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District Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. James Franklin GOLDMAN, Defendant and Appellant.

Cr. 3962.

Decided: June 08, 1966

Cullen A. Stinnett, Court Appointed, Sacramento, for appellant. Thomas C. Lynch, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen., and Harold F. Bradford, Deputy Atty. Gen., Sacramento, for respondent.

Defendant, an inmate of Folsom Prison, appeared in superior court on July 14, 1965, with court-appointed counsel and entered a plea of guilty to a charge of attempted escape. (Pen.Code, § 4530, subd. (b).) The court continued the case for imposition of sentence. At the arraignment for judgment on July 22 defendant's counsel requested permission to withdraw the plea of guilty, stating that defendant had been ‘under medication, tranquilizers' when he entered his plea the previous week. The court denied the motion and pronounced sentence. Sole ground of appeal is that court-appointed trial counsel inadequately represented defendant by failing to offer proof (or to request a continuance for the purpose of producing proof) of an improvident plea of guilty.

The dialogue between the trial court and counsel at the time of the motion to withdraw the plea is reproduced in the margin.1

Inadequacy of legal representation by counsel appointed to represent an indigent defendant may amount to a denial of the constitutional right to counsel and provide ground for reversal. The leading California case, People v. Ibarra, 60 Cal.2d 460, 464, 34 Cal.Rptr. 863, 866, 386 P.2d 487, 490, describes the principal standards for measuring adequacy of legal representation: ‘To justify relief on this ground, ‘an extreme case must be disclosed.’ [Citations.] It must appear that counsel's lack of diligence or competence reduced the trial to a ‘farce or a sham.’ [Citations.] It is counsel's duty to investigate carefully all defenses of fact and of law that may be available to the defendant, and if his failure to do so results in withdrawing a crucial defense from the case, the defendant has not had the assistance to which he is entitled.'

California law entitles a defendant to the effective aid of counsel not only at his trial but at all stages of the proceedings. (In re Johnson, 62 Cal.2d 325, 329, 42 Cal.Rptr. 228, 398 P.2d 420; People v. Avilez, 86 Cal.App.2d 289, 294, 194 P.2d 829.) Federal constitutional demands arise when the proceeding is at a critical or crucial stage. (Massiah v. United States, 377 U.S. 201, 205, 84 S.Ct. 1199, 12 L.Ed.2d 246; White v. State of Maryland, 373 U.S. 59, 60, 83 S.Ct. 1050, 10 L.Ed.2d 193.) It is said that federal due process requires reversal of a conviction which is ‘fundamentally unfair’ for lack of the effective aid of counsel. (People v. Mattson, 51 Cal.2d 777, 790, fn. 5, 336 P.2d 937.) Token or ineffectual aid of counsel at the time of a plea of guilty may necessitate reversal. (People v. Avilez, supra, 86 Cal.App.2d 289, 194 P.2d 829; People v. McGarvy, 61 Cal.App.2d 557, 142 P.2d 92.)

Penal Code section 1018 authorizes the trial court ‘for good cause shown’ at any time before judgment to grant the defendant's application for leave to withdraw a guilty plea and substitute a plea of not guilty.2 The statute expressly directs lib erality in permitting the change of plea. (People v. Francis, 42 Cal.2d 335, 338, 267 P.2d 8.) The statutory procedure finds most frequent expression in withdrawal of a plea which is improvident, that is, one made under some influence which overcame the defendant's exercise of free judgment. (People v. Brotherton, 239 A.C.A. 211, 216, 48 Cal.Rptr. 513; People v. Cooper, 123 Cal.App.2d 353, 356, 266 P.2d 566; People v. Griffin, 100 Cal.App.2d 546, 548, 224 P.2d 47.) Appellate review of trial court response to such a motion is usually grounded on asserted abuse of discretion. An appellate court will not disturb the grant or denial of the motion unless abuse of discretion is clearly shown. (People v. Brotherton, supra, 239 A.C.A. at p. 216, 48 Cal.Rptr. 513; People v. Beck, 188 Cal.App.2d 549, 552, 10 Cal.Rptr. 396.) The present appeal shifts the focus to adequacy of legal representation by counsel in the presentation of the motion. Although with understandable reluctance, court-appointed appellate counsel pursues his duty and points out that court-appointed trial counsel neither supported his motion with evidence nor moved for a continuance to secure evidence.

Ordinarily motions in criminal cases are made orally in open court. They are supported by affidavit, by court records and occasionally by oral testimony. (See Witkin, Cal.Criminal Procedure, § 22, p. 24.) California case law uniformly demands that the basis for a motion to withdraw plea be established by ‘clear and convincing evidence’ or ‘requisite proof.’ (People v. Brotherton, supra, 239 A.C.A. at pp. 216–217, 48 Cal.Rptr. 513; People v. Perry, 220 Cal.App.2d 841, 34 Cal.Rptr. 110; People v. Beck, supra, 188 Cal.App.2d at p. 553, 10 Cal.Rptr. 396; People v. Ottenstror, 127 Cal.App.2d 104, 273 P.2d 289; People v. Cooper, supra, 123 Cal.App.2d 353, 266 P.2d 566; People v. Burkett, 118 Cal.App.2d 204, 257 P.2d 745.) The motion must be supported by ‘documentary or oral evidence, or both.’ (People v. Lamb, 64 Cal.App.2d 409, 411, 148 P.2d 873, 874.) A defendant's failure to produce any support except unsworn statements is factor in finding no abuse of discretion in rejection of the motion. (See People v. Brotherton, supra, 239 A.C.A. at pp. 217–218, 48 Cal.Rptr. 513; People v. Gannaro, 216 Cal.App.2d 25, 27–28, 30 Cal.Rptr. 711; People v. Singh, 156 Cal.App.2d 363, 366, 319 P.2d 697; People v. Moffett, 137 Cal.App.2d 626, 629–630, 290 P.2d 667.) In Brotherton, supra, the defendant, like the present defendant, claimed he had entered a drug-influenced plea of guilt and asserted trial court abuse of discretion in refusing to permit its withdrawal. In sustaining the trial court's discretion, the appellate court observed: ‘Reference to the record before this court reflects that the defendant did not file any affidavit or declaration in connection with his motion, nor did he offer more than his unsworn statement in support of it. * * * There is nothing in the record to show that he has a bona fide defense to either of the charges.’ (239 A.C.A. at p. 217, 48 Cal.Rptr. at p. 518.)

Inferably, defendant was transferred from Folsom Prison to the Sacramento County jail for arraignment on July 14 and again for sentencing on July 22. He could legitimately come by tranquilizers only in the course of treatment by prison doctors. The truth of his claim, the kind and quantity of medication, the time of ingestion in relation to the time of arraignment and the medical effect upon his volitional capacity were matters ascertainable through prison personnel, prison records and, if necessary, medical opinion. If in fact tranquilizers were administered as a consequence of medical treatment for a physical or psychiatric condition which might have affected his plea, evidence of that fact was available. If, as counsel stated, defendant was receiving some kind of psychiatrictreatment at the prison, that circumstance too would bear heavily on his claim of an improvident plea. Whether these same factors might have affected defendant's actions at the time of the act charged was also ascertainable.

For all that the record shows, counsel had not talked with his client between the arraignment and the appearance for sentence. If so, the morning of July 22 was the first opportunity defendant had of communicating his claim to the attorney. Counsel's statement that he had just received the information that morning indicates that he had had no time to investigate or appraise defendant's claim. If the claim was worth making, it was worth investigating. Thus a motion for continuance was appropriate. Instead, counsel chose to present the motion for withdrawal of plea then and there. So presented, the motion was supported by no preparation, no evidence, no offer of proof. It rested on the unsworn repetition of unsworn information which counsel had received from his client, a convicted felon whose record and self-interest could only stimulate disbelief. As presented, the motion was ritualistic, implicit with an admission of weakness and foredoomed to failure.

When the trial court inquired whether counsel's unverified statement was all he intended to submit, counsel responded affirmatively, in effect telling the court that he had no intention of verifying defendant's claim. Viewing counsel's statements as an implicit request for a continuance, the court indicated unwillingness to grant relief, but then gave counsel a second opportunity for additional claims or suggestions. The second opportunity, like the first, was rejected. There was no abuse of trial court discretion in the court's denial of relief, because nothing had been presented upon which the court could act.

Realism recognizes that courthouse informalities and procedural shortcuts develop in the press of supplying legal services to the unremitting flow of indigent defendants. Realism recognizes that the claims of chronic offenders arouse skepticism. While defendant's claims of psychiatric disturbance and tranquilizers were thin, they were not beyond possibility and easily verifiable. Another realism demands recognition at this point—the aim of our society to approach as closely as practical the goal of qualitative parity of representation between indigent accused and those able to pay. (See In re Nash, 61 Cal.2d 491, 495–496, 39 Cal.Rptr. 205, 393 P.2d 405.) A paying client would have had the benefit of evidence in support of his motion to change plea. Defendant should have had no less. We have concluded that defendant did not receive the effective aid of counsel in the attempt to withdraw his plea.

Among the criteria of inadequate representation, the Ibarra decision lists loss of a crucial defense. In Ibarra that criterion was expressed in the context of the trial and verdict of guilt. Here the charge of inadequate representation centers not on the contest of guilt but on the removal of a barrier to that contest. It is illogical to express the value of a withdrawn plea of guilt in terms of a crucial defense. Rather, its value lies in an opportunity to present defenses whose worth can't be measured because they are not yet apparent. (See, e.g., People v. Avilez, supra, 86 Cal.App.2d 289, 194 P.2d 829; People v. McGarvy, supra, 61 Cal.App.2d 557, 142 P.2d 92.) In its impact on the defendant's fate, withdrawal of a guilty plea may be as crucial as the trial itself.

We do not interpret Ibarra as holding that loss of a crucial defense is an indispensable ingredient of inadequate representation. A lawyer's work may be excellent, standard or inferior at the periphery of the lawsuit without affecting the vital processes at its center. The crucial character of the occasion is not a relevant standard for appraising the representation manifested on that occasion. Rather, the qualitative judgment should turn on adequacy of the attorney's knowledge of the law and of his investigation of the law and the facts. (People v. Ibarra, supra, 60 Cal.2d at p. 464, 34 Cal.Rptr. 863, 386 P.2d 487; People v. Kirchner, 233 Cal.App.2d 83, 43 Cal.Rptr. 218.) If the qualitative judgment is one of inadequacy, the only other question is whether it should cause appellate reversal of the conviction.

In deciding whether an absence or failure of representation is crucial, a reviewing court is really determining whether the defendant's case was prejudiced by the mishap. The courts may inquire whether an absence or failure of legal representation occurred at a ‘critical’ or ‘crucial’ stage;3 or whether lack of representation ‘fatally infected’ fairness of the conviction.4 Such inquiries, phrased in the traditional nomenclature of due process denial, are ostensibly directed at the ascertainment of a constitutional injury. Having found a constitutional injury at a crucial stage, the courts may then assert their refusal to inquire into prejudice,5 or refuse ‘to indulge in nice calculations as to the amount of prejudice.'6 On its surface such a refusal appears to view the failure as reversible error per se. (See People v. Bostick, 62 Cal.2d 820, 823–824, 44 Cal.Rptr. 649, 402 P.2d 529.)

Actually, announced judicial refusal to measure prejudice caused by a failure of representation occurs after prejudice has been sought and found in the course of deciding that the failure amounted to a constitutional deprivation. Although couched in the verbiage of due process of law, inquiry into the crucial character of the failure simultaneously fulfills the function of probing for prejudice or miscarriage of justice, enjoined upon California reviewing courts by article VI, section 4 1/2, of the State Constitution.7 Only gossamer words distinguish the two kinds inquiry.

People v. Bostick, supra, now indicates that in California constitutional error calling for reversal without regard to prejudice is limited to erroneously admitted confessions and cases in which the trial was fundamentally unfair. (62 Cal.2d at p. 824, 44 Cal.Rptr. 649, 402 P.2d 529.) Thus we are here obliged to determine—on the record before us—whether the failure of representation resulted in a miscarriage of justice under article VI, section 4 1/2, of the State Constitution. Whatever description is applied to the task of review, the appellate court has before it only the record of an untried case. Such a record would handicap ascertainment of the mishap's crucial character no less than the measurement of prejudice. The court must perforce use such factors as are available.

One factor is the liberality commanded by Penal Code section 1018 in allowing withdrawal of a guilty plea. In view of this liberality, an adequately based and supported motion has substantial expectation of success. A second factor is the character of proof available to this defendant as a Folsom prisoner. If his claim of a drug-induced mental state at the time of plea had any substance, supporting evidence was easily available. A third factor is the nature of the offense charged against him. There are expressions in several decisions inferring that an application to withdraw the plea of guilty must be supported not only by evidence of an improvident plea but by facts tending to show innocence. (People v. Beck, supra, 188 Cal.App.2d at p. 553, 10 Cal.Rptr. 396; People v. Wells, 77 Cal.App.2d 520, 524, 175 P.2d 595.) In view of these expressions we shall assume (without holding) that consideration of a request to change pleas may include some kind of inquiry into the availability of defenses. Here defendant was charged with attempted escape, a simple crime usually proved with ease. The courtroom colloquy (fn. 1, supra) includes an indication of some unspecified psychiatric condition. The crime of escape requires no specific mental state, hence it is not predictable that evidence of defendant's psychiatric condition would play a defensive role. (See People v. Conley, 64 A.C. 321, 326–330, 49 Cal.Rptr. 815, 411 P.2d 911; People v. Anderson, 63 Cal.2d 351, 364–366, 46 Cal.Rptr. 763, 406 P.2d 43.) Nevertheless, with no trial record before us, we cannot speculatively assume that defendant had no defense such as might be asserted under the general provisions of Penal Code section 26. On the present record, all that can be said is that there is at least a reasonable probability that the inadequacy of representation contributed to preservation to the plea of guilty and thus to the judgment of conviction. Consequently a miscarriage of justice occurred. (People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243.)

The judgment is reversed and the trial court directed to permit defendant to apply for withdrawal of his plea of guilty if he is so advised.


1.  ‘[THE COURT]: Any legal cause to show why judgment and sentence should not now be pronounced.‘[DEF. COUNSEL]: Yes, your Honor. Last week when the Defendant entered the plea to the charge contained in the Indictment, he was under medication, tranquilizers.‘THE COURT: Who told you that?‘[DEF. COUNSEL]: The Defendant, your Honor. I am also now given to understand that he is in segregation at the Prison and awaiting psychiatric evaluation and treatment; and therefore, I feel that the plea should be set aside and the Defendant should be allowed to undergo psychiatric treatment before any plea is entered to this charge.‘We request permission of the Court to withdraw the plea that was previously entered.‘THE COURT: Is that all you have to submit to this Court?‘[DEF. COUNSEL]: Yes, your Honor. Just received all of this information this morning. I have not had ample opportunity to verify the facts with the authorities at Folsom.‘THE COURT: I read this report on this matter, carefully conceived attempted escape; almost resulted in tragedy for this man. Could well have done so had it not been for the fact that the guard maintained his composure pretty well.‘I see no reason for continuing this matter or for permitting him to change his plea. Anything further?‘[DEF. COUNSEL]: No. Nothing further, your Honor.‘THE COURT: Request for permission to change plea is denied.’

2.  Penal Code section 1018 declares: ‘* * * On application of the defendant at any time before judgment the court may, and in case of a defendant who appeared without counsel at the time of the plea the court must, for good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. * * * This section shall be liberally construed to effect these objects and to promote justice.’

3.  E. g., Massiah v. United States, supra, 377 U.S. at p. 205, 84 S.Ct. 1199, 12 L.Ed.2d 246; White v. State of Maryland, supra, 373 U.S. at p. 60, 83 S.Ct. 1050, 10 L.Ed.2d 193; Hamilton v. State of Alabama, 368 U.S. 52, 55, 82 S.Ct. 157, 7 L.Ed.2d 114; People v. Ibarra, supra, 60 Cal.2d at p. 464, 34 Cal.Rptr. 863, 386 P.2d 487.

4.  E. g., Escobedo v. State of Illinois, 378 U.S. 478, 491, 84 S.Ct. 1758, 12 L.Ed.2d 977; Crooker v. State of California, 357 U.S. 433, 439–440, 78 S.Ct. 1287, 2 L.Ed.2d 1448; Lisenba v. People of State of California, 314 U.S. 219, 236, 62 S.Ct. 280, 86 L.Ed. 166; People v. Crooker, 47 Cal.2d 348, 353, 303 P.2d 753.

5.  E. g., White v. State of Maryland, supra, 373 U.S. at p. 60, 83 S.Ct. 1050; Hamilton v. State of Alabama, supra, 368 U.S. at p. 55, 82 S.Ct. 157; see People v. Chesser, 29 Cal.2d 815, 178 P.2d 761.

6.  E. g., People v. Lanigan, 22 Cal.2d 569, 575, 140 P.2d 24, 148 A.L.R. 176, quoting from Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680; People v. Avilez, supra, 86 Cal.App.2d at p. 298, 194 P.2d 829.

7.  That section declares: 'No judgment shall be set aside * * * for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.'

FRIEDMAN, Acting Presiding Justice.

REGAN, J., and WHITE, J., pro tem., concur.