Opinion
F061551 Super. Ct. No. BF133357B Super. Ct. No. BF133375A
10-12-2011
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND GLEN WAGNER, Defendant and Appellant.
Tara K. Hoveland, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Levy, Acting P.J., Gomes, J., and Kane, J.
APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge.
Tara K. Hoveland, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On August 25, 2010, appellant, Raymond Glen Wagner, entered into a plea agreement in which he would admit one count of committing an automobile theft with a prior automobile theft conviction (Pen. Code, § 666.5, subd. (a), count one) in case No. BF133375A and one count of operating a chop shop (Veh. Code, § 10801, count one) in case No. BF133357B. Appellant would admit a prior prison term enhancement (§ 667.5, subd. (b)) and a prior serious felony conviction within the meaning of the three strikes law (§§ 667, subds. (a)-(e) & 1170.12, subds. (a)-(d)). The remaining allegations in both cases would be dismissed and appellant would receive a stipulated sentence of seven years.
Unless otherwise designated, all statutory references are to the Penal Code.
Appellant executed felony advisement of rights, waiver and plea forms that set forth the terms of the plea agreement, the consequences of the plea, and the advisement and waiver of appellant's constitutional rights pursuant to Boykin/Tahl. The court established that appellant understood his rights, initialed, and executed the change of plea forms. The parties stipulated to a factual basis for the plea based on the law enforcement reports. Appellant pled no contest to both charges and admitted the special allegations. Appellant was represented at that time by James Rogers.
Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
On September 23, 2010, the trial court granted appellant's motion to relieve James Rogers as counsel and substitute in Robert Dowd as appellant's attorney of record. On October 21, 2010, the sentencing hearing was continued because Dowd was not available. Attorney Arturo Revelo appeared for Dowd. On October 28, 2010, the court granted Dowd's request for a continuance so he could prepare a motion for appellant to withdraw his plea. Dowd did not appear for the next hearing date on November 16, 2010, because he had a family emergency. The court found good cause to trail the matter for one day.
On November 17, 2010, Dowd appeared with appellant and stated he had no objection to appellant being sentenced. Dowd explained to the court that appellant had retained him to file a motion to withdraw his plea. Dowd said he advised appellant on four different occasions and visited the witnesses appellant asked him to visit. Dowd stated that in his opinion, a motion for appellant to withdraw his plea would be without merit.
The court noted the total fixed term under appellant's plea agreement was seven years. Appellant told the court that he was trying to file a motion to withdraw his plea, claiming "good legal grounds." The court replied that appellant hired Dowd and Dowd indicated there were no legal grounds to make a motion for appellant to withdraw his plea. Dowd further explained he felt that before appellant entered into his plea bargain, witnesses should have been interviewed. Dowd interviewed the witnesses, spoke to appellant, and formulated the opinion that there were no grounds for appellant to withdraw his plea.
Appellant requested another continuance for a couple of days to get another attorney. The court said, "No" to appellant's request. Appellant asserted there were definite grounds for him to withdraw his plea. The court stopped appellant and stated the case had already been continued for two months. The court explained appellant had plenty of time to talk to another attorney. The court proceeded to sentence appellant to prison for four years for operating a chop shop, plus consecutive terms of one year for a prior prison term enhancement and two years for vehicle theft. Appellant's total prison term is seven years. The court awarded 100 days of actual custody credits and 50 days of conduct credits.
It appears appellant had a prior conviction of assault with a firearm (§ 245, subd. (a)(2)). This is a serious felony under section 1192.7, subdivision (c)(31). Appellant does not appear to be eligible for extra custody credits pursuant to section 4019, as amended in 2010.
Appellant filed a timely notice of appeal. The trial court granted appellant's request for a certificate of probable cause. Appellant contends the trial court erred in denying his request for a continuance to find an attorney who would file a motion for him to withdraw his plea. We disagree and will affirm the judgment.
DISCUSSION
Appellant argues the trial court's failure to grant him a continuance so he could hire a new attorney to file a motion for him to withdraw his plea "short-circuited the process of adjudication and deprived [him] of any meaningful opportunity to be heard." In support of his contention, appellant relies on People v. Brown (1986) 179 Cal.App.3d 207 (Brown) and People v. Osorio (1987) 194 Cal.App.3d 183 (Osorio) (disapproved on another ground in People v. Johnson (2009) 47 Cal.4th 668, 681-682).
The motions brought by the defendants in Brown and Osorio are similar to motions challenging the effectiveness of counsel made pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). The requirements of a Marsden hearing, however, do not apply to cases where defense counsel has been retained. (See People v. Ortiz (1990) 51 Cal.3d 975, 986 (Ortiz).) It is unclear whether Brown and Osorio are properly applied to cases involving retained counsel. In analyzing appellant's argument on appeal, we ultimately find the facts of Brown and Osorio inapposite to those of the instant action. We assume, arguendo, that Brown and Osorio can be applied to cases involving retained counsel without reaching the issue of whether these cases apply to cases involving appointed counsel.
In Brown, trial counsel informed the court at sentencing that the defendant wanted to withdraw his plea, but that in her opinion, there was no "legal basis" for such a motion, and she was not making the motion for him. (Brown, supra, 179 Cal.App.3d at p. 211.) The defendant told the court that at the time he entered his plea, he "wasn't in the right frame of mind" (ibid.) because "a death ... had [him] shook up" (id. at p. 213). 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 Brown court, noting that a criminal defendant has a right to be represented by counsel at all stages of the proceedings, concluded that the defendant was deprived of his right to make an effective motion to withdraw his plea. (Brown, supra, 179 Cal.App.3d at pp. 213-214.) Brown remanded the case to allow the defendant, represented by counsel, to move to withdraw his plea, with instructions for a Marsden hearing should counsel continue to refuse to bring the motion. Brown stated that it was not suggesting that counsel is required to make a frivolous motion or "compromise accepted ethical standards." (Brown, at p. 216.)
Osorio, supra, 194 Cal.App.3d 183, a decision from this court, followed Brown. In Osorio, the defendant stated at sentencing that he wanted to withdraw his plea because "'he didn't understand what he was pleading to.'" (Id. at p. 186.) Trial counsel represented to the court that there appeared to be good grounds for a motion to withdraw the plea, but refused, "'in good conscience,'" to bring the motion because withdrawal of the plea would result in reinstatement of counts dropped under the plea agreement. (Id. at p. 188.)
Osorio, referring to Brown, stated, "We believe that counsel's representation to the court that there was a colorable basis for the motion to withdraw the guilty plea requires a similar disposition of the present appeal." (Osorio, supra, 194 Cal.App.3d at p. 189.) We remanded the case to allow defendant to bring a motion to withdraw the plea. (Ibid.) Brown and Osorio hold that a criminal defendant has a right to make a motion to withdraw his or her plea, and to be represented by counsel in the effort, if nonfrivolous grounds exist for withdrawing the plea.
In Brown, the attorney only stated that there was no legal basis for a motion to withdraw the defendant's plea without any explanation why this was so. In contrast to the attorney in Brown, Dowd explained to the court he had interviewed witnesses, talked to the appellant three or four times, and found no legal basis to bring a motion for appellant to withdraw his plea. Dowd explained to the court how he investigated the prospective motion for appellant to withdraw his plea. This is different from Brown where the attorney merely made a conclusory statement that there was no legal basis to file a motion.
In Osorio, counsel told the court he could not bring such a motion because the defendant received a plea agreement that included dismissed allegations. Here, unlike the attorney in Osorio, Dowd investigated the merits of filing a motion and explained to the court why he would not do so. This is in contrast to the defense attorney in Osorio who outright refused to even investigate the possibility of a motion for the defendant to withdraw his plea.
Although trial counsel's statement to the court was brief, it appears from his comments that counsel investigated the case and avenues for bringing a motion for appellant to withdraw his plea and found no basis for appellant to do so. Trial counsel's statement to the court appears to follow the requirement that counsel set forth what he or she investigated. (See People v. Mendez (2008) 161 Cal.App.4th 1362, 1367-1368; People v. Mejia (2008) 159 Cal.App.4th 1081, 1086-1087; and People v. Eastman (2007) 146 Cal.App.4th 688, 695.)
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Because the trial court established from Dowd that there was no legal basis for appellant to proceed with a motion to withdraw his plea, as well as how Dowd investigated the case and worked on the motion, the facts of this case are inapposite to those in Brown and Osorio. Appellant did not refute Dowd's representations that he interviewed witnesses and discussed the matter three or four times with appellant. Having established from Dowd that there was no legal basis, and why there was no legal basis, to pursue the motion, the trial court was not under the same obligation as the trial courts in Brown and Osorio to entertain other potential grounds for the motion from appellant. The one pending matter before the trial court was appellant's request for a continuance to find a new retained attorney to file a motion the trial court had just determined was without merit.
Generally, the granting of a continuance is within the discretion of the trial court. A defendant who desires to retain private counsel must act with diligence and may not demand a continuance if he or she is unjustifiably dilatory in obtaining counsel. (People v. Courts (1985) 37 Cal.3d 784, 790-791.) Although a defendant who has retained counsel has great latitude in deciding whether to keep that attorney, a trial court may still deny a motion to substitute counsel if it disrupts the orderly processes of justice or if it is untimely. (Ortiz, supra, 51 Cal.3d at pp. 983, 986-989.)
Appellant's sentencing hearing was originally set for September 23, 2010, but was continued so he could substitute Rogers with Dowd as his counsel of record to pursue a motion to withdraw his plea. The sentencing hearing was continued three more times, twice because Dowd was unavailable, and once because Dowd requested more time to prepare a motion for appellant to withdraw his plea. After determining that there was no merit to a motion for appellant to withdraw his plea, and after having continued the sentencing hearing four times already, the trial court could rightfully conclude that appellant's request for new retained counsel was repetitive, untimely, and would interfere with the orderly processes of justice. The trial court did not abuse its discretion in denying appellant's motion for a fifth continuance of the sentencing hearing.
DISPOSITION
The judgment is affirmed.