PEOPLE v. WALKER

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Dennis Rodney WALKER, Defendant and Appellant.

No. F017640.

Decided: August 12, 1993

Gary Evan McCurdy, Staff Atty., Central Appellate Program, Sacramento, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Sr. Asst. Atty. Gen., Roger E. Venturi and Edgar A. Kerry, Deputy Attys. Gen., Fresno, for plaintiff and respondent.

OPINION

Pursuant to a negotiated plea, defendant pled guilty to two counts of first degree murder (Pen.Code, § 187).   At the time set for pronouncement of judgment, defense counsel advised the court that defendant wished to withdraw his plea and moved for a continuance to allow him to file a motion for such relief.   The court denied the motion and, in accordance with the plea bargain, sentenced defendant to state prison for concurrent terms of 25 years to life.   On appeal, defendant contends the court abused its discretion in denying his request for a continuance to permit the filing of a motion to withdraw his pleas.   For reasons that will appear, we agree, reverse the judgment and remand for further proceedings.

PERTINENT PROCEDURAL BACKGROUND 1

On February 18, 1992, defendant appeared in Mariposa County Superior Court with counsel, John Garcia and Thomas Mills, and pursuant to a plea bargain set forth in a written “DECLARATION REGARDING GUILTY PLEA,” entered guilty pleas to two counts of first degree murder stemming from the deaths of Richard Houle and Rain Hayes on December 6, 1990.   The pleas were conditioned upon concurrent sentences being imposed on the two counts and the dismissal or striking of all enhancement and special allegations.   During this proceeding the following occurred:

“MR. GRIFFITH [District Attorney]:  Defendant agreed to waive appeal.

“THE COURT:  Thank you.   As part of the disposition previously discussed and it wasn't in the waiver form but it was discussed, that any right to appeal in this case would be waived as part of the disposition.   And I'm assuming, Mr. Garcia, you did talk with Mr. Walker about that?

“MR. GARCIA:  Yes, your Honor.

“THE COURT:  And Mr. Walker, with that in mind do you realize you do have a right to appeal this matter filing that with the 5th District Court of Appeal and being appointed counsel if you would, it's indicated as part of this disposition you're going to waive your right to appeal;  is that your understanding?

“THE DEFENDANT:  Yes, sir.

“THE COURT:  Then I'll refer the matter to the probation department for their report and recommendation.”

On March 11, 1992, the date set for pronouncement of judgment, defendant appeared with counsel, and Mr. Garcia requested the matter be continued to give defense counsel an opportunity to more fully review with defendant the lengthy report of the probation officer.   The matter was reset for April 2 and on that date defendant again appeared with counsel.   The court inquired if there was any legal cause why judgment should not be pronounced and the following ensued:

“[MR. GARCIA:]  “However, today I've been informed by Mr. Walker that he wishes to withdraw his previously entered plea and that is something we had not anticipated prior to today.   So on behalf of Mr. Walker I would be requesting a continuance, reasonable continuance in order to submit to the court a motion to withdraw his plea.

The trial court then noted the circumstances of the taking of defendant's pleas and advisements regarding sentence and credits for time served and, following a brief statement by the District Attorney, ruled:

“[THE COURT:]  “I'm going to deny the motion for continuance to set the matter for withdrawal of plea on the basis that there's not been an adequate showing of good cause or even a basis for the motion for withdrawal.”

The court proceeded with the hearing and pronouncement of judgment in accordance with the plea bargain.   The court advised defendant regarding his appeal rights whereupon the following occurred:

“MR. GRIFFITH:  Your Honor, the defendant specifically waived his right to appeal and I refer the court to page 304 of the transcript of Entry of Plea where he responded to the court's inquiry as to waiver, ‘Yes, sir’.

“THE COURT:  I understand he has waived his right to appeal and that very well may be his right to appeal specific motions that were denied, but as to the right to appeal the sentence and judgment I can't and don't at this time understand that he waived his right to appeal the judgment and sentence.

“MR. GARCIA:  Your Honor, for the record I will file that Notice of Appeal for Mr. Walker on his behalf.

“THE COURT:  All right.   That'll conclude these proceedings.”

“THE COURT:  Mr. Griffith.

“MR. GRIFFITH:  Your Honor, I believe the record—transcript of the record of the Entry of the Plea which occurred on February 18th is complete.   And legally sufficient of Mr. Walker that he knowingly waived all his rights and knowingly entered a guilty plea to two counts of first degree murder.   And also waived appeal.

“I think the record is adequate to support that.   Counsel has had ample time in which to file a written motion to withdraw a plea and has failed to do so.   I believe it's time to proceed with the case and proceed with the sentencing, your Honor.

“THE COURT:  Mr. Garcia, can you make an offer of proof as to what the basis for the motion to withdraw the plea, what would be the basis for such a motion?

“MR. GARCIA:  Well, your Honor, I think, as I understand it, I have to tell the court that my discussions about this withdrawal of plea from the time we sat and talked about sentencing with Mr. Walker consists of conversation we had this morning.   I believe Mr. Walker feels that he was not properly advised, that he did not adequately understand the consequences of his plea.   That he feels there may have been some misrepresentation as far as the consequences of his plea that goes either on behalf of counsel or court or whatever.   So.

“THE COURT:  What particularly would be the basis?

“MR. GARCIA:  I think specifically the defendant is referring to some aspects of the case that he was not adequately informed as to the evidence that was available to defense.   That he was misinformed as to the many consequences of possible time that he would be serving as a result of his plea.   In general, probably I think that there's some notions that, that he may have had inadequate counsel.”

DISCUSSION

1. Waiver of appeal.

 The Attorney General argues defendant's claim the trial court erred in denying his request for a continuance in order to file a motion to withdraw his pleas is not cognizable on appeal because defendant waived his right of appeal as part of his negotiated plea.   Inasmuch as the right of a criminal defendant to appeal his conviction and sentence is purely statutory in California—neither the federal nor the state Constitution provides such a right (Abney v. United States (1977) 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651;  Douglas v. California (1963) 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811)—we have no doubt that under appropriate circumstances the right of appeal can be waived, provided it is a knowing and voluntary waiver.  (People v. Charles (1985) 171 Cal.App.3d 552, 557, 217 Cal.Rptr. 402.)   However, we agree with the Fourth District's holding in People v. Vargas (1993) 13 Cal.App.4th 1653, 17 Cal.Rptr.2d 445 that a defendant will not be held to have waived errors occurring after the waiver unless he or she waived any possible future errors.   Absent a showing defendant was specifically informed he or she would be waiving any future errors, the waiver would not be knowing, intelligent and voluntary.  (Id. at pp. 1661–1662, 17 Cal.Rptr.2d 445.)   The Vargas court's observations are equally applicable here:

“The record reveals defendant at the very least understood he had the right to appeal errors occurring up to the time of the waiver, and he was giving it up for certain benefits.   Therefore, defendant's waiver of his right to appeal errors occurring prior to the waiver was knowing, intelligent and voluntary.   [Citation.]  Defendant is bound by his agreement and may not repudiate the unfavorable terms.  [Citation.]

“Still at issue, however, is the scope of the waiver, i.e., whether his waiver included subsequent sentencing error.  ‘Waiver is ordinarily a question of fact.  [Citation.]’  [Citation.]   It is defined as ‘[a]n intentional relinquishment or abandonment of a known right or privilege.   The determination of whether there has been an intelligent waiver ․ must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and the conduct of the accused.’   [Citation.]

“ ‘[T]he valid waiver of a right presupposes an actual and demonstrable knowledge of the very right being waived.  [Citations.]’  [Citation.]   It ‘ “[i]s the intelligent relinquishment of a known right after knowledge of the facts.”  [Citation]’  The burden is on the party claiming the existence of the waiver to prove it by evidence that does not leave the matter to speculation, and doubtful cases will be resolved against a waiver.  [Citation.]  The right of appeal should not be considered waived or abandoned except where the record clearly establishes it.  [Citation.]”  (13 Cal.App.3d at pp. 1661–1662, 17 Cal.Rptr.2d 445.)

Here, as in Vargas, the waiver of the right to appeal was very broad, general and nonspecific and could not have been knowingly and intelligently made as to the errors now complained of which occurred after the waiver and at the sentencing hearing.

2. Marsden 2 error?

 Defendant contends the trial court erred in failing to hold a Marsden hearing once defense counsel stated a possible basis for the withdrawal of his plea was inadequacy of counsel.   We disagree.   No request for substitution of counsel was made in the trial court either by defendant himself or by defense counsel on defendant's behalf.  Marsden involved the right to new counsel before trial is completed where it is made known to the trial court that a defendant is claiming inadequacy of trial counsel.  (2 Cal.3d at p. 123, 84 Cal.Rptr. 156, 465 P.2d 44.)

3. Stewart/Garcia 3 error?

In Stewart, following his conviction by jury of escape from a county jail, the defendant moved for a new trial on the basis of incompetence of trial counsel.   At the hearing on the motion, the court asked Stewart and his trial counsel to state why Stewart thought counsel was incompetent.   Both declined to do so, and counsel urged the trial court to appoint a new attorney to represent Stewart on the motion.   Trial counsel contended he could not argue his own incompetence and since Stewart was untrained in the law it would be unfair to compel Stewart to do so.   After conducting an in-camera hearing with Stewart and trial counsel, the court denied the motion for new trial finding the motion “to be totally unsupported and frivolous.”   In reversing, the appellate court stated:

“Where a defendant requests the substitution of new counsel after trial in order to assist in the preparation of a motion for new trial based on the inadequacy of trial counsel, we believe it imperative that, as a preliminary matter, the trial judge elicit from the defendant, in open court or, when appropriate, at an in camera hearing, the reasons he believes he was inadequately represented at trial.   As stated in Marsden, a trial court cannot thoughtfully exercise its discretion in a matter such as this without listening to the defendant's reasons for requesting a change of attorney.”   (People v. Stewart, supra, 171 Cal.App.3d at p. 395, 217 Cal.Rptr. 306.)

In Garcia, pursuant to a plea bargain, the defendant entered a plea of nolo contendere to a charge of assault with a deadly weapon and admitted a prior prison term allegation.   Prior to sentencing, defense counsel informed the court Garcia wished to withdraw his plea.   The matter was continued for hearing before the judge who had presided over the change of plea hearing.   Before the hearing took place, Garcia's motion for substitution of counsel was heard and the pending motion to withdraw the plea was discussed, with counsel indicating his refusal to bring the motion.   Garcia explained his dissatisfaction with counsel, including counsel's refusal to present the motion to withdraw his plea.   The Marsden motion was denied.   Thereafter, Garcia's motion to withdraw his plea was denied and he was sentenced to state prison in accordance with the negotiated plea.   The appellate court stated:

“[W]here, as here, a defendant seeks to withdraw a plea on the ground that his attorney of record has not provided adequate representation, we believe that the trial court should follow a procedure comparable to that specified in People v. Stewart (1985) 171 Cal.App.3d 388, 395–397 [217 Cal.Rptr. 306].   The trial court should first elicit and consider the defendant's reasons for believing he has been ineffectively represented, making such inquiries of the defendant and trial counsel as appear necessary in open court or, if the trial court deems necessary, at an in camera hearing.  (Ibid.)  If the defendant ‘presents a colorable claim that he was ineffectively represented,’ the trial court should appoint new counsel ‘to fully investigate and present the motion.’  (Id. at pp. 397–398 [217 Cal.Rptr. 306].)   A defendant presents a colorable claim when he ‘credibly establishes to the satisfaction of the court the possibility that trial counsel failed to perform with reasonable diligence and that, as a result, a determination more favorable to the defendant might have resulted in the absence of counsel's failings.’  (Id. at p. 397 [217 Cal.Rptr. 306].)   If the defendant does not present a colorable claim, the court may deny the motion without providing for new counsel.  (Id. at pp. 396, 398 [217 Cal.Rptr. 306].)”  (People v. Garcia, supra, 227 Cal.App.3d at p. 1377, 278 Cal.Rptr. 421, fn. omitted.)

 Here, defense counsel requested a continuance in order to file a motion to withdraw defendant's plea.   The trial court quite properly asked counsel for an offer of proof as to the “basis” for the motion.   Upon defense counsel's stating his understanding that defendant “feels he was not properly advised” and “he feels there may have been some misrepresentation” as far as the consequences of his plea that goes either on behalf of counsel or court, the court asked, “What particularly would be the basis?”   Counsel then informed the court defendant felt he had not been adequately advised “as to evidence that was available to defense,” that “he was misinformed as to the many consequences of his plea,” and “that he may have had inadequate counsel.”

In our view, being so advised, it was incumbent upon the trial court, in accordance with the principles enunciated in Marsden/Stewart/Garcia, to either grant the motion for a continuance to allow defense counsel to file a written motion or to inquire of defendant personally and “elicit and consider the defendant's reasons for believing he has been ineffectively represented” in order to determine whether defendant “presented a colorable claim.”  (People v. Garcia, supra, 227 Cal.App.3d at p. 1377, 278 Cal.Rptr. 421;  see also People v. Winbush (1988) 205 Cal.App.3d 987, 989–990, 252 Cal.Rptr. 722;  People v. Hinkley (1987) 193 Cal.App.3d 383, 392, 238 Cal.Rptr. 272;   People v. Dennis (1986) 177 Cal.App.3d 863, 871–872, 223 Cal.Rptr. 236.)   The failure to follow either course constituted an abuse of discretion.

 We also note that because of the differences between preconviction and postconviction claims of ineffective assistance of counsel, the Stewart/Garcia line of authority employs a much reduced standard of proof from that used in preconviction Marsden motions.   The Marsden standard requires “ ‘the record clearly show[ ] that the first appointed counsel is not adequately representing the accused’ ” before the court may order substitution of new counsel.  (People v. Marsden, supra, 2 Cal.3d at p. 123, 84 Cal.Rptr. 156, 465 P.2d 44.)   Under Stewart and Garcia, however, a defendant seeking substitution of counsel to present a postconviction motion founded on ineffective assistance of counsel merely has to “ ‘Credibly establish[ ] to the satisfaction of the court the possibility that counsel failed to perform with reasonable diligence and that, as a result, a determination more favorable to the defendant might have resulted in the absence of counsel's failings.’ ”  (People v. Garcia, supra, 227 Cal.App.3d at p. 1377, 278 Cal.Rptr. 421, emphasis added.)   These are manifestly different standards, the Stewart/Garcia standard being the more lenient.  (See People v. Garcia, supra, at p. 1378, 278 Cal.Rptr. 421.)

DISPOSITION

The judgment is reversed and the matter is remanded with directions to the trial court to conduct a hearing to determine whether new counsel should be appointed to represent defendant on his motion to withdraw his pleas.   In conducting the hearing, the court shall make such inquiries of defendant and counsel as in the circumstances appear pertinent;  in making its determination, the court shall employ the “colorable claim” standard of Stewart/Garcia.   If the court finds defendant has not presented a colorable claim of ineffective assistance of counsel, the court shall reinstate the judgment.   Otherwise the court shall appoint substitute counsel to present and argue defendant's motion to withdraw his pleas.   If the motion to withdraw pleas is denied, the court shall reinstate the judgment.

FOOTNOTES

1.   The facts underlying the murders to which defendant pled guilty are not relevant to the issues on appeal and are omitted.

2.   People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44.

3.   People v. Stewart (1985) 171 Cal.App.3d 388, 217 Cal.Rptr. 306;  People v. Garcia (1991) 227 Cal.App.3d 1369, 278 Cal.Rptr. 421.

BEST, Presiding Justice.

MARTIN and THAXTER, JJ., concur.