People v. Brown
Citation | 224 Cal.Rptr. 476,179 Cal.App.3d 207 |
Court | California Court of Appeals |
Decision Date | 26 March 1986 |
Parties | The PEOPLE, Plaintiff and Respondent, v. Jerry BROWN, Defendant and Appellant. H000682. |
J. Courtney Shevelson, Carmel, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., Kristofer Jorstad, Robert E. Granucci, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.
In this appeal defendant contends he was denied the assistance of counsel in his attempt to withdraw a previously entered plea of nolo contendere. 1
We find defendant's contention to have merit and remand for further proceedings including proper consideration of defendant's motion to withdraw his plea.
On March 7, 1985, defendant entered pleas of nolo contendere to counts I and VI of an information, each charging a violation of Penal code section 288, subdivision (b) in that defendant committed lewd and lascivious acts upon a child under the age of fourteen years with the use of force, etc. As to count VI, defendant further admitted he occupied a position of special trust to the victim (his daughter) within the meaning of Penal Code section 1203.066.
Defendant was at all times represented by the public defender and it clearly appears the pleas were entered pursuant to agreement with the district attorney and with the approval of the court (Pen.Code, § 1192.5) specifying a prison term of eight years as to each count, the terms to be served consecutively. Four additional counts of violation of Penal Code section 288, subdivision (b), and two counts of violation of Penal Code section 288, subdivision (a), were dismissed in consideration of defendant's pleas of nolo contendere and his admission of the section 1203.066 allegation of special trust.
The issue before this court arose on April 8, 1985, when defendant appeared for sentencing, and the following discussion ensued:
The Defendant: Yes, sir.
We distill from the above exchange the following operative facts: Defendant desired to withdraw his plea but his attorney refused to make such motion on defendant's behalf apparently believing there was no legal basis for it. Although he was granted permission to "speak," defendant did not represent himself. As the trial court found, there was "no hiat[u]s in representation." The court summarily denied defendant's request for substitute counsel and denied his "motion" to withdraw the plea.
We conclude, in light of controlling authority, that the defendant was deprived of his right to make an effective motion to withdraw his plea of nolo contendere.
Penal Code section 1018 provides in pertinent part:
As stated in People v. Cruz (1974) 12 Cal.3d 562, 566, 116 Cal.Rptr. 242, 526 P.2d 250:
It was defendant's right to be represented by counsel at all stages of the proceedings. (Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; People v. Mattson (1959) 51 Cal.2d 777, 788, 336 P.2d 937.) The right naturally extended to the motion to withdraw the plea. While defendant generally had the right to discharge his attorney and represent himself (Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562), it is clear he did not elect that course. Waiver of the right to counsel will not be presumed from a silent record. (People v. Paradise (1980) 108 Cal.App.3d 364, 368, 166 Cal.Rptr. 484.) Nor can defendant be deemed to have sought and received permission to participate in the conduct of the case. The trial court may permit such participation by a defendant but "should not permit a litigant both to have counsel and to actively participate in the conduct of the case (as by conducting examination of witnesses, interposing objections, arguing points of law or of fact, addressing the jury, etc.) unless the court on a substantial showing determines that in the circumstances of the case the cause of justice will thereby be served and that the orderly and expeditious conduct of the court's business will not thereby be substantially hindered, hampered or delayed." (People v. Mattson, supra, 51 Cal.2d 777, 797, 336 P.2d 937.) No such showing was made here. In any event, the court's granting defendant mere permission to "speak" did not purport to confer on him status as co-counsel.
It is settled that the attorney of record has the exclusive right to appear in court for his or her client and to control the court proceedings, so that neither the party himself nor another attorney can be recognized by the court in the conduct or disposition of the case. (People v. Merkouris (1956) 46 Cal.2d 540, 554-555, 297 P.2d 999.) The defendant in Merkouris was permitted, over his attorney's implied objection, to personally withdraw a previously entered plea of not guilty by reason of insanity. (Id., at pp. 552, 553, 297 P.2d 999.) The Supreme Court held the trial court erred in permitting defendant personally to withdraw the plea. (Id., at p. 555, 297 P.2d 999.)
Defendant here had counsel of record and, he, himself, had not been accorded status as co-counsel. The trial court observed there was no hiatus in representation. Further, defendant requested new counsel when confronted with his attorney's refusal to represent defendant in his motion to withdraw the plea.
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. (People v. McCary (1985) 166 Cal.App.3d 1, 11, fn. 8, 212 Cal.Rptr....
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