IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)
July 1, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
SCOTT JOHN RONALD ROSS, DEFENDANT AND APPELLANT.
Super. Ct. No. 62-099370
The opinion of the court was delivered by: Butz , J.
P. v. Ross CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Scott John Ronald Ross entered a plea of no contest to corporal injury to a spouse and admitted a strike and prior prison term. The trial court sentenced him to a stipulated seven-year state prison term.
Defendant's ensuing appeal is subject to the principles of People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Kelly (2006) 40 Cal.4th 106, 110. In accordance with the latter, we provide a summary of the offense and the proceedings in the trial court.
Around June 14, 2010, defendant got into an argument with his wife over her threat to divorce him. Defendant told his wife that he would kill her before he let her take their child away, and she should consider this to be a contract on her life. Defendant then punched her in the ribs and, as she fell down, he punched her in the back of the head. The couple's 15-year-old son witnessed the incident and called 911.
Defendant was charged with corporal injury to a spouse (Pen. Code, § 273.5, subd. (a)),*fn1 criminal threats (§ 422), and two counts of misdemeanor child abuse (§ 273a, subd. (b)), along with two strike allegations (§§ 667, subds. (b)-(i), 1170.12), and a prior prison term allegation (§ 667.5, subd. (b)).
After the trial court denied defendant's Marsden*fn2 motion, defendant pleaded no contest to corporal injury to a spouse and admitted a strike and a prior prison term. Defendant made a second Marsden motion almost two weeks after his plea, which the trial court heard and denied.
After defendant filed a motion to withdraw his plea, the trial court appointed new counsel for the purpose of investigating the motion. Substitute counsel informed the trial court that the motion was without merit and suggested the court hold another Marsden proceeding pursuant to People v. Eastman (2007) 146 Cal.App.4th 688, 696-697. After hearing defendant's third Marsden motion, the trial court denied the Marsden motion and defendant's motion to withdraw the plea.
The trial court then imposed a stipulated seven-year state prison term, ordered various fines and fees, and awarded 192 days of presentence credit (128 actual and 64 conduct). The trial court later amended the presentence credits to 193 days, consisting of 129 days of actual and 64 days of conduct credit.
Defendant appeals. He obtained a certificate of probable cause. (§ 1237.5, subd. (a).)
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief asserting ineffective assistance of trial and substitute counsel, and assorted errors regarding the two judges in this case.
Defendant's claims regarding trial counsel are that trial counsel's actions hampered his defense, induced him to make the plea, and his ineffective representation is grounds for withdrawing the plea. Regarding substitute counsel, defendant claims counsel did not explore issues that would have allowed defendant to withdraw his plea and did not explore ineffective assistance of counsel claims regarding trial counsel.
In essence, defendant asserts trial and substitute counsel were ineffective. To establish ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient and that he suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) The record does not show how trial counsel sabotaged the defense or induced defendant to make his plea. Since our review of the record finds no grounds for withdrawing the plea, substitute counsel was not deficient for failing to find these nonexistent grounds. Likewise, since the record does not show trial counsel was ineffective, substitute counsel's failure to find such grounds was not deficient. In short, neither trial nor substitute counsel was deficient.
Defendant's assertion that the judges in his case were biased or acted in bad faith is unsupported by the record. His claim that the judge who took his plea cannot hear his motion to withdraw the plea is wrong; section 1018 does not prevent the court that took the plea from hearing a defendant's motion to withdraw that plea.
We also reject defendant's contention that the denial of his Marsden motions and motion to withdraw his plea were wrongly decided. At the preplea Marsden hearing, defendant asserted trial counsel tried to scare him into making a deal, and gave him no information other than reading two sentences from the police report to him. Defendant's two postplea Marsden hearings involved essentially the same claim--defendant was dissatisfied with trial counsel's representation and sought to withdraw his plea. At all three Marsden hearings, trial counsel provided detailed explanations showing the People had a strong case, defendant faced a potentially very long sentence, and how he sought to obtain the best deal for defendant.
A Marsden motion is successful only upon a showing that there was ineffective assistance of counsel or an irreparable breakdown in communications between the defendant and counsel. (People v. Vera (2004) 122 Cal.App.4th 970, 979.) Defendant failed to make that showing at any of the Marsden hearings.
A plea may be withdrawn if the defendant establishes good cause for withdrawal by clear and convincing evidence. (§ 1018; People v. Huricks (1995) 32 Cal.App.4th 1201, 1207.) We review a denial of a motion to withdraw the plea for abuse of discretion. (Huricks, at p. 1208.) Good cause is established upon a showing "that [the] defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment." (Ibid.) There is no evidence that defendant's plea was not an exercise of his free judgment. It is not an abuse of discretion to deny defendant's motion when there was no good cause to withdraw the plea.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
The judgment is affirmed.
We concur: RAYE , P. J. HOCH , J.