Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County. Ct. No. F07905952, Jonathan B. Conklin, Judge.
Barbara J. Coffman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Michael A. Canzoneri and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.
OPINION
On October 18, 2007, appellant Paul Anthony Lopez pled no contest to assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and admitted a “strike” allegation. On January 11, 2008, the court imposed a six-year prison term. On February 8, 2008, appellant filed a notice of appeal and requested a certificate of probable cause (Pen. Code, § 1237.5). The court granted that request.
We use the term “strike” as a synonym for “prior felony conviction” within the meaning of the “three strikes” law (Pen. Code, §§ 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.
On appeal, appellant’s sole contention is that because his trial counsel did not present a motion to withdraw appellant’s no contest plea, appellant was denied his right to the effective assistance of counsel. We will affirm.
Because the facts of the instant offense are not relevant to the issues raised on appeal, we will forgo discussion of those facts.
As indicated above, appellant entered his no contest plea on October 18, 2007. On that date, prior to entering his plea, appellant executed a “FELONY ADVISEMENT, WAIVER OF RIGHTS, AND PLEA FORM” (plea waiver form) in which he indicated as follows: he wished to enter a plea of no contest to a charge of violating Penal Code section 245, subdivision (a)(1) and admit a strike allegation; he understood his various constitutional rights, including the right to a jury trial; he gave up those rights; and he was “entering into [his] plea freely and voluntarily ….” Appellant’s attorney, Mark Broughton of Ciummo & Associates, signed a statement on the plea waiver form that he had reviewed the form with appellant; explained to appellant his rights, the consequences of his plea, the elements of the offense and possible defenses; and answered all of appellant’s questions with regard to the plea.
Thereafter, Broughton and appellant appeared in court, at which time Broughton informed the court of the following. Attorney Mark Siegel of Ciummo & Associates had been representing appellant but Siegel was in trial. A plea agreement had been reached. Under that agreement, appellant would plead no contest to assault by means of force likely to cause great bodily injury, an offense which, unlike assault with a deadly weapon, the offense originally charged, would not constitute a strike in a future proceeding, and appellant would admit a strike allegation. The prosecutor confirmed that this was the agreement and moved to amend the information in conformity with the plea agreement. The court granted the motion.
At that point, appellant personally affirmed the following: he understood the plea agreement as stated on the record by Broughton; he wished to enter a plea of no contest, as provided in the agreement; he had read, reviewed, understood, signed and initialed the plea waiver form; he had been afforded sufficient time to discuss the plea agreement with his attorney; he gave up his rights to trial by jury and confrontation of witnesses and his privilege against self-incrimination; and he had no questions about those rights.
At sentencing on January 11, 2008, appellant was represented by Attorney Francis McGowan of Ciummo & Associates. At that proceeding, appellant did not speak and McGowan gave no indication appellant wished to withdraw his plea.
In his request for a certificate of probable cause, appellant asserted as follows: he notified his attorney by mail before sentencing that he “was on medication but had not been receiving [his] medication”; at the time he signed the plea waiver form he “was not on any of [his] prescribed medication”; the attorney indicated that “he would be there” at appellant’s sentencing hearing, at which time appellant “could pull back [his] deal”; that attorney, however, did not appear at the sentencing hearing; “another attorney stood in for him”; appellant “showed [the new attorney] all [of the] papers that [appellant had]”; but the attorney said “there was nothing [appellant] could do but appeal the final decision.”
Appellant attached to his request for a certificate of probable cause a copy of a letter to him from Attorney Siegel, dated November 16, 2007, in which Siegel states the following. He received a letter from appellant. Siegel was in court on another matter at the time appellant entered his plea but Attorney Mark Broughton represented appellant at that proceeding. Siegel did not agree that appellant’s case was strong, and he was “surprised” appellant “did not like the deal that we negotiated for you.” Siegel summarized the evidence against appellant, opined that “[t]he likelihood is that had this case gone to trial,” appellant would have been convicted of assault with a deadly weapon, an offense that would be a “strike” in any future proceedings; a great-bodily-injury enhancement would have been imposed; a “strike” allegation would have been found true; and the likely result would have been “[a prison sentence of] ten or twelve years, as well as a second strike.” After “extensive[]” discussion, appellant “agreed that, if necessary and if possible, [appellant] would agree to take six years if [he was] allowed to plead to a non-strike offense.”
Siegel further stated: “You had agreed with me that six years and a non-strike (running together with your parole violation) was a reasonable resolution of your case, before Mr. Broughton ever met you in court, so I cannot agree that your willingness to sign for that occurred as a result of any pressure that you feel that he put upon you. [¶] Also, I do not agree with your statement that ‘as you know, I am a mental health patient’. I do not recall your ever mentioning to me that you are mental health patient or that you were taking medication for such a thing or that the jail was not providing you with your ‘meds’. [¶] I don’t remember your saying any of those things, nor did I ever form that impression of you during any of our meetings. Even if any of this is true, I am confident that you have always been competent to make decisions regarding your case. [¶] If I am not otherwise in trial, I should be the attorney that appears at your scheduled sentencing on January 11, 2008. My feeling again is that – even if this does not represent the best of all possible worlds – this is a good resolution of the case for you and that you should be satisfied with it. [¶] If you still feel the same way on the day of sentencing, I will inform the judge. But I will not support your position that an attorney from our office compelled you to do something that you didn’t want to do because my clear recollection is that this is, in fact, exactly what you wanted to do. I will let the judge decide how to proceed from there.” Siegel closed by “urg[ing] [appellant] to regard the settlement as the best possible resolution, given the facts of [the] case and the likely outcome.”
The letter appellant apparently wrote to Siegel does not appear in the record.
Also attached to appellant’s request for certificate of probable cause were the following: a “Jail Medical Services Inmate Request Form” dated September 18, 2007, in which appellant stated he was a “paranoia [sic] schizophrenic,” and that on July 31, 2007, and August 15, 2007, he “requested [his] medication with negative results”; a response to the inmate request form, stating “We used the name Lopez, Paul Anthony with your SSN but Walgreens does not have any records on you; and a “Notice and Request for Assistance at Parole Proceeding,” dated September 28, 2005, and signed by appellant, in which under the heading “Identified Disabilities,” appellant checked the box for “Mental Health Concerns.”
DISCUSSION
Appellant argues that because he “was a mental health patient” and “went without his medications after he was incarcerated” he suffered from a “possible mental impairment” at the time he entered his plea; he thus “presented a ‘colorable basis’ for a motion to withdraw his plea”; and therefore counsel provided constitutionally deficient representation in failing to present a motion to withdraw appellant’s no contest plea. Appellant bases this contention in large part on People v. Brown (1986) 179 Cal.App.3d 207 and People v. Osorio (1987) 194 Cal.App.3d 183.
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. (People v. 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” (id. at p. 211) and “a death 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 “view[ed] the decision to seek withdrawal of a plea of guilty, just as the decision to enter such plea, as one which the defendant is entitled to make,” and on which counsel could advise but the defendant “should have the final word ....” (Id. at p. 215) The court concluded 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 that the trial court conduct a hearing on whether substitute counsel should be appointed should counsel continue to refuse to bring the motion (id. at p. 216). In so holding, the court stated that it was not suggesting that counsel was required to make a motion “which, in counsel’s good faith opinion, is frivolous or when to do so would compromise accepted ethical standards.” (Id. at p. 216.)
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 when he entered his plea ….’” (People v. Osorio, supra, 194 Cal.App.3d at p. 186). Trial counsel indicated “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, thereby creating the “potential for a vastly increased maximum sentence ….” (Id. at p. 188.) On appeal, the court held that counsel’s refusal to present a motion to withdraw the plea constituted “ineffective representation ....” (Id. at p. 185.) Citing Brown and noting “counsel’s representation to the court that there was a colorable basis for [such a] motion,” the court determined that, as in Brown, the proper disposition was remand to allow defendant, represented by counsel, to bring a motion to withdraw the plea. (Id. at p. 189.)
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, and we assume without deciding, that the record establishes a colorable basis for appellant to withdraw his plea, viz., that because he was not able to take prescribed medication his plea was not freely entered. (See People v. Huricks (1995) 32 Cal.App.4th 1201, 1208 [defendant may withdraw plea upon showing by clear and convincing evidence that he “was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment”].) However, this is not sufficient to establish ineffective assistance of counsel.
“Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) “The burden of proving ineffective assistance of counsel is on the defendant.” (People v. Babbitt (1988) 45 Cal.3d 660, 707.) “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.” (People v. Cash (2002) 28 Cal.4th 703, 734.) “We presume ‘counsel’s conduct falls within the wide range of reasonable professional assistance’ [citations] ....” (People v. Lewis (2001) 25 Cal.4th 610, 674.) A claim of ineffective assistance of counsel must be rejected on direct appeal if “‘“the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] ... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.”’” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
Although appellant implies in his application for a certificate of probable cause that on the day of his sentencing hearing he told Attorney McGowan he wanted to withdraw his plea, and he states he showed him certain unspecified “papers” in support of his claim that his mental state at the time of his plea rendered the plea invalid, the discussion, if any, between appellant and McGowan is not part of the record. Thus, it cannot be determined from the record on appeal, for example, whether McGowan would dispute the claim that appellant told McGowan, as he apparently indicated to Attorney Siegel, that he wished to withdraw his plea. It also cannot be determined whether, if appellant did express to McGowan the desire to withdraw his plea, McGowan formed a good faith belief that such a motion would be frivolous or would violate ethical constraints.
Appellant dismisses the latter possibility, on the grounds that Attorney Siegel’s “overriding reason” for refusing to present a plea withdrawal motion, as indicated in the attorney’s letter to appellant, was that the attorney believed the plea agreement was in appellant’s best interests. As appellant indicates, an attorney may not refuse to present a colorable claim for withdrawing a plea based on such a reason. (People v. Osorio, supra, 194 Cal.App.3d at p. 188 [defendant received ineffective representation where counsel failed to present plea withdrawal motion based on counsel’s belief that going to trial entailed risk of increased sentence].) However, Siegel’s letter also indicates that appellant had claimed that Attorney Broughton had improperly pressured appellant into pleading no contest. This admits of the possibility that appellant, in his letter to Siegel, claimed Broughton’s representation constituted ineffective assistance of counsel, and Siegel, because he and Broughton were members of the same law firm, felt he could not ethically raise such a claim on appellant’s behalf.
Thus, as demonstrated above, we cannot determine on the record before us why Attorney McGowan did not present a motion to withdraw appellant’s plea, he was not asked on the record for an explanation and this is not a case in which there can simply be no satisfactory explanation for the failure to present such a motion. Accordingly, under the principles set forth above, appellant has not met his burden of establishing that counsel’s failure to present a motion to withdraw appellant’s plea was objectively unreasonable.
Moreover, even if appellant had established his counsel’s performance was deficient -- i.e, that appellant had a colorable basis for withdrawing his plea and counsel’s refusal to bring the motion was not based on a good faith belief the motion was frivolous or on ethical grounds -- his claim would fail because he has not met his burden of establishing prejudice.
As indicated above, the basis for the holding in Brown that the defendant’s rights were violated when his attorney did not present a plea withdrawal motion is the right of a criminal defendant to decide what plea to enter. (People v. Brown, supra, 179 Cal.App.3d at p. 215 [court “view[ed] the decision to seek withdrawal of a plea of guilty, just as the decision to enter such a plea, as one which the defendant is entitled to make”].) Thus, appellant’s claim of ineffective assistance on the basis of failure to present a plea withdrawal motion is, in essence, a claim that as a result of counsel’s deficient performance, appellant pled no contest contrary to his wishes. Accordingly, the standard for determining prejudice is set forth in In re Alvernaz (1992) 2 Cal.4th 924: “[I]n order successfully to challenge a guilty plea on the ground of ineffective assistance of counsel, a defendant must establish not only incompetent performance by counsel, but also a reasonable probability that, but for counsel’s incompetence, the defendant would not have pleaded guilty and would have insisted on proceeding to trial.” (Id. at p. 934.)
Nowhere in the record, or even in his briefing, does appellant assert that he would have insisted on going to trial had his counsel presented and prevailed on a motion that appellant be allowed to withdraw his plea. But even if we construe appellant’s statements in his request for certificate of probable cause as constituting such a claim, appellant has not demonstrated prejudice. A claim by a defendant that he or she would have not pled guilty or no contest and insisted on going to trial “‘must be corroborated independently by objective evidence.’” (In re Resendiz (2001) 25 Cal.4th 230, 253.) The record contains no such interdependent, objective corroboration.
Appellant urges that we adopt a different standard for determining prejudice. He argues he has established prejudice because, he asserts, “there is a reasonable probability that, had counsel filed the motion, the result of the proceeding would have been different, i.e. the motion to withdraw the plea would have been granted.” He bases this argument, in turn, on the claim that the trial court granted his request for certificate of probable cause “based on possible mental impairment at the time [appellant] entered his plea.” However, even assuming appellant has correctly stated the standard for determining prejudice for a claim of ineffective assistance of counsel based on counsel’s failure to present a plea withdrawal motion in violation of the principles underlying Brown and Osorio, appellant’s claim fails.
The test for granting a certificate of probable cause “is whether the appeal is clearly frivolous and vexatious or whether it involves an honest difference of opinion.” (People v. Ribero (1971) 4 Cal.3d 55, 63, fn. 4.) Thus, the granting of the certificate of probable cause here demonstrates nothing about the merits of appellant’s claim other than that such a claim was not “clearly frivolous and vexatious.” (Ibid.) Contrary to appellant’s suggestion, the granting of the certificate does not represent a finding by the trial court that it is reasonably probable that a motion to withdraw plea based on appellant’s purported “mental impairment” would have been granted. Moreover, appellant executed a plea waiver form indicating that he had made a voluntary decision to enter his plea; his attorney affirmed that he had explained to appellant all matters relevant to that decision; and nothing in the record of the proceeding at which appellant entered his plea or the record of the sentencing hearing suggests appellant’s plea was the product of any factor(s) that interfered with exercise of his judgment. Thus, the record does not support appellant’s contention that it is reasonably probable the trial court would have granted a motion to withdraw appellant’s plea.
DISPOSITION
The judgment is affirmed.