Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF097109A
ROBIE, J.
Defendant Christopher Michael Hodges appeals from the judgment of the San Joaquin County Superior Court sentencing him to state prison for five years following a finding that he violated his probation.
On appeal, defendant contends he received ineffective assistance of appointed conflict counsel when counsel refused to file a motion to withdraw his plea. Defendant also contends the trial court erred by not allowing him to withdraw his plea because the factual basis he admitted did not constitute carjacking. Embedded in this second argument is also a third argument -- the trial court erred in failing to conduct a hearing on a letter and/or comments the court should have treated as a Marsden motion.
People v. Marsden (1970) 2 Cal.3d 118.
We shall affirm the judgment.
PROCEDURAL POSTURE OF THE CASE
On August 23, 2005, defendant pled no contest to carjacking. On October 13, he was placed on five years’ probation conditioned upon, inter alia, his successfully completing the Delancey Street residential program.
On February 8, 2006, defendant was arraigned on a violation of probation petition alleging he had walked away from the Delancey Street program without having completed it. On March 8, defendant sought to withdraw his plea and, on March 9, conflict counsel was appointed to determine whether there were grounds for the motion. On March 16, counsel reported to the court that she could not find a valid basis for the motion, and original counsel (the public defender) was reinstated.
From March 20 through April 25, 2006, criminal proceedings were suspended and competency proceedings were instituted. On the latter date, the court found defendant competent to stand trial and reinstated proceedings on the probation violation. On September 28, the court found defendant in violation of probation and imposed the previously stayed term of five years in prison.
DISCUSSION
I
Withdrawal Of Plea/Ineffective Assistance Of Counsel
Defendant first contends that conflict counsel rendered ineffective assistance when she refused to file a motion to withdraw his plea. The People contend there was no ineffective assistance because defendant “did not want to withdraw his plea” and “there was no legal basis to withdraw his plea.”
“To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel’s performance fell below a standard of reasonable competence, and that prejudice resulted.” (People v. Anderson (2001) 25 Cal.4th 543, 569.) Here, defendant cannot make either showing because at the time defendant sought to withdraw his plea, the court no longer had jurisdiction to grant that relief.
Penal Code section 1018, which governs plea withdrawals, states in relevant part: “On application of the defendant at anytime before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, . . . for good cause shown, permit the plea of guilty [or no contest] to be withdrawn . . . .”
In arguing his ineffective assistance claim, defendant asserts his request to withdraw his plea was timely because the request was made within six months after the trial court granted probation. That is true; the order granting probation was made on October 13, 2005, and his request to withdraw his plea was made on March 8, 2006, well within the six-month period. Entry of judgment was not suspended, however, and that is a separate requirement that must be met in order for a motion to withdraw a guilty or no contest plea made within six months after an order granting probation to be timely.
“[T]he power of the court to grant probation may be exercised in either of two ways: (1) It may suspend the imposition of sentence, in which case there is no judgment of conviction, or (2) it may impose the sentence and thereafter suspend its execution.” (Jones v. Maloney (1951) 106 Cal.App.2d 80, 86; see also Pen. Code, § 1203, subd. (a) [“‘probation’ means the suspension of the imposition or execution of a sentence”].) “[E]ntry of judgment” in Penal Code section 1018 corresponds to imposition of sentence. (See People v. Miranda (2004) 123 Cal.App.4th 1124, 1131.) Thus, if a trial court suspends the imposition of a sentence to place a defendant on probation, entry of judgment has been suspended, and the defendant has six months to withdraw his plea. If, on the other hand, the trial court imposes a sentence, but suspends its execution, then entry of judgment has not been suspended, and the time for moving to withdraw a guilty or no contest plea expires with the entry of judgment.
Here, it is true that the docket sheet in the clerk’s transcript for October 13, 2005, contains a check mark in the box stating, “Imposition of sentence suspended.” But immediately above that entry is another box checked that states, “Judgment of 5 years [blank] months imposed.” Since these statements are mutually exclusive, the clerk’s transcript presents a problem. That problem is solved, however, by reviewing the reporter’s transcript of the sentencing proceedings for October 13, 2005, wherein the court stated: “There being no legal cause why judgment should not now be pronounced and pursuant to Rule 412 of California Rules of Court, you’ll be committed to the Department of Corrections for the upper term of five years in state prison. [¶] That is stayed, meaning you don’t serve it, on condition that you successfully complete five years of formal probation, on condition that you obey all laws.”
The reporter’s transcript establishes that judgment -- i.e., the sentence -- was imposed, not suspended. What was suspended was execution of the sentence. Thus, contrary to defendant’s claim, his request to withdraw his plea did not come within the six-month period provided by Penal Code section 1018. Where, as here, a request to withdraw a guilty or no contest plea is not made within the time allowed by Penal Code section 1018, the trial court lacks jurisdiction to grant that request. (People v. Miranda, supra, 123 Cal.App.4th at pp. 1126, 1133-1134.) The refusal of conflict counsel to file a motion that the court lacked jurisdiction to grant cannot be deemed to have fallen below a standard of reasonable competence. Accordingly, defendant’s ineffective assistance of counsel claims fails.
Of course, the same reasoning dooms defendant’s argument that the trial court erred by not allowing him to withdraw his plea because the factual basis he admitted did not constitute carjacking. Because the time for moving to withdraw the plea had expired, the trial court did not err in refusing to allow defendant to withdraw his plea.
II
The Marsden Argument
Finally, we turn to defendant’s Marsden argument. Apparently defendant first expressed his desire to withdraw his plea in a letter that came to the attention of the public defender who was representing him at the time. When the public defender mentioned the letter to the court, the court relieved the public defender “for purposes of th[e] motion to withdraw plea only” and appointed another attorney to “assist [defendant] with research and to determine whether there [wa]s a valid reason to file that motion.” As we have noted, on March 16, conflict counsel reported to the court that she could not find a valid basis for the motion, and the public defender was reinstated. After a pause in the proceedings, the public defender reported to the court that she was trying to contact conflict counsel because defendant had told the public defender that conflict counsel “told him she would get him copies of his police reports and transcripts and he would have an opportunity to discuss his representation on the underlying case and why he feels that was ineffective assistance.”
Defendant contends the trial court erred in failing to conduct a Marsden hearing either because the court should have treated his letter as a Marsden motion or because “his trial attorney’s statements sufficiently notified the court to trigger a Marsden hearing.” Not so. “Marsden and its progeny require that when a defendant complains about the adequacy of appointed counsel, the trial court permit the defendant to articulate his causes of dissatisfaction and, if any of them suggest ineffective assistance, to conduct an inquiry sufficient to ascertain whether counsel is in fact rendering effective assistance.” (People v. Eastman (2007) 146 Cal.App.4th 688, 695.) Here, the record does not demonstrate that defendant complained to the court about the adequacy of the representation he received. The letter that defendant first suggests should have been treated as a Marsden motion was not directed to the court and does not appear in the record, and all we know about it is the public defender’s assertion that in it defendant “sa[id] he wanted to withdraw his plea.” We do not know why he wanted to withdraw his plea, or whether it had anything to do with the adequacy of the representation he was receiving. Accordingly, defendant has shown no error in the failure of the trial court to treat that letter as a Marsden motion.
As for the public defender’s reference on the record to defendant’s assertion that conflict counsel told him “he would have an opportunity to discuss his representation on the underlying case and why he feels that was ineffective assistance,” that also cannot be deemed a complaint to the court about the adequacy of the representation he was receiving sufficient to trigger the court’s duty of inquiry under Marsden. After the public defender told the court about defendant’s assertion, the court asked conflict counsel to appear. At that appearance, the public defender expressed her hope that defendant would “tell us now whether he has received from [conflict counsel] what he wants and has been able to discuss with her the motion to withdraw the plea.” When the court asked defendant to respond, he said, “I would like to have a copy of my police report and a copy of my plea transcript so I can review them personally. I did not necessarily need [conflict counsel].” When asked if he was “intending to make a motion to withdraw [his] plea,” defendant responded, “I would like to see what the paperwork says.” When asked if he wanted to speak to conflict counsel about the paperwork, defendant said, “No. I don’t want to speak with [her].” When asked what he wanted to do, defendant said he would “[l]ike to have . . . [his] transcript and [his] original police reports.”
Although he had repeated opportunities, defendant did not complain to the court about the adequacy of his representation. Accordingly, the trial court had no duty to conduct a Marsden inquiry.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., BUTZ, J.