Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, No. VA102227. Michael Schuur, Judge.
Patrick J. Hennessey, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillete, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Following his no contest plea, appellant Arthur Morales was sentenced to seven years in prison based on the four-year upper term for assault with a deadly weapon and a three-year enhancement for personal infliction of great bodily injury. He contends that the trial court should have appointed substitute counsel and a medical expert to investigate whether there were grounds for withdrawing the plea. We reject the contention and affirm.
The evidence at the preliminary hearing showed that, while riding a bus, appellant threatened a man he did not know, fought with him, and stabbed him in the back. Prior to that confrontation, appellant exhibited bizarre and aggressive behavior toward other passengers on the bus, such as lewd comments to females, curses and threats to various people, and a physical fight with another male passenger.
Despite his unusual behavior on the bus, appellant’s conduct was appropriate on the day the plea was taken. He initialed and signed the written waiver form in the indicated places. At the proceedings, he said he understood the constitutional rights he was waiving and the consequences of the plea. He also stated that his counsel had explained his rights to him and had told him what was going to happen in court.
The information included a prior conviction for criminal threats, alleged both as a strike and as a serious felony. That allegation was stricken pursuant to the plea. If it had been found true, appellant’s prison sentence would have been doubled. (Pen. Code, § 1170.12, subd. (c)(1).)
The probation report shows a lengthy criminal history. Appellant told the probation officer that he uses multiple psychotropic medications for a bipolar disorder. In describing the incident, he said people on the bus attacked him. He also stated that his current attorney coerced him to make the plea, and a former attorney told him to withdraw it.
The scheduled sentencing hearing was continued after defense counsel said appellant might make a motion to withdraw the plea.
At the continued sentencing hearing, defense counsel told the court there was no legal basis for withdrawing the plea. The following discussion ensued:
“MR. GONZALES [defense counsel]: I did speak to him downstairs and Mr. Morales, he does have mental health issues. I did receive calls from people in jail as well as a gentleman from the—I spoke with another person about him. [¶] Upon speaking with him though, basically, [he complains that] it’s just too much time. Regarding the issue or risk of going to trial, he accepted the People’s offer of seven years. And Mr. Morales is, basically, saying it’s really too much time. He doesn’t want to do that. [He wants] something else, either withdraw the plea, fight the case or some community based intervention. [¶] But, for me[, to argue] anything like, he didn’t want to do it, duress, mistake, anything of that nature, I don’t see it. [¶] Although, he does say he was off his medication that day. But, I don’t know how long he had been off that medication or medicated that day alone or
“THE COURT: Well, I mean, the only thing that, I mean, that I could do is if you wanted to have a doctor -- I mean, if a doctor could testify he wasn’t in his right mind, I guess, he could say at the time he entered into the plea that would be some evidence of that. But, I don’t know if that is something you wanted to pursue or not.
“MR. GONZALES: Maybe out of an abundance of caution I should, perhaps.
“THE COURT: Well, I mean, that’s your decision. I’m just saying that that’s possible. That’s all I could say.
“MR. GONZALES: But as for when he pled, though, he was competent. He was aware of what was going on. In fact, we were about to start trial.
“THE COURT: No. No. I remember all that. But, now he’s coming to you and saying, well, I was off my medication. I mean, I don’t know anything other than that. I don’t know how this may have affected him one way or the other. [¶] My mom used to go off her medication, but I knew it because she would throw a can of string[] beans or a fork at me. So, I knew. [¶] But you never know. I mean, I don’t know how this affected him. I’m leaving it up to you if you want to pursue it or you don’t want to pursue it. That’s all I’m saying.
“MR. GONZALES: I don’t believe it’s necessary, to be honest. I don’t think it[’]s something that would really change anything.
“THE COURT: You’re probably right, but I’m giving you the option. [¶] So, is there any legal cause why sentence should not now be imposed?
“MR. GONZALES: Time is waived. No legal cause.”
The court then imposed sentence.
Appellant filed a notice of appeal in propria persona and requested a certificate of probable cause. He maintained that he should be allowed to withdraw his plea because “he was not taking his medications” at the time of the plea and therefore did not understand the proceedings or the rights he waived. The certificate of probable cause was issued.
The wording of the request was: “Mr. Morales [appellant] has indicated to his counsel that he was not taking his medications. As a result, he did not understand the proceedings when he entered his plea. [¶] Mr. Morales further indicates that he was not adequately explained his constitutional rights and was not aware of what rights he was waiving. [¶] Mr. Morales has since consulted with other lawyers who had informed him that entering a plea in this case was a mistake and he should vacate the plea and fight the case. [¶] Mr. Morales indicated that he only entered into a plea because his counsel forced him. But for his lawyer’s forceful tactics he would not have ple[d].”
Appellant contends that the trial court “erred by failing to (1) appoint medical experts to examine appellant to determine his mental state, not only currently, but, if possible, at the time of entry of his plea of guilty and, (2) continue the hearing for preparation of such report and, if necessary, appoint separate counsel to represent appellant at a motion to withdraw his plea, which potentially could have been based upon ineffective assistance of trial counsel for failure to conduct an appropriate mental health examination.”
The contention lacks merit. “A motion to withdraw a guilty plea must be supported by a showing of good cause.” (People v. Cruz (1974) 12 Cal.3d 562, 566; see Pen. Code, § 1018.) “[M]istake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of the plea, but good cause must be shown by clear and convincing evidence.” (People v. Castaneda (1995) 37 Cal.App.4th 1612, 1617.)
Counsel saw no legal basis for withdrawing the plea, as his personal observation of appellant on the day of the plea differed from appellant’s assertion that he entered the plea because he was not taking his medication. The record shows that appellant had no difficulty filling out the written plea form or responding to questions at the plea proceedings, so the record supports counsel’s assessment of appellant’s mental state on the day of the plea. Counsel is not “compelled to make a motion which, in counsel’s good faith opinion, is frivolous or when to do so would compromise accepted ethical standards.” (People v. Brown (1986) 179 Cal.App.3d 207, 216.)
Moreover, the trial court had no sua sponte duty to substitute counsel on its own accord (People v. Leonard (2000) 78 Cal.App.4th 776, 787), and also was not required to appoint a medical expert after defense counsel indicated that an expert was not needed.
We therefore find no error in the proceedings below.
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, Acting P. J., BIGELOW, J.