Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04CR5995
DAVIS, Acting P.J.
Defendant Dale Wayne Jones entered a negotiated plea of guilty to dissuading a witness (Pen. Code, § 136.1, subd. (b)(1)), two counts of attempting to dissuade a witness (Pen. Code, § 136.1, subd. (a)(2), and evading an officer (Pen. Code, § 2800.2, subd. (a)). He admitted two prior strike convictions. The trial court sentenced defendant to a negotiated term of 25 years to life.
On appeal, defendant contends the trial court erroneously denied his Marsden motion, and he was denied effective assistance of counsel. We shall reject the contentions and affirm.
The trial court granted defendant’s request for a certificate of probable cause.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
Background
On July 4, 2004, defendant got into an argument with his wife, D., after she consoled their young son, whom defendant had accidentally hit while closing a sliding glass door. As they argued, defendant placed his hands on D.’s shoulder and face and shoved her to the couch with both hands. Their son witnessed the fight.
The next day, D. heard her son crying. She went to investigate and saw him stumble in his bedroom. D. asked defendant what happened and he told her it was none of her business. D. responded by saying perhaps this was for children’s protective services. Defendant responded that if D. called the authorities he would kill her before they arrived.
Defendant grabbed D. by the arms and pushed her from the bedroom to the kitchen, where she struck the stove and counter. As a result of defendant’s assault, D. sustained bruises to her hip, lower back, and arm. D. subsequently secured an emergency protective order, which was served on defendant.
Amador County Sheriff’s Sergeant Gary Redman had been told that defendant had been at D.’s place of employment in violation of the protective order. On July 7, 2004, around 11:50 a.m., Redman activated his lights and siren after seeing defendant in his truck. Defendant first slowed down to pull over and then rapidly accelerated to between 45 and 55 miles per hour. During the chase defendant reached speeds of 85 to 90 miles per hour, forced numerous vehicles off the road, and collided with a car. Defendant was eventually stopped and arrested.
Between July 7, 2004, and April 20, 2005, defendant made a series of telephone calls to his wife, his brother, his mother, and other people in an attempt to prevent his wife, son, and others from testifying against him. The calls were recorded and transcribed.
Discussion
I
Four months after pleading guilty and admitting prior convictions, defendant made a Marsden motion. In support of his motion, he told the court that his counsel had never filed a change of venue motion that defendant had requested. He also complained about counsel’s failure to obtain the transcripts from the preliminary hearing for his prior robbery conviction and counsel’s failure to obtain defendant’s medical records.
Counsel replied by telling the court he had been unable to find someone to do the polling to support a change of venue motion, but had told the prosecutor that he would file the motion if the prosecutor continued to make statements about the case to the press. The prosecutor agreed to stop making comments about the case, so counsel felt a change of venue motion was no longer necessary.
Counsel told the court he “honestly believe[d]” he had the preliminary hearing transcripts from the prior robbery and “remember[ed]” reading them. He could not find the transcripts, but counsel felt they would not “undermine that robbery significantly.” Counsel had no explanation for not getting defendant’s medical records, and told the court defendant had also asked counsel to get his wife’s psychological records, which he had not yet done.
The trial court stated defendant had not been in the news every day, and a change of venue motion was unlikely to succeed. Regarding the medical records, the court was not sure how they would be relevant to his sentence. The court also informed defendant that the preliminary hearing transcript from the prior robbery conviction would be of very limited utility to his defense. After an exchange about defendant’s possible sentence, the court denied the Marsden motion.
Defendant contends the trial court was presented with three reasons that justified granting the Marsden motion--counsel’s failure to secure the preliminary hearing transcript from the prior conviction, failing to get the wife’s medical records, and not filing a change of venue motion. We disagree.
A defendant is entitled to discharge his appointed counsel only if the record clearly shows counsel is not providing adequate representation or that defendant and counsel have become so embroiled in conflict that ineffective representation will likely result. (People v. Barnett (1998) 17 Cal.4th 1044, 1085.) We review the trial court’s denial of a Marsden motion for abuse of discretion, and will find such an abuse only where the defendant has shown the failure to replace appointed counsel would substantially impair defendant’s right to assistance of counsel. (Ibid.)
We agree with the trial court that defendant failed to carry his burden of showing ineffective representation. The trial court, a member of the community, indicated the change of venue motion was not likely to succeed. Counsel told the court he had used the threat of a change of venue motion to get the prosecution to refrain from talking to the press about the case. The record provides us with no reason to conclude defendant was at risk of an unfair venue or that the trial court abused its discretion in determining defendant was not prejudiced by counsel’s failure to file the change of venue motion.
Nor can we find counsel’s failure to locate the preliminary hearing transcripts justification for granting a Marsden motion. While the circumstances of a prior conviction are relevant on a motion to dismiss a strike (People v. Williams (1998) 17 Cal.4th 148, 161), we cannot say defendant’s allegations established a likelihood of prejudice resulting from counsel’s actions.
The prior robbery conviction stemmed from an incident in which defendant was found inside the victim’s sports utility vehicle (SUV) in a parking lot. The victim’s husband parked directly behind the SUV, blocking defendant in. Defendant started the SUV, put it into reverse, and hit the husband’s car. Defendant then took a cell phone and the keys from the SUV and fled; he was eventually apprehended.
At the Marsden hearing, defendant told the court he wanted the preliminary hearing transcript because it contained testimony that the vehicle defendant hit was not parked and defendant did not intend to ram the vehicle.
Defendant’s allegation concerning what the preliminary hearing transcript of his prior robbery conviction might show would not have affected the court’s sentencing decision. This is because defendant admitted all of the elements of that crime with his guilty plea. The court was also presented with the rest of his criminal record, his current felony convictions, and the numerous counts of domestic abuse that were dismissed with a Harvey waiver.
People v. Harvey (1979) 25 Cal.3d 754.
A sentencing court has only limited discretion to strike a prior felony conviction in the furtherance of justice. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530.) Any failure by trial counsel regarding the preliminary hearing transcript of the prior robbery did not prejudice defendant.
Defendant’s final contention regarding the Marsden motion, that counsel was ineffective for failing to seek D.’s psychological records, was brought to the trial court’s attention by counsel rather than by defendant. While his wife’s mental health records could have been relevant had defendant gone to trial, defendant raised his Marsden motion after pleading guilty.
We also reject defendant’s contention that examination of D.’s medical records might have made counsel aware that D. would be unwilling to go through the rigors of a trial. D. was not the only witness to defendant’s attacks against her. Their son also told officers that he saw defendant push his mother onto the couch and that he had witnessed prior attacks by defendant against her. The letter submitted at the restitution hearing does not indicate that D. was too incapacitated to go through the rigors of a trial. Any contention that she might have been unwilling to go through a trial is speculative and not a ground for granting the Marsden motion.
Confronted with the Marsden motion, the trial court gave defendant a chance to explain his dissatisfaction with counsel, and required counsel to respond where appropriate. Defendant has not “shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel” or that he has received inadequate representation from his appointed counsel. (People v. Smith (1993) 6 Cal.4th 684, 696.) The trial court’s denial of the Marsden motion was not an abuse of discretion.
II
After the trial court denied the Marsden motion, defendant immediately moved to withdraw his guilty plea. The court then appointed another attorney to represent defendant “for the limited purposes of filing, preparing a motion for him to withdraw his plea.” Fifteen days later, substitute counsel informed the court he had obtained copies of the preliminary hearing and felony plea transcripts, the felony plea and waiver form, had reviewed the probation report, had spoken with trial counsel, and had met with defendant. Counsel declared he could “find no legal reason or justification to file a motion to withdraw a guilty plea” on defendant’s behalf.
As justification for this statement, substitute counsel informed the court it was his understanding and belief that defendant “understood the charges pending against him, that he was informed of those charges. He was properly informed of his rights to go to trial” along with his other statutory and constitutional rights. Substitute counsel stated he would not file a frivolous motion on behalf of defendant. Defendant expressed his disagreement and requested appointment of new counsel to file a writ of mandate. The trial court denied the request.
Defendant contends the evidence brought forth at the Marsden hearing demonstrates trial counsel was ineffective for allowing defendant to plead guilty, and therefore substitute counsel was ineffective for failing to review the Marsden transcripts. We disagree.
To establish ineffective assistance of counsel, defendant must demonstrate that counsel’s performance was deficient and defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674].) As we have already ruled, defendant’s Marsden motion did not establish he had been prejudiced by trial counsel’s representation. Therefore, trial counsel was not ineffective in allowing defendant to plead guilty.
Nor did substitute counsel render ineffective assistance to defendant by failing to file a motion to withdraw the guilty plea. Penal Code section 1018 provides in relevant part: “On application of the defendant at any time before judgment . . ., the court may, . . . for a good cause shown, permit the plea of guilty [or no contest] to be withdrawn and a plea of not guilty substituted. . . . This section shall be liberally construed to effect these objects and to promote justice.” “Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea. [Citations.] But good cause must be shown by clear and convincing evidence.” (People v. Cruz (1974) 12 Cal.3d 562, 566.)
Since the Marsden motion did not establish any basis for concluding trial counsel was ineffective, substitute counsel’s failure to examine the transcript of the Marsden hearing did not prejudice defendant.
Lacking grounds for a motion to vacate the plea, substitute counsel correctly refused to file the motion. Counsel was not required to undertake futile acts or file a meritless motion. (People v. Anderson (2001) 25 Cal.4th 543, 587.) Defendant has not shown ineffective assistance by either counsel.
Disposition
The judgment is affirmed.
We concur: RAYE , J., CANTIL-SAKAUYE , J.