Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 191993
Pollak, J.
On March 19, 2007, after having once been permitted to withdraw a guilty plea in this case and following a full advisement of his rights, defendant Charles Stevenson, represented by counsel, pled guilty to one count of first degree burglary (Pen. Code, § 459) and admitted a prior conviction (Pen. Code, § 667, subd. (A)). Under the plea bargain the proposed disposition was 11 years in state prison. Prior to sentencing, defendant indicated he again wished to withdraw his plea. Conflict counsel was appointed for the sole purpose of investigating whether grounds existed for withdrawing defendant’s plea. On June 29, 2007, conflict counsel reported that he had reviewed with defendant the preliminary hearing transcripts and the pretrial pleadings. He spoke with defendant’s attorney and reviewed the complete file. In his estimation, defendant’s attorney did “a very excellent job.” Based on his review, he concluded that the plea was properly received. Defendant understood the court’s advisements and knowingly and voluntarily entered his plea. Counsel found no new evidence to support a motion to withdraw the plea. On July 11, 2007, defendant, once again represented by his original appointed counsel, was sentenced in conformity with his negotiated plea.
Defendant’s appointed counsel on appeal has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting the court to make an independent review of the record. After being advised of his right to do so, defendant has filed no supplemental brief. Having conducted an independent review of the record, we find no issue of colorable merit and shall affirm.
Discussion
Based on the record now before this court, we find no reason to question that defendant knowingly and voluntarily entered his guilty plea in exchange for the dismissal of the remaining counts and enhancement allegations, including four prior strike convictions.
With respect to the procedure employed by the trial court for evaluating the merits of defendant’s potential motion to withdraw his plea, we note that the practice of appointing substitute counsel to represent a defendant with respect to one issue while retaining original counsel to represent the defendant for all other purposes was criticized in People v. Smith (1993) 6 Cal.4th 684, 695 (Smith). As the court explained: “Appointment of counsel for the purpose of arguing that previous counsel was incompetent, without an adequate showing by defendant, can have undesirable consequences. . . . The spectacle of a series of attorneys appointed at public expense whose sole job, or at least a major portion of whose job, is to claim the previous attorney was, or previous attorneys were, incompetent discredits the legal profession and judicial system, often with little benefit in protecting a defendant’s legitimate interests. [¶] . . . We are unaware of any authority supporting the appointment of simultaneous and independent, but potentially rival, attorneys to represent defendant.” The Smith court held that when a defendant indicates that he or she seeks to withdraw a guilty plea on the basis of ineffective assistance of counsel, the court should conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118, 123 (Marsden) to explore the reasons underlying the request. (Smith, supra, 6 Cal.4th at p. 693.) “When a Marsden 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. [¶] We stress, therefore, that the trial court should appoint substitute counsel when a proper showing has been made at any stage. A defendant is entitled to competent representation at all times, including presentation of a new trial motion or motion to withdraw a plea. . . . [W]hen a defendant satisfies the trial court that adequate grounds exist, substitute counsel should be appointed. Substitute counsel could then investigate a possible motion to withdraw the plea or a motion for new trial based upon alleged ineffective assistance of counsel. Whether, after such appointment, any particular motion should actually be made will, of course, be determined by the new attorney.” (Smith, supra, at pp. 695-696.)
In this case, the record fails to provide any of the specifics concerning defendant’s request to withdraw his plea. After this court requested augmentation of the record, all that appears in the record is a clerk’s minute order stating that the court appointed conflict counsel and an entry that the case was on calendar on May 9, 2007, for “status of motion to withdraw plea.” The court reporter has advised that there is no transcript of that hearing and the county clerk has certified that there is no motion to withdraw the plea in the court’s file. On this record, we are unable to determine whether defendant’s dissatisfaction with his plea was based on a claim of ineffective assistance of counsel and if so, whether his request was sufficient to warrant a Marsden hearing. Because the record does not establish the basis of defendant’s motion, we cannot conclude that the court erred in failing to conduct a Marsden hearing. If there is evidence that defendant properly challenged his representation and was denied a Marsden hearing, it will have to be presented by means of a petition for writ of habeas corpus. Although defendant was not entitled to appointment of conflict counsel to investigate a potential motion to withdraw his plea, we perceive no prejudice from the improper appointment.
Defendant has not argued and the record does not reflect that either of his attorneys provided ineffective assistance of counsel by refusing to file a motion to withdraw his plea. At best, the record suggests that defendant wanted to withdraw his plea on the basis of a statement allegedly made by an assistant district attorney that “the district attorney’s office didn’t have enough evidence to convict [him].” Defendant acknowledges that he was present when the statement allegedly was made, which was well before he entered his plea for the second time. We agree with the apparent conclusion of his attorneys that this statement would not provide a basis for withdrawal of the plea.
Defendant was advised prior to the entry of his plea that the maximum sentence would be 11 years. Defendant was properly sentenced in accordance with the negotiated disposition.
Disposition
The judgment is affirmed.
We concur: McGuiness, P. J., Siggins, J.