Permission to Withdraw No Contest Plea in California

In People v. Brown (1986) 179 Cal. App. 3d 207, the defendant told his attorney he wanted to withdraw his no contest plea. ( Id. at pp. 210-211.) The attorney refused to make a motion to withdraw the plea because she did not believe there was any legal basis for the motion. ( Id. at p. 211.) However, she raised the matter before the court at the sentencing hearing, and the defendant was allowed to address the court directly. ( Id. at pp. 211-213.) The defendant asked permission to withdraw his plea and also asked if he could get another lawyer to represent him since his current attorney would not make the motion to withdraw for him. ( Id. at pp. 211-212.) The trial court denied the defendant's requests. ( Id. at p. 213.) On appeal, the Sixth Appellate District concluded the defendant was deprived of his right to make an effective motion to withdraw his plea of nolo contendere. (Brown, supra, 179 Cal. App. 3d at p. 213.) The court noted it was improper to permit defendant to bring his motion in pro. per. while he was still represented by counsel and he had not waived his right to counsel. ( Id. at pp. 214-215.) The court further concluded, however, that the defendant was entitled to have the motion presented to the court by his attorney of record. ( Id. at p. 215.) In effect, the court concluded the right to seek withdrawal of a guilty or no contest plea was a personal right of the defendant, and the attorney's obligation was simply to provide the best representation that he can under the circumstances. (Ibid., ) The court went on to suggest that defense counsel was not compelled to make a motion which, in counsel's good faith opinion, is frivolous or when to do so would compromise accepted ethical standards.(Id. at p. 316.) However, that state of affairs was not before the court, and the court declined to state a rule in anticipation of such a situation. (Ibid.) The court concluded by noting that the defendant had requested the appointment of substitute counsel, and should counsel's refusal to make a motion to withdraw the defendant's plea persist upon remand, the trial court should hold a hearing, attempt to determine the basis of the conflict and decide, in its discretion, whether substitute counsel should be appointed to represent the defendant. (Ibid.)