direct existing counsel to present a motion to withdraw appellant’s plea, (3) reinstate the judgment, or (4) proceed otherwise as authorized by law.
To guide the trial court on remand, we note the following. The trial court here appointed Mr. Capron to simultaneously represent appellant, with Mr. Lyons remaining his counsel of record for purposes other than the motion to withdraw the plea. Our Supreme Court criticized a virtually identical procedure in People v. Smith (1993) 6 Cal.4th 684 (Smith): “Appointment of counsel for the purpose of arguing that previous counsel was incompetent, without an adequate showing by defendant, can have undesirable consequences.” (Id. at p. 695.) “The spectacle of a series of attorneys appointed at public expense whose sole job, or at least a major portion of whose job, is to claim the previous attorney was, or previous attorneys were, incompetent discredits the legal profession and judicial system, often with little benefit in protecting a defendant’s legitimate interests.” (Ibid.) As an example, the high court cited People v. Makabali (1993) 14 Cal.App.4th 847, where the trial court appointed a second attorney to investigate a possible motion to withdraw a plea on the basis of ineffective assistance of counsel. The second attorney did not make the motion and on appeal, a third appointed attorney argued the second attorney was incompetent for failing to claim the first attorney was incompetent. (Smith, supra, 6 Cal.4th at p. 695.)
The Supreme Court further clarified: “We are unaware of any authority supporting the appointment of simultaneous and independent, but potentially rival, attorneys to represent defendant. When a Marsden motion is granted, new counsel is substituted for all purposes in place of the original attorney, who is then relieved of further representation. If the Marsden motion is denied, at whatever stage of the proceeding, the defendant is not entitled to another attorney who would act in effect as a watchdog over the first.” (Smith, supra, 6 Cal.4th at p. 695.)
The Supreme Court stressed that “the trial court should appoint substitute counsel when a proper showing has been made at any stage.” (Smith, supra, 6 Cal.4th at p. 695.) The court explained: “[W]hen a defendant satisfies the trial court that adequate grounds exist, substitute counsel should be appointed. Substitute counsel could then investigate a possible motion to withdraw the plea or a motion for new trial based upon alleged ineffective assistance of counsel. Whether, after such appointment, any particular motion should actually be made will, of course, be determined by the new attorney.” (Id. at pp. 695-696.)
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for further proceedings consistent with this opinion.