California Case Law on Motion to Withdraw Guilty Plea
In People v. Brown (1986) 179 Cal.App.3d 207, trial counsel informed the court at sentencing that the defendant wanted to withdraw his plea, but that in her opinion, there was no "legal basis" for such a motion, and she was not making the motion for him. (People v. Brown, supra, 179 Cal.App.3d at p. 211.)
The defendant told the court that at the time he entered his plea, he "wasn't in the right frame of mind" (id. at p. 211) because "a death had him shook up" (id. at p. 213). He asked the trial court if he could withdraw his plea and obtain another attorney, but the trial court refused to grant either request. (Id. at pp. 211-213.)
The appellate court, noting that a criminal defendant has a "right to be represented by counsel at all stages of the proceedings" (id. at p. 214), concluded that the defendant was "deprived of his right to make an effective motion to withdraw his plea" (id. at p. 213) and remanded the case to allow the defendant, represented by counsel, to move to withdraw his plea, with instructions for a Marsden hearing should counsel continue to refuse to bring the motion (id. at p. 216). In so holding, the court stated that it was not suggesting that counsel is required to make a frivolous motion or "compromise accepted ethical standards." (Id. at p. 216.)
People v. Osorio (1987) 194 Cal.App.3d 183 followed Brown. There, the defendant stated at sentencing he wanted to withdraw his plea because "'he didn't understand what he was pleading to.'" (People v. Osorio, supra, 194 Cal.App.3d at p. 186).
Trial counsel "specifically represented to the trial court that there appeared to be good grounds for a motion to withdraw the plea," but refused, in "'good conscience,'" to bring the motion because withdrawal of the plea would result in reinstatement of counts dropped under the plea agreement. (Id. at p. 188.)
On appeal, this court cited and discussed Brown, and, referring to Brown, stated, "We believe that counsel's representation to the court that there was a colorable basis for the motion to withdraw the guilty plea requires a similar disposition of the present appeal." (Id. at p. 189.) This court remanded the case to allow defendant to bring a motion to withdraw the plea. (Ibid.)
In Garcia, the defendant made a motion for substitute counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 in which he detailed various alleged failings by defense counsel. (People v. Garcia, supra, 227 Cal.App.3d at p. 1373.)
The court denied the motion. Thereafter, at sentencing, the defendant made various statements (id. at pp. 1373-1374) which the appellate court interpreted as a motion to withdraw the plea based on the instances of alleged ineffective assistance of counsel previously raised by the defendant (id. at p. 1377). Under those circumstances, the Garcia court stated:
"There should be a limited exception to the general rule articulated in People v. Brown (1986) 179 Cal.App.3d 207. To hold otherwise would place the attorney in an intolerable position, requiring him to assert his own incompetence and thereby creating a conflict of interest between the client's interests and that of the attorney." (Id. at p. 1377.)
Where a defendant seeks to withdraw a plea on the ground of ineffective assistance of counsel, the court stated, it should employ the following procedure:
"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. 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.' If the defendant does not present a colorable claim, the court may deny the motion without providing for new counsel." (Ibid.)
From Brown, Osorio and Garcia, we glean the following. A criminal defendant has a right to make a motion to withdraw his or her plea, and to be represented by counsel in the effort, if nonfrivolous grounds exist for withdrawing the plea. (People v. Brown, supra, 179 Cal.App.3d at pp. 213-216, People v. Osorio, supra, 194 Cal.App.3d at pp. 188-189).
Where counsel refuses to present a nonfrivolous motion to withdraw the plea, the remedy, generally, is a remand to allow the defendant, represented by counsel, to move to withdraw his or her plea, with the proviso that if, on remand, counsel persists in his refusal, "the trial court should hold a hearing, attempt to determine the basis for the conflict and decide, in its discretion, whether substitute counsel should be appointed to represent the defendant." (People v. Brown, supra, 179 Cal.App.3d at p. 216.)
However, where "the gravamen of the motion for withdrawal rests on allegations which are properly characterized as claims of ineffective representation," the alternative procedure described in Garcia is appropriate. (People v. Garcia, supra, 227 Cal.App.3d at p. 1377.)