P. v. Johnson

Filed 8/13/08 P. v. Johnson CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
TIMOTHY JOHNSON,
Defendant and Appellant.
H031095
(Santa Clara County
Super. Ct. No. CC619063)
Defendant Timothy Johnson appeals a judgment following his plea of nolo
contendere to three felony counts. Defendant filed a notice of appeal and a request for
certificate of probable cause from the trial court. The trial court declined to provide the
defendant a certificate of probable cause. Defendant asserts on appeal that he was
deprived of adequate counsel while attempting to withdraw his plea.
S TATEMENT OF THE CASE AND F ACTS
Defendant was charged with the eight felony counts on February 1, 2006.
Defendant had initially been represented by retained counsel, Nan Bucknell. However,
on July 24, 2006, Ms. Bucknell told the trial court that her client was indigent and could
no longer afford her services. As such, she could not continue to represent him.
Defendant then requested appointment of counsel, and on July 27, 2006, the court
appointed Roderick O’Connor as defendant’s counsel.

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Mr. O’Connor made his first appearance at a brief hearing on August 4, 2006, and
the case was continued to August 11. Defendant and Mr. O’Connor first met at the
hearing on the August 11. Mr. O’Connor said that he reviewed the evidence turned over
by the prosecution, including the police reports and the interviews and recordings of the
complaining witnesses. The preliminary hearing was scheduled for September 13. On
this day Mr. O’Connor recommended to the defendant that he waive his right to a
preliminary hearing and accept the plea offer to reduce the likelihood that defendant
would be facing greater jail time should he not accept the plea. He waived his right to a
preliminary hearing and pled guilty to three counts through a plea bargaining agreement
with the prosecutor in exchange for 19 years imprisonment. He pled guilty to two counts
of forcible oral copulation (Pen. Code, § 228a, subd. (c)(2)) and one count of lewd
conduct upon a child under the age of 14 (Pen. Code, § 288, subd. (a)). The court
sentenced him to 19 years in prison.
The immediate controversy stems from a hearing to determine if the trial court
should appoint substitute counsel for purposes of investigating whether Mr. O’Connor
had provided adequate representation. The trial court heard and denied this motion on
October 12, 2006. At this hearing, defendant said he was scared into taking the plea
bargain, that he was not guilty, and that he wished to withdraw his plea. The court then
questioned defendant and the prosecutor regarding the case. Mr. O’Connor did not
participate in the motion to withdraw defendant’s plea. The court denied the motion to
withdraw the plea and defendant appealed the trial court’s decision to deny his motion.
His appeal comes to us without a certificate of probable cause from the trial court.
D ISCUSSION
We have long held that defendants are entitled to representation in all aspects of a
court proceeding. People v. Brown (1986) 179 Cal.App.3d 207 (Brown), decided by
another panel of this court, held that “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

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right to counsel.” (Id. at pp. 214-215.) The defendant’s attorney in Brown refused to
submit a motion to withdraw defendant’s plea and so the defendant was forced to do it
himself. Here, there is little doubt that defendant presented his motion to withdraw his
plea without the assistance of his court appointed counsel. The court transcript shows
that the court put it’s questions to defendant directly. Defendant then argued his motion
in pro per. This fact does not excuse defendant’s counsel from his duties of
representation.
However, Penal Code section 1237.5 places two requirements on defendants
seeking to appeal a conviction from a plea of guilty. First, the defendant must file “with
the trial court a written statement, executed under oath or penalty of perjury showing
reasonable constitutional, jurisdictional, or other grounds going to the legality of the
proceedings” (Pen. Code, § 1237.5 subd. (a)). Next, the trial court must execute and file
“a certificate of probable cause for such appeal with the clerk of the court” (Pen. Code,
§ 1237.5 subd. (b)). Here, defendant applied for a certificate of probable cause, but no
such certificate has been filed with this court. Indeed, the trial court declined to issue it.
Defendant argues that a certificate of probable cause is not necessary given the
circumstance of the motion. After Brown, the Supreme Court of California held that
“[n]otwithstanding the broad language of [Penal Code] section 1237.5, it is settled that
two types of issues may be raised in a guilty or nolo contendere plea appeal without
issuance of a certificate: (1) search and seizure issues for which an appeal is provided
under [Penal Code] section 1538.5, subdivision (m); and (2) issues regarding proceedings
held subsequent to the plea for the purpose of determining the degree of the crime and the
penalty to be imposed.” (People v. Panizzon (1996) 13 Cal.4th 68, 74 (Panizzon).) Thus,
if not a listed issue, Penal Code section 1237.5 requires a certificate of probable cause.
Defendant’s argument calls for a reevaluation of the trial court’s decision to dismiss his
motion to withdraw his guilty plea, an issue that Panizzon failed to exempt, and therefore
we must require a certificate in this case.

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Defendant relies heavily on People v. Osorio (1987) 194 Cal.App.3d 183 (Osorio)
in his attempt to argue that a certificate of probable cause is not required even if the
defendant is challenging a plea. In Osorio, the probation officer reported the “sales
transaction and alleged that Osorio was the principal seller” to the trial court. (Id. at
p. 185.) Defendant disapproved of this terminology and wished to withdraw his plea,
stating that the charges should be for “transporting and furnishing, but not sale.” (Ibid.,
fn. 1.) The defendant’s counsel failed to make a motion to withdraw defendant’s plea
and the Court of Appeal remanded for the motion to be heard. Two arguments preserve
Osorio in light of Panizzon. First, no motion to withdraw the plea was made during trial
in Osorio. The failure of Osorio’s attorney to present the motion was a failure of
representation, and so it was appropriately remanded for consideration. Second, it is not
unreasonable to place Osorio within the second exception found in Panizzon, supra,
13 Cal.App.4th 68. The defendant in Osorio challenged the term “selling” rather than
“transporting and furnishing.” We do not contemplate if this would affect Osorio, but it
is easy to foresee that pleading guilty to different crimes could have different
ramifications, and his objection could be said to challenge the degree of crime. However,
despite the preservation of Osorio, is it not applicable in the present case. Defendant
both made the motion to withdraw his plea and was not challenging the degree of crime
or the penalty, both of which were in conformity with the plea bargain.
As both defendant and respondent say in their briefs, the Court of Appeal of
California, Third Appellate District approached this issue more recently in People v.
Emery (2006) 140 Cal.App.4th 560 (Emery). In Emery, the defendant made a motion to
continue the trial in order to evaluate the merits of withdrawing his plea. The trial court
denied his motion and the Third Appellate District found that such a request was
tantamount to challenging the plea itself, looked to the Supreme Court’s ruling in
Panizzon for resolution of the matter, and required a certificate of probable cause to make
the appeal cognizable. We view defendant’s motion to withdraw his plea as a direct

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challenge to the validity of plea in the first instance. A certificate of probable cause is
required.
D ISPOSITION
The appeal is dismissed.
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
___________________________________
MIHARA, J.

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