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Name: People v. Earp
Case #: B201309
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 03/11/2008

A defendant is deprived of his right to counsel when counsel is either absent or prevented from assisting the defendant during a critical stage of the proceeding, and the error requires reversal without a showing of prejudice. (U.S. v. Cronic (1984) 466 U.S. 648; In re Johnson (1965) 62 Cal.2d 325.) After pleading guilty to possession of methamphetamine for sale and admitting a prior “strike” conviction, defendant, as part of the plea bargain, was released from custody pending sentencing, with his sentence contingent on meeting specific conditions. He violated the conditions and upon his return approximately a year later, he stated that he wished to withdraw his plea as “they lied to me.” The assistant public defender who represented him at the plea hearing was not present at this subsequent hearing. The stand-in assistant public defender indicated that she believed a conflict existed and requested that alternate counsel be appointed, which the court did. After the lunch break, the stand-in assistant public defender and appellant returned to the court room, without the presence of the newly appointed attorney, and the assistant public defender informed the court that after consulting with appellant at length, she believed there was no conflict and would join in no action to withdraw plea. The court questioned appellant as to the basis for withdrawing his plea and then on the request of the assistant public defender, re-appointed that office and denied appellant’s request to withdraw plea. The appellate court rejected respondent’s argument that a certificate of probable cause was required, noting that appellant’s claim of error was based on post-plea events and that he was not attacking the plea itself. The court then found that the trial court erroneously heard the request of relieved counsel for re-appointment without the presence of new appointed counsel, leaving appellant with the task of trying to convince the court that he had a legal basis for withdrawing his plea and receiving new counsel. This error deprived appellant of his constitutional right to counsel and, as such, there was no requirement for a showing of prejudice.