Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. FF405835
McAdams, J.
Defendant Louis Schotl was convicted by plea of one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378), one count of possession of hydrocodone (Health & Saf. Code, § 11350, subd. (a)), one count of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)), and one misdemeanor count of possession of a firearm with identification marks removed (§ 12094, subd. (a)). As part of the plea agreement, the court dismissed two other counts. The court sentenced defendant to the lower term of 16 months in state prison for possession of methamphetamine for sale, imposed concurrent sentences of 16 months each for possession of hydrocodone and possession of a firearm, and sentenced defendant to 30 days in jail concurrent for possession of a firearm with identification marks removed.
All further statutory references are to the Penal Code unless otherwise stated.
Prior to sentencing, defendant moved to withdraw his plea on the grounds that he was incapable of understanding the consequences of the plea because he had not taken medication he needed to function mentally for some time prior to entry of the plea. The court denied the motion.
On appeal, defendant contends he was denied effective assistance of counsel at the hearing on the motion to withdraw the plea because his attorney had a conflict of interest when he testified at the hearing, his attorney failed to present evidence that would have assisted defendant in prevailing on the motion, and his attorney failed to investigate his mental impairment. He argues the court violated his due process rights when it failed to respond to the conflict of interest and obtain a waiver. He asserts the court erred in ordering him to pay $500 in attorney fees for services rendered by the public defender. We conclude defense counsel had a conflict of interest that deprived defendant of counsel when defense counsel testified at the hearing on the motion to withdraw the plea. We shall therefore reverse the order on the motion to withdraw the plea and remand for further proceedings. We also conclude the court erred in ordering the attorney fees and reverse the attorney fee order and remand to the trial court for further proceedings.
FACTS
In March 2004, an officer with the Unified Narcotics Enforcement Team (UNET) observed the sale of a controlled substance in the motel room where defendant lived in Morgan Hill. The officer obtained a search warrant for defendant’s room and executed it on March 26, 2004. According to the motel manager, defendant and his brother had lived in the same room for 15 years.
This statement of facts is based on the testimony of one of the UNET officers at the preliminary hearing and at the hearing on defendant’s motion to suppress.
Upon searching the room, the UNET officers found 16.6 grams of methamphetamine in rock form in a plastic baggie, a digital gram scale, seven hydrocodone tablets, 34 Ritalin capsules in an acetaminophen bottle, a gray revolver of unknown caliber, a .22 caliber revolver with the serial number obliterated, 44 nine millimeter rounds, seven shotgun shells, twenty-one .38 caliber rounds, one .30/30 caliber round, and one .410 caliber round. The officers also found surveillance equipment, including two cameras that were mounted in the motel room window and aimed at the parking lot.
After the officers began their search, they detained defendant in a vehicle in the motel parking lot. Later, defendant helped the officers locate the .22 caliber revolver. He told the police he had found it in an abandoned car the day before and planned to turn it in to the police when his brother came home. Defendant admitted possessing the methamphetamine for personal use and said he bought it from a man in Madera for $250.
Based on the totality of the circumstances, the amount of narcotics, and the evidence seized, the officer who testified at the preliminary hearing, who had been recognized as an expert in possession of controlled substances, opined that defendant possessed the methamphetamine for sale.
PROCEDURAL HISTORY
Initially, defendant was represented by the public defender. On December 22, 2004, the public defender requested the appointment of a doctor to conduct a psychiatric examination of defendant so that he could advise defendant “whether to enter or withdraw a plea based on insanity or to present a defense based on his mental or emotional condition.” The public defender told the court “defendant has a long history of mental illness; [¶] [his] current mental status is very unstable and professional consultation is necessary to determine if he is competent to stand trial.” The court appointed a physician to evaluate defendant. There is nothing in the record indicating that the examination ever took place.
On May 6, 2005, the court granted defendant’s request to relieve the public defender and substitute private counsel, Anthony Pagkas. At that time, the court ordered that “attorney fees are not to exceed $500.”
On November 3, 2005, the parties entered into a plea agreement in which the prosecution agreed to dismiss two of the charges in exchange for defendant’s agreement to plead no contest to possession of methamphetamine for sale (Health & Saf. Code, § 11378), possession of hydrocodone (Health & Saf. Code, § 11350, subd. (a)), one count of possession of a firearm by a felon (§ 12021, subd. (a)), and possession of a firearm with identification marks removed (§ 12094, subd. (a), a misdemeanor). The agreement provided that defendant’s maximum sentence would be 16 months.
On January 23, 2006, defendant filed a motion to withdraw his plea, arguing that he was incapable of fully and freely understanding the consequences of his plea because he had not taken medication he needed to function mentally for some time prior to entry of the plea. Defendant and his counsel appeared at the hearing on the motion to withdraw the plea on February 3, 2006. The court asked whether defense counsel had obtained the transcript of the change of plea hearing. Defense counsel advised the court that he had never made a motion to withdraw a plea before and had not ordered the transcript. The court told defense counsel to obtain the transcript and continued the hearing to February 24, 2006. At the conclusion of the hearing, the prosecutor advised the court and defense counsel that he intended to call defense counsel as a witness at the hearing on the motion and stated, “He’s . . . handling the motion. There’s an issue there.”
At the beginning of the hearing on February 24, 2006, the prosecutor restated his intent to call defense counsel as a witness. Both defendant and defense counsel testified. Defendant told the court that he had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and dyslexia in 1964 (at age 4) and that he may be bipolar. At the time of the hearing, he was taking methylphenidate (Ritalin), Adderall (an amphetamine) and hydrocodone (generic for Vicodin, a pain killer). A doctor had prescribed these medications two months before the hearing. Defendant told the court the medications affect his ability to function mentally in a positive way and that his ability to function mentally is impaired when he is not on the medication. Defendant told the court he wanted to withdraw his plea because he was not on the medications when the court took the plea. He was afraid to take the medication at that time because he thought he would be rearrested.
On cross-examination, defendant testified that he had worked with several attorneys on this case and that he had trouble understanding them because he was not taking his medication. He met with his public defenders several times and discussed the facts of the case, the charges he was facing, and the plea offers. He stated he did not understand what the public defenders tried to explain to him. He hired a private attorney because he did not feel he was being treated properly and the public defenders were not taking the time to help him understand.
Defendant also discussed the facts of the case, the charges, and offers to settle with his private counsel. Pagkas tried to explain things to him and defendant told counsel when he was having trouble understanding. Defendant did not tell Pagkas every time he had a problem understanding, but when he did say something to counsel about this, Pagkas tried to help him understand. His attorney spent a lot of time explaining everything to him. Defendant discussed the case with Pagkas every time they were in court. If the judge said something he did not understand, defendant would talk to his attorney.
Defendant was not taking his medications on the day he entered his plea and had a problem understanding his attorney that day. He told Pagkas he did not understand and Pagkas tried to help him understand. Defendant said he did not lie to the judge and answered honestly when the court took the plea. He said he was confused when he entered his plea and later realized it was not what he wanted. Defendant told the court he felt like he was forced to plead guilty by the court, but that his attorney did not force him to plead guilty.
When called by the prosecution, Pagkas testified regarding his custom and practice when discussing plea offers with his clients. He told the court he would not let a client plead guilty if he was not comfortable and confident the client knew what he was doing. He also testified to the facts that follow. Pagkas met with defendant five to 10 times, for 10 to 45 minutes each time. Pagkas discussed the facts and the law applicable to this case with defendant. In general, defendant had a lot of questions and his level of understanding seemed to fluctuate. Although defendant’s questions and responses were coherent and relevant, he seemed to need a bit more help understanding than the typical client. Defendant had always been adamant that he was innocent and wanted a trial and was only willing to deal on the day he entered the plea. That day, Pagkas believed defendant understood the plea and that the plea was free and voluntary. Counsel felt comfortable defendant understood what he said and did not doubt defendant’s competence to enter the plea.
Pagkas argued that if defendant had been on the proper medications, he would not have taken the plea bargain and would have insisted on going to trial. In argument, Pagkas made some statements the prosecution objected to as evidentiary in nature and the court sustained the objections. After reviewing the transcript of the plea, the court concluded there was insufficient evidence to warrant a withdrawal of the plea.
At sentencing, defense counsel advised the court that after reading the attachments to the probation report he became aware that defendant’s IQ had tested in the 60’s or low 70’s. He stated that he had been unable to have a psychiatrist evaluate defendant in the week since the initial sentencing hearing and requested a four-week continuance so that the court could consider defendant’s IQ when sentencing defendant. The court stated that it had considered the medical and psychological reports attached to the probation report and had listened to defendant testify at the hearing on the motion to withdraw the plea. The court concluded: “[T]here’s no question in the Court’s mind that the defendant’s mental capacity is in no way hindered to understand what’s going on or to take responsibility for his acts.”
DISCUSSION
I. Ineffective Assistance of Counsel
Defendant contends his counsel was ineffective at the hearing on the motion to withdraw the plea because his attorney had a conflict of interest when he testified at the hearing, his attorney failed to present evidence that would assist defendant in prevailing on the motion, and his attorney failed to investigate his mental impairment before filing the motion.
A. General Principles Related to Motions to Withdraw Pleas
Before addressing defendant’s ineffective assistance of counsel claim, we review the general principles applicable to motions to withdraw a plea. Section 1018 allows a trial court to grant a defendant’s application to withdraw his or her plea of guilty or no contest before judgment. Good cause must be shown for such a withdrawal, based on clear and convincing evidence. (People v. Cruz (1974) 12 Cal.3d 562, 566.) In this context, the “phrase ‘good cause’ has been said to codify the rule that leave to withdraw a plea with its resulting inconvenience and expense should not be lightly granted.” (People v. Waters (1975) 52 Cal.App.3d 323, 331.)
“ ‘When a defendant is represented by counsel, the grant or denial of an application to withdraw a plea is purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result. [Citations.] . . .’ ‘Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.’ ” (People v. Weaver (2004) 118 Cal.App.4th 131, 146.) In determining facts, “the trial court is not bound by uncontradicted statements of the defendant.” (People v. Hunt (1985) 174 Cal.App.3d 95, 103.) The requisite “good cause” must comprise more than post-plea remorse: “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.’ ” (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.)
Defendant argues he was deprived of the effective assistance of counsel at the hearing of the motion based on certain acts and omissions of his counsel and on counsel’s alleged conflict of interest. We shall therefore turn to the applicable standards for claims of ineffective assistance of counsel.
B. General Principles Related to Ineffective Assistance of Counsel
A criminal defendant has the right to the effective assistance of counsel at all critical stages of the criminal proceeding. The portion of the proceeding during which the defendant moves to withdraw a previously entered plea is a critical stage. (See People v. Brown (1986) 179 Cal.App.3d 207, 214.)
“To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. [Citations.] Counsel’s performance was deficient if the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Prejudice exists where there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.” (People v. Benavides (2005) 35 Cal.4th 69, 92-93 (Benavides).)
“ ‘Tactical errors are generally not deemed reversible; and counsel’s decision-making must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.” ’ ” (People v. Hart (1999) 20 Cal.4th 546, 623-624 (Hart).) Case law recognizes that “counsel’s omission legitimately may have been based in part on considerations that do not appear on the record, including confidential communications from the client.” (People v. Lucas (1995) 12 Cal.4th 415, 443.) “ ‘Finally, prejudice must be affirmatively proved; the record must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” ’ ” (Hart, at p. 624.)
As noted previously, defendant asserts three grounds as the basis for his ineffective assistance of counsel claim: (1) counsel’s conflict of interest at the hearing on the motion to withdraw the plea; (2) counsel’s failure to present certain evidence at the hearing on the motion; and (3) counsel’s failure to investigate defendant’s mental impairment before moving to withdraw the plea. We begin by examining the conflict of interest claim.
C. Ineffective Assistance of Counsel Based on Conflicts of Interest
Defendant contends the order denying the motion to withdraw the plea must be reversed because Pagkas had two conflicts of interest that adversely affected his ability to represent defendant at the hearing of the motion. He argues Pagkas’s testimony was directly adverse to his (defendant’s) claim that he did not understand what was going on when the court took the plea because he had not taken his medications. He argues the “second conflict was that to testify favorably for [defendant] would have meant that Pagkas would have to testify in conflict with his own interest in not admitting his ineffectiveness in letting a client who did not understand what was going on plead no contest.”
The right to effective assistance of counsel, secured by our state and federal constitutions, includes the right to representation that is free from conflicts of interest. (People v. Cox (2003) 30 Cal.4th 916, 948.) Conflicts of interest may arise in many different factual settings. Broadly stated, they “embrace all situations in which an attorney’s loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or by his own interests.” (People v. Roldan (2005) 35 Cal.4th 646, 673 (Roldan), omitting internal quotation marks, citing People v. Hardy (1992) 2 Cal.4th 86, 135.)
“Under the federal Constitution, when counsel suffers from an actual conflict of interest, prejudice is presumed. [Citation.] This presumption arises, however, ‘only if the defendant demonstrates that counsel “actively represented conflicting interests” and that “an actual conflict of interest adversely affected his lawyer’s performance.” ’ [Citation.] An actual conflict of interest means ‘a conflict that affected counsel’s performance—as opposed to a mere theoretical division of loyalties.’ [Citation.] ‘Under . . . the federal Constitution, reversal is required if a defendant, over a timely objection, is forced to continue with conflicted counsel.’ [Citations.] To obtain a reversal for this type of error, ‘the defendant need not demonstrate specific, outcome-determinative prejudice. [Citation.] But he must show that an actual conflict of interest existed and that that conflict adversely affected counsel’s performance.’ ” (Roldan, supra, 35 Cal.4th at pp. 673-674.)
The California Supreme Court has applied a “ ‘somewhat more rigorous standard of review’ ” under the state Constitution. (People v. Cox (1991) 53 Cal.3d 618, 654.) “ ‘ “To show a violation of the corresponding right under our state Constitution, a defendant need only demonstrate a potential conflict, so long as the record supports an ‘informed speculation’ that the asserted conflict adversely affected counsel’s performance. [Citations.]” [Citation.] “But ‘[p]ermissible speculation giving rise to a conflict of interest may be deemed an informed speculation . . . only when such is grounded on a factual basis that can be found in the record.’ ” ’ ” (Roldan, supra, 35 Cal.4th at p. 674.) “ ‘To determine whether counsel’s performance was “adversely affected,” . . . requires an inquiry into whether counsel “pulled his punches,” i.e., whether counsel failed to represent defendant as vigorously as he might have, had there been no conflict. [Citation.] In undertaking such an inquiry, we are . . . bound by the record. But where a conflict of interest causes an attorney not to do something, the record may not reflect such an omission. We must therefore examine the record to determine (i) whether arguments or actions omitted would likely have been made by counsel who did not have a conflict of interest, and (ii) whether there may have been a tactical reason (other than the asserted conflict of interest) that might have caused any such omission.’ ” (Ibid.)
“Representation of a criminal defendant entails certain basic duties. Counsel’s function is to assist the defendant, and hence counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest.” (Strickland v. Washington (1984) 466 U.S. 668, 688.) “From counsel’s function as assistant to the defendant derive the overarching duty to advocate the defendant’s cause and the more particular duties to consult with defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.” (Ibid.) “Thus, the adversarial process protected by the Sixth Amendment requires that the accused have ‘counsel acting in the role of an advocate.’ ” (United States v. Cronic (1984) 466 U.S. 648, 656.)
Without much argument or explanation, defendant asserts his counsel’s conflicts of interest require reversal under both the state and federal standards. For the following reasons, we conclude that a conflict of interest arose when defense counsel testified at the hearing on the motion to withdraw the plea, rendering defendant essentially without counsel.
Although appellate counsel sets out the testimony of both defendant and Pagkas in detail in his review of the facts, he does not provide us with any reasoned argument specifying the ways in which Pagkas’s testimony conflicted with or was adverse to defendant’s claim. On appeal, the appellant has the burden to provide reasoned argument and authority on every point raised. If none is furnished on a particular point, this court may treat it as forfeited and pass it without consideration. (People v. Stanley (1995) 10 Cal.4th 764, 793.) Although defendant has failed to specify the ways in which the testimony conflicted or was adverse to defendant’s claim, we shall not find a forfeiture in this case. We have reviewed the record in light of the applicable standards and determined that defendant’s claim that counsel’s conflict of interest requires reversal has merit.
California Rules of Professional Conduct, rule 5-210(C) (hereafter “rule 5-210(C)”) provides: “[An attorney] shall not act as an advocate before a jury which will hear testimony from the [attorney] unless: [¶] . . . [¶] (C) The [attorney] has the informed, written consent of the client.”
As our state Supreme Court has observed, “it is dangerous for an attorney who represents a client also to testify in the client’s case.” (Roldan, supra, 35 Cal.4th 646, 727.) “An attorney who attempts to be both advocate and witness impairs his credibility as witness and diminishes his effectiveness as advocate.” (Comden v. Superior Court (1978) 20 Cal.3d 906, 912 (Comden), superseded by rule on another ground as stated in Smith, Smith & Kring v. Superior Court (1997) 60 Cal.App.4th 573, 578-579 (Smith).) “Where a lawyer representing a party in trial is also a witness during the trial, his or her effectiveness, both as a lawyer and a witness, may be impaired in the eyes of the fact finder.” (Smith, supra, at p. 578.)
“An attorney must withdraw from representation, absent the client’s informed written consent, whenever he or she knows or should know he or she ought to be a material witness in the client’s cause. ([R]ule 5-210; see Comden,[supra,] 20 Cal.3d at p. 911, fn. 1 …) The determination whether an attorney ought to testify ordinarily is based on an evaluation of all pertinent factors, including the significance of the matters to which the attorney might testify, the weight the testimony might have in resolving such matters, and the availability of other witnesses or documentary evidence by which these matters may be independently established. (Comden, supra, at p. 913.) An attorney should ‘resolve any doubt in favor of preserving the integrity of his testimony and against his continued participation as trial counsel.’ (Id. at p. 915.)” (People v. Dunkle (2005) 36 Cal.4th 861, 915.)
Rule 5-210 provides, under the heading “Discussion,” that it “is intended to apply to situations in which the [attorney] knows or should know that he or she ought to be called as a witness in litigation in which there is a jury. This rule is not intended to encompass situations in which the [attorney] is representing the client in an adversarial proceeding and is testifying before a judge.” In this case, Pagkas testified at a hearing on defendant’s motion to withdraw his plea, which was before the court but not a jury. Pagkas’s testimony, therefore, did not technically violate rule 5-210(C). However, in our view, the dangers that are recognized by rule 5-210 and the courts in Roldan, Comden, and Smith when an attorney takes on the dual roles of advocate and witness came into play in this case.
We begin by reviewing the factors from Comden. Prior to the hearing on the motion to withdraw the plea, the prosecutor advised the court and Pagkas that he would be calling Pagkas as a witness at the hearing of the motion. The prosecutor’s questions went to the heart of the issue before the court: whether defendant understood the plea at the time of the change of plea hearing. Pagkas testified that he would not allow a client to plead guilty unless he was comfortable and confident the client knew what he was doing. Pagkas felt comfortable that defendant understood what he told him. Pagkas said he believed defendant understood the plea and the plea was free and voluntary. These points contradicted defendant’s claim that he did not understand the plea because he was not taking his medication. In addition to Pagkas’s testimony, the court relied on the testimony of defendant, the transcript of the change of plea hearing, and its own recollection of the proceeding. The fact that Pagkas’s testimony supported the prosecution’s position likely carried great weight with the court. This raises serious doubts regarding the propriety of Pagkas’s continued participation as defense counsel.
In addition, at the time the prosecutor examined Pagkas, defendant was essentially without counsel. Pagkas occasionally objected to the prosecution’s questions on the basis of the attorney-client privilege, but in each case the objection was overruled. Moreover, Pagkas’s testimony was not subject to any cross-examination. Pagkas did not make any effort to cross-examine himself, a practice that would have been awkward but not impossible. Rather than proceed in a question and answer fashion, Pagkas could have asked the court for leave to make a factual statement or an offer of proof in his capacity as witness on behalf of defendant.
Defendant’s second contention on appeal underscores the effect of the lack of cross-examination. Defendant contends Pagkas was ineffective in handling the motion to withdraw the plea because he failed to introduce evidence at the hearing on the motion that supported four statements he made during argument on the motion, which are set forth below in italics.
In his opening argument, Pagkas stated:
“PAGKAS: [A]ll along [defendant] wanted to – to go to trial. He changed his mind on the day – day of the plea. It . . . seemed a bit unusual, but it’s . . . certainly not the only time a client has changed their position and – and decided to take a deal. [¶] I got a call within a half-hour of leaving the court from Mr. Schotl basically
“[Prosecutor]: Objection, your Honor. This is not argument.
“PAGKAS: Okay. All right.
“[Prosecutor]: Counsel’s trying to testify while
“THE COURT: Sustained.
“PAGKAS: . . . I’ll withdraw that.” (Italics added.)
In his rebuttal argument, Pagkas added:
“PAGKAS: Only, your Honor, . . ., in retrospect, in looking at everything that we have the privilege of knowing in hindsight, I believe now that Mr. Schotl made an impulsive decision on the day that he
“THE COURT: That’s testifying. That’s not argument.
“PAGKAS: Well, I’m giving the Court what I believe to be the case. It’s my opinion.
“THE COURT: Your opinion doesn’t count in an argument, Counsel. If you had a medical expert, that might be one thing. But we don’t have any medical testimony. We don’t have any doctors about the defendant’s mental condition or what – any illness or whatever he might be suffering. There is no evidence of that.
“PAGKAS: Yes, your Honor. And . . . I urged Mr. Schotl to . . . see a psychiatrist. He
“THE COURT: That’s testimony, too. We can’t have that.” (Italics added.)
Defendant contends his counsel was ineffective for failing to introduce evidence that supported the four statements he tried to make in argument. He also argues that counsel was ineffective because he failed to ask to reopen the evidence and that there was no reasonable tactical reason for not presenting evidence supporting these statements at the right time. The Attorney General contends the statements at issue were substantially similar to testimony that Pagkas had given and that counsel was therefore not ineffective for failing to insure this evidence was before the court. Without addressing these contentions, which are asserted as separate grounds for defendant’s ineffective assistance of counsel claim, the exchange between counsel and the court underscores the difficulty presented here when Pagkas testified without insuring that his testimony would be subject to cross-examination.
We are also persuaded by defendant’s contention that for Pagkas to testify favorably for defendant, he would have to testify in conflict with his own interest in not admitting he was ineffective when he allowed a client who did not understand what was going on to plead no contest. Pagkas testified that he would not allow a client to plead guilty if he was not comfortable and confident the client knew what he or she was doing. He stated that defendant had more questions than the typical client, needed more help understanding than most clients, and that his level of understanding seemed to fluctuate. Pagkas testified that on the day of the change of plea hearing, he believed defendant understood the plea and that the plea was free and voluntary. He also testified that he did not doubt defendant’s competence to enter the plea. Defendant testified on the other hand that he did not always tell his lawyers when he did not understand the proceedings, that he was having trouble understanding that day, and that Pagkas tried to help him understand. In our view, Pagkas was operating under a conflict of interest at the hearing on the motion to withdraw the plea because he was required to defend his role at the change of plea hearing and weigh in on the issue of whether the plea was entered knowingly and voluntarily. Pagkas’s interests in showing that his performance was not deficient at the time of the change of plea hearing conflicted with defendant’s interests in showing that he did not understand the proceeding.
Finally, while the client may waive any conflict arising out of the lawyer’s dual role as advocate and witness (Roldan, supra, 35 Cal.4th at p. 727; rule 5-210(C)), there was no evidence or discussion of a waiver in this case.
For these reasons, we conclude there was an actual conflict of interest between defendant and Pagkas at the hearing on the motion to withdraw the plea that adversely affected counsel’s performance. (Roldan, supra, 35 Cal.4th at pp. 673-674.) In light of this conflict, we shall reverse the court’s order on the motion to withdraw the plea and remand to the superior court for the appointment of conflict-free counsel to consult with defendant regarding a renewed motion to withdraw the plea. After consulting with new counsel, defendant will have the option of renewing his motion to withdraw the plea or may elect to withdraw his motion to withdraw his plea.
E. Ineffective Assistance Based on Alleged Failure to Investigate Defendant’s Mental Impairment
Defendant argues his counsel was ineffective for failing to introduce evidence related to his mental impairment at the hearing on the motion to withdraw the plea.
Attached to the probation report were copies of medical reports, a psychological evaluation, and a 1998 disability evaluator’s report from defendant’s social security disability file. The social security disability evaluator noted that defendant had been receiving social security disability benefits since 1989 due to mental impairment. He also had physical ailments including back pain, chest pain, shortness of breath, and asthma. The evaluator’s report included summaries of medical and psychological records that were not in evidence. According to the summaries, defendant’s IQ tested at 65 in 1989, “which indicated that his intellectual capacity was within the range of mild mental retardation.” The psychologist stated that defendant’s capacities for attention, concentration, retention and comprehending instructions were quite limited. Subsequent testing in 1991 reported IQ scores of 78, 78 and 84, which were consistent with borderline intellectual functioning. In 1998, defendant’s IQ scores were between 70 and 72 and were consistent with borderline functioning and ADHD. Defendant displayed hyperactive, impulsive behaviors and appeared to be reluctant to engage in activities that required sustained mental effort. On the other hand, the psychologist noted that defendant was “able to recall detailed, autobiographical, and historical information,” that his thought process was “grossly logical, organized and coherent,” and that some of defendant’s test results could be characteristic of malingering.
Defendant contends his counsel was ineffective because he failed to investigate his mental impairment and present this evidence in support of the motion to withdraw the plea. At sentencing, Pagkas stated that he had just become aware of defendant’s IQ test results when he read the attachments to the probation report. Defendant argues that if Pagkas had presented this evidence with the motion to withdraw the plea, it is reasonably probable the court would have granted the motion to withdraw. The Attorney General does not address this contention.
In light of our decision to reverse for a conflict of interest, we shall not address these contentions further. However, we suggest counsel take these matters into consideration on remand when deciding whether to renew the motion to withdraw the plea.
II. Trial Court’s Failure to Respond to Conflict of Interest
Citing People v. Bonin (1989) 47 Cal.3d 808 (Bonin), defendant contends the trial court committed reversible error when it failed to inquire into the circumstances surrounding defense counsel’s conflict of interest with defendant and request that defendant waive the conflict.
“When the trial court knows, or reasonably should know, of the possibility of a conflict of interest on the part of defense counsel, it is required to make inquiry into the matter.” (Bonin, supra, 47 Cal.3d at p. 836.) “The trial court is obligated not merely to inquire but also to act in response to what its inquiry discovers. [Citation.] In fulfilling its obligation, it may . . . make arrangements for representation by conflict-free counsel. [Citation.] Conversely, it may decline to take any action at all if it determines that the risk of a conflict is too remote.” (Id. at pp. 836-837.) If the court has found that a conflict of interest is at least possible, the defendant may discharge conflicted counsel or waive his right to the assistance of an attorney unhindered by a conflict of interest. (Id. at p. 837.)
When the trial court fails to inquire into the possibility of a conflict of interest or fails to adequately act in response to what its inquiry discovers, it commits error under Wood v. Georgia (1981) 450 U.S. 261. (Bonin, supra, 47 Cal.3d at p. 837.) To obtain reversal for this type of error, the defendant need not demonstrate specific, outcome-determinative prejudice, but must show that an actual conflict of interest existed that adversely affected counsel’s performance. (Id. at pp. 837-838.)
Since we reverse the order on the motion to withdraw the plea and remand for further proceedings, we shall not reach this contention.
III. Attorney Fees
Defendant contends the trial court erred when it ordered him to pay appointed counsel fees “not to exceed $500” pursuant to section 987.8 without first holding a hearing on his ability to pay. He argues there was insufficient evidence to support the court’s implied finding that he had the ability to pay the fees. He urges us to strike the fee rather than remand for a hearing on his ability to pay, since “remand for further proceedings would be no more than an ‘idle gesture.’ ” The Attorney General agrees the order to reimburse the County for attorney fees should be vacated.
Under section 987.8, subdivision (b), “the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost” of legal assistance provided through “the public defender or private counsel appointed by the court. . . . The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided.” (Italics added.) Subdivision (c) provides that where a defendant was afforded such legal assistance and, “at the conclusion of the case, appears to have sufficient assets to repay, without undue hardship, all or a portion of the cost of the legal assistance provided to him or her, by monthly installments or otherwise; the court shall make a determination of the defendant’s ability to pay as provided in subdivision (b), and may, in its discretion, make other orders as provided in that subdivision.” Upon determining that the defendant does have “the present ability to pay all or a part of the cost” of legal assistance, “the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county. . . .” (§ 987.8, subd. (e), italics added.)
Section 987.8, subdivision (g)(2) sets forth the definition of “ability to pay” and lists factors the court must consider in making that determination: “ ‘Ability to pay’ means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him or her, and shall include, but not be limited to, all of the following: [¶] (A) The defendant’s present financial position. [¶] (B) The defendant’s reasonably discernible future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant’s reasonably discernible future financial position. Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense. [¶] (C) The likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing. [¶] (D) Any other factor or factors which may bear upon the defendant’s financial capability to reimburse the county for the costs of the legal assistance provided to the defendant.” (Italics added.) The court did not conduct a hearing on defendant’s ability to pay when it ordered the payment of attorney fees after granting defendant’s request to relieve the public defender and substitute private counsel.
A determination that a defendant has the ability to pay is a prerequisite for entry of an attorney fee order. (§ 987.8, subd. (e).) While such a determination may be implied, the order cannot be upheld on review unless it is supported by substantial evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 347.) When the issue on appeal is sufficiency of the evidence, “we must draw all reasonable inferences in favor of the judgment.” (People v. Mercer (1999) 70 Cal.App.4th 463, 467.)
There is a presumption under section 987.8 that a defendant sentenced to prison does not have the ability to reimburse the costs of his defense. (People v. Flores (2003) 30 Cal.4th 1059, 1068 (Flores).) Section 987.8, subdivision (g)(2)(B) provides that “[u]nless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense.”
Here, the trial court sentenced defendant to 16 months in state prison. The record indicates that he had been receiving social security disability benefits due to his mental impairment since July 1989 (age 29). In 1998, defendant told the psychologist he had never worked. The psychologist noted that he had worked briefly in the past. Defendant had a 10th grade education and attended special education classes throughout school. The psychologist noted that defendant was “unable to maintain concentration, persistence, and pace” and was “unable to relate well in the interview.” He opined defendant would “not be able to appropriately interact with supervisors and co-workers in a job setting.” At the time of his arrest, defendant had lived in a motel room with his brother for 15 years. Unlike the situation in Flores, in which “the People argued that a showing of unusual circumstances was conceivable because, according to the probation report, defendant possessed $1,500 worth of jewelry at the time of sentencing,” there was no showing defendant possessed any assets from which to pay attorney fees. (Flores, supra, at p. 1068.) Defendant’s imprisonment also eliminates the “likelihood that the defendant shall be able to obtain employment within a six-month period from the date of hearing,” except for the employment opportunities that prison offers. (§ 987.8, subd. (g)(2)(C).) On the other hand, it appears defendant was able to pay private counsel.
For all these reasons, we conclude the trial court erred when it ordered defendant to pay $500 in attorney fees. Since we remand for the appointment of conflict-free counsel to consult with defendant on a renewed motion to withdraw his plea, we shall also remand for the court to conduct a hearing on the issue of defendant’s ability to pay attorney fees. (Flores, supra, 30 Cal.4th at p. 1068 [passage of more than six months since pronouncement of judgment does not deprive trial court of jurisdiction under section 987.8 to correct its errors upon remand].) We note also that our remand order on the motion to withdraw the plea may result in the appointment of counsel, which may impact the attorney fees issue.
Disposition
The judgment based on the existing plea is modified, reversing the attorney fees order, and the case is remanded to the trial court to conduct a hearing on the issue of defendant’s ability to pay attorney fees.
The order on the motion to withdraw the plea is reversed and the matter is remanded to the superior court for the appointment of conflict-free counsel to consult with defendant regarding a renewed motion to withdraw the plea. After consulting with counsel, defendant will have the option of renewing his motion to withdraw the plea or may elect to withdraw his motion to withdraw his plea.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.