Opinion
H035814
11-29-2011
THE PEOPLE, Plaintiff and Respondent, v. BRADLEY SCOTT PROULX, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC640130)
Defendant Bradley Scott Proulx appeals a judgment entered following his guilty plea and sentencing. On appeal, defendant asserts the trial court erred in denying his request to represent himself, and in denying his motion to withdraw his plea.
STATEMENT OF THE CASE
The underlying facts of this case are omitted, because they are not relevant to the issues on appeal.
Defendant was charged by information in February 2007 with commercial burglary (Pen. Code, §§ 459, 460, subd. (b)); two counts of reckless driving (Veil. Code, § 2800.1), residential burglary (Pen. Code, §§ 459, 460, subd. (a)), vehicle theft with a prior (Veh. Code, § 10851, subd. (a); Pen. Code, § 666.5), two counts of attempted carjacking (Pen. Code, §§ 664, 215), two counts of misdemeanor hit and run (Veh. Code, § 2002, subd. (a)), misdemeanor harming a peace officer's dog (Pen. Code, § 600, subd. (a)), and misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)). The information also alleged defendant had suffered five prior strike convictions (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), served two prior prison commitments (Pen. Code, § 667.5, subd. (a)(1)), suffered one prior serious felony conviction (Pen. Code, § 667, subd. (a)), and was released on bail in another case when he committed the alleged felonies (Pen. Code, § 12022.1).
In January 2008, the court found defendant incompetent, and suspended criminal proceedings. Defendant was committed to the state hospital for treatment. The court declared defendant competent in September 2008, and reinstated criminal proceedings.
In December 2008, defendant entered a negotiated plea of guilty to felony carjacking, and the four misdemeanors alleged in the information. Defendant admitted the alleged prior strikes, the prison terms, the prior serious felony conviction, and the on-bail enhancement. In exchange for his plea and admissions, defendant was promised a sentence of 25 years to life plus five years. As a condition of his plea, defendant waived his appellate rights.
At his sentencing hearing in February 2010, defendant orally requested the court allow him to withdraw his plea. The court denied defendant's request, and sentenced him to a term of 25 years to life on the carjacking charge, plus five years for the serious felony enhancement. The remaining enhancements were stricken, and the remaining charges were dismissed.
Defendant filed a notice of appeal in September 2010, after this court granted his petition for relief from default. The trial court issued a certificate of probable cause in January 2011.
DISCUSSION
Defendant asserts on appeal that his waiver of appellate rights during the entry of his plea was invalid, because it was not knowing and intelligent. In addition, defendant argues the trial court erred by refusing his request to represent himself, and by denying his motion to withdraw his plea.
Waiver of Appellate Rights
Initially, the Attorney General argues defendant's claims on appeal are foreclosed by his waiver of appellate rights entered as a condition of his plea. Defendant asserts his waiver at the time he entered his plea was invalid, because it was not knowing and intelligent.
At the time defendant entered his plea, the following colloquy occurred in court:
"[PROSECUTOR]: Your Honor, the only other thing I would add is that [defendant] as a condition of his plea will agree to waive any Romero rights and any appellate rights. And as to the dismissed counts, there will be a Harvey stipulation.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
People v. Harvey (1979) 25 Cal.3d 754.
"THE COURT: Is that your understanding, [defense counsel]?
"[DEFENSE COUNSEL]: Yes, Your Honor.
"THE COURT: And your understanding, [defendant]?
"THE DEFENDANT: Yes."
Defendant asserts this colloquy was insufficient to demonstrate that he knowingly and intelligently waived his appellate rights when he entered his plea.
A defendant may affirmatively waive his constitutional rights to a jury trial, to cross-examine and confront witnesses, his privilege against self-incrimination, and his right to counsel. (People v. Panizzon (1996) 13 Cal.4th 68, 80.) As part of the agreement, a defendant may also waive his right to appeal. (Ibid.; citing People v. Vargas (1993) 13 Cal.App.4th 1653, 1658-1660.) "To be enforceable, a defendant's waiver of the right to appeal must be knowing, intelligent, and voluntary." (People v. Panizzon, supra, 13 Cal.4th 68, 80; citing People v. Vargas, supra, 13 Cal.App.4th at p. 1659.) "Waivers may be manifested either orally or in writing." (Panizzon, supra, at p. 80.) "The voluntariness of a waiver is a question of law which appellate courts review de novo." (Ibid.)
Here, the discussion of defendant's appellate rights during the entry of his plea was minimal. Indeed, the record shows the prosecutor merely stated that defendant agreed "to waive any Romero rights and any appellate rights." When asked by the court if he understood this statement, defendant simply responded, "Yes, your Honor." There was no written waiver entered.
The present case is similar to People v. Rosso (1994) 30 Cal.App.4th 1001, in which the court determined the defendant's waiver of his appellate rights was not adequate. In Rosso, the trial court advised the defendant of his constitutional rights, but his right to appeal was not mentioned. The court then asked the defendant whether he had discussed the rights with his attorney. The defendant replied affirmatively . The court asked the defendant whether he understood the rights. The defendant said that he did. The court then said, " 'Do you waive and give up these rights and your right to appeal?' " The defendant replied, " 'Yes, I waive them.' " There was no further mention of the defendant's appellate rights. (Id. at p. 1006.)
On appeal, the Rosso court rejected the claim that the defendant waived his appellate rights as a condition of his plea, reasoning that "there was neither a written waiver form including an advisement and waiver of appellate rights read, initialed, and signed by [defendant] after discussion with his attorney, nor an oral advisement of his appellate rights. . . . While there was a purported waiver, there was no advisement, and we cannot say [defendant's] waiver was knowing and intelligent." (People v. Rosso, supra, 30 Cal.App.4th at p. 1007.)
The Rosso court further held, " ' "[T]he valid waiver of a known right presupposes an actual and demonstrable knowledge of the very right being waived. [Citations.]" [Citation.] It " 'is the intelligent relinquishment of a known right after knowledge of the facts.' [Citation.]" The burden is on the party claiming the existence of the waiver to prove it by evidence that does not leave the matter to speculation, and doubtful cases will be resolved against a waiver. [Citation.] The right of appeal should not be considered waived or abandoned except where the record clearly establishes it.' " (People v. Rosso, supra, 30 Cal.App.4th at pp. 1006-1007.)
Here, the record does not clearly establish that defendant knowingly and intelligently waived his right to appeal. In particular, the single statement from the Prosecutor that a condition of the plea agreement is that defendant would waive his appellate rights is the only mention of defendant's right to appeal. This single mention does not in any way demonstrate that defendant in fact understood the rights he was waiving. Because it is not clear that defendant understood his appellate rights, and intelligently waived them, we find defendant is not precluded by waiver from bringing this appeal.
Right to Self-Representation
Defendant asserts the trial court erred by denying his request to represent himself, and that this error violated his Constitutional rights.
A criminal defendant has "two constitutional rights with respect to representation that are mutually exclusive[, namely,] . . . the right to be represented by counsel at all critical stages of a criminal prosecution [citations, and] . . . because the Sixth Amendment grants to the accused personally the right to present a defense, a defendant possesses the right to represent himself or herself. [Citation.]" (People v. Marshall (1997) 15 Cal.4th 1, 20 (Marshall);see also Faretta v. California (1975) 422 U.S. 806 (Faretta).)
The Marshall court stressed the importance of the requirement that a defendant's assertion of the right to self-representation be unequivocal. It noted that "[s]everal lower courts have declared that a [self-representation] motion made out of a temporary whim, or out of annoyance or frustration, is not unequivocal—even if the defendant has said he or she seeks self-representation. [Citations.]" (Marshall, supra, 15 Cal.4th at p. 21.)
"The court faced with a motion for self-representation should evaluate not only whether the defendant has stated the motion clearly, but also the defendant's conduct and other words. Because the court should draw every reasonable inference against waiver of the right to counsel, the defendant's conduct or words reflecting ambivalence about self-representation may support the court's decision to deny the defendant's motion. A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied." (Marshall, supra, 15 Cal.4th at p. 23.)
In reviewing a claim of Faretta error, an appellate court conducts an examination of the entire record to ascertain whether there was an unequivocal assertion by the defendant of the right to self-representation. (Marshall, supra, 15 Cal.4th at p. 25.)
A review of the entire record in this case discloses that defendant did not make an unequivocal assertion of his right to self-representation. Defendant's request to represent himself evolved over a series of requests to discharge his appointed counsel due to defendant's belief that his attorney was incompetent. The first request occurred when defendant made a Marsden motion to discharge his attorney, Deputy Public Defender Thompson Sharkey. During the hearing, defendant expressed his dissatisfaction with Mr. Sharkey's representation, including the fact that Mr. Sharkey had not conducted defendant's requested investigation, and had not provided him copies of the 911 transcripts. In addition, defendant told the court, "I would rather represent myself than put my faith in Mr. Sharkey's hands." The court informed defendant that he had a right to represent himself, but that the request needed to me made in a motion when the prosecutor was present.
People v. Marsden (1970) 2 Cal.3d 118.
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Subsequently, defendant's case was calendared for a motion to proceed in pro per. At the hearing, the court determined that defendant's request for self-representation was based on his claim that his attorney from the public defender's office was incompetent. As a result, the court conducted another Marsden hearing, before considering defendant's request for self-representation. During the hearing, defendant stated, "I'm willing to represent myself rather than go with this particular attorney." The discussion between the court and defendant continued, with the court encouraging defendant to continue with Mr. Sharkey's services, and ensuring defendant that Mr. Sharkey was a competent attorney. Finally, defendant stated, "I just want to articulate where I'm at so you know I absolutely will not go with Mr. Sharkey. And I'm prepared to take it on myself and accept the responsibilities and live with 200 years to life as opposed to having Mr. Sharkey represent me and go at it half-heartedly." The court then continued the matter for a ruling on defendant's motion.
Subsequently, the court denied defendant's request to represent himself, telling him, "[t]he law is very clear that you have the right to proceed to represent yourself. It's a constitutional right, but my stumbling points and the analysis on this was that it has to be done clearly and unequivocally. . . . [Y]ou're frustrated with the representation you have, that you're running into what you perceive to be blocks in careful representation, and that is not an unequivocal waiver that the Court can acknowledge. And I'm going to deny it on that basis."
In the context of the entire proceedings, we do not view defendant's statements at these hearings, either individually or collectively, unequivocal assertions of his Faretta rights. Rather, it is clear defendant was repeating his belief that his appointed attorney was incompetent, did not have his best interest in mind, and was not adequately representing him. Defendant expressed that he would prefer to represent himself, and accept whatever consequences that might bring, than continue being represented by Mr. Sharkey.
Defendant's statements are similar to those in a number of cases in which appellate courts have rejected claims of Faretta waiver. For example, in People v. Wright (1990) 52 Cal.3d 367, disapproved on other grounds in People v. Williams (2010) 49 Cal.4th 405, 408, the defendant expressed his dissatisfaction with counsel, telling the court, " 'And I feel like this—like me and he can't get along. If I got to go down, let me go down by myself because I really don't need no overworked PD trying to help me fight my case when he not [sic] going to do nothing for me.' " The court rejected defendant's Faretta error claim, finding that there was no unequivocal assertion of the right to self-representation. (Wright, supra, at pp. 409-410; see also People v. Hines (1997) 15 Cal.4th 997, 1027-1028 [the defendant's statement that if his Marsden motion were denied, he " 'would like to proceed in pro per if possible' " held not unequivocal Faretta request]; People v. Skaggs (1996) 44 Cal.App.4th 1, 4-7 [the defendant's statement, after making Marsden motion, that "[he'd] like to go pro per if [he] could" was not sufficiently unequivocal to constitute Faretta motion].)
Therefore, based upon our review of the entire record (Marshall, supra, 15 Cal.4th at p. 25), and "draw[ing] every reasonable inference against waiver of the right to counsel" (id. at p. 23), we conclude that defendant did not unequivocally invoke the right to self-representation. Accordingly, we reject defendant's claim of Faretta error.
Motion to Withdraw Plea
Defendant asserts the trial court erred in summarily denying his request to withdraw his guilty plea, when he was proceeding without the assistance of counsel. He argues he was denied the right to effective assistance of counsel in violation of the Sixth Amendment when he was required to present his motion to withdraw his plea without the assistance of counsel.
A defendant may move to withdraw his plea, at any time before judgment, on a showing of good cause. (Pen. Code, § 1018.) "Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citations.] But good cause must be shown by clear and convincing evidence." (People v. Cruz (1974) 12 Cal.3d 562, 566.) Furthermore, "[g]uilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged. [Citations.]" (People v. Hunt (1985) 174 Cal.App.3d 95, 103.) " ' "[T]he withdrawal of such a plea rests in the sound discretion of the trial court and may not be disturbed unless the trial court has abused its discretion." [Citation.]' " (People v. Wharton (1991) 53 Cal.3d 522, 585.)
"To establish good cause, it must be shown that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment. [Citations.] Other factors overcoming defendant's free judgment include inadvertence, fraud or duress. [Citations.] However, '[a] plea may not be withdrawn simply because the defendant has changed his mind.' [Citations.]" (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.)
Here, during his sentencing hearing, defendant made a statement to the court requesting to withdraw his plea. Defendant's trial counsel did not participate in this statement, nor did he concur with defendant's request or confirm that there was good cause for the motion. Defendant told the court he should be allowed to withdraw his plea because he was "forced into pleading guilty without adequate time to process and fully understand all of the facts of this deal. I was bombarded the last time we were in court, and my family was also greatly confused when they helped persuade me. They believed I was eligible for half time and that I will be paroled in 15 years, not 30." Defendant expressed his belief that his constitutional rights had been violated, and that he never would have accepted the plea bargain if he had known he was giving up his right to appeal.
The court considered defendant's request, and denied it, finding that at the time the plea was taken, defendant "clearly appeared to understand what was occurring in the courtroom, understanding the process, the questions being asked, and was giving appropriate, reasonable answers." The court further found that defendant made a "knowing, intelligent, free and voluntary waiver of his constitutional rights." Following the court's denial of defendant's request, it proceeded with sentencing and entered judgment.
Defendant now asserts the court's denial of his request was error, not only because he established good cause to withdraw the plea, but also because he was forced to make his request without the assistance of his counsel.
Defendant cites two cases in support of his claim—People v. Brown (1986) 179 Cal.App.3d 207 (Brown) and People v. Osorio (1987) 194 Cal.App.3d 183 (Osorio), disapproved on other grounds in People v. Johnson (2009) 47 Cal.4th 668. In Brown, trial counsel informed the court at sentencing that the defendant wanted to withdraw his plea, but that she was not making the motion for him. (Brown, supra, 179 Cal.App.3d at p. 211.) The defendant 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 noted that the defendant's motion to withdraw his plea was not frivolous, and held that counsel should not have refused to bring it. (Id. at p. 216.) The court concluded that the defendant was "deprived of his right to make an effective motion to withdraw his plea" and remanded the case with instructions for a Marsden hearing should counsel continue to refuse to bring the motion. (Id. at pp. 213-216.) In so holding, the court stated that it was not suggesting that counsel is required to make a frivolous motion. (Id. at p. 216.)
Osorio followed Brown. In Osorio, the defendant stated at sentencing that he wanted to withdraw his plea. (Osorio, supra, 194 Cal.App.3d at pp. 185-186.) Trial counsel indicated there was good cause, but refused to bring the motion in " 'good conscience' " because it would result in reinstatement of counts dropped under the plea bargain. (Id. at p. 186.) On appeal, the court determined that the case should be remanded to allow defendant to bring a motion to withdraw the plea. (Id. at pp. 188-189.) Both cases therefore involved counsel's refusal to bring a potentially meritorious motion to withdraw the defendant's plea.
The primary distinction between the present case and both Brown and Osorio, is that here, defendant's counsel did not refuse to bring a potentially meritorious motion to withdraw a plea. At the sentencing, defendant's counsel did not state there was good cause for the motion, instead allowing defendant to proceed with his statement independently. In addition, the record shows defendant was clearly informed about the terms of the plea agreement, including the sentence of 25 years to life plus five years, and that he had discussed the plea with his counsel, who had explained all the consequences.
The trial court did not abuse its discretion in denying defendant's request to withdraw his plea, nor did it violate defendant's Sixth amendment right to counsel by requiring defendant to proceed with his motion without the assistance of counsel. Unlike Brown and Osorio, here, defendant's counsel did not refuse to bring a colorable motion to withdraw a plea.
DISPOSITION
The judgment is affirmed.
RUSHING, P.J. WE CONCUR:
PREMO, J.
ELIA, J.