P. v. Castillo

Filed 9/20/07 P. v. Castillo CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Joel Castillo pleaded guilty to murder (count 1), shooting at an occupied motor vehicle (count 2) and shooting at an inhabited dwelling house (count 3).[1] (Pen. Code 187, 246.)[2] In addition, he admitted that during the commission of counts 1 and 2, he personally and intentionally discharged a firearm, proximately causing the death of the victim. ( 12022.53, subd. (d).) The parties submitted the question whether the murder was of the first or second degree to the court, pursuant to section 1192.[3] Defendants submission was made with the understanding that he faced a maximum sentence of 64 years to life and a minimum sentence of 40 years to life.

Nine and a half months later, on April 27, 2006, the court summarily denied defendants personal request to withdraw his plea. The court found the murder to be of the second degree and sentenced defendant to 40 years to life, consecutive to one year eight months. On May 11, 2006, the court resentenced defendant to 40 years to life consecutive to five years, based on its conclusion that the earlier sentence was unauthorized. Defendant timely noticed an appeal and requested a certificate of probable cause, which the court granted. On appeal, defendant contends the trial court erred by summarily denying his motion to withdraw his plea. We agree. Therefore we reverse and remand the case for further proceedings on defendants motion to withdraw his plea.

DISCUSSION

Factual Background

On April 26, 2006, the date set for determination of the degree of the murder count to which defendant had pleaded guilty and for sentencing, the court called the case and asked defendant if he concurred in his counsels statement that we waive any rights we might have under Apprendi [v. New Jersey (2000) 530 U.S. 466]. The following colloquy then occurred:

DEFENDANT: Can I have a moment of the Courts time, Your Honor?

THE COURT: Yes. Surely.

DEFENDANT: For the record, Your Honor, I would like to take back my plea.

THE COURT: Its a little too late for that. Thats denied. [] In any event, I accept the statement of counsel as to the waiver. [] Do you concur in that also, Ms. [Prosecutor]?

Contentions

Relying on this courts opinion in People v. Brown (1986) 179 Cal.App.3d 207, 215 (Brown), and on People v. Osorio (1987) 194 Cal.App.3d 183 (Osorio), a Fifth District opinion which followed Brown, defendant argues that the trial courts summary denial of defendants oral motion to withdraw his plea was based on an erroneous reason and deprived him of his fundamental constitutional rights to a jury trial and to testify in his own defense. (Brown, at p. 215.) He notes that under section 1018,[4] defendants request was not too late; a defendant may apply to withdraw his plea at any time before the entry of judgment. In this case, defendants motion was made before the entry of judgment.

Furthermore, he argues, it was an abuse of discretion for the court to have denied the motion without giving it any meaningful consideration or making any inquiry into the question whether defendants plea was the result of [m]istake, ignorance, or any other factor overcoming the exercise of free judgment. (Brown, supra, 179 Cal.App.3d at pp. 213-214.)

The Attorney General concedes that defendants application was timely. He argues, however, that the courts comment does not reflect a finding of untimeliness but rather that it was too late for [defendant] to change his mind. He further argues that defendant bore the burden of establishing good cause, that he failed to do so, and that the court was not obligated to elicit good cause on his behalf. He notes that over nine months earlier, when defendant entered his plea, he stated that he understood the consequences of his plea, including the maximum and minimum sentences, had discussed the matter fully with his attorney, had not been threatened or induced to enter his plea, and was not under the influence of alcohol, drugs or medication. Thus, in the absence of any showing of good cause by defendant, the court did not abuse its discretion by denying the motion.

Analysis

A defendant may move the trial court to set aside a guilty plea for good cause at any time before the entry of judgment. (People v. Ravaux (2006) 142 Cal.App.4th 914, 917.) Good cause means mistake, ignorance, fraud, duress or any other factor that overcomes the exercise of free judgment and must be shown by clear and convincing evidence. (Ibid.) 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. (People v. Sandoval (2006) 140 Cal.App.4th 111, 123, italics added.) We review the trial courts denial of a motion to withdraw a guilty plea for abuse of discretion. (Ibid.; see also People v. Superior Court (Giron) 11 Cal.3d 793, 796.)

Here, defendants motion was timely. The courts statement that it was a little too late for defendant to take back his plea was incorrect. If defendant had good cause to take back his plea, it was not too late. Of course, if defendant did not have good cause it was too late. But the court could not know whether defendant did or did not have good cause to withdraw his plea without entertaining defendants motion. The courts premature determination that defendants motion was too late short-circuited the process of adjudication and deprived defendant of any meaningful opportunity to be heard. Under these circumstances, defendant cannot be faulted for failing to establish good cause when he was not given the opportunity to state his case. The courts summary denial of defendants motion in this instance was an abuse of discretion.

Our conclusion in this case is consistent with Brown and Osorio. In Brown, the defendant pleaded no contest to two counts of lewd acts on a child pursuant to a negotiated disposition. At sentencing, trial counsel informed the trial court that the defendant wanted to withdraw his plea, but that she was not making the motion for him, because she did not believe there was any legal basis for it. The court gave defendant leave to speak. (Brown, supra, 179 Cal.App.3d at p. 211.) Defendant stated that he wasnt in the right frame of mind when he entered his pleas and asked the trial court if he could withdraw his plea. (Ibid.) The court solicited comment from the district attorney and defense counsel. When defense counsel again declined to speak on defendants behalf, defendant asked if he could get another lawyer to represent him. (Id. at p. 212.) The court denied the request to relieve counsel. Then, adverting to its recollection of the plea hearing, the court stated that it saw nothing occur that would, in any way, require a setting aside of the pleas entered. (Id. at p. 213.) Interrupting the court one last time, defendant stated that a death had [him] shook up and his attorney didnt know how to go about the case. (Ibid.) The court denied the motion.

On these facts, this court concluded that the defendant was deprived of his right to make an effective motion to withdraw his plea of nolo contendere. (Brown, supra, 179 Cal.App.3d at p. 213.) We explained that it was improper to permit defendant to bring his motion in pro. per. while he was still represented by counsel and he had not waived his right to counsel. (Id. at pp. 214-215.) Defendant was entitled to have the motion presented to the court by his attorney of record. (Id. at p. 215.) Acknowledging that counsel is not compelled to make a motion which, in counsels good faith opinion, is frivolous or when to do so would compromise accepted ethical standards, this court nevertheless concluded that Browns was not such a case. We reversed and remanded to allow the defendant to bring a motion to withdraw his plea and directed the trial court to hold a Marsden hearing if trial counsel still refused to present the motion. (People v. Marsden (1970) 2 Cal.3d 118.)

Brown was followed in People v. Osorio, supra, 194 Cal.App.3d 183. There, the defendant stated before sentencing that he wanted to withdraw his plea. Trial counsel indicated that there was good cause for a motion to withdraw the plea, but refused to bring such a motion because it would result in reinstatement of counts dropped under the plea bargain. On appeal, the defendant requested the case be remanded so that he could file a motion to withdraw his plea. Following Brown, the court agreed that it was appropriate to do so.

The lesson we draw from Brown and Osorio is that when the defendant makes a timely application to withdraw his plea, the court must at least permit counsel the opportunity to present the defendants motion or decline to present it, even if the court has perfect recollection of the change of plea proceedings. Here, as in both Brown and Osorio, defendant was denied the right to have counsel present a motion to withdraw his plea. In this case, because the courts premature determination that defendants request came too late had the effect of cutting off any further presentation or inquiry, we are unable to determine in the first instance whether defendants motion was frivolous or meritorious.[5] We believe it is appropriate to remand the case to permit defendant, through counsel, to present his motion to withdraw his plea. (See 1018.) If defendant declines to bring a motion to withdraw his plea or such motion is denied, defendant shall be resentenced in accordance with his plea.

III. Disposition

The judgment is reversed and the matter is remanded to permit defendant, through counsel, to make a motion to withdraw his plea. If defendant declines to move to withdraw his plea, or if the motion is denied, the defendant shall be resentenced in accordance with his plea.

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McAdams, J.

WE CONCUR:

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Bamattre-Manoukian, Acting P.J.

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Duffy, J.

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[1] Because the facts underlying the offenses of which defendant was convicted are not relevant to this appeal we do not summarize them.

[2] Unless otherwise indicated, all statutory references are to the Penal Code.

[3] Section 1192 provides: Upon a plea of guilty, or upon conviction by the court without a jury, of a crime or attempted crime distinguished or divided into degrees, the court must, before passing sentence, determine the degree. Upon the failure of the court to so determine, the degree of the crime or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree.

[4] Section 1018 provides in relevant part: Unless otherwise provided by law, every plea shall be entered or withdrawn by the defendant himself or herself in open court. On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. This section shall be liberally construed to effect these objects and to promote justice.

[5] Defendants statement in support of his request for a certificate of probable cause alleges ineffective assistance of counsel, intoxication with Pruno, undue stress, lack of sleep and pressure to plead guilty by counsel. It also states that counsel was retained and refused to bring the motion. We note that defendant may discharge retained counsel at any time with or without cause (People v. Ortiz (1990) 51 Cal.3d 975, 982) and substitution of appointed counsel is not implicated here.