Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F04879
SCOTLAND, P.J.
On May 17, 2006, officers responded to a reported shooting at the Sacramento residence of defendant Robert T. Lozano. When the gunfire was heard, defendant and his sister, Katrina Lozano, were inside her bedroom with the door closed. Katrina’s boyfriend went into the bedroom and found that Katrina had been shot. Taken to the hospital, she at first refused to identify her assailant but later told officers that defendant shot her. She said it was an accident and she did not want her brother to “do life because of me.”
For simplicity and to avoid confusion, because she has the same last name as defendant, we will hereafter refer to Katrina Lozano by her first name.
Pursuant to People v. West (1970) 3 Cal.3d 595, defendant entered a negotiated plea of no contest to assault with a firearm (Pen. Code, § 245, subd. (a)(2)), admitted personally using a gun in committing the offense (Pen. Code, § 12022.5, subd. (a)), and stipulated that he would be sentenced to an aggregate term of 14 years in state prison, in exchange for the dismissal of charges of attempted murder (Pen. Code, §§ 664/187, subd. (a)), being a convicted felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)), and various firearm enhancements (Pen. Code, §§ 12022.53, subds. (b), (c), and (d)). He was sentenced in accordance with the plea agreement.
Defendant appeals and has obtained a certificate of probable cause. (Pen. Code, § 1237.5.) He contends that he was denied the effective assistance of counsel in his attempt to withdraw his plea. We disagree and shall affirm the judgment.
BACKGROUND
Before sentence was imposed, defendant was asked if he wished to address the court. He replied that he agreed to the plea only because his family told him “it was an accident” and his counsel had said, in defendant’s words, “you guys would give me [a] lower sentence, 14 years.” He later stated: “If not, I don’t want to take this deal, take my plea back go to trial, that’s what they told me.”
Defense counsel responded that defendant was “getting into areas that should not take place in a public record” and that counsel did not intend to make a motion to withdraw the plea.
Defendant continued to protest. He talked over the court as it attempted to pronounce the sentence, so defense counsel suggested an examination be made of defendant outside the presence of the prosecutor.
The court agreed and conducted an in camera hearing with defendant and defense counsel. Defendant told the court that both his sister and mother said the shooting was an accident, but now everyone was changing stories. He took the plea offer because “they” said it was an accident and he would not get the entire 14-year term but would instead be “looking at 12 or ten years.” Defendant asserted that before the plea was entered, defense counsel told him he could not call any witnesses at his trial. He also claimed his sister was lying and he could bring in witnesses to prove it, but no one “wants to, you know, really take my case and help me.”
When the court asked defendant what he wanted, defendant indicated he did not know. Defense counsel then summarized the case, telling the court that defendant was facing a 25-year-to-life sentence on the attempted murder charge with alleged enhancements, but that because the family did not want to go through a trial and were “in a somewhat forgiving mood,” the People had agreed to “an extremely generous offer of a plea to assault with a deadly weapon with a ten-year enhancement rather than a 25-to-life enhancement.”
Defense counsel further stated that defendant persistently believed that his sister and mother would say the incident “was a misunderstanding, an accident,” but that counsel conferred with them several times “and that is decidedly not the case as you heard this morning.” Counsel told defendant what his mother and sister had said, and that if he proved his contrition to the probation officer there was “some slim, but not very good chance” the court would impose a 12-year term.
Earlier at the sentencing hearing, defendant’s sister and mother forgave defendant for the shooting but asked him to accept responsibility for what he had done.
Defense counsel concluded by stating the prosecutor and the probation officer were willing to enforce the terms of the plea agreement, “and I personally see no grounds for moving to withdraw the plea.” Asked by the court if he joined in “the motion,” defense counsel reiterated he would not move to withdraw the plea.
Defendant responded by exclaiming: “You guys tell me that I could bring witnesses in.” He claimed to have asked counsel to bring in a gun expert, and doctor, and witnesses to the event, but counsel told him no, saying he could not call witnesses.
Defense counsel replied that he told defendant he might call such witnesses at trial, but defendant’s sister would still testify that defendant shot her in the chest. Counsel also said there was never a dispute regarding which gun was fired, only who fired it, and the victim was “always . . . very clear that she would testify” defendant was the shooter.
Asked by the court whether he ever told defendant he could not call witnesses at trial, defense counsel stated: “No, certainly not.”
Defendant countered by asserting that counsel declined a request to seek a dismissal. He claimed that the victim’s boyfriend was in the house, left after she was shot, and was later stopped by the police. Defendant also questioned why the police never tested the boyfriend’s hands for gun residue before eliminating him as a suspect.
Defendant continued by asserting that “they” issued a warrant for his arrest even though his sister had not yet made a statement, and reiterated his claim that the authorities failed to properly investigate the boyfriend to determine whether he had gunpowder residue on his hands. He stated: “Just because somebody said I did a crime and I committed this crime doesn’t mean I did it,” and he was “fighting for my life here” while everyone thought this was a game. Defendant was “trying to get people to talk to [him] and get another lawyer, but nobody want[ed] to help [him].” Defendant concluded by claiming that his sister was a drug addict and that the probation report incorrectly stated he was unemployed when the shooting occurred.
Defense counsel, who had been a criminal defense attorney for 36 years, stated that he had discussed with defendant the matters he had brought up regarding his case, but “the trump card” was the victim’s statement that her brother, defendant, fired the gun. Counsel also noted defendant wanted inconsistent defenses, denying he fired the gun while also claiming the shooting was accidental.
Defense counsel had advised defendant that he had a right to a trial, and counsel would try the case if defendant wished, but that the chances of success would be very slim, and a guilty verdict would expose him to a life term.
The court agreed with counsel’s evaluation of the case because defendant was looking at a 25-year-to-life sentence and the evidence against him was “extremely strong.” Believing defense counsel, not defendant, to the extent their statements conflicted, the court found there was no legal basis for withdrawing the plea and proceeded to sentence defendant.
DISCUSSION
Penal Code section 1018 allows a defendant, upon a showing of good cause, to withdraw his plea before judgment has been entered. Although this section refers to the withdrawal of guilty pleas, it also applies to no contest pleas. (E.g., People v. Brown (1986) 179 Cal.App.3d 207, 213.) Good cause may be established by a showing that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment (such as inadvertence, fraud, or duress), and must be demonstrated by clear and convincing evidence. (People v. Weaver (2004) 118 Cal.App.4th 131, 145-146.) The court’s decision whether to allow a defendant to withdraw a guilty or no contest plea is discretionary, and we will not disturb it absent a showing the trial court has abused its discretion. (People v. Mickens (1995) 38 Cal.App.4th 1557, 1561.)
A defendant has the right to be represented by counsel at all stages of the proceedings, including a motion to withdraw the plea. (People v. Brown, supra, 179 Cal.App.3d at p. 214 (hereafter Brown).)
Defendant contends that “instead of ensuring [his] right to effective representation in his effort to withdraw his plea, the court improperly allowed [defendant], whose counsel was present, to personally make the request to withdraw his plea.” (Citing Brown, supra, 179 Cal.App.3d at pp. 214-215 [“It was improper to permit defendant to bring his motion in pro. per. while he was still represented by counsel and he had not waived his right to counsel”].) We find no error.
As defendant acknowledges, Brown explicitly noted that, while an accused is entitled to the effective representation of counsel for a motion to withdraw a plea, “[w]e do not suggest that counsel is compelled to make a motion which, in counsel’s good faith opinion, is frivolous or when to do so would compromise accepted ethical standards.” (Brown, supra, 179 Cal.App.3d at p. 216.) Because “[s]uch a state of affairs” was not before the appellate court in Brown, it declined to articulate a rule that would apply if defense counsel concluded it would be frivolous or unethical to move for withdraw of a plea of guilty or no contest. (Ibid.)
When presented with such a situation, other courts have held that defense counsel’s refusal to present a motion to withdraw the plea does not amount to abandonment of the client if the motion would “involve potential compromise of legal or ethical standards.” (People v. McLeod (1989) 210 Cal.App.3d 585, 587, 589-590; see also People v. Makabali (1993) 14 Cal.App.4th 847, 852-853.)
In defendant’s view, his case is indistinguishable from Brown because both involved no contest pleas and the defendants’ expressed desire to withdraw their pleas; appointed counsel were unwilling to move to withdraw their clients’ pleas; the defendants requested new counsel, and both trial courts refused to allow defendants to withdraw their pleas and declined to appoint new counsel. We are not persuaded.
Here, unlike in Brown, the trial court conducted a detailed inquiry into defendant’s reasons for wanting to withdraw his plea and defense counsel’s refusal to make the motion, and found there was no legal basis for withdrawing the plea, i.e., such a motion would be frivolous. The trial court also found that defendant’s allegations against the victim, defendant’s mother, and defense counsel lacked credibility, i.e., making a motion based on defendant’s allegations would compromise ethical standards. The record supports the trial court’s findings.
Under the circumstances presented in this case, defendant was not deprived of the effective assistance of counsel with respect to his request to withdraw his plea; and the court did not err in declining to allow defendant to do so. (See People v. Makabali, supra, 14 Cal.App.4th at pp. 852-853; People v. McLeod, supra, 210 Cal.App.3d at pp. 589-590.)
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect that the firerm enhancement was imposed pursuant to Penal Code section 12022.5, subdivision (a), not subdivision (a)(1), and to send a copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: BLEASE, J., DAVIS, J.