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The People v. Michael Murdock

September 24, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MICHAEL MURDOCK, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F06700)

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

P.

v.

Murdock 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Michael Murdock entered a plea of no contest to felony evading an officer and transportation of cocaine base and admitted a prior drug conviction in exchange for a stipulated state prison sentence of seven years eight months which the court imposed. Having obtained a certificate of probable cause (Pen. Code, § 1237.5), defendant appeals, contending that the trial court erred in failing to hold an in camera hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) when he sought to withdraw his plea. Relying upon People v. Brown (1986) 179 Cal.App.3d 207 (Brown) and People v. Osorio (1987) 194 Cal.App.3d 183 (Osorio) (disapproved on other grounds in People v. Johnson (2009) 47 Cal.4th 668), defendant also contends that he was denied effective representation of counsel in the presentation of his motion to withdraw his plea. We affirm the judgment.

FACTS AND PROCEEDINGS

About 3:17 a.m. on August 14, 2010, Sacramento Police Officer Jake Hensley saw an approaching truck without its headlights turned on and activated his overhead lights to stop the truck. The truck eventually pulled over. Defendant, the driver, made furtive movements inside the passenger compartment of the truck. The officer ordered defendant to keep his hands on the steering wheel and had to repeat his order. Defendant did not have a driver's license and claimed the truck belonged to his wife who was the passenger. Defendant rolled up the window and fled. The officer pursued the truck which reached 80 miles per hour and failed to stop at stop signs and red lights. Defendant abandoned the truck when he came to a dead end and fled on foot. A search of the truck revealed a baggie containing 16.4 grams of cocaine base.

A complaint charged defendant with felony evading, possession of cocaine for sale, and transportation of cocaine.

An amended complaint filed the same date that the preliminary hearing was held charged defendant with felony evading, possession of cocaine base for sale, and transportation of cocaine base and alleged that he had sustained three prior drug convictions. At the preliminary hearing, the prosecutor dismissed a strike prior which had been alleged in the amended complaint because defendant committed the robbery offense when he was 15 years old.

After defendant was held to answer, defense counsel filed a Pitchess (Pitchess v. Superior Court (1974) 11 Cal.3d 531) motion and the court ordered disclosure of records related to one incident.

About a month later, defendant entered his negotiated plea of no contest to evading and transportation and admitted one prior drug conviction in exchange for a stipulated sentence of seven years eight months.

At sentencing two weeks later, defense counsel informed the court that defendant "is indicating to me now that he would like to withdraw his plea" and had defendant state his grounds. Defendant stated: "I feel like my rights have been violated between the time of the preliminary hearing and now. I feel that if I had my own representation, my own choice, my rights wouldn't have been violated in such a way that I feel like all the evidence at the preliminary hearing was based on reckless or misguided information, and the officer had filed the police report. It didn't show probable cause that I had committed the crimes or part of the crimes that related to this. Never had any type of discovery or any evidence defending myself in the preliminary hearing, which is evidence against me, but none for me to prove or provide that--against him, such as my physical evidence or witnesses that I asked to be interrogated or presented, you know, such as my parole officer or officers' statements or writing material. [ΒΆ] I feel like the in-car camera was ...


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