P. v. Williams
Filed 1/3/13 P.
v. Williams CA4/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT E.
WILLIAMS,
Defendant and Appellant.
D061286
(Super. Ct. No.
SCD228297)
APPEAL
from a judgment of the Superior Court of
County, Charles R. Gill, Judge. Affirmed.
Robert
E. Williams entered into a plea agreement
under which he pled guilty to assault with a deadly weapon (Pen. Code,
§ 245, subd. (a)(1)) and admitted that he personally inflicted great
bodily injury on the victim (§ 12022.7, subd. (a)). The remaining charges and allegations were
dismissed. At the time of the plea the
trial judge indicated he would accept a "lid" on the sentence of five
years and that he would consider any lesser sentences including probation.
Prior
to sentencing, defense counsel (George
Osper) informed the court that Williams wished to withdraw his plea and that
there would be a conflict of interest if Osper was to bring the motion. The court then held a "
Following
the Marsden hearing the trial judge
relieved Mr. Osper and Ms. Stacie Patterson was appointed to represent
Williams.
Approximately
two months later, Ms. Patterson advised the court that she could not, in good
faith, file a motion to withdraw the guilty plea as Williams had
requested. The court again held a
the court denied Williams's request for new counsel and denied Williams's
request to withdraw his guilty plea.
Williams was then sentenced to a determinate term of five years in
prison.
Williams
ultimately obtained a certificate of
probable cause from the trial court.
(§ 1237.5.) He appeals
contending that Ms. Patterson abandoned him by failing to file a motion to
withdraw his guilty plea as he argues she was required to do. Williams asks that his case be remanded to
the trial court, with new counsel, so that he can bring a motion to withdraw
his guilty plea.
Based
on this record we find that Ms. Patterson was not required to bring a frivolous
motion as requested by her client and that the trial court properly denied the
motions to relieve counsel and to withdraw the guilty plea. To the extent there may be some basis not
made known to the trial court that might justify a motion to withdraw the guilty
plea, Williams's remedy is by way of a petition for writ of habeas corpus filed
in the superior court. (
Cal.4th 264, 266-267 (Mendoza Tello).) Accordingly, we will affirm the judgment.
DISCUSSION
Williams
was represented at the preliminary hearing by the Public Defender's
office. Prior to trial his trial
counsel, Kenneth Kaminski, declared a conflict because his office had
represented a witness in the case.
Kaminski was replaced by Mr. Osper from the Alternate Public Defender's
office. Osper represented Williams
through the plea negotiation and guilty plea process. When Williams wished to withdraw his guilty
plea, Osper declared a conflict, which was explored by the court in a
panel attorney, Ms. Patterson. As we
have noted above, Ms. Patterson after consultation with Williams and prior
counsel declined to bring a motion to withdraw Williams's guilty plea, stating
she could not in good faith bring such motion.
The trial court thoroughly explored Ms. Patterson's views and Williams's
requests in another Marsden
hearing. The court denied Williams's
motions to relieve counsel and to withdraw his guilty plea.
Williams,
essentially contends Ms. Patterson provided deficient representation in several
respects. First, he argues she was
required by People v. Brown (1986)
179 Cal.App.3d 207 (Brown) to
bring his motion, even if she did not believe there was a legal basis for
it. Williams further complains counsel
should not have told the court about Williams's statements to her regarding the
basis of his request. He asks this court
to remand the case to the trial court, provide new counsel and direct that a
different trial judge be assigned to hear a new motion to withdraw his guilty
plea. We find no basis in this record to
grant the relief requested by Williams.
Motion
As
we have noted, Williams argues that Ms. Patterson was obligated to file a
motion to withdraw the guilty plea.
Relying on Brown, supra, 179
Cal.App.3d 207, Williams argues the motion to withdraw the guilty plea is
personal and thus overrides the general principle that counsel are in charge of
tactical decisions in the trial court.
We do not believe the Brown decision
requires counsel to file a frivolous motion, simply because the defendant
demands such action.
In
People v. Brown (Orione) (2009) 175 Cal.App.4th 1469 the court held: "That is, as long as [a] defendant is
represented by counsel, the decision on whether to file a motion to withdraw
his plea is left with counsel." (
investigate a motion to withdraw a plea, "[w]hether, after such
appointment, any particular motion should actually be made will, of course, be
determined by the new attorney." (
Cal.4th 684, 695-696.)
Where
a defense counsel makes a good faith determination that a proposed motion would
be frivolous, counsel will not be deemed ineffective. (People
v. Makabali (1993) 14 Cal.App.4th 847, 853 (Makabali).) In our view the
opinion in Brown,
compel a different analysis here.
In
Brown the defendant requested
appointment of counsel to investigate filing a motion to withdraw his guilty
plea, since trial counsel had declined to do so. The trial court fairly abruptly denied the
request and the defendant's personal motion to withdraw the plea. On that record the Sixth District held the
defendant was entitled to an attorney to file his motion. Later, in People
v. Garcia (1991) 227 Cal.App.3d 1369, 1377, the court reached a
different result when it approved a procedure where, as in the present case,
the court did appoint an attorney specifically to review whether such a motion
should be filed. In that case the Sixth
District recognized a distinction from its holding in Brown, supra, 179 Cal.App.3d 207.
In
Makabali, supra, 14 Cal.App.4th at pages 851 through 853, the First
District reviewed Brown, supra, 179
Cal.App.3d 207 and the cases that followed it. The court in Makabali, concluded that counsel who determines there is no basis
on which to file a motion, is not required to file a legally unsupported
motion. People v. Brown (Orione),
supra, 175 Cal.App.4th at page 1473,
reaches the same conclusion.
We
agree with the analysis of both Makabali,
supra, 14 Cal.App.4th 847 and People
v. Brown (Orione),
that Ms. Patterson was not required to file a motion that she believed was not
legally supportable.
the Plea in This Case
When
Ms. Patterson advised the court she would not file what she believed to be a
frivolous motion, the trial court conducted an in camera hearing with Williams
and counsel. Patterson, who had been
appointed specifically to investigate a motion to withdraw the guilty plea,
explained the reasons she believed the motion would be meritless. The court also inquired of Williams to learn
his reasons for wanting to withdraw his plea.
Williams
essentially offered two grounds for withdrawing his plea. The first was he was told he would get
probation and would thus be able to get out of custody in time to save his
belongings, which were in storage and about to be auctioned. His second ground was that he would not have
pled guilty if he had known the victim had a criminal record.
Counsel
advised the court she had talked with prior counsel and had reviewed the record
to see if there was a basis for a motion.
She indicated that Mr. Kaminski had declared a conflict because the
Public Defender had previously represented a witness and that Kaminski's
practice was that he would have advised Williams of the criminal record. She also advised that Mr. Osper had gone
beyond normal representation and obtained money from the Alternate Public
Defender's office in order to try to save Williams's property. Osper attended the auction and bid, however,
he did not have enough funds to acquire the property at the auction. In any event, Williams was aware that he was
not going to be released from custody in time for an auction, even if
ultimately granted probation, because the court denied presentence release and
sentencing was scheduled for a date after the auction. Finally, counsel had reviewed the record and
was aware the trial court had not promised probation as part of the plea
discussions. The court was also aware
that Mr. Osper stated at the time he was relieved from representing Williams
that he had not told Williams he would get probation, and Williams did not
raise the issue of an alleged promise for early release when he learned after
his plea that he would not be released in a timely fashion.
When
a defendant moves to withdraw a guilty plea, that person must demonstrate good
cause. (§ 1018.) "It is the defendant's burden to produce
evidence of good cause by clear and convincing evidence." (People
v. Wharton (1991) 53 Cal.3d 522, 585; People v. Nance
(1991) 1 Cal.App.4th 1453, 1456.)
The
transcript of the change of plea demonstrates the trial court carefully
questioned Williams as to his understanding of his rights and the potential
outcome of the conviction. The court did
not promise probation or early release.
Mr. Osper denied that he told Williams that he would get out of custody
in time to deal with his property. In
short, there is nothing in this record to create an inference, let alone
establish by clear and convincing evidence, that Williams had any basis for a
change of plea, based on promises. Nor
did anything in counsel's investigation support an inference that Williams was
unaware of the witness's criminal record since Kaminski declared a conflict
specifically because of prior representation by his office.
This
case is much like People v. Garcia,
purpose of investigating a motion to withdraw a guilty plea and had declined to
make such motion. In both cases the
courts found no reversible error. We
reach the same result in this case.
There is nothing in the record to support an argument that there was a
potentially meritorious basis for a motion to withdraw the plea. Counsel was entitled to make the appropriate
decision on how to proceed and there is nothing in the record that might
support a finding that counsel was ineffective.
In
People v. Johnson (2009) 47
Cal.4th 668, 684, the court declined to decide whether the decision in
must still show prejudice in counsel's refusal to file a motion to withdraw a
plea. The court also observed that it
may not be possible to determine prejudice based upon the appellate record
alone. Thus, a defendant, like the
appellant in this case, is left to pursue the remedy of a habeas corpus
petition filed in the trial court in order to develop any basis of
prejudice. (Johnson, supra, at p. 684;
Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)
In
sum, like the court in People v. Johnson,
supra, 47 Cal.4th 668, we find no basis in the appellate record to
demonstrate prejudice in counsel's refusal to file a motion and therefore
reject his contentions without prejudice to any subsequent habeas proceeding.
DISPOSITION
The
judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
NARES,
J.
McINTYRE,
J.
name="_ftn1" title="">[1] All further statutory
references are to the Penal Code unless otherwise specified.
name="_ftn2" title="">[2] Since this appeal
does not involve any issue regarding the facts of the offense, we omit the
traditional statement of facts. Suffice
that Williams admitted stabbing the victim.
