Filed 9/18/14 P. v. Walker CA4/1
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                    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).
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       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

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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.

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       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

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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

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           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

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          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.




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