Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC800410
Mihara, J.
The Santa Clara County District Attorney filed an information that charged appellant Michael James Kennon with three counts of robbery (Pen. Code, §§ 211, 212.5, subd. (c)). In connection with one of the counts, it was alleged that appellant personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)). It was further alleged that appellant had a “strike” prior conviction (§§ 667, subds. (b)-(i), 1170.12), a serious felony prior conviction (§ 667, subd. (a)), and a prison prior conviction (§ 667.5, subd. (a)). Appellant waived his right to a preliminary examination. Pursuant to a negotiated agreement, appellant pleaded no contest to three counts of robbery, admitted the personal use of a dangerous and deadly weapon in connection with one count, and admitted the prior conviction allegations. In exchange for his plea, appellant was promised a sentence between 13 and 16 years and an agreement from the prosecutor that she would not file three additional robbery charges against him.
All further statutory references are to the Penal Code.
On the date set for sentencing, appellant filed a letter, which he had dictated to his wife. The trial court deemed it a Marsden motion. Prior to sentencing, the trial court held a Marsden hearing. Appellant stated that his counsel: (1) failed to provide him with discovery related to the charges; (2) ignored the fact that his codefendant’s counsel told him that appellant was not involved in the charged offenses; (3) failed to bring a motion to challenge the admissibility of appellant’s statements to the police on the ground that he had been under the influence of drugs at the time; and (4) was playing on his cell phone when he told him to plead guilty in exchange for the 13-year sentence. Appellant noted that one of his relatives overheard his counsel telling the prosecutor words to the effect of, “I’ll give you this one, you give me the next one.” Appellant also stated that his counsel said he could not win at trial.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
Counsel responded to appellant’s claims. He stated that appellant’s right to a preliminary hearing had been waived to keep an offer of 12 years open. He was considering an Aranda-Bruton motion relating to the codefendant’s statements and a motion to exclude appellant’s statements that were made while he was under the influence. However, he believed that the case was not “winnable” because appellant had made several confessions, including to the codefendant’s girlfriend, in a letter, and to two different law enforcement agencies. Counsel explained that appellant’s prior counsel told him that he had interviewed several witnesses and he “would not call any of those people at trial.” Counsel urged appellant to enter into the plea agreement so that he would not be charged with three more robberies. Counsel stated that since appellant had dyslexia, he did not provide him with any transcripts. However, he reviewed appellant’s confessions with him, his wife, and his mother. Regarding the codefendant’s claim that appellant was not involved in one of the robberies, counsel pointed out that appellant had signed a photograph taken during that robbery in which he indicated that he was one of the perpetrators. Counsel denied that he ever told the prosecutor that he would give her this case in exchange for the next one. Counsel told appellant that his explanations would not be accepted by a jury, stating “there’s just no way that that’s going to fly in this county, and I mentioned race, but I also mentioned how conservative this county was, and also how strong the case was against him.” His advice would have been the same regardless of appellant’s race.
People v. Aranda (1965) 63 Cal.2d 518 (Aranda); Bruton v. United States (1968) 391 U.S. 123 (Bruton).
After summarizing appellant’s claims and counsel’s response, the trial court concluded that counsel’s performance was not below the standard of what a reasonable attorney should do, but “far above it,” and denied the Marsden motion.
At the sentencing hearing, appellant’s mother, wife, and cousin provided various reasons why they believed that appellant had not committed the charged crimes. They also stated that they believed his counsel was not working on his behalf. Appellant’s counsel argued for a 13-year sentence based appellant’s role as the driver during the robberies, his youth, and his early acknowledgment of guilt. The prosecutor argued that the 15-year sentence, which was recommended by the probation officer, should be imposed because appellant had not shown remorse and he was the “brains behind this operation.”
The trial court imposed a total term of 15 years in state prison, ordered a restitution fine of $7,800, stayed an additional parole restitution fine in the same amount, and imposed a court security fee of $60, and a CJAF fee of $129.75. Appellant filed a timely notice of appeal in which he indicated that the appeal was from a guilty or no contest plea. He also indicated that the appeal was based on the sentence or other matters occurring after the plea.
The facts are taken from the “Summary of the Offense” portion of the probation report.
On March 23, 2008, codefendant Luan Commander entered a 7-Eleven store in Cupertino, approached the clerk, brandished a soft air pistol, and demanded money. The clerk gave him approximately $300. Appellant was waiting for Commander in his vehicle during the robbery.
On December 28, 2007, Commander entered a 7-Eleven store in Mountain View, brandished a knife, and demanded money from the clerk. The clerk gave him approximately $300. Appellant was waiting for Commander in his vehicle during the robbery.
The probation report states that this offense occurred on December 28, 2008. However, the complaint, which was filed in March 2008, charges the crime as having occurred on December 28, 2007. Thus, the probation report must be incorrect.
On February 29, 2008, appellant and Commander entered a 7-Eleven store in Mountain View. Defendant brandished a knife and demanded money. The clerk gave them approximately $400. Both appellant and Commander fled on foot.
II. Discussion
Appointed appellate counsel has filed an opening brief which states the case and the facts but raises no issues. Appellant was notified of his right to submit written argument on his own behalf. He has submitted a supplemental brief.
Appellant first challenges the denial of his Marsden motion.
After a defendant brings a Marsden motion to discharge his counsel, the trial court must conduct a hearing to determine whether counsel is rendering ineffective assistance or whether there is an irreconcilable conflict between defendant and counsel such that ineffective assistance is likely to result. (People v. Vera (2004) 122 Cal.App.4th 970, 979.) We review the trial court’s denial of a Marsden motion under the abuse of discretion standard. (People v. Barnett (1998) 17 Cal.4th 1044, 1075.) Here, the trial court allowed appellant to state his concerns at the hearing. “To the extent there was a credibility question between defendant and counsel at the hearing, the court was ‘entitled to accept counsel’s explanation.’” (People v. Smith (1993) 6 Cal.4th 684, 696, quoting People v. Webster (1991) 54 Cal.3d 411, 436.) Since the trial court implicitly found counsel’s explanations credible, appellant has failed to show that the trial court abused its discretion in denying his motion.
Appellant next claims that his counsel rendered ineffective assistance.
“In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under professional norms. [Citation.] Second, he must show prejudice flowing from counsel’s performance or lack thereof.... [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 214-215.) Here, appellant has failed to identify how he received inadequate representation and that such representation was prejudicial.
Appellant also contends that his plea was “induced by misrepresentation.” Appellant does not identify the source of the misrepresentation. However, we will assume that he is referring to his counsel.
A defendant must obtain a certificate of probable cause in order to claim ineffective assistance of counsel in advising him or her regarding a plea. (§ 1237.5; In re Chavez (2003) 30 Cal.4th 643, 651.) Since appellant did not obtain a certificate of probable cause, we cannot consider his ineffective assistance claim on appeal.
Pursuant to People v. Wende (1979) 25 Cal.3d 436, we have reviewed the entire record and have concluded that there are no arguable issues on appeal.
III. Disposition
The judgment is affirmed.
WE CONCUR: Elia, Acting P. J., McAdams, J.