Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F03561
BUTZ, J.Defendant Chokchai Krongkiet entered a negotiated plea of guilty to five counts of forcible lewd and lascivious conduct with a child under the age of 14 years (Pen. Code, § 288, subd. (b)(1)) in exchange for dismissal of the remaining counts and a stipulated 40-year state prison sentence. The court sentenced defendant accordingly.
Undesignated statutory references are to the Penal Code.
Defendant appeals. The court granted his request for a certificate of probable cause. (§ 1237.5.) He contends (1) the trial court acted in excess of jurisdiction when it vacated its order permitting him to withdraw his guilty plea and (2) he was denied the effective assistance of counsel. We shall affirm the judgment.
PROCEDURAL BACKGROUND
A detailed recitation of the facts underlying the offenses is unnecessary in view of the issues raised on appeal. Suffice it to say that defendant sexually abused a female relative beginning when she was five years old and continued until she was 15 years old. Defendant admitted some of the conduct in a pretext call with the victim. He later admitted additional conduct when interviewed by the police after his arrest.
Defendant initially retained counsel, Harlan Antler. Antler was relieved after six months. Defendant retained new counsel, C. Emmett Mahle, who represented defendant at the preliminary hearing. One day prior to trial, defendant discharged Mahle and requested appointed counsel. The court appointed Ron Castro to represent defendant and rescheduled the trial. A few days before the new trial date, defendant sought substitute counsel, and after a hearing, Judge De Alba denied the motion. On the first day of trial, defendant’s motion to exclude his confession based on a Miranda violation was denied. During voir dire on the third day of trial, defendant entered his guilty plea to five counts in exchange for the stipulated determinate term of 40 years and dismissal of the remaining 12 counts of child molestation. At the entry of plea hearing, defendant confirmed that he had not been threatened or otherwise induced to enter his plea. Sentencing was scheduled to take place in three months.
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
According to the prosecutor at a later hearing, defendant faced 105 years to life, consecutive to an 18-year determinate term. The prosecutor originally extended an offer of 15 years to life plus an eight-year determinate term. Based on a counteroffer by defense counsel and defendant himself, the People agreed to a determinate term of 40 years.
At sentencing, defendant sought substitution of counsel. The court conducted a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118. Defendant claimed, inter alia, that prior to entering his plea, Attorney Castro had explained that because he could not win the case, defendant should commit suicide.
In responding, Attorney Castro initially noted that defendant had made the same claim a number of times. Castro denied that he so advised defendant. Castro described the interaction differently. During discussions with defendant at the jail, defendant had complained “how horrible it was to be in jail” and “so horrible that people were committing suicide in there.” Castro recalled one conversation as follows. Defendant asked, “‘Is there anything I can do to not go to state prison?’ [¶] And I said, ‘No, not unless you want to take the easy way out like the other guys did.’ [¶] ‘You mean kill myself?’ [¶] Basically we both laughed and he said, ‘I’m not doing that.’ [¶] I said, ‘I know you’re not doing that.’ [¶] So I mean it might have been ill advised, but I definitely wanted to impress upon him how dire the circumstances were.” Castro had tried to impress upon defendant the fact that his chances of avoiding conviction and indeterminate life terms were slim to none in view of defendant’s statements during the pretext call and his interrogation. Castro noted that defendant “would never discuss the facts of the case with [him].” Castro believed he could continue to represent defendant effectively. Defendant replied that he could no longer trust Castro.
Although concluding that Attorney Castro had properly and effectively represented defendant and could continue to do so, the court relieved Castro as defendant’s attorney, apparently finding a breakdown in the relationship. The court commented that “based upon [defendant’s] letters to [the court] and the importance with which we would proceed with judgment and sentence, that it would be impossible for this Court to stand by and allow Mr. Castro to be your counsel, again, given the importance of you making an intelligent, knowing, and voluntary plea to the charges as previously stipulated.” The court also stated that defendant would be allowed to withdraw his plea and new counsel appointed. The court stated, “I find that there is sufficient good cause based upon this motion and the concerns expressed in your letter to withdraw your plea at this time.” (Italics added.)
The record on appeal does not include defendant’s 16-page handwritten letter to which the trial court referred. Defense appellate counsel requested augmentation of the record to include the same but the trial court clerk was unable to locate the same.
The court then reconvened in open court and noted it had found good cause for defendant to withdraw his plea. The prosecutor, who had been excluded from the closed Marsden hearing, objected to the court’s ruling, commenting that no motion to withdraw a plea had been filed, no grounds had been stated, and that the prosecution had not been permitted to oppose the motion. The court responded that it was not proceeding further on defendant’s plea “given that [defendant] has to make that decision on his own” and that “[t]he information before this Court is that his plea is not voluntary on his own.” (Italics added.) The court stated that new counsel would be appointed who would assist defendant in either filing a motion to withdraw his plea or proceeding with sentencing on the plea. Laurance Smith was appointed to represent defendant.
Five months later, having reviewed the entire record, conversed with prior counsel (Attorneys Mahle and Castro), and interviewed defendant a number of times, Attorney Smith stated that a motion to withdraw the plea would not be filed since he believed it was his “legal obligation not to present motions which [he did] not believe in good faith are supported by adequate legal grounds.” Smith noted that defendant did not agree and wanted new counsel.
After conducting a Marsden hearing, the court denied defendant’s motion for substitute counsel to replace Attorney Smith. Smith represented defendant at sentencing. The court imposed the stipulated sentence of a determinate term of 40 years.
DISCUSSION
I
Relying upon People v. McGee (1991) 232 Cal.App.3d 620 (McGee), defendant contends the trial court acted in excess of jurisdiction when it vacated its order permitting defendant to withdraw his plea. We conclude that McGee is inapplicable here.
In McGee, the defendant entered a negotiated plea but later moved to withdraw his plea. At a hearing on the defendant’s motion to withdraw his plea, the prosecutor opposed the motion and cross-examined the defendant. The trial court granted the defendant’s motion to withdraw his plea. (McGee, supra, 232 Cal.App.3d at p. 622.) The prosecutor moved for reconsideration. More than a month after granting the defendant’s motion to withdraw his plea, the trial court reversed its ruling, reinstating the plea. (Id. at pp. 622-623.) McGee concluded that the trial court had no jurisdiction to entertain the prosecutor’s motion for reconsideration, noting that the order of withdrawal was final, there was no new evidence, and there had been no continuance of the hearing on the defendant’s withdrawal motion. (Id. at pp. 624-627.) McGee noted that if the People desired review of the final nonappealable order, they should have petitioned for a writ of mandate in the appellate court, rather than seeking reconsideration in the trial court. (Id. at pp. 623-624.)
Here, the trial court conducted a Marsden hearing, as it should, in the absence of the prosecutor. At the conclusion of the Marsden hearing, the trial court granted defendant’s request for substitution of counsel. When the trial court reconvened in open court, the trial court announced that defendant’s request for substitution of counsel was granted as was his request to withdraw his plea. The prosecutor immediately objected, claiming he had had no opportunity to oppose the motion to withdraw the plea. The court reconsidered and determined that defendant’s newly appointed counsel would advise defendant whether to pursue a motion to withdraw his plea.
McGee has no application here. The trial court did not vacate a final ruling or correct judicial error as in McGee. The trial court simply failed to follow proper procedure in considering a motion to withdraw defendant’s plea during defendant’s Marsden hearing. A motion to withdraw a defendant’s plea must be brought in open court. Section 1018 provides, in relevant part, as follows: “Unless otherwise provided by law, every plea shall be entered or withdrawn by the defendant himself or herself in open court.” (Italics added.) As the People claim, the court’s consideration of such motion absent the prosecutor and members of the public did not satisfy the statute’s requirement of open court. (See People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 709 [“The term ‘open court’ typically is understood to refer to nothing more or less than a hearing or trial held in a courtroom from which the public is not excluded”].)
Further, the trial court failed to conduct a full hearing on the withdrawal motion in that the prosecutor had not been given an opportunity to oppose the motion. After the court orally announced its decision in open court, the prosecutor objected to the procedure and the court immediately corrected the procedural defect. “If the possibility of error, or of an unwise use of discretion, is suggested to the trial court, before its order has become fixed either by clerical entry or by subsequent official action based on the order, the trial court should, and we are convinced does, have the power to reexamine its ruling.” (People v. Hensel (1965) 233 Cal.App.2d 834, 838, italics added; People v. Rose (1996) 46 Cal.App.4th 257, 261, fn. 1.) Section 1017 provides that “[e]very plea must be made in open court and, may be oral or in writing, shall be entered upon the minutes of the court, and shall be taken down in shorthand by the official reporter if one is present.” (Italics added.) “[J]udicial error ‘which occurs in the rendition of orders or judgments which are the fault of judicial discretion, as opposed to clerical error or inadvertence, may not be corrected except by statutory procedure.’ [Citations.] An order is clearly ‘“judicial”’ if the trial court entered the order it intended.” (People v. Davidson (2008) 159 Cal.App.4th 205, 210, italics added.)
Here, the trial court reexamined its ruling immediately upon announcement and before the ruling was entered in the minutes. The trial court’s initial ruling to grant defendant’s motion to withdraw his plea is not reflected in the minute order of the proceedings. We reject defendant’s contention that the trial court acted in excess of its jurisdiction. The trial court had inherent power to reconsider the ruling which was not final.
II
Defendant contends Attorney Smith rendered ineffective assistance in that he failed (1) to raise the trial court’s lack of jurisdiction with respect to its decision to vacate defendant’s motion to withdraw his plea; (2) to correct the trial court’s statements with respect to previous findings; and (3) to present the motion to withdraw the plea. Defendant also contends the trial court abused its discretion in failing to substitute new counsel for Smith because he refused to file the motion to withdraw defendant’s plea. We conclude that defendant has failed to demonstrate that counsel’s performance was deficient and find no abuse of discretion by the trial court.
To establish ineffective assistance of counsel, defendant must demonstrate that counsel’s performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) To establish deficient performance, defendant must show that counsel “failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates.” (People v. Pope (1979) 23 Cal.3d 412, 425.)
Having rejected defendant’s claim that the court acted in excess of jurisdiction, we reject defendant’s claim that Attorney Smith’s performance was deficient in failing to raise the issue. We also reject defendant’s claim that Smith’s performance was deficient in failing to correct one of the court’s statements. At the Marsden hearing on defendant’s request to substitute counsel for Smith in July 2008 (discussed hereafter), the court stated that in granting the Marsden motion to substitute counsel for Attorney Castro back in February 2007, it “was not based upon anything that [it] found in terms of [defendant’s] plea in November again not being free, knowing, intelligent and voluntarily made.” Defendant notes, however, that in open court on February 15, 2008, after granting defendant’s Marsden motion to substitute counsel for Castro, the court commented, “The information before this Court is that his plea is not voluntary on his own.” (Italics added.) The information before the court at that time was one-sided; that is, presented at a Marsden hearing in the absence of the prosecutor who had no opportunity to oppose the motion or to present other facts to the court. Since the court had not made a final ruling on whether good cause existed to permit defendant to withdraw his plea at the time of its statement, its statement at the July 2008 Marsden hearing required no correction. With respect to Smith’s decision not to file a motion to withdraw the plea, we conclude that defendant has failed to demonstrate that Smith’s performance was deficient.
Section 1018 provides, in pertinent part: “On application of the defendant..., the court may,... for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.... This section shall be liberally construed to effect these objects and to promote justice.”
Good cause to withdraw a plea is shown where a defendant has entered his plea as the result of a mistake, ignorance, or some other factor overcoming his free exercise of judgment. (People v. Cruz (1974) 12 Cal.3d 562, 566; People v. Castaneda (1995) 37 Cal.App.4th 1612, 1617.) “However, ‘[a] plea may not be withdrawn simply because the defendant has changed his mind.’” (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) “[G]ood cause must be shown by clear and convincing evidence.” (Cruz, supra, 12 Cal.3d at p. 566; Castaneda, supra,37 Cal.App.4th at p. 1617.) “‘Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.’” (People v. Weaver (2004) 118 Cal.App.4th 131, 146.) “When a defendant is represented by counsel, the grant or denial of an application to withdraw a plea is purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result. [Citations.] On appeal, the trial court’s decision will be upheld unless there is a clear showing of abuse of discretion. [Citations.] An abuse of discretion is found if the court exercises discretion in an arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of justice.” (People v. Shaw (1998) 64 Cal.App.4th 492, 495-496.)
Defense counsel is not required to file futile or frivolous motions to foreclose a claim of ineffective assistance of counsel. (People v. Berry (1990) 224 Cal.App.3d 162, 170; People v. Saldana (1984) 157 Cal.App.3d 443, 462; People v. Shelburne (1980) 104 Cal.App.3d 737, 744.)
We reject defendant’s claim that Attorney Smith was required to file the motion. (See People v. McLeod (1989) 210 Cal.App.3d 585, 587, 589-590; see also People v. Makabali (1993) 14 Cal.App.4th 847, 852-853.) Smith expressed his opinion that there were no adequate legal grounds but stated that defendant did not agree. The court heard their disagreement in a Marsden hearing. Defendant complained that Smith visited him only two times, each for less than 20 minutes. Defendant suggested there was a conflict, because Smith and Castro worked together. Defendant complained that Smith had failed to find grounds to bring the withdrawal motion, claiming “the relationship [defendant] had with [his] previous attorney which led to the plea, and there were [sic] some pressuring and forcing [him] to accept certain conditions.” Defendant agreed that Smith was an “able attorney and that he has great ability.”
Attorney Smith responded that he had practiced exclusively in criminal defense since 1970 and had been in private practice since 1985. Smith stated he had done what was required, having evaluated the discovery which included the pretext phone call and the interrogation of defendant. Smith commented, “I found the pretext telephone call in particular to be absolutely devastating and to be of such strength it would preclude any possibility that a jury would give him any consideration at all if this case were taken to trial,” noting that defendant’s exposure was “somewhere in the neighborhood of 80-something years to life.” Although both Attorneys Mahle and Castro were professional colleagues, Smith stated that he had “no personal relationship with either one of them that would prevent [Smith] from questioning their judgments if [Smith] thought that it was appropriate to do so.” Smith noted that Mahle was “unable to negotiate a settlement that was acceptable” to defendant. Smith explained that defendant was dissatisfied with the assistance he received from Mahle and Castro who defendant claimed had failed to raise the issues of not having had an interpreter at the preliminary hearing and the lack of a section 995 motion. Smith concluded there was no basis for raising the issues.
With respect to an interpreter, Attorney Smith explained that defendant was “quite able to communicate in English,” orally and in writing, and his ability was “as good as uneducated monolingual defendants who pass through the system.”
Attorney Smith disagreed with defendant’s interpretation of a conversation defendant had with Attorney Castro about people committing suicide in jail and stated he did not think “that issue” had anything to do with defendant’s decision to enter a plea. Smith determined that defendant would not win at trial if a motion to withdraw his plea was granted and that he would receive a more severe sentence. Smith concluded that there was “nothing in Mr. Castro’s representation or in the characterization of that representation by [defendant] that would lead [Smith] to think that Castro coerced the plea or that [defendant] did not know what he was doing at the time” or “that would undermine the validity of the plea or lead to a colorable claim of ineffective assistance of counsel at the time the plea was entered.”
The court noted that when defendant entered his plea, the court found that it was “knowing, intelligent and [a] voluntary plea with the advice of counsel and full advisement by this court of the consequences of [his] plea.” The court further noted that when it granted defendant’s Marsden motion and relieved Attorney Castro, the court stated it did so based on the breakdown of the relationship “after [defendant] entered [his] plea.” The court denied defendant’s motion for new counsel, finding there was no basis for substitution and concluding that Attorney Smith had “properly represented” defendant. The court noted that Smith is “an experienced, very good, successful attorney” with “excellent legal skills.”
Defendant has failed to demonstrate that counsel’s performance was deficient with respect to defendant’s request to withdraw his plea. Attorney Smith evaluated the record in the case, conferred with prior counsel, and interviewed defendant. Smith, an experienced attorney, concluded that there was no good cause, explaining that he found nothing to suggest that defendant was coerced in entering his plea or that he entered the plea due to ineffective representation. The trial court heard Smith’s explanations in a Marsden hearing as to why he determined there were no adequate legal grounds for a withdrawal motion. Smith was not required to file a futile or frivolous motion. (People v. Brown (2009) 175 Cal.App.4th 1469, 1473.) And the trial court did not abuse its discretion in denying defendant’s request for new counsel to replace Smith in order to bring a motion to withdraw defendant’s plea.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., SIMS, J.