Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, David Danielsen, Judge., Super. Ct. No. SCD 199846.
HUFFMAN, Acting P. J.
On October 3, 2006, Manuel D. Rizo entered a negotiated guilty plea to forcible rape (Pen. Code, § 261, subd. (a)(2)). The court informed him that he had the right to have the sentencing hearing held no later than November 1. Rizo waived time for sentencing and the court set the sentencing hearing for January 4, 2007.
On January 3, 2007, defense counsel filed a declaration in support of a motion to continue the sentencing hearing. The declaration stated that on December 19, 2006, Larry Corrigan conducted a psycho-sexual evaluation of Rizo; counsel had "just received" Corrigan's report and had not had an opportunity to read it and prepare a sentencing memorandum; and her "brows[ing]" of the report led her to believe there might "be forthcoming a request to withdraw plea."
On January 4, 2007, defense counsel elaborated on her continuance request. She repeated that Corrigan evaluated Rizo on December 19, 2006, but she did not receive Corrigan's report until the day before the hearing. Counsel said she needed the report to write her sentencing memorandum, and the report indicated possible grounds for a motion to withdraw the guilty plea. In view of her trial schedule, she asked for two weeks in which to draft the sentencing memorandum and a three-week continuance of the hearing. She stated she would probably be able to inform the court sooner if a motion to withdraw was warranted, so the court could appoint independent counsel.
Counsel said that before DNA test results were returned, Rizo denied having sexual intercourse with the victim, and on the day of the plea, counsel apparently found out that Rizo claimed the sexual intercourse was consensual, but he nevertheless desired to go forward with the plea.
The court noted that the guilty plea occurred one week before trial was scheduled to start, counsel did not request funding for the evaluation until around December 12, 2006, and the evaluation did not take place until approximately two months after entry of the plea. It also expressed its concern for the victim and its suspicion that the continuance request was a delaying tactic. The court found there was no good cause to continue the hearing and denied the continuance request. It sentenced Rizo to the eight-year upper prison term.
Counsel explained that before December 12 Rizo and his family were looking for another attorney, and two other appointments with Corrigan were cancelled because counsel thought she was going to be replaced.
Rizo appeals, raising three contentions: (1) the court erred by denying the continuance request; (2) it was obligated to inquire whether Rizo in fact desired to withdraw his plea or was dissatisfied with counsel, and to appoint separate counsel to investigate grounds for a motion to withdraw the plea and make a formal motion; and (3) imposition of the upper term was improper. The People respond: "Given the fact that defense counsel had just received the defense psychiatric evaluation of appellant and given that counsel stated she was unprepared to proceed . . . respondent believes the matter should be remanded to the trial court for resentencing." The People state the "remaining two contentions are therefore moot as they can be dealt with upon remand."
We accept the People's concession, vacate the sentence, and remand the matter to the trial court for a new sentencing hearing. On remand, the trial court is directed to consider any motion to appoint new counsel and/or withdraw the guilty plea and to conduct such further hearing as may be appropriate.
DISPOSITION
The sentence is vacated and the case is remanded to the trial court for a new sentencing hearing. On remand, the trial court is directed to consider any motion to appoint new counsel and/or withdraw the guilty plea and to conduct such further hearing as may be appropriate. In all other respects, the judgment is affirmed.
WE CONCUR: NARES, J., HALLER, J.