Opinion
C041180.
11-6-2003
THE PEOPLE, Plaintiff and Respondent, v. MARCUS NELSON HUME, Defendant and Appellant.
Defendant Marcus Nelson Hume, convicted of one count of burglary with two enhancements, appeals following denial of his motion to appoint substitute counsel to bring a motion to withdraw his plea. For the reasons stated below, we shall conclude the court should have granted defendants motion. Accordingly, we shall reverse the judgment for the limited purpose of appointing new counsel to determine whether grounds exist to bring a motion to withdraw the plea.
FACTUAL BACKGROUND
The following summary of facts is quoted from the probation report: "On December 18, 2001, at approximately 1:30 p.m., deputies from the Nevada County Sheriffs Department were dispatched in reference to a report of two suspicious males in a residential area. The reporting party stated he had seen two males go behind one of the residences acting strangely. Upon investigation, deputies found that there were fresh pry marks to a door in the rear of the house. When officers searched the residence, juvenile C.N. was found hidden in a closet. Upon a search of C.N., a Colt .357 was found in a holster in his waistband. The revolver had six rounds of ammunition in the cylinder. Inside C.N.s pants was a canister of aerosol `Riot Control Jet Spray, similar to pepper spray. A short while later the defendant was found hiding under a pile of bedding partially under the bed. After the defendant was handcuffed, found beneath the bed was a fully loaded Browning .9mm handgun with one round in the chamber. Deputies telephoned the owner of the home at his place of employment. When the owner returned home, he stated that neither handgun belonged to him. When asked what they had the handguns for, the defendant explained if the owner had returned home, he was going to shoot him in the leg and handcuff him while they completed the burglary. Items the defendant and juvenile had attempted to remove included two Browning shotguns and a Winchester rifle."
Defendant was charged by information filed January 25, 2002, with first degree burglary (Pen. Code, §§ 459, 460), a serious felony enhancement (Pen. Code, § 1192.7, subd. (18)), and an arming enhancement (Pen. Code, § 12022, subd. (a)(1)).
Defendant pled not guilty on January 28, 2002, and denied the enhancements. Attorney Ronald MacMillen was appointed to represent defendant.
Approximately one month later, on March 1, 2002, defendant appeared in court for his pretrial conference. Defense counsel was not present. Defendant stated to the court: "The man is not doing nothing for me. The man is not coming to see me. He doesnt talk to me. Hes doesnt do nothing in my favor. Is there any way I can get rid of him — Marsden motion or something like that?"
The court informed defendant: "Listen, the last guy that said that about Mr. MacMillen I denied the request, and Mr. MacMillen took him to trial and got an acquittal."
Defendant stated that he had been in custody for "months" and had yet to have a visit from defense counsel or to receive a copy of the police report. Defendant also stated: "He just says Im the boss. I run the show."
The court continued the matter for several days. At the continued hearing, defense counsel explained that he had miscalendared the date of the hearing.
On March 29, 2002, defendant withdrew his not guilty plea and entered a plea of no contest to the burglary count and admitted the enhancements. Defendant answered affirmatively when the court asked whether he had gone over the details of his plea with defense counsel, and he initialed a change of plea form to that effect.
The matter came on for sentencing on May 6, 2002. Initially defense counsel requested a continuance so he could further review the probation report, which had incorporated by reference several lengthy law enforcement investigative reports regarding the matter. Defense counsel stated defendant desired appointment of substitute counsel to prepare a motion to withdraw his plea. In response, the court held a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). At the hearing, the court stated: "Now I try not to be coarse, and I dont think that I am. And it was the same thing in your case when I took your plea. I wasnt coercive and you assured me that you knew and under[stood] what you were doing." Defendant responded: "I didnt, Your Honor, because I was told I had no other option." Defense counsel stated that "[i]n our discussions I told [defendant] that in my opinion if the matter went to trial, hed be convicted." The court asked defense counsel whether there had been a lack of effective communication. Defense counsel responded that defendant wanted to plead temporary insanity, but that counsel thought the defense "was unlikely."
The following colloquy occurred:
"THE COURT: Now its your turn.
"THE DEFENDANT: I really need to say something. I have not had a chance to say nothing in the seven months Ive been in the county jail.
"THE COURT: Mr. Hume, Im listening right now. You dont have to give me a lecture about how youre not being lectured [sic] to.
"THE DEFENDANT: I was a confidential informant for this county. These detectives they came and talked to me. I gave them a lot of information. A murder attempt was made on my father not too long ago. A drive by shooting was done on my house because of the things that Im telling people. These people made me a bogus deal. They told me they were going to help me out. If I gave up information. Okay. None of this has been done. [¶] Judge Butz came down to see me at 12:30 at night one night and did a little search warrant thing because I was giving information out, okay. They let all this get out. Theres a price on my head now. Ive been jumped in the elevator. Im pretty sure you heard about it.
"THE COURT: No.
"THE DEFENDANT: I was jumped right here in this elevator. Ive had attempts made on me at the county jail. People have tried to murder my father, and a police report was made. Im a young man. I do not deserve to go to prison because the guy[s] house I supposedly broke into I was selling drugs for. And I testified against this. Ive already done seven years in the California Youth Authority. Ive never been to high school a day in my life. Ive never had a job. Ive never had a family. I think I deserve a chance here.
"THE COURT: Whats that got to do with your withdrawing your plea?
"THE DEFENDANT: Because theyre trying to pressure me into something thats going to ruin my life. From the start of this I told him I dont want to go to prison, and Im not going to take a deal for prison. They have pressured me into this. Theyve come to see me twice in the seven months that Ive been here.
"THE COURT: Mr. MacMillen, youre talking about
"THE DEFENDANT: Yes. Twice at the county jail. Twice. Thats it. And each time theyre telling me youre going to lose. Youre going to go to prison. Theres no way around it. Just sign the deal. I dont want to sign the deal. I want to go to trial.
"MR. MacMILLEN: Theres no way that I can continue to represent this young man.
"THE COURT: Why is that?
"MR. MacMILLEN: Well, what he said.
"THE COURT: Are you saying hes fabricating this?
"MR. MacMILLEN: No, Im not saying hes fabricating. But he feels so strongly about his representation with me, and Im not going to sit here and contradict him on every matter. Im not here to justify my actions. He is a young man who is facing some serious charges. Hes ineligible for probation. And I know for a personal fact that his life is in danger. Ive talked to his drug counselor. The drug counselor told me his life is in danger."
The court remarked that defendant was "not giving me a good reason to withdraw this plea though." The court stated the evidence was compelling and defendant had signed a written change of plea form.
Defense counsel stated: "My dilemma is this. The defendant wants to relieve me because he believes that I inadequately represented him. Hes made certain statements to the court here. The court may believe them or not believe them. I think his motion to withdraw his plea is premature. I think the proper procedure, at least I would hope, that the court would appoint another lawyer for him, have that lawyer talk to him and determine whether or not there are grounds for a withdrawal of the plea."
The court was unpersuaded, stating: "I find his statements about your representation of him not compelling at all. . . . [¶] . . . I believe this young man when he entered that plea knew exactly what he was doing and that you were giving him proper advice."
Defense counsel stated: "[H]e said I pressured him and told him there was no alternative. I would hate to have the court rule on his motion to withdraw his plea on what he has articulated here. Hes not even called me to the stand or cross examined me."
The following colloquy occurred:
"THE COURT: Mr. MacMillen, what Im telling you is he hasnt carried the burden of proof.
"MR. MacMILLEN: Well, if he had legal counsel, he may be able to.
"THE COURT: So every volatile defendant gets to have two attorneys because theyre always going to come in and say they didnt understand whats going on. Thats not the purpose of the Marsden motion.
"MR. MacMILLEN: No, thats not the purpose of the motion. But this young man has a lot to lose. Hes indicated that he believes hes going to lose his life in state prison. And we know hes ineligible for probation. And the only thing that the court can consider at this time whether he wants to accept the plea.
"THE COURT: Listen, Im not going to relieve you. Any dysfunction in your communication is in my opinion the making of Mr. Hume. Mr. Hume is extremely upset by all of this because his day of reckoning is approaching. And thats understandable."
The court denied the Marsden motion and continued sentencing for one week, and indicated that if defendant wished to withdraw his plea defense counsel could file a motion on his behalf.
Four days later defendant filed a motion to withdraw his plea. Although the notice of motion was signed by defense counsel, the bulk of the motion consisted of a declaration of defendant in which he repeated the concerns he raised at the Marsden hearing.
At the sentencing hearing, the court stated the motion to withdraw was "totally devoid of merit," that defendant had "no credibility on these issues whatsoever," and "I just dont believe that when you entered the plea you didnt know you had other options available to you." The court denied the motion and sentenced defendant to the midterm of four years on the burglary conviction plus a consecutive one year conviction for the arming enhancement.
The investigative reports attached to the probation report, which defense counsel had not had an opportunity to review in detail prior to the Marsden hearing, provided factual support for several of the statements defendant made during that hearing. Sheriffs deputies discovered two large black plastic trash bags containing two and one-half pounds of marijuana colas inside the residence in which defendant was apprehended. The owner stated he had a prescription for medicinal use of marijuana and that investigators had previously informed him he was within legal limits. The owner thought he recognized defendant, but he was not sure, because "he had a large amount of people over in the past several months that had brought friends . . . ." Investigators met with defendant, who stated that the owner of the residence had arranged to have him come to Nevada County and sell drugs for him. Defendant informed investigators that a former law enforcement officer in another county had sold him some weapons and other law enforcement equipment. Investigators accompanied defendant to an abandoned house where several of the weapon were retrieved. Defendant also provided information which helped the investigators retrieve other missing property.
The report also stated: "Subsequent to Humes statements regarding the homeowners involvement in the possession of marijuana for sale, the Narcotics Task Force wrote an affidavit in support of a search warrant and also witnessed an oral affidavit by Marcus Hume in front of Honorable Kathleen Butz. Judge Butz authorized the search warrant, which was executed on Wednesday, December 19, 2001, at approximately 2015 hours."
DISCUSSION
Defendant contends the court erred by failing to appoint substitute counsel in order to bring a motion to withdraw his plea due to irreconcilable difference which made effective representation impossible. The People respond that defendant expressed no dissatisfaction with counsel at the change of plea hearing; the court found not credible defendants claim that his plea had been coerced; and there were no irreconcilable differences between defendant and counsel because defendant had no desire to go to trial.
"[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 the 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.) We review the claim of erroneous denial of a Marsden motion under the abuse of discretion standard. (People v. Earp (1999) 20 Cal.4th 826, 876.)
There is a series of cases, beginning with the Sixth Districts decision in People v. Brown (1986) 179 Cal.App.3d 207 (Brown), that examine the procedures to be utilized when the defendant seeks substitute counsel to prepare a motion to withdraw the plea. Those cases were aptly summarized in People v. Makabali (1993) 14 Cal.App.4th 847, which we quote at length.
"In Brown, defense counsel informed the court of her clients desire to withdraw his plea, but said she would not make the motion on his behalf because she did not believe there was any `"legal basis at this time for him to move the court to withdraw his plea." The trial court denied the defendants request to have another lawyer appointed to make the motion, but permitted Brown to make the motion himself. [Citation.] The appellate court concluded Brown was deprived of his right to make a motion assisted by counsel. The court acknowledged that an attorney of record has the exclusive right to appear in court and control court proceedings, but found `the decision to seek withdrawal of a plea of guilty, just as the decision to enter such plea is one within the defendants power to make, although counsel may, when appropriate, advise against the decision. [Citation.] In sum, the court concluded defense counsel was required to present the motion to withdraw unless the motion `in counsels good faith opinion, is frivolous or when to do so would compromise accepted ethical standards. [Citations.]
"The Fifth District followed Brown in People v. Osorio [(1987)] 194 Cal.App.3d 183. There, defense counsel declined to assist the defendant in filing a motion to withdraw a plea—despite the admitted presence of possible grounds for the motion—because the attorney could not do so `"in good conscience." [Citation.] The reviewing court concluded `counsels representation to the court that there was a colorable basis for the motion to withdraw the guilty plea required remand for the limited purpose of permitting the defendant to make a motion to withdraw his plea. [Citation.]
"In People v. McLeod (1989) 210 Cal.App.3d 585 . . ., on the other hand, the Sixth District found the case fell within the `ethical standards exception to the Brown rule because defense counsels statements indicated he could not make the motion on the defendants behalf, thus suggesting he had an ethical reason for not doing so. (McLeod, supra, at pp. 589-590.)
"Finally, . . . [i]n People v. Garcia [1991] 227 Cal.App.3d 1369 [the Sixth District] reasoned 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 clients interests and that of the attorney. [Citation.] Consequently, where a defendant `seeks to withdraw a plea on the ground that his attorney of record has not provided adequate representation, . . . the trial court should follow a procedure comparable to that specified in People v. Stewart (1985) 171 Cal.App.3d 388, 395-397, . . . The trial court should first elicit and consider the defendants reasons for believing he has been ineffectively represented, . . . 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." . . . If the defendant does not present a colorable claim, the court may deny the motion without providing for new counsel. [Citation.]" (People v. Makabali, supra, 14 Cal.App.4th at pp. 851-852.)
Good cause to withdraw a plea is shown if the defendant did not exercise free judgment in entering into the plea. (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. [Citations.]" (Ibid.) Pleas may be set aside if defendants are unduly influenced to accept a plea because their counsel is not prepared to proceed. (In re Vargas (2000) 83 Cal.App.4th 1125, 1142.) The ground most frequently urged, and it has been successful in numerous instances. (4 Witkin, Cal. Procedure (3d ed. 2000) Pretrial Proceedings, § 293, p. 509.) A plea may also be withdrawn if the plea was entered into as a result of what can be characterized as fraud or duress. (Pen. Code, § 1018; People v. Cruz, supra, 12 Cal.3d at p. 566; People v. Dena (1972) 25 Cal.App.3d 1001, 1008.)
In the present case, the record of the Marsden hearing shows that communications between defense counsel and defendant had deteriorated to the degree that it was likely that counsel would provide ineffective assistance with regard to defendants motion to withdraw his plea. On the one hand, counsel represented that there appeared to be no defense to the charges and that he had informed defendant of his opinion. The court accepted this version of events in denying the Marsden motion.
On the other hand, defendant represented that he had assisted law enforcement and received promises of favorable treatment; he was selling drugs for the person in whose home he was apprehended; he and his family had been threatened and assaulted as a result of his cooperation with authorities; and defense counsel had refused to discuss the case and pressured him into pleading no contest.
The court found defendant was totally lacking in credibility. The record, though, casts considerable doubt on this conclusion. The investigative reports, which were attached to the probation report, indicated that defendant had offered law enforcement significant and accurate information in locating missing property and implicating third parties in criminal activities. The authorities apparently found defendant credible, as they were able to secure a search warrant based on defendants oral affidavit.
At the initial sentencing hearing, defense counsel requested a continuance in order to review the investigative reports. Counsels apparent unfamiliarity with these reports lent credence to defendants implicit assertion that counsel had failed to conduct adequate investigation.
There also appeared to be some merit to defendants claim that his physical safety was at risk. Defense counsel stated he had received such reports from defendants drug counselor, and he felt sufficiently confident to represent the danger as a "fact" to the court.
Counsel also expressed an inability to represent defendant adequately in regard to the motion to withdraw the plea. He acknowledged that he would likely be called as a witness in the matter, and he did not want to be in that position while still representing defendant. Defense counsels doubts concerning his representation were shown to have some basis in fact several days later, when he filed a pro forma motion to withdraw the plea. The declaration of defendant appears to have been drafted by defendant himself, and the memorandum of points and authorities provided little guidance to the court on the issues in the case.
In these circumstances, we conclude the court should have appointed counsel for the purpose of making a motion to withdraw defendants guilty plea.
DISPOSITION
The judgment is reversed for the limited purpose of appointing new counsel to represent defendant and for counsel to ascertain whether grounds exist for filing a motion to withdraw the plea, and filing such motion if appropriate. Counsel shall have 30 days from the date of appointment to bring a motion to withdraw the plea, unless the court grants an extension. If no motion is made, or if made and denied, the judgment should be reinstated by the superior court.
I concur: SIMS, Acting P.J.
I concur in the result: NICHOLSON, J.