Filed 9/18/14 P. v. Walker CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064418
Plaintiff and Respondent,
v. (Super. Ct. No. SCE329094)
OTIS CONWELL WALKER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, John M.
Thompson, Judge. Affirmed.
Law Offices of Russell S. Babcock and Russell S. Babcock, under appointment by
the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Warren
Williams, Deputy Attorneys General, for Plaintiff and Respondent. Otis Conwell Walker entered a guilty plea to one count of grand theft (Pen. Code,1
§ 487, subd. (c)) as a lesser offense of a charged robbery as part of a plea agreement. In
return for his plea the remaining count and alleged prior convictions were dismissed.
On the date set for sentencing, Walker requested a "Marsden"2 hearing to request
replacement of appointed counsel and also made a request to withdraw his guilty plea.
The court conducted an in camera hearing and denied both the Marsden motion and the
request to withdraw the guilty plea. The court sentenced Walker to the low term of 16
months in local custody pursuant to the negotiated sentence.
Walker filed a timely notice of appeal and obtained a certificate of probable cause.
(§ 1237.5.)
Walker essentially contends he should have been allowed to withdraw his guilty
plea, that the trial court erred in denying his Marsden motion and that he was denied his
Sixth Amendment right to counsel because counsel did not assist him in making his
request to withdraw the guilty plea. We find each of his arguments to be without merit
and affirm the judgment.
STATEMENT OF FACTS
Since this appeal arises from a guilty plea and does not challenge the sufficiency
of the evidence we will only include a brief summary of the facts from the transcript of
the preliminary hearing in order to provide context for the discussion that follows.
1 All further statutory references are to the Penal Code unless otherwise specified.
2 People v. Marsden (1970) 2 Cal.3d 118 (Marsden). 2 On April 10, 2013, Walker approached a man on a street corner in El Cajon.
Walker asked the man for a cigarette, but the man did not have one. Walker then asked
for 50 cents. The man responded that he did not have any money. Walker then yelled at
the man and said, "then get off my street." Walker followed the man across the street and
the man then used his phone to call 911.
Walker grabbed the phone from the victim and struck him in the face. When
police arrived they searched Walker and found the victim's phone in his possession.
Walker admitted the phone was not his.
DISCUSSION
Although appellate counsel divides the arguments into three parts, at base Walker
contends his counsel was ineffective and that the court should have at least allowed him
to withdraw his guilty plea and perhaps appointed new counsel. There are three factual
assertions that underlie all of Walker's contentions. First, he contends he did not know
that intention to steal was an element of robbery or theft and if he had known that he
would not have entered a guilty plea. Second, Walker contends counsel told him he
could withdraw his guilty plea if any new facts were discovered. Finally, he contended in
the trial court that the offense took place outside a Harbor Freight store and there must
have been a surveillance video. He asserted counsel had failed to investigate and obtain
the video which would have corroborated Walker's version of the events.
Appellate counsel proceeds as if the "facts" described above were proven true.
Actually, they were not proven. Indeed, as we will discuss, all of Walker's contentions
were refuted by trial counsel during the Marsden hearing. Also, the trial court found
3 Walker's assertions to be inconsistent with his testimony under oath at the time of his
guilty plea and that Walker's claims were simply "buyer's remorse." It is clear from the
record the trial court did not believe Walker's factual assertions. As we will discuss, the
trial court's implied findings of fact are supported by the record.
A. Alleged Denial of the Right to Counsel
During the hearing on the Marsden motion, Walker argued he should be allowed
to set aside his guilty plea, based on the factual assertions we have outlined above.
Counsel did not argue for such result and indeed stated that the negotiated plea and
sentence were in Walker's best interest. Walker now contends he was denied the right to
counsel, an argument we find wholly without merit.
Undoubtedly Walker had the right to counsel during the postplea proceedings,
including motions to withdraw guilty pleas. (People v. Brown (1986) 179
Cal.App.3d 207, 214-215 (Brown); Lafler v. Cooper (2012) ___ U.S. ___, 132 S.Ct.
1376, 1384.) It is also without question that Walker was represented by counsel at every
stage of the proceedings in this case. As best we understand Walker's position, it appears
that since he argued his personal request to withdraw his guilty plea during the Marsden
hearing and since counsel did not join in the "motion," he was denied the right to counsel.
The Brown case, cited by Walker undermines his contention. As the court there
concluded, while a defendant has the right to assistance of counsel at a motion to
withdraw a guilty plea, counsel is not required to make groundless or frivolous motions.
(Brown, supra, 179 Cal.App.3d at p. 216.) Viewing this issue in the context of the
"motion" to withdraw, counsel had no duty to argue for withdrawal of the guilty plea.
4 As we have noted the motion was to replace counsel pursuant to Marsden, supra,
2 Cal.3d 118. During that hearing, Walker made a number of allegations of failures by
defense counsel that he claimed justified both replacement of counsel and withdrawing
his guilty plea. As the record demonstrates, counsel refuted each of the alleged facts.
Counsel specifically asserted he had advised Walker of the elements of the offense, had
conducted an investigation in search of surveillance videos, which were nonexistent, and
that he did not tell Walker that he could withdraw his guilty plea as Walker alleged.
Thus, it is hard to understand how counsel could have ethically brought a motion to
withdraw the guilty plea on the basis of assertions that counsel knew were not true. In
short, Walker was adequately represented by counsel and was not denied his Sixth
Amendment right to counsel.
B. Denial of the Marsden Motion
When Walker advised the court he wished to replace appointed counsel, the court
properly followed the Marsden procedure. The court closed the proceedings and sealed
the transcript. The court also reviewed a letter that Walker had submitted outlining his
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Filed 9/18/14 P. v. Walker CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064418
Plaintiff and Respondent,
v. (Super. Ct. No. SCE329094)
OTIS CONWELL WALKER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, John M.
Thompson, Judge. Affirmed.
Law Offices of Russell S. Babcock and Russell S. Babcock, under appointment by
the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Warren
Williams, Deputy Attorneys General, for Plaintiff and Respondent. Otis Conwell Walker entered a guilty plea to one count of grand theft (Pen. Code,1
§ 487, subd. (c)) as a lesser offense of a charged robbery as part of a plea agreement. In
return for his plea the remaining count and alleged prior convictions were dismissed.
On the date set for sentencing, Walker requested a "Marsden"2 hearing to request
replacement of appointed counsel and also made a request to withdraw his guilty plea.
The court conducted an in camera hearing and denied both the Marsden motion and the
request to withdraw the guilty plea. The court sentenced Walker to the low term of 16
months in local custody pursuant to the negotiated sentence.
Walker filed a timely notice of appeal and obtained a certificate of probable cause.
(§ 1237.5.)
Walker essentially contends he should have been allowed to withdraw his guilty
plea, that the trial court erred in denying his Marsden motion and that he was denied his
Sixth Amendment right to counsel because counsel did not assist him in making his
request to withdraw the guilty plea. We find each of his arguments to be without merit
and affirm the judgment.
STATEMENT OF FACTS
Since this appeal arises from a guilty plea and does not challenge the sufficiency
of the evidence we will only include a brief summary of the facts from the transcript of
the preliminary hearing in order to provide context for the discussion that follows.
1 All further statutory references are to the Penal Code unless otherwise specified.
2 People v. Marsden (1970) 2 Cal.3d 118 (Marsden). 2 On April 10, 2013, Walker approached a man on a street corner in El Cajon.
Walker asked the man for a cigarette, but the man did not have one. Walker then asked
for 50 cents. The man responded that he did not have any money. Walker then yelled at
the man and said, "then get off my street." Walker followed the man across the street and
the man then used his phone to call 911.
Walker grabbed the phone from the victim and struck him in the face. When
police arrived they searched Walker and found the victim's phone in his possession.
Walker admitted the phone was not his.
DISCUSSION
Although appellate counsel divides the arguments into three parts, at base Walker
contends his counsel was ineffective and that the court should have at least allowed him
to withdraw his guilty plea and perhaps appointed new counsel. There are three factual
assertions that underlie all of Walker's contentions. First, he contends he did not know
that intention to steal was an element of robbery or theft and if he had known that he
would not have entered a guilty plea. Second, Walker contends counsel told him he
could withdraw his guilty plea if any new facts were discovered. Finally, he contended in
the trial court that the offense took place outside a Harbor Freight store and there must
have been a surveillance video. He asserted counsel had failed to investigate and obtain
the video which would have corroborated Walker's version of the events.
Appellate counsel proceeds as if the "facts" described above were proven true.
Actually, they were not proven. Indeed, as we will discuss, all of Walker's contentions
were refuted by trial counsel during the Marsden hearing. Also, the trial court found
3 Walker's assertions to be inconsistent with his testimony under oath at the time of his
guilty plea and that Walker's claims were simply "buyer's remorse." It is clear from the
record the trial court did not believe Walker's factual assertions. As we will discuss, the
trial court's implied findings of fact are supported by the record.
A. Alleged Denial of the Right to Counsel
During the hearing on the Marsden motion, Walker argued he should be allowed
to set aside his guilty plea, based on the factual assertions we have outlined above.
Counsel did not argue for such result and indeed stated that the negotiated plea and
sentence were in Walker's best interest. Walker now contends he was denied the right to
counsel, an argument we find wholly without merit.
Undoubtedly Walker had the right to counsel during the postplea proceedings,
including motions to withdraw guilty pleas. (People v. Brown (1986) 179
Cal.App.3d 207, 214-215 (Brown); Lafler v. Cooper (2012) ___ U.S. ___, 132 S.Ct.
1376, 1384.) It is also without question that Walker was represented by counsel at every
stage of the proceedings in this case. As best we understand Walker's position, it appears
that since he argued his personal request to withdraw his guilty plea during the Marsden
hearing and since counsel did not join in the "motion," he was denied the right to counsel.
The Brown case, cited by Walker undermines his contention. As the court there
concluded, while a defendant has the right to assistance of counsel at a motion to
withdraw a guilty plea, counsel is not required to make groundless or frivolous motions.
(Brown, supra, 179 Cal.App.3d at p. 216.) Viewing this issue in the context of the
"motion" to withdraw, counsel had no duty to argue for withdrawal of the guilty plea.
4 As we have noted the motion was to replace counsel pursuant to Marsden, supra,
2 Cal.3d 118. During that hearing, Walker made a number of allegations of failures by
defense counsel that he claimed justified both replacement of counsel and withdrawing
his guilty plea. As the record demonstrates, counsel refuted each of the alleged facts.
Counsel specifically asserted he had advised Walker of the elements of the offense, had
conducted an investigation in search of surveillance videos, which were nonexistent, and
that he did not tell Walker that he could withdraw his guilty plea as Walker alleged.
Thus, it is hard to understand how counsel could have ethically brought a motion to
withdraw the guilty plea on the basis of assertions that counsel knew were not true. In
short, Walker was adequately represented by counsel and was not denied his Sixth
Amendment right to counsel.
B. Denial of the Marsden Motion
When Walker advised the court he wished to replace appointed counsel, the court
properly followed the Marsden procedure. The court closed the proceedings and sealed
the transcript. The court also reviewed a letter that Walker had submitted outlining his
assertions regarding counsel and the guilty plea. The court allowed Walker to fully
express his concerns and allowed defense counsel to respond. The court reviewed
Walker's issues with him and discussed Walker's statements at the time of his guilty plea.
Thus it is clear the court fully complied with the Marsden procedure.
Where the court had fully examined the issues underlying a defendant's request to
replace counsel, the ultimate decision on the request is reviewed under the abuse of
discretion standard. (People v. Streeter (2012) 54 Cal.4th 205, 230.) We will not
5 overturn the trial court's exercise of discretion unless the record demonstrates a clear
showing of abuse. The question identified in Streeter, supra, at page 230, is whether
denial of the request would "substantially impair" the defendant's right to the assistance
of counsel.
Here, there is no showing of an abuse of discretion. The request to replace
counsel was based on assertions that had no basis in fact. The trial court was not required
to believe Walker, and it is clear the court did not believe him. Counsel had investigated
possible defenses and searched in vain for a video that did not exist. Counsel negotiated
a deal, which even Walker noted was very beneficial to him. Counsel told the court he
had advised Walker of the elements of the offense and all of the defenses, and the court
obviously believed him. Finally, counsel denied telling Walker he could withdraw his
plea, as Walker had claimed. There is simply no evidence that Walker's right to effective
assistance of counsel was "impaired." Walker's contentions otherwise are unsupported by
the record.
C. Denial of the "Motion" to Withdraw the Guilty Plea
Section 1018 provides:
"Unless otherwise provided by law, every plea shall be entered or withdrawn by the defendant himself or herself in open court. No plea of guilty of a felony for which the maximum punishment is death, or life imprisonment without the possibility of parole, shall be received from a defendant who does not appear with counsel, nor shall that plea be received without the consent of the defendant's counsel. No plea of guilty of a felony for which the maximum punishment is not death or life imprisonment without the possibility of parole shall be accepted from any defendant who does not appear with counsel unless the court shall first fully inform him or her of the right to counsel and unless the court shall find that the defendant
6 understands the right to counsel and freely waives it, and then only if the defendant has expressly stated in open court, to the court, that he or she does not wish to be represented by counsel. On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. Upon indictment or information against a corporation a plea of guilty may be put in by counsel. This section shall be liberally construed to effect these objects and to promote justice."
A defendant can be permitted to withdraw a guilty plea where there has been a
showing of "good cause." (In re Vargas (2000) 83 Cal.App.4th 1125, 1142.) Good cause
includes mistake, ignorance or anything that overcomes the defendant's free will. Good
cause must be shown by clear and convincing evidence. (People v. Cruz (1974) 12
Cal.3d 562, 566.) The trial court, however, is not bound to accept the defense assertions,
even if uncontradicted, and is certainly not required to accept contentions which are
refuted. (People v. Knight (1951) 106 Cal.App.2d 312, 315.) We review the trial court's
denial of a motion to withdraw a guilty plea under the abuse of discretion standard.
(People v. Fairbank (1997) 16 Cal.4th 1223, 1254.)
Our principal difficulty with Walker's arguments is that they proceed from the
premise that Walker's version of the events is true. However, as we have demonstrated,
the trial court, for good reason, has rejected all of his factual assertions. At the close of
the Marsden hearing defense counsel summarized his position:
"[Defense Counsel]: I wanted both Mr. Walker and the court to know that my investigator, well prior to the entry of the plea, investigated all likely stories, including the Harbor Freight that Mr. Walker has indicated here, to see if there was any evidence of
7 videotapes existing. None were located. I've also spoke with Mr. Walker both at George Bailey [the county jail], and here, and numerous times on the telephone. We did go over both the intent for robbery, as well as grand theft, as well as legal defenses."
Without belaboring the issue further, we are satisfied that Walker has not supplied
any credible evidence to support his contentions, let alone establish good cause by clear
and convincing evidence. Accordingly we will reject his challenge to his guilty plea.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
NARES, J.
AARON, J.