P. v. Phongviseth

Filed 11/21/07 P. v. Phongviseth CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant Anousone Phongviseth pleaded guilty to first degree murder (Pen. Code, 187, subd. (a); further statutory references are to the Penal Code) with an enhancement for personally discharging a firearm. ( 12022.53, subd. (d).) Pursuant to a plea agreement, a special circumstance allegation was dismissed and defendant was sentenced to state prison for a term of 50 years to life.

Defendant appeals, contending the trial court did not properly respond to a letter from him seeking to withdraw his plea. Because defendant has not obtained a certificate of probably cause ( 1237.5), we dismiss the appeal.

Facts and Proceedings

The facts underlying defendants conviction require only brief discussion, as they have little bearing on the issue raised in this appeal. The codefendant, who was defendants girlfriend, had an argument with the victim at a restaurant. Defendant brought a loaded handgun with him when he

picked up the codefendant from work, and when they saw the victim, defendant shot him three times, killing him.

Approximately one month after entering his plea, defendant wrote a letter to the trial court, in which he asked to withdraw [his] plea deal. In the letter, defendant asserted: My attorney was putting pressure on me [and] forcing me into taking the deal. I had little time to think about it [and] I didnt have a chance to talk to my parents because I was on discipline. I know that was not a good excuse for my action. He is always saying that if I go to trial Ill lose. He be [sic] scaring me [and] Im really confuse [sic] because I already confess [sic] to what happen [sic]. At least help me out in getting a lesser time. But it [sic] like he doesnt have confident [sic] in himself for trying. . . . So please can you withdraw my plea so I can take my chances in getting a lesser time. Defendant also asked the court to deport him.

The trial court circulated copies of defendants letter to the attorneys and, on the date of sentencing, inquired of defendants trial counsel whether she had discussed the matter with him. Defendants attorney responded affirmatively and said she had no further information to provide the court in support of defendants motion. The attorney stated that defendant would continue to submit . . . his request to withdraw the plea to the Court for ruling and asked the court whether it wanted to appoint separate counsel to look into the matter.

The trial court denied defendants request to withdraw his plea, finding that he had not set forth a legal basis for the request and that it did not see a need to appoint separate counsel.

Discussion

Defendant argues that the trial court abused its discretion by not appointing a separate attorney and by not inquiring into his complaints about counsels undue pressure/ineffective assistance of counsel. The People respond, in part, that defendant cannot raise this claim without first having obtained a certificate of probable cause. The People are correct.

No appeal may be taken from a conviction based on a plea of guilty or no contest unless the defendant has requested and obtained a certificate of probable cause. ( 1237.5.) However, a defendant need not obtain a certificate of probable cause if the appeal is based on . . . [] . . . [g]rounds that arose after entry of the plea and do not affect the pleas validity. (Cal. Rules of Court, rule 8.304(b)(4)(B).) In People v. Panizzon (1996) 13 Cal.4th 68, 76 (Panizzon), the California Supreme Court concluded: [T]he critical inquiry is whether a challenge . . . is in substance a challenge to the validity of the plea, thus rendering the appeal subject to the requirements of section 1237.5. The focus is on what the defendant is challenging, not the time or manner in which the challenge is made. (Ibid.)

Thus, in People v. Emery (2006) 140 Cal.App.4th 560, 562, this court held that an appellate challenge to the trial courts denial of a continuance was in substance a challenge to the validity of the plea when the continuance was sought to investigate the withdrawal of the defendants plea. In Emery, we disagreed with People v. Osorio (1987) 194 Cal.App.3d 183, 188-189, in which the Fifth District Court of Appeal remanded a case to permit the defendant to file a motion to withdraw his plea without requiring a certificate of probable cause after the defendants trial attorney stated there was good cause for the motion but he could not in good conscience file it. (Osorio, supra, at p. 186.) Noting that Panizzon as well as People v. Mendez (1999) 19 Cal.4th 1084, 1098, emphasize the need for strict compliance with section 1237.5 (Emery, supra, at p. 565), our court concluded a certificate of probable cause should have been required in Osario because [t]he validity of that claim of error was dependent upon the validity of the guilty plea and, thus, was in substance an attack on the plea itself. (Emery, supra, at p. 565.)

In an effort to avoid the inescapable conclusion that his claim on appeal relates to the validity of his plea (thereby requiring a certificate of probable cause), defendant characterizes his motion to withdraw his plea as a Marsden motion. People v. Marsden (1970) 2 Cal.3d 118, 123-126 (Marsden), held that when a criminal defendant seeks a new attorney based upon a claim that his appointed counsel is incompetent, the trial court must inquire into the reasons for the defendants dissatisfaction with counsel. Because the inquiry in a Marsden motion is essentially forward-looking in the sense that counsel would be substituted in order to provide effective assistance in the future (People v. Smith (1993) 6 Cal.4th 684, 695), it has been held that a post-plea Marsden motion does not implicate the validity of the plea and may be reviewed on appeal. (People v. Vera (2004) 122 Cal.App.4th 970, 978.)

However, defendants complaints about his representation were decidedly backward looking, in that they were made in the context of a motion to withdraw his plea, not a motion to discharge his attorney. Defendant did not ask to have his trial counsel relieved, and we discern no basis for construing his motion to withdraw his plea as a Marsden motion under the circumstances before us.

We conclude that defendants appellate claims are in substance a challenge to the validity of [his] plea. (Panizzon, supra, 13 Cal.4th at p. 76.) As defendant failed to obtain a certificate of probable cause, his appeal must be dismissed.

Disposition

The appeal is dismissed.

HULL , J.

We concur:

SIMS , Acting P.J.

ROBIE , J.

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