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The People v. Nicholas Ray Baker

July 26, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
NICHOLAS RAY BAKER, DEFENDANT AND APPELLANT.



(Super. Ct. No. CM028145)

The opinion of the court was delivered by: Raye , P. J.

P. v. Baker

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Nicholas Ray Baker pled no contest to assault with a semiautomatic firearm. He thereafter sought to withdraw his plea, arguing (among other things) that his then attorney performed "inadequate pre-plea/trial investigation" and the failure was "a factor that caused defendant to accept the plea bargain." The court denied his motion and defendant appeals, contending the court erred in doing so. We find no abuse of discretion and shall affirm the order.

BACKGROUND*fn1

Apparently upset over the breakup of his father's marriage, defendant confronted his stepmother's brother, Scott Thurston, whom he blamed for the breakup. Thurston told police at the scene that defendant put a gun to his head and threatened to kill him.

Charged with assault with a semiautomatic firearm, attempted criminal threats, and possession of a firearm by a felon, defendant changed his not guilty plea on the eve of trial to a no contest plea to the first charge in exchange for dismissal of the other two charges. He also admitted a prior strike conviction.

Attempts to Relieve Counsel

Defendant first expressed a desire to relieve his retained counsel, Grady Davis, three days before entering his no contest plea. The court asked defendant to "briefly indicate the reasons why" he wished to relieve counsel, and defendant responded (among other things) that counsel had failed to confer with him and failed to perform critical investigation.

The prosecutor also criticized defense counsel's "mishandling" of the defense and concurred with defendant's assertion that counsel "does not appear to be competent," "had not sought an investigator," and "appeared to be unaware [of] how much time his client was facing or what offenses qualified as a serious violence [sic] offense."

After attorney Davis responded that he was "fully prepared to go to trial" and had interviewed all the witnesses, defendant announced, "I'm going to keep him now. I've changed my mind."

But soon after entering his no contest plea, defendant sought to withdraw his plea, again asserting that attorney Davis had provided inadequate representation. During what the court described as "a Marsden-type hearing,"*fn2 defendant complained Davis told him prior to the plea that he would "probably" receive only a 10-year sentence and that Davis failed to engage an investigator, leaving defendant's wife to conduct an investigation.

Defendant also told the court he wanted to "pull [his] plea" because he learned the victim had told attorney Davis "there was no injury" and, in any event, ...


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