Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F07909482, W. Kent Hamlin, Judge.
Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, and Brian Alvarez, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
THE COURT
Appellant Sharon Renee Hill pled no contest to petty theft with a prior (Pen. Code, § 666). On appeal, Hill contends: (1) the trial court abused its discretion when it denied her motion to withdraw her plea, and (2) she was denied the effective assistance of counsel. We will affirm the judgment.
FACTS
On October 17, 2007, two Fresno police officers arrived at a Kohl’s department store to find Hill struggling with a loss prevention officer over her purse, which had a cluster of trinket jewelry hanging out. The loss prevention officer told the officers he had observed Hill in the store removing the backings of jewelry items and stuffing the jewelry in her shirt. Hill then went through a checkout line, paid for a slow cooker, but did not pay for the jewelry. The security officer attempted to detain Hill outside the store and a struggle ensued. The security officer valued the stolen jewelry at $267.
Hill told a police officer she did not steal the jewelry from the store and that the loss prevention officer planted jewelry on her that he found in the parking lot. A police officer who reviewed the store surveillance video saw Hill in the video removing the backings from pieces of jewelry and stuffing the jewelry in her top.
On August 29, 2008, in exchange for her plea, the prosecutor agreed to dismiss a count of battery and to no initial state prison time for Hill.
During a hearing on October 28, 2008, the trial court acknowledged receiving a letter from Hill requesting that the district attorney’s office be recused from prosecuting her. The trial court denied Hill’s request to recuse the district attorney from prosecuting her case. It granted her request for appointment of new counsel, however, and substituted the public defender’s office for Defense Counsel Robert Lamanuzzi. In so doing the court stated, “I assume you will need at least three weeks to meet with Ms. Hill, discuss her matter, and decide what might be the appropriate course as her new counsel?”
It is clear from the record that the referenced letter was a letter by Hill dated September 25, 2008.
At a hearing on November 18, 2008, Hill appeared with her new counsel, Adrienne Harbottle. At the beginning of the hearing, Harbottle stated, “Your honor, the Public Defender’s Office was appointed to determine whether or not there was a possibility of an effective assistance of counsel claim[.] After speaking with Ms. Hill, after looking at Mr. Lamanuzzi’s file, and the contents of that file, I do not believe that there is a valid ineffective assistance of counsel claim.” The trial court then relieved Harbottle and reappointed Attorney Lamanuzzi to represent Hill.
On December 2, 2008, the trial court placed Hill on probation for three years on condition she serve 90 days in local custody.
In addition to Hill’s letter dated September 25, 2008, the record contains letters by Hill dated January 15, 2008, and June 19, 2008. In these letters, Hill, who worked for the Fresno County Probation Department, claimed that the criminal charges were filed in retaliation for her testimony on behalf of a fellow probation officer who won a wrongful termination case against the county. According to Hill, at a meeting with the chief probation officer, the personnel manager, and her union president, they all agreed that Kohl’s surveillance video did not show her doing anything criminal. She also claimed in her September letter that she asked her defense counsel to move to withdraw her plea because she was very emotional and unstable when she entered her plea, which caused her to be unaware she was pleading to a felony. Hill wanted to go to trial because, in addition to Kohl’s video, she had four witnesses who would exonerate her.
Based on the content of the letter dated January 15, 2008, it is clear the letter was not written on that date and probably was written on January 15, 2009.
DISCUSSION
The Failure to File a Motion to Withdraw Hill’s Plea
Hill contends she entered her plea “operating under circumstances that impacted the exercise of her free judgment due to emotional stress and instability” and that she had newly discovered evidence—four witnesses and a video—that tended to exonerate her. Thus, according to Hill, she had good cause to withdraw her plea and the trial court erred by its failure to appoint counsel to make a motion to withdraw plea on her behalf and by denying her the right to make an effective motion to withdraw her plea. We will reject these contentions.
An attorney representing a criminal defendant has the power to control the trial court proceedings. A defendant, however, has the final say whether to move to withdraw his plea. The defendant’s attorney may, and when appropriate should, advise against the decision to move to withdraw his plea, but the defendant should have the final word on whether to seek withdrawal. (People v. Brown (1986) 179 Cal.App.3d 207, 215.) Nevertheless, defense counsel is not compelled to make a motion that, in counsel’s good faith opinion, is frivolous or when to do so would compromise accepted ethical standards. In these circumstances, the trial court should attempt to determine the basis of the conflict and decide, in its discretion, whether substitute counsel should be appointed to represent the defendant. (Id. at p. 216.)
Here, after receiving Hill’s September 2008 letter requesting to withdraw her plea, the trial court acknowledged on the record that defense counsel believed he could not continue representing her and it appointed substitute counsel for the limited purpose of investigating “what might be the appropriate course as her new counsel.” (Italics added.) The trial court did not specifically state that her newly appointed counsel would investigate the viability of pursuing a motion to withdraw plea on Hill’s behalf. It can reasonably be inferred, however, that the parties understood that to be part of Attorney Harbottle’s responsibilities from the quoted statement and because that was what Hill had requested in her September 2008 letter to the court. In any event, Hill complained she did not realize that she pled to a felony because she was “emotional and unstable” and that the store video and four witnesses could exonerate her. Hill did not specifically state she was receiving deficient representation. Nevertheless, the implication of her allegations was that Defense Counsel Lamanuzzi was not representing her adequately because (1) he convinced her to enter a plea without adequately investigating the case by watching the store’s video and talking to the witnesses who allegedly would exonerate Hill, and (2) he did not assist Hill to withdraw her plea, even though she had good grounds for doing so. Thus, the effectiveness of Attorney Lamanuzzi’s representation of Hill was inextricably intertwined with the issue whether Hill had meritorious grounds for filing a motion to withdraw her plea and substitute counsel’s decision whether or not to file such a motion. Consequently, even though Attorney Harbottle did not mention a motion to withdraw plea, she implicitly informed the trial court that she did not find any grounds for Hill to withdraw her plea by her failure to file a motion and her statement to the trial court that she did not find any reasonably arguable ineffective assistance of counsel issue.
Moreover, there is no merit to Hill’s contention she provided clear and convincing evidence that she had a meritorious basis for withdrawing her plea. All Hill alleged in her three letters was that she did not understand that she was pleading to a felony because she was emotional and unstable. But she did not explain exactly what she meant by this or how it affected her decision to enter a plea. Further, her contention that she was emotional and unstable is undermined by the transcript of the change of plea proceedings. This transcript clearly shows that Hill was told she was pleading to a felony offense and there is no indication in the transcript that Hill was emotionally distressed or unstable when she entered her plea.
There also is no merit to Hill’s contention that this case is similar to People v. Osorio (Osorio) (1987) 194 Cal.App.3d 183. In Osorio, the defendant pled guilty to transportation of heroin in exchange for the dismissal of three other drug charges. (Id. at p. 185.) A few days after the defendant informed the trial court that he wanted to withdraw his plea, defense counsel represented to the court that there appeared to be good grounds for withdrawing the defendant’s plea. Defense counsel, however, stated that he could not submit the motion in good conscience, apparently because of the potential that the defendant might receive a much greater sentence if the defendant was convicted of all the original counts. In remanding the case back to the trial court to allow the defendant to file a motion to withdraw his plea, the Osorio court noted that the decision to withdraw his or her plea was solely the defendant’s. (Id. at pp. 188-189.)
Here, substitute counsel implicitly informed the trial court that there was no basis for Hill to withdraw her plea when it told the court that she did not find any ineffective assistance of counsel issues. Further, as noted above, Hill’s self-serving statements that she did not realize she pled to a felony because she was emotional and unstable did not establish good cause for her to withdraw her plea and do not bring her case within the holding of Osorio. Accordingly, we reject Hills contention that the trial court erred because its appointment of substitute counsel did not encompass the filing of a motion to withdraw plea on Hill’s behalf.
In People v. Smith (1993) 6 Cal.4th 684, 695, the Supreme Court criticized the practice of appointing substitute counsel to represent the defendant in one matter while retaining original counsel to represent the defendant for all other purposes. In so holding, the court stated, “We are unaware of any authority supporting the appointment of simultaneous and independent, but potentially rival, attorneys to represent defendant. When a Marsden [4] motion is granted, new counsel is substituted for all purposes in place of the original attorney, who is then relieved of further representation. If the Marsden motion is denied, at whatever stage of the proceeding, the defendant is not entitled to another attorney who would act, in effect, as a watchdog over the first.” (Ibid.) Here, the trial court, in effect, granted Hill’s Marsden motion when it substituted the public defender’s office in place of Attorney Lamanuzzi. Thus, under Smith, the trial court erred when it reappointed Lamanuzzi to represent Hill at sentencing.
The Ineffective Assistance of Counsel Claim
Hill contends attorney Harbottle provided her ineffective assistance of counsel because she investigated only whether Hill had a viable ineffective assistance of counsel claim, her investigation consisted of reviewing only the defense file, and she argued against Hill by telling the trial court that “there was no legal claim based on ineffective assistance of counsel.” We disagree.
“Under both the United States and California Constitutions, a criminal defendant is entitled to the effective assistance of counsel. [Citations.] In order to show ineffective assistance, a defendant must first demonstrate that counsel’s performance was deficient. [Citation.] Second, the defendant must show that counsel’s deficient performance caused him prejudice. [Citation.] ‘[P]rejudice must be affirmatively proved. [Citations.] “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.… The defendant must show that there is 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.” [Citations.]’ [Citation.]” (People v. Sizemore (2009)175 Cal.App.4th 864, 878.) “If the record does not shed light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation.” (People v. Scott (1997) 15 Cal.4th 1188, 1212.)
As discussed ante, the parties must have understood that the trial court appointed substitute counsel to investigate whether there was any basis for filing a motion to withdraw plea on Hill’s behalf. Since it can reasonably be inferred from the record that substitute counsel investigated the appropriateness of filing a motion to withdraw plea, Hill has not shown that substitute counsel’s conduct was deficient.
Moreover, although substitute counsel stated only that she spoke to Hill and reviewed the defense file in investigating the ineffective assistance of counsel claim, Hill has not shown why this was insufficient for Harbottle to conclude that there was no basis for filing a motion to withdraw plea on her behalf.
Further, as noted earlier, counsel is not required to file motions that he or she deems frivolous. Therefore, substitute counsel did not argue against Hill by implicitly telling the trial court that Hill did not have grounds for filing a motion to withdraw plea when counsel stated she did not find any ineffective assistance of counsel issues.
Additionally, Hill has not shown prejudice. As previously discussed, Hill’s claim that she had “clear” grounds for withdrawing her plea is not supported by the record. The only evidence in the record that supports her claim that the store’s surveillance video and four witnesses would exonerate her is her own self-serving statement to that effect. In contrast, the probation report indicates that a police officer who reviewed the surveillance video saw Hill in the video removing the backings off of jewelry items and stuffing the jewelry in her top. Accordingly, we reject Hill’s ineffective assistance of counsel claim.
DISPOSITION
The judgment is affirmed.