Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F10242
ROBIE, J.
Defendant Jayson Nathaniel Saul pled no contest to possession of cocaine for sale. Thereafter, he wanted to withdraw his plea and substitute counsel was appointed for that purpose. After reviewing the matter, substitute counsel informed the court that she did not believe defendant had a right to withdraw his plea and no such motion was filed. Defendant proceeded to sentencing with his original counsel.
On appeal, defendant contends the trial court erred when it appointed substitute counsel and in failing to ensure that defendant was represented by counsel in his motion to withdraw his plea. We affirm.
BACKGROUND
Defendant was charged with one count of possession of cocaine for sale. On February 16, 2007, he pled no contest in exchange for a stipulated sentence of four years in state prison.
At the plea hearing, defense counsel, Meghan Cunningham, stated she had discussed the charges and the plea with defendant and was satisfied defendant understood everything. Defendant confirmed to the court that he understood the charges, his rights, and the plea agreement. He also confirmed that he was pleading no contest voluntarily, after fully discussing the case with his counsel, and that he was not “under the influence of alcohol or any drug or narcotic or medication at [the] time.” The court accepted the plea and placed the matter on calendar for March 23, 2007, for sentencing.
At the sentencing hearing, Cunningham requested and received a continuance to review the case “in regard to [defendant]’s competency at the time of entering [the] plea.” On June 8, 2007, Cunningham received another continuance because she was in the process of getting medical records. She said that defendant intended to withdraw his plea but could not make the motion until they received the medical records. On June 22, 2007, Cunningham received another continuance because she was still in the process of collecting medical records.
On August 10, 2007, Cunningham told the court that the second set of medical records she had subpoenaed had been filed with the court and asked that those records be released to the defense. She also requested to have a panel attorney appointed because the medical records she had received indicated that defendant was on medication at the time he entered his plea. She explained that she was requesting a panel attorney because she had “been informed that it is [her] office policy not to represent [their] clients who are seeking to withdraw their pleas. . . .”
The trial court asked defendant if he wished to withdraw his plea and defendant confirmed that he did. The court then appointed panel attorney, Jennifer Moncrieff, for the sole purpose of representing defendant on his motion to withdraw his plea. The matter was set for hearing on the motion and for sentencing on August 24, 2007, but was continued to September 14, 2007, at Moncrieff’s request, so she could receive additional medical records from the jail.
Both Cunningham and Moncrieff were present at the September 14, 2007, hearing. Moncrieff informed the court that the allegation was that defendant was overly medicated and could not make an informed decision or understand the nature and consequences of his plea. Moncrieff explained that she had spoken with defendant, Cunningham, defendant’s doctor, and the custodian of records for the sheriff’s department. She had also reviewed defendant’s medical records from the jail and Rio Cosumnes Correctional Center. Based on her investigation, she determined that defendant “does not have a right to withdraw his plea. [¶] He was not on the medications that would have caused confusion at the time the plea was taken. Specifically, he was not taking Neurontin combined with [P]henobarbital, which can, if taken too much, cause the confusion he described. He was not prescribed those medications until eight days after the plea.”
The medical records submitted to the court also reflect that, although defendant was given other medications earlier, defendant was prescribed Neurontin and Phenobarbital on February 24, 2007. The sheriff’s department medication administration record reflects that defendant began being given Neurontin and Phenobarbital on February 25, 2007.
Cunningham conferred with defendant and told the court that defendant believed there was a mistake in the records because he had always been on those medications because he needs them. Defendant added that he needed them for his seizures so there must be a mistake. Moncrieff then stated “[she was] aware of [defendant]’s contention in that regard and [she] specifically spoke to the custodian of records as to [defendant]’s contentions. And [the custodian] informed [her] she searched the records completely and [the custodian] informed [her] that, whether he needed it or not, he was not prescribed those medications until eight days after the plea, on the 24th of February. So [she] can only base [her] decision on the information [she has].”
The trial court then noted that “in answering the question of whether or not [defendant] had taken any drugs, either prescribed or otherwise, at the time of the plea, . . . he entered or responded to the court that he had not.” The court thereafter proceeded to judgment and sentencing.
Cunningham represented defendant during sentencing. The trial court sentenced defendant to the stipulated term of four years in state prison.
DISCUSSION
Defendant contends the trial court erred when it appointed Moncrieff as substitute counsel for purposes of the motion to withdraw his plea. He argues that, as a result, his conviction should be reversed and he should be permitted to withdraw his plea. We disagree.
Defendant first argues the trial court erred by appointing Moncrieff to represent him for purposes of his motion to withdraw his plea because there had not been an adequate showing that he was embroiled in a conflict with Cunningham or that Cunningham refused to represent him. He further argues that the procedure of appointing Moncrieff for the limited purpose of his motion, rather than relieving Cunningham and appointing Moncrieff for all purposes, has been disapproved.
Even assuming, without deciding, that by appointing Moncrieff for the limited purpose of defendant’s motion, the trial court employed a procedure that has been disapproved by the California Supreme Court, we reject defendant’s contention that his rights were violated or that reversal is required.
As the court said in People v. Dancer, infra, “[w]e note that in People v. Makabali (1993) 14 Cal.App.4th 847 [18 Cal.Rptr.2d 72], the trial court appointed new counsel to investigate whether to present a motion to withdraw a plea based on incompetence of trial counsel. New counsel did so and decided there was no basis for a motion. Original counsel then continued representing defendant. (Id. at pp. 850, 852-853.) In People v. Smith (1993) 6 Cal.4th 684 [25 Cal.Rptr.2d 122, 863 P.2d 192], the court in dicta discussed Makabali and observed, ‘We are unaware of any authority supporting the appointment of simultaneous and independent, but potentially rival, attorneys to represent defendant. When a Marsden motion is granted, new counsel is substituted for all purposes in place of the original attorney, who is then relieved of further representation.’ (Id. at p. 695.) [¶] The circumstances here are materially distinguishable from Makabali. Defendant made no Marsden motion. (People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 456 P.2d 44].) Defendant expressed no dissatisfaction with or a lack of confidence in [Cunningham]. And [Cunningham] and [Moncrieff] were not potential rivals because [Moncrieff] was not being asked to evaluate the performance of [Cunningham]. Consequently, the dicta in Smith does not suggest that the practical remedy fashioned by the court in this case was inappropriate or improper.” (People v. Dancer (1996) 45 Cal.App.4th 1677, 1687, fn. 4, overruled on other grounds in People v. Hammon (1997) 15 Cal.4th 1117, 1123.)
In People v. Dickey (2005) 35 Cal.4th 884, the defendant’s trial counsel requested separate counsel be appointed to represent the defendant on a motion for new trial based on ineffective assistance of counsel. (Id. at p. 918.) The idea for appointment of separate counsel for this limited purpose was counsel’s, not defendant’s. (Ibid.) The California Supreme Court concluded that the trial court had not committed Marsden error, as defendant had not indicated that he wanted a substitute attorney, but rather, “[t]o the extent he made his wishes known, he wanted to use counsel’s assertedly incompetent performance . . . as one of the bases of a motion for new trial, and he wanted to have separate counsel appointed to represent him in the preparation of such a motion. As his expressed wishes were honored, he has no grounds for complaint now.” (Id. at pp. 920-921.)
Here, as in Dickey, Cunningham specifically requested separate counsel be appointed for the limited purpose of representing defendant on a motion to withdraw his plea. As those expressed wishes were honored, he has no grounds for complaint now.
We further reject defendant’s suggestion that he was prejudiced by the mere fact that he had a different appointed attorney for purposes of his motion than the one originally appointed. He cites no authority for the proposition that being appointed a second attorney is per se prejudicial, nor has he demonstrated the second attorney, Moncrieff, provided ineffective assistance of counsel.
Defendant also contends that, even if the trial court did not prejudicially err by appointing Moncrieff as substitute counsel for the limited purpose of the motion to withdraw his plea, the trial court erred by failing to ensure that he was represented by counsel on his motion to withdraw his plea. He is wrong.
According to defendant, he was effectively without representation in the plea withdrawal proceedings because Moncrieff did not ultimately bring the motion. However, the fact that Moncrieff did not bring the motion does not mean that defendant was not represented in the proceedings.
A trial court may order withdrawal of a plea only if the defendant has made a sufficient showing, by clear and convincing evidence, of good cause to do so. (People v. Weaver (2004) 118 Cal.App.4th 131, 145.) Good cause is shown when the defendant establishes by clear and convincing evidence that he was operating under mistake, ignorance, duress or some other factor that overcame the exercise of his free judgment at the time the plea was taken. (Id. at pp. 145-146.)
Here, the alleged basis for withdrawal of the plea was defendant’s contention that he was overly medicated and could not make an informed decision or understand the nature and consequences of his plea. Moncrieff informed the court that she had reviewed defendant’s medical records and had spoken with defendant, Cunningham, defendant’s doctor, and the custodian of records for the sheriff’s department. Moncrieff’s investigation, and the medical records filed with the trial court, showed that defendant was not taking or prescribed Neurontin and Phenobarbital, which can cause confusion if taken in excess, until eight days after the plea. Moncrieff stated that she was aware of defendant’s contention that the records must be incorrect, but she specifically investigated this contention and all the evidence indicated that he was not given those medications until after he entered into his plea.
While defendant is entitled to have his motion presented by counsel, counsel is not required to bring the motion if she determines it does not have merit. (See People v. Brown (1986) 179 Cal.App.3d 207, 214-216.) Even if substitute counsel is appointed for the purposes of investigating a motion to withdraw the plea, “[w]hether, after such appointment, any particular motion should actually be made will, of course, be determined by the new attorney.” (People v. Smith (1993) 6 Cal.4th 684, 696.)
Although defendant claimed that there must be some mistake, the evidence established that he was not on the medications that would have caused confusion at the time the plea was taken. Thus, Moncrieff reasonably concluded it would be impossible for her to establish, by clear and convincing evidence, otherwise. Defendant’s right to be represented by counsel did not require Moncrieff bring a meritless or frivolous motion. (See People v. Brown, supra, 179 Cal.App.3d at p. 216.)
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON , Acting P. J., MORRISON , J.