Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEALS from judgments of the Superior Court of Los Angeles County Super. Ct. No. MA032026, William R. Pounders, Judge.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant Ramiro Ruvalcaba.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant Jorge Luis Ruvalcaba.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Defendants Ramiro Ruvalcaba (Ramiro) and Jorge Ruvalcaba (Jorge) appeal from judgments of conviction following the denial of motions to withdraw their no contest pleas.
For ease of reference, the defendants will be referred to by their first names.
Ramiro and Jorge, along with codefendants Ricardo Nunez and Salvador Perez, were charged with numerous crimes. Ramiro and Jorge were each charged with 66 offenses, including conspiracy, arson, criminal street gang conspiracy, first and second degree burglary, theft-related offenses and drug offenses. Each was charged with street gang enhancements.
During jury selection, pursuant to a plea bargain, Ramiro and Jorge each pled no contest to seven first degree residential burglary counts (Pen. Code, § 459) and admitted a gang allegation (id., § 186.22, subd. (b)(1)(A)) as to each count. The agreed-upon disposition included a sentence of 24 years in state prison. At sentencing, Ramiro and Jorge made motions to withdraw their no contest pleas, which were denied.
On appeal, Ramiro and Jorge contend that they were denied their right to counsel because they were not represented by counsel when the motions to withdraw the no contest pleas were made. Jorge also contends that the trial court erred in failing to conduct a Marsden hearing after he requested a new attorney. We find no error and affirm the judgment.
People v. Marsden (1970) 2 Cal.3d 118.
Since this appeal involves only defendants’ motions to withdraw their pleas, we do not set forth the facts of the crimes to which defendants pled no contest.
On October 27 and 30, 2006, the trial court was informed that Ramiro and Jorge wanted to withdraw their no contest pleas. The matter was continued to November 3, 2006, to permit their attorneys to be present when the motions were made. At the sentencing hearing, Ramiro and Jorge made motions to withdraw their pleas. The motions were denied, and the agreed-upon sentences of 24 years in state prison were imposed.
1. Jorge
Jorge’s attorney stated that he did not have any legal cause why judgment should not be pronounced but indicated that his client “may wish to address the court because he has informed me that he would like to withdraw his plea.” Jorge’s attorney stated that he would not make the motion. Jorge told the court: “I would like to relieve Mr. Palfi [counsel], and I would like some ample time to get a lawyer or myself, if possible.” The trial court replied that Jorge could represent himself for purposes of sentencing or making a motion to withdraw his plea, but “if you don’t have something in mind now about your motion, then I’m going to deny the request for further delay.”
Jorge then stated that he agreed to plead no contest because he was confused, and that none of the attorneys explained to him or his codefendants that it was not a “package deal,” i.e., that it was not required that all four defendants accept the deal. Jorge indicated that if he would have known that it was not a package deal, he would not have pled no contest. Jorge stated that his lawyer told him, “jump on the deal, you’re going to lose.” The trial court asked Jorge to explain why he would plead guilty in order that his codefendants could also plead guilty. Jorge responded that he did not know that he did not have to plead guilty.
2. Ramiro
After Jorge had been sentenced, Ramiro’s attorney stated that his client would like to address the court regarding a motion for a new trial. The trial court responded that Ramiro could be heard, and “[i]t’s your case now.”
Ramiro stated that his motion was similar to Jorge’s motion. He felt pressured because there were four attorneys speaking to them, he was not aware of what was going on, and he was not aware that it was not a package disposition.
The trial court responded that it had told the attorneys it was not a package deal. Ramiro stated that the attorneys “didn’t notify us of that situation.” Ramiro said he felt pressured because he believed it was a package deal, and if he knew that it wasn’t a package deal, he would not have pled no contest.
The trial court asked Ramiro, “Do you see any logic behind the argument you’re making that you plead guilty to offenses you did not commit in order to go to prison so someone else could plead guilty and go to prison also? Does that make any sense to you at all?” Ramiro responded, “It doesn’t, really.” In denying the motion, the trial court stated that Ramiro’s argument that he believed it was a package deal did not make sense.
DISCUSSION
Right to Marsden Motion by Jorge
Jorge contends that he was denied his right to a Marsden motion. We disagree.
Jorge stated, “I would like to relieve Mr. Palfi [counsel], and I would like some ample time to get a lawyer or myself, if possible.” A defendant’s Sixth Amendment right to the assistance of counsel entitles him to substitute appointed counsel if it clearly appears from the record that counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that it is likely counsel will be unable to provide defendant with effective representation. (People v. Welch (1999) 20 Cal.4th 701, 728.) Jorge’s failure to make specific complaints about counsel’s performance did not require a Marsden hearing. It appears that Jorge’s only claim regarding his counsel’s performance was the failure to file a motion to withdraw his no contest plea because he was confused and didn’t realize that it was not a package deal.
Even if the trial court should have conducted a Marsden hearing, any error in failing to do so was harmless beyond a reasonable doubt. (People v. Leonard (2000) 78 Cal.App.4th 776, 787.) The trial court correctly pointed out during Jorge’s motion to withdraw a plea, withdrawal of a guilty plea is permissible when the defendant establishes by clear and convincing evidence good cause that mistake or ignorance or another factor overcame his exercise of free judgment in entering into the plea disposition. (People v. Cruz (1974) 12 Cal.3d 562, 566.) The trial court indicated that “it looks to me like buyer’s remorse.” There was no indication from Jorge that any alleged confusion overcame his exercise of free will in entering into the plea agreement. The record is clear that he agreed to plead voluntarily and freely.
Counsel for Motions to Withdraw Pleas
Both defendants contend that they were denied their right to counsel because they were not represented when they made their motions to withdraw their no contest pleas. We disagree.
Defendants are entitled to have a motion to withdraw a plea presented by their appointed counsel. (People v. Brown (1986) 179 Cal.App.3d 207, 216.) Appointed counsel may decline to make a motion that, in counsel’s opinion, is frivolous. (People v. Smith (1993) 6 Cal.4th 684, 696.)
Defendants’ reliance on People v. Osorio (1987) 194 Cal.App.3d 183 is misplaced. In Osorio, a defendant sought to withdraw his guilty plea and his counsel acknowledged that good grounds existed. However, counsel refused to make the motion because of the potential for a vastly increased maximum sentence upon conviction of all of the original counts. The Court of Appeal indicated that, because there was a colorable basis for the motion to withdraw, counsel provided ineffective assistance by refusing to file the motion. In the instant case, neither of the attorneys failed to bring a potentially meritorious motion to withdraw a plea. Consequently, defendants were not deprived of their right to counsel.
DISPOSITION
The judgments are affirmed.
We concur: VOGEL, Acting P. J., ROTHSCHILD, J.