People v. Smith

• Decision Date: 16 December 1993
• Docket Number: No. S029820,S029820
• Citation: 25 Cal.Rptr.2d 122,6 Cal.4th 684,863 P.2d 192
• Court: California Supreme Court
• Parties: , 863 P.2d 192 The PEOPLE, Plaintiff and Respondent, v. Michael DeShawn SMITH, Defendant and Appellant.

Page 122

25 Cal.Rptr.2d 122

6 Cal.4th 684, 863 P.2d 192

The PEOPLE, Plaintiff and Respondent, v. Michael DeShawn SMITH, Defendant and Appellant.

No. S029820.

Supreme Court of California.

Dec. 16, 1993.

As Modified on Denial of Rehearing Feb. 3, 1994.

Verna R. Landis, Carmel, under appointment by the Supreme Court, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson and Gregory W. Baugher, Asst. Attys. Gen., Robert E. Venturi, Maureen A. Daly and George M. Hendrickson, Deputy Attys. Gen., for plaintiff and respondent.

ARABIAN, Justice.

A defendant pleads guilty to felony charges pursuant to a plea bargain. Prior to sentencing, he seeks to withdraw the plea, and claims his court-appointed attorney provided ineffective assistance. Under what circumstances must the trial court substitute new counsel in place of the first attorney for future representation, including investigating and, if appropriate, presenting a claim that the first attorney was ineffective?

I. FACTS

Defendant was charged by information with murder and other offenses. The information also alleged that defendant used a firearm in the commission of the murder (Pen.Code, § 12022.5, subd. (a)), that the murder was committed for the benefit of a street gang (Pen.Code, § 186.22, subd. (b)), and that defendant had suffered one prior serious felony conviction. (Pen.Code, § 667, subd. (a).) The charges arose out of the gang-related fatal shooting of Reginald Laird in Fresno in October 1990.

On the day set for jury trial, defendant, represented by appointed counsel, agreed to accept a plea offer, then changed his mind, then changed his mind again and accepted a new offer. He ultimately pleaded guilty to second degree murder, and admitted the firearm and street gang allegations. In return for the plea, the remaining charges and the prior conviction allegation were dismissed, and it was agreed defendant would receive no more than the mitigated term of three years for the firearm-use enhancement.

Prior to taking the plea, the court explained to defendant his constitutional rights. Defendant stated he understood and waived each one. At one point, defendant stated that "[i]t seems like I'm being forced" to plead guilty. After further discussion, and assurance by the court that it was solely his decision, he made clear that he was accepting the plea offer voluntarily. The court explained the consequences of the plea. After some questions and three conferences with his attorney, defendant stated that he understood the consequences, and pleaded guilty in accordance with the plea agreement.

Prior to sentencing, defendant, through his attorney, moved to withdraw the plea. The moving papers stated that defendant told the attorney "he did not realize, when he entered the plea to second degree murder, that he would have to do a hard fifteen before being paroled. Furthermore, [defendant] informs me that he did not understand that he was pleading to murder, because he felt that he was simply defending himself. [p] [Defendant] feels that both the court and the counsel pressured him into pleading guilty. If there is any doubt the court should grant a prejudgment motion to withdraw a guilty plea." In a declaration accompanying the motion, defense counsel denied pressuring defendant to plead guilty, stated that he informed defendant of the consequences of accepting or refusing the plea offer, and concluded that "[t]he decision to plead guilty was strictly that of [defendant]."

On the day set for sentencing, defendant filed a motion for substitution of counsel "due to inadequate representation of counsel," citing People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44. Filed with the motion were five handwritten pages in which defendant stated that his attorney had "fail[ed] to confer with me concerning the preparation of the defense," had otherwise "failed to communicate with me," had "failed to perform or have performed investigation critical and necessary to the defense," had "fail[ed] to impeach prosecution witnesses," had failed to move to suppress evidence, and had "taken the role of a sorrogate [sic] prosecutor."

The court that took the plea heard the motion to substitute counsel outside the presence of the prosecutor. Defendant said he had nothing to add to his handwritten statement.

Defense counsel responded point by point to defendant's complaints. He described what he and the two defense investigators had done to prepare for trial. For example, he stated that "numerous witnesses were interviewed. At the time of trial I had issued twenty-one subpoenas for these witnesses." He admitted that he and defendant had argued on the day set for trial. Defendant had made accusations indicating "that he thinks I'm a dump truck ¹, and I got a little irritated at him because I worked pretty hard on this case." At the hearing, defendant accused counsel of using "foul language." Counsel responded that the "foul language came at the point in time when I got fed up with the accusations...."

Counsel denied pressuring defendant to accept any plea offer. He stated that, as was his duty, he conveyed to defendant all offers the prosecution made, including the earlier offer that was less favorable than the one finally accepted. He also fully explained the consequences of either accepting any of the offers or going to trial. He concluded that "I told him I didn't think the offer to plead to second degree murder ... was that bad of an offer, and it could get a lot worse if we went to trial. I'm also obligated, I feel, to do that type of thing based on my experience in what I know about the case and what I know about the witnesses that have been subpoenaed and the witnesses that were present."

Defendant replied, "All I can just say, literally, he cussed me out because I didn't want to take the plea. I did not want to take it." The matter was then submitted.

The court denied the motion for substitution of counsel in a detailed oral ruling. It was "convinced that [defense counsel] was ready to go" to trial if the offer had not been accepted. It found that counsel's "belief in the Defendant's guilt which may have occurred here is not enough" to warrant new counsel (citing People v. Williamson (1985) 172 Cal.App.3d 737, 746, 218 Cal.Rptr. 550); that the "recommendation that the Defendant accept a plea bargain where Counsel is ready for trial is not enough" (citing People v. Terrill (1979) 98 Cal.App.3d 291, 300, 159 Cal.Rptr. 360); that defendant's "lack of confidence in Counsel, which apparently is present here, although it doesn't appear as though it is properly founded ... in and of itself is not enough" (citing People v. Bean (1988) 46 Cal.3d 919, 947, 251 Cal.Rptr. 467, 760 P.2d 996); and that "the fact that Defendant does not relate well to Counsel, and I think that's really the root of this, with regard to the discussions ... where there was an argument, that's not enough" (citing People v. Silva (1988) 45 Cal.3d 604, 622, 247 Cal.Rptr. 573, 754 P.2d 1070).

The court concluded, "I think that what has happened here is that there was an argument, and that argument did not have to do with the substance of the ability of [defense counsel] to properly represent you.... I think that you've heard the statement that is not rebutted concerning the number of witnesses that were subpoenaed and the issue of impeachment of these witnesses as you've indicated in your statement. That is something that you could not tell until trial, because that's the proper time to impeach a witness is when they get up on the stand and they start testifying.... [p] Therefore, for all of these reasons and the cases cited ... the Marsden motion is denied."

Thereafter, the court heard and denied defendant's motion to withdraw the plea, which was argued by counsel. Defendant was sentenced to state prison in this and an unrelated matter for a term consistent with the plea bargain.

The Court of Appeal found that the trial court did not abuse its discretion in denying the motion to withdraw the plea, but that it applied an incorrect test in denying the postconviction motion for substitute counsel. The court ordered the case remanded for the limited purpose of rehearing defendant's motion for new counsel, "utilizing the appropriate standard of proof...." It instructed that "[i]f 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 plea. If the renewed motion to withdraw plea is denied, the court shall reinstate the judgment."

We granted the Attorney General's petition for review on the substitution of counsel issue.

II. DISCUSSION

Criminal defendants are entitled to competent representation. If a defendant cannot afford to hire an attorney, one must be appointed for the defendant. (Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; People v. Crandell (1988) 46 Cal.3d 833, 853, 251 Cal.Rptr. 227, 760 P.2d 423; People v. Marsden, supra, 2 Cal.3d at p. 123, 84 Cal.Rptr. 156, 465 P.2d 44 [Marsden ].) The question here is: When is a defendant entitled to the substitution of new counsel after conviction for future representation, including arguing, if appropriate, that the previous attorney was ineffective? The question is complicated by the obvious conflicts defense attorneys have in defending themselves from claims of incompetence by the very clients they are supposed to represent, and in arguing that their clients are entitled to some sort of relief--such as a new trial or withdrawal of a guilty plea--because of their own ineffectiveness.

The seminal case regarding the appointment of substitute counsel is Marsden, supra, 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44, which gave birth to the term of...