Opinion
H030236
4-20-2007
THE PEOPLE, Plaintiff and Respondent, v. JORGE ARTURO JIMENEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
On August 18, 2005, a felony complaint charged defendant Jorge Arturo Jimenez with two counts each of aggravated sexual assault on a child (Pen. Code, § 269), lewd acts on a child (§ 288, subd. (a)), lewd acts on a child by force (§ 288, subd. (b)(1)), and continuous sexual abuse of a child (§ 288.5). Pursuant to a negotiated plea, defendant pleaded no contest to three counts of aggravated sexual assault on a child and one count of committing a lewd act on a child with force. As agreed, the court dismissed the remaining counts and sentenced defendant to 51 years to life. Defendant contends on appeal (1) that the trial court abused its discretion in denying his post-plea Marsden motion and (2) that he was denied the effective assistance of counsel in his attempt to withdraw his no contest plea. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise noted.
One of the section 288, subdivision (a) charges was converted to a charge of aggravated sexual assault at the time of the plea.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
I. Background
A. Factual Background
Because defendant pleaded no contest, we take these facts from the probation officers report.
Counts One and Two (§ 269): Defendant entered his eight-year-old nephews bedroom on three separate occasions and sodomized him. On each occasion, the boy experienced bleeding.
Count Four (§ 288, subd. (b)): Defendant entered his 11-year-old nephews bedroom with his penis exposed. As the boy ran out of the bedroom, defendant dragged him back in, pushed him onto the bed, and placed the boys hand on defendants penis. Defendant told him not to tell anyone.
Count Eight (§ 269): Defendant touched his 12-year-old nieces breasts over her clothes, followed her into her bedroom, and placed his penis in her vagina. Defendant told her "not to tell," and she told authorities that if she told her mother, defendant was going to kill her.
B. Procedural Background
At defendants sentencing hearing, defendants wife raised the possibility that his family had obtained substitute counsel. After a recess, defendants appointed counsel reported that a new attorney would not be substituting in. The court observed that defendant wished to bring a motion to withdraw the plea and read into the record a letter defendant prepared stating his grounds for withdrawal. Defendant explained that "[t]he public defender has been trying to push me into a guilty plea, and I cannot plead guilty to a crime that I didnt commit. So Im asking can I please have a court-appointed attorney, not a public defender."
The court prompted defendant to present "a colorable claim of ineffective assistance of counsel" and closed the courtroom for a Marsden hearing. Defendant accused his attorney of failing to meet with him adequately and of lying to him. He claimed the attorney told him "my children, the kids" would not be present in the courtroom, but they were. Defendant also stated: "I told my attorney to tell the judge very clearly that I was only pleading guilty because of my kids, not because I was actually guilty, and he didnt say anything. He didnt tell the judge what I told him to tell the judge." Counsel also told defendant that "if [he] was a real man" he would plead guilty.
Defendant may have been referring to both his own children and the child victims.
The trial court found no conflict and denied defendants motion for substitute counsel before belatedly giving trial counsel an opportunity to respond. Counsel explained that he met with his client "at length" after receiving the case. They discussed the allegations, the existence of a DVD of his police interview, and other matters. Counsel visited defendant in jail a second time on the day before the preliminary hearing. They had another "very lengthy conversation" during which they discussed "absolutely everything regarding th[e] case," including the immigration consequences, what would happen at the preliminary hearing, what an open plea meant, and the possibility of more charges being filed. They also discussed the admissions and confession found on the DVD. Counsel told defendant that if he had any questions, wanted to see the DVD or wanted to discuss anything else, he could accommodate him. Defendant told him, "`No. I believe whatever youre telling me. Lets just go ahead and do the prelim."
Counsel observed that defendant was upset at the time and that he "questioned why he was being treated unfairly." Counsel explained the process and told defendant that "the kids" and the alleged victims would be present at the preliminary hearing. "He said that he would rather die," and counsel became concerned for his well-being. Counsel advised jail staff, and defendant was put on suicide watch. Before counsel left the jail, he asked defendant twice whether he had any questions. Defendant answered in the negative.
At the preliminary hearing, the alleged victims were present and counsel again explained the process to defendant, including that he would have to cross-examine the children. Defendant responded: "`Just tell the judge to give me whatever the heck he wants — and he used a little bit stronger language than that — `but tell him whatever. I dont care. I want this to be done. I dont want the kids to talk about things they dont know anything about." Defendant was "dead set on pleading guilty and taking whatever the court and the D.A. offered him." Counsel then discussed a negotiated plea with the trial court and the prosecution. Counsel said he did "everything that [he] could" and that he was sure defendant understood what he was doing in regard to the plea.
The trial court reaffirmed its Marsden ruling, finding no conflict between defendant and counsel. Returning to open court, the court asked defendant whether he had anything further to say "regarding the plea and anything else that you havent already told the court about anything in addition to what you have already said[.]" Defendant reiterated that he did not want to plead guilty and that his counsel pressured him to do so. The court denied the motion to withdraw the plea, finding insufficient evidence of a colorable claim of ineffective assistance of counsel. The court proceeded to sentencing. Defendant obtained a certificate of probable cause and filed a timely appeal.
II. Discussion
Defendant contends generally that he was denied the effective assistance of counsel in his attempt to withdraw his plea of nolo contendere. We note at the outset that a defendant may move to withdraw his plea, at any time before judgment, on a showing of good cause. (Pen. Code, § 1018.) "Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea." (People v. Cruz (1974) 12 Cal.3d 562, 566.) A defendant also may show that the plea was entered as a result of ineffective assistance of counsel. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) Criminal defendants are entitled to competent representation at all stages of the proceedings, including presentation of a motion to withdraw a plea. (People v. Smith (1993) 6 Cal.4th 684, 695 (Smith).)
A. Marsden Motion
We consider first defendants claim that the trial court abused its discretion in denying his Marsden motion. Defendant contends trial counsels own statements give rise to an inference that counsel rendered ineffective assistance prior to that date. Defendant also contends that counsel provided ineffective assistance by failing to aid defendant in his motion to withdraw the plea; this argument is addressed below (see Section II.B., infra).
"The court should deny a request for new counsel at any stage unless it is satisfied that the defendant has made the required showing. This lies within the exercise of the trial courts discretion, which will not be overturned on appeal absent a clear abuse of that discretion." (Smith, supra, 6 Cal.4th at p. 696.) "The court must allow the defendant to express any specific complaints about the attorney and the attorney to respond accordingly." (Id. at p. 694.) Substitute counsel should be appointed only "if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citation]." (Id. at p. 696.) "Denial of the motion is not an abuse of discretion unless the defendant has shown that failure to replace the appointed attorney would `substantially impair the defendants right to assistance of counsel." (People v. Webster (1991) 54 Cal.3d 411, 435 (Webster).)
Defendant has not met that burden. Defendant was provided an opportunity to articulate his concerns regarding counsels representation. Defense counsel responded, rebutting defendants contentions that he did not meet with defendant adequately, that he did not keep him informed, and that he pushed defendant into pleading guilty. Counsels statements were detailed, describing his attempts to provide the best representation in the circumstances. Counsel also showed proper understanding of his role in the plea negotiation process. "To the extent there was a credibility question between defendant and counsel at the hearing, the court was `entitled to accept counsels explanation." (Smith, supra, 6 Cal.4th at p. 696, quoting Webster, supra, 54 Cal.3d at p. 436.) We therefore find no abuse of discretion in the courts finding of adequate representation and lack of irreconcilable conflict.
Defendant further argues, however, that trial counsels statements to the court reveal that he did not adequately investigate the allegations in the complaint. Defendant points to an alleged discrepancy regarding when counsel first received the DVD of defendants police interview. Counsel stated that during their initial meeting he told defendant "according to the police report there was a DVD of the interview with [defendant], and I have that." Defense counsel said that at the time of the second meeting he had recently received the DVD and reviewed it. Defendant asserts that these statements are inconsistent. Counsel could have meant, however, that he had the police report at the time of the first meeting, or that he currently had the DVD, neither of which would be inconsistent with his later statements. Regardless, it is unclear how the alleged discrepancy establishes ineffective assistance of counsel. It is clear that counsel reviewed the DVD and discussed its ramifications with defendant prior to the preliminary hearing. Defendant also points to the fact that counsel did not meet with the victims prior to the preliminary hearing and did not detail his investigatory steps between the first and second meetings. This argument also is without merit. Counsel expressed familiarity with the victims allegations prior to the preliminary hearing, and counsel was not obligated to detail each and every investigative step taken in the case to establish his competence.
We find no error in the courts denial of defendants Marsden motion.
B. Motion to Withdraw the Plea
Defendant contends that the trial courts questioning of defendant on the grounds of his motion to withdraw his plea, in combination with counsels silence and the courts failure to obtain a waiver of his right to counsel, deprived defendant of his right to counsel.
Although criminal defendants are entitled to competent representation in the presentation of a motion to withdraw a plea, appointed counsel may properly decline to bring a meritless motion. (See Smith, supra, 6 Cal.4th at p. 696; see also People v. Brown (1986) 179 Cal.App.3d 207, 216 (Brown) [in remanding case for a motion to withdraw the plea and for a Marsden motion, if necessary, the court noted it was not holding that counsel is compelled to make a "motion which, in counsels good faith opinion, is frivolous"].) The California Supreme Court observed in Smith, supra, 6 Cal.4th at page 696, that even if substitute counsel is appointed for the purposes of investigating a motion to withdraw the plea, "[w]hether, after such appointment, any particular motion should actually be made will, of course, be determined by the new attorney."
Defendant sought to withdraw his plea on the grounds that his counsel provided ineffective assistance. In conjunction with the Marsden hearing, defense counsel refuted the allegations supporting both defendants request for new counsel and his motion to withdraw his plea (i.e., that counsel failed to keep him informed and pressured him to plead guilty). In so doing, counsel effectively stated that he did not believe defendant had valid grounds for a motion to withdraw. Defendant argues that if counsel had set forth the same facts regarding his representation in the context of the motion to withdraw that he had related during the Marsden hearing, then "there is a reasonable chance that the motion to withdraw the plea should have been granted." This argument is without merit. Any motion to withdraw the plea based on the same showing of ineffective assistance that was rejected as inadequate in the Marsden hearing would be frivolous.
Neither of defendants authorities—People v. Brown, supra, 179 Cal.App.3d 207 and People v. Osorio (1987) 194 Cal.App.3d 183 (Osorio)—convince this court that defense counsel had a duty to present a motion to withdraw in these circumstances. In Brown, trial counsel informed the court at sentencing that the defendant wanted to withdraw his plea, but that she was not making the motion for him because she believed it lacked a legal basis. (179 Cal.App.3d at p. 211.) The defendant asked the trial court if he could withdraw his plea and obtain another attorney. (Id. at pp. 211-213.) The trial court summarily denied his request for substitute counsel and denied the motion to withdraw the plea. (Id. at p. 213.) The Brown court concluded that the defendant was "deprived of his right to make an effective motion to withdraw his plea" and remanded the case with instructions for a Marsden hearing and possible substitution of counsel should appointed counsel continue to refuse to bring the motion. (Id. at pp. 213-216.) In so holding, the court stated that it was not suggesting that counsel is required to make a frivolous motion to withdraw the plea (implying that the motion was not frivolous in the case before it), but noted the issue was not before the court. (Id. at p. 216; see also Osorio, supra, 194 Cal.App.3d at p. 188 [explaining that the Brown court found that the motion "would not have been frivolous nor would it have compromised `accepted ethical standards"].)
We observe that Brown preceded the high courts decision in Smith, supra, 6 Cal.4th 684, 696, in which the court set forth the standard for determining whether substitution of counsel is required to investigate a motion to withdraw the plea and noted that the decision to bring a motion to withdraw is counsels.
In Osorio, the defendant stated at sentencing that he wanted to withdraw his plea. (Osorio, supra, 194 Cal.App.3d at pp. 185-186.) Trial counsel indicated there was good cause for the motion, but refused to bring the motion in "good conscience" because it would result in reinstatement of counts dropped under the plea bargain. (Id. at p. 186.) On appeal, the court, following Brown, determined that the case must be remanded to allow defendant to bring a motion to withdraw the plea, for which counsel admitted there was a "colorable basis." (Id. at pp. 188-189.)
Brown and Osorio do not compel a finding that defense counsel in this case was required to present and argue a motion to withdraw the plea. Both cases are distinguishable. In Brown, the trial court failed to evaluate whether substitution of counsel was required to protect the defendants rights. In Osorio, defense counsel refused to bring a potentially meritorious motion to withdraw the defendants plea. Here, the trial court evaluated defendants allegations supporting his withdrawal motion during the Marsden hearing, and found defendants claims of ineffective assistance to be without merit.
The trial courts Marsden findings also support the conclusion that defendant was not entitled to new counsel to investigate or present a withdrawal motion. A defendant is entitled to substitute counsel to "investigate a possible motion to withdraw the plea . . . based upon ineffective assistance of counsel" only "if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result." (Smith, supra, 6 Cal.4th 684, 696.) After hearing defendants concerns, the trial court determined that defendants allegations of ineffective assistance were without merit and that no irreconcilable conflict existed.
In sum, defendant was not entitled to either an order forcing his trial counsel to present the frivolous motion or to the appointment of new counsel to investigate or present the motion. The trial courts direct query of defendant under these circumstances did not adversely affect defendants right to counsel or prompt the necessity of a Faretta waiver. As defendant concedes, he was represented at the change of plea and during sentencing, and he requested substitution of counsel, not self-representation. As the record does not indicate an effort to assert the right to self-representation, the court did not err in failing to obtain a waiver of right to counsel. (See generally Faretta, supra, 422 U.S. at p. 835.)
Faretta v. California (1975) 422 U.S. 806 (Faretta).
Finally, defendant points to the fact that defendant was under a suicide watch prior to entering his plea as a possible legal basis for withdrawing the plea. We will not speculate on the merits of this argument, which was not raised below, or on counsels reasons for declining not to pursue it as a basis to withdraw the plea. The mere fact that defendant was distraught the day before his plea does not automatically establish a basis to withdraw the plea.
III. Disposition
The judgment is affirmed.
We Concur:
Bamattre-Manoukian, Acting P.J.
Duffy, J.