Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC632791
Bamattre-Manoukian, Acting P.J.
Defendant David Lucas Murrieta was charged by information filed October 20, 2006, with possession of cocaine (Health & Saf. Code, § 11350, subd. (a); count 1), being under the influence of cocaine (Health & Saf. Code, § 11550, subd. (a); count 2, a misdemeanor), and possession of a deadly weapon (Pen. Code, § 12020, subd. (a)(1); count 3, a misdemeanor). On December 12, 2006, the People amended count 3 of the information to charge defendant with misdemeanor possession of a billy club under section 12020, subdivision (a)(1), and defendant entered a negotiated guilty plea to all the charges in the amended information on condition that he be placed on probation for two years with various terms and conditions, including completion of an outpatient drug treatment program.
Further unspecified statutory references are to the Penal Code.
On May 18, 2007, the date set for sentencing, defendant requested a Marsden hearing. At the hearing, defendant contended that his counsel misadvised him on the law of possession of a billy club, and that his counsel was aware that he was on prescribed medication on the day he entered his guilty pleas. Defendant’s counsel told the court that he had talked with defendant about the billy club charge, and had given him a copy of applicable jury instructions. Counsel also stated that, in his opinion, defendant was thinking clearly on the day he entered his guilty pleas. The court asked defendant if he remembered telling the court when he entered his pleas that his medications were not affecting his thinking. Defendant stated that he remembered the court asking him about it, but that he was not sure that the medications were not affecting his thinking. Defendant also stated that his counsel had given him some jury instructions, but he did not understand the instructions and he relied on what his counsel told him. The court noted that the police report on the underlying incident states that defendant admitted to the officer that he knowingly possessed the billy club. After hearing additional argument from defendant, the court denied the Marsden motion and determined that defendant was not entitled to appointment of different counsel to investigate a motion to withdraw the pleas. (See People v. Smith (1993) 6 Cal.4th 684, 695-696.)
People v. Marsden (1970) 2 Cal.3d 118.
In open court, defendant stated that he wanted to represent himself. The court advised defendant that, if he represented himself, he would have to personally appear for status review hearings periodically during his probationary period. However, if his counsel continued to represent him, his counsel could appear for him at the status review hearings. Defendant told the court that he would like to have his counsel continue to assist him. The court then imposed a six-month jail term, suspended execution of the sentence, and placed defendant on formal probation for two years with various terms and conditions, including completion of a drug abuse treatment program. The court also set the matter for a review hearing on July 20, 2007. Defendant stated that he accepted the terms and conditions of probation, but intended to appeal.
Defendant filed a notice of appeal and request for a certificate of probable cause on May 21, 2007. The court granted the request for a certificate of probable cause on June 11, 2007. Defendant filed a second notice of appeal and request for certificate of probable cause on July 13, 2007. The court granted the second request for a certificate of probable cause on July 23, 2007.
We appointed counsel to represent defendant in this court. Appointed counsel has filed an opening brief which states the case and facts but raises no issue. We notified defendant of his right to submit written argument in his own behalf within 30 days. That period has elapsed and we have received no response from defendant. Pursuant to People v. Wende (1979) 25 cal.3d 436, and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record and have concluded that there is no arguable issue on appeal.
The judgment of May 18, 2007, is affirmed.
WE CONCUR: MIHARA, J., MCADAMS, J.