Monday, December 17, 2007

Withdrawal of California DUI attorney's client's DUI pleas

Can a defendant withdraw a California DUI plea entered by his California DUI lawyer?

There are legal standards, evidenced by this sample motion to withdraw plea:

DEFENDANT'S PLEA MAY BE WITHDRAWN PRIOR TO JUDGMENT
OR WITHIN SIX MONTHS OF AN ORDER GRANTING PROBATION

At any time before judgment or within six months after an order granting probation, and if entry of judgment was suspended, the Court may permit the withdrawal of a guilty plea and the entry of a not guilty plea on a showing of good cause. (See Penal Code §1018; CEB CA Crim Law, Proc. & Prac. (2005 Ed.) pp. 763-765, §10.21; People v Miranda (2004) 123 CA4th 1124, 20 CR3d 610; and People v Waters (1975) 52 CA3d 323, 328, 125 CR 46, 49).

The defendant must personally make some expression in open court that authorizes or adopts a motion made on his or her behalf to withdraw a guilty plea; the defendant's silence during a motion to withdraw will not suffice. PC §1018; Johnson v Superior Court (1981) 121 CA3d 115, 175 CR 272.

The decision to move to withdraw a guilty plea belongs to the defendant. Counsel may not simply refuse the defendant's request to make the motion. If counsel is not willing to make such a motion, new counsel should be appointed for the defendant. People v McLeod (1989) 210 CA3d 585, 588, 258 CR 496; People v Brown (1986) 179 CA3d 207, 224 CR 476. If the defendant wants to withdraw the guilty plea based on ineffective assistance of trial counsel, the trial court should appoint new counsel to represent the defendant on the motion to withdraw the plea. People v Smith (1993) 6 C4th 684, 25 CR2d 122. Defense counsel's failure to move to withdraw a plea of guilty at the defendant's request when good grounds exist could be considered ineffective assistance of counsel. People v Osorio (1987) 194 CA3d 183, 239 CR 333.

DEFENDANT HAS GOOD CAUSE TO WITHDRAW HIS PRIOR PLEA

“Good cause” to set aside a guilty plea is shown when, as here, the Defendant demonstrates that the plea was entered as the result of incompetence on the part of the Defendant, mistake, ignorance, inadvertence, or some other factor that demonstrates that the Defendant did not freely, knowingly and intelligently waive his various constitutional rights. (See, People v Caban (1983) 148 CA3d 706, 196 CR 177 (defendant allowed to withdraw guilty plea because he was not told that prison was mandatory if he pleaded guilty to robbery with use of gun).

In addition, and as mentioned above, Defendant may withdraw his plea based upon a claim of ineffective assistance of trial counsel. In such a case, the trial court should appoint new counsel to represent the defendant on the motion to withdraw the plea. (See, People v Smith (1993) 6 C4th 684, 25 CR2d 122). Here, because Defendant has now obtained and substituted in his own private counsel, it is not necessary for the Court to appoint new counsel.

In the case at bar, Defendant contends that (1) either as a result of ineffective assistance of counsel, or (2) as a result of mistake, ignorance, inadvertence, or all of the above, Defendant was simply not competent to, and did not freely, intelligently nor voluntarily waive his various constitutional rights, including his right to a jury trial as well as his right to remain silent.

Criminal defendants who do not understand English are entitled to have an interpreter throughout the criminal proceedings. (Cal Const art I, §14.) The interpreter must be available exclusively for the defendant; the defendant cannot be required to share an interpreter with others, e.g., witnesses. People v Aguilar (1984) 35 C3d 785, 200 CR 908 (conviction reversed; trial court "borrowed" interpreter to translate state witnesses' testimony); People v Baez (1987) 195 CA3d 1431, 241 CR 435 (conviction reversed because error not harmless beyond reasonable doubt). The court in People v Rodriguez (1986) 42 C3d 1005, 1013, 232 CR 132, held that it is best that each defendant have an interpreter assigned to him or her who remains with the defendant throughout the proceedings.

As a consequence of the foregoing, it is clear that Defendant was plainly not competent to enter any plea. Defendant’s present application is both timely and credible. (See, People v Fick (1980) 107 CA3d 892, 896, 166 CR 106, 108). Although it is the Defendant’s burden to produce evidence of good cause, however, when in doubt, the Court should grant a prejudgment motion to withdraw a guilty plea. (See, People v Spears (1984) 153 CA3d 79, 88, 199 CR 922, 927).

When a Defendant successfully withdraws his guilty plea, the case is restored to its status before entry of the plea, including revival of any charges dismissed under the bargain. People v Superior Court (Garcia) (1982) 131 CA3d 256, 182 CR 426.

DUE PROCESS REQUIRES THAT THE COURT HOLD A HEARING
FOR THE PURPOSE OF CONSIDERING THE CONSTITUTIONALITY
OF DEFENDANT'S PRIOR GUILTY PLEA

The California Supreme Court's holding in People v. Sumstine (1984) 36 C.3d 909requires that, for due process purposes, and unless this Court is otherwise persuaded that Defendant’s prior entry of a guilty plea was the result of either incompetence on the part of the Defendant, mistake, ignorance, inadvertence, or ineffective assistance of counsel, this Court should hold a meaningful evidentiary hearing for purposes of permitting Defendant to challenge the legality and/or constitutionality of his prior plea.