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People v. Sample

California Court of Appeals, First District, Fourth Division
Mar 14, 2008
No. A117408 (Cal. Ct. App. Mar. 14, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JOSEPH SAMPLE, Defendant and Appellant. A117408 California Court of Appeal, First District, Fourth Division March 14, 2008

NOT TO BE PUBLISHED

San Mateo County Super. Ct. No. SC061252A

RIVERA, J.

Joseph Sample appeals from a judgment upon his plea of no contest to assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). Defendant also admitted that the offense was a serious felony within the meaning of section 1192.7, subdivision (c)(23), and that he suffered a prior strike conviction within the meaning of section 1170.12, subdivision (c)(1). He contends that his trial counsel was ineffective in representing him on a motion to withdraw the plea. We affirm.

All further statutory references are to the Penal Code.

I. Factual Background

On December 4, 2006, defendant entered his plea of no contest to the assault offense and admitted the prior strike with the understanding that he could be sentenced up to six years in state prison. The charges stemmed from an incident in which defendant pursued a man and struck him three to four times with a black metal tire rod. The victim knew defendant because they were involved in an ongoing dispute over a vehicle.

On February 13, 2007, defense counsel informed the court that defendant wished to move to withdraw his plea on the grounds that his plea was not knowing and intelligent, and that he was not provided all of the information regarding his case prior to entering the plea. Counsel stated that the motion created a conflict of interest in her representation of defendant. The court appointed Eric Hove to investigate the possibility of making a motion to withdraw the plea.

On March 14, 2007, Hove informed the court that after reviewing the record and interviewing defendant, there was not good cause for a motion to withdraw the plea. Hove indicated, however, that defendant still wished to pursue the motion. Defendant presented a letter to the court and argued that the dispatch report could prove his innocence because the officer giving the report claimed to know him but did not identify him by name until later. In response to the court’s inquiry, Hove explained that he discussed these issues with defendant, noting that the officer saw defendant strike the victim. The court found that there was not good cause to withdraw the plea and denied defendant’s motion.

The court sentenced defendant to the low term of two years in state prison and doubled the term pursuant to the three strikes law for a total of four years.

Defendant filed a timely notice of appeal and request for a certificate of probable cause. The court granted the request for the certificate of probable cause.

II. Discussion

Defendant contends that he was denied the effective assistance of counsel because Hove argued against a motion to withdraw a plea and disclosed privileged communications. The record refutes defendant’s claim.

In order to prove a claim of inadequate representation, a defendant must show that “trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates.” (People v. Pope (1979) 23 Cal.3d 412, 425.) Effective and competent representation requires “counsel’s ‘diligence and active participation in the full and effective preparation of his client’s case.’ [Citation.]” (Id. at pp. 424-425.) We will reverse a conviction on the ground of inadequate counsel only if the defendant affirmatively shows that the omissions of defense counsel cannot be explained on the basis of any knowledgeable choice of tactics. (People v. Zapien (1993) 4 Cal.4th 929, 980.) The defendant must also establish prejudice from counsel’s acts or omissions. Ordinarily prejudice must be affirmatively proved; the defendant must establish the reasonable probability that had counsel not been incompetent, the proceeding would have had a different result. (Strickland v. Washington (1984) 466 U.S. 668, 687.)

Defendant contends that he was deprived of the effective assistance of counsel because Hove disclosed privileged information to the court and asserted a position that was adverse to defendant’s interests. He relies on People v. McLeod (1989) 210 Cal.App.3d 585, 590, where the court in dicta stated that an attorney seeking to withdraw as counsel “ ‘must be careful not to provide the court with too much detail regarding the grounds for withdrawal while, at the same time, protecting the record for appeal. The attorney-client privilege and the duty to maintain the client’s confidence and secrets limit the information that can be divulged.’ [Citation.]”

Here, however, Hove’s remarks to the court were limited and did not infringe on defendant’s attorney-client privilege. To the contrary, Hove informed the court that he reviewed the court file and that of trial counsel and interviewed defendant and determined that there was not good cause under section 1018 to bring a motion to withdraw the plea. Defendant then submitted a letter to the court in which he alleged that his trial counsel misrepresented important exculpatory evidence. Defendant also made a statement to the court indicating the reasons he believed his trial counsel was incompetent. The court then asked Hove if he had discussed these issues with defendant. Hove responded, “I went over and discussed these issues with [defendant] as well as the discovery. Also the fact that in this particular case, it’s Officer Zaid[i] . . . from East Palo Alto Police Department, who in his report and his testimony at the preliminary hearing [stated] he personally witnessed [defendant] striking the victim in this particular case.”

Defendant argues that Hove’s response to the court disclosed confidential information. We are not persuaded. Defendant, in his statement to the court, acknowledged that he was concerned with Officer Zaidi’s description of him and his identification as the perpetrator. Under these circumstances, that Hove discussed with defendant the fact that Zaidi testified at the preliminary hearing he saw defendant strike the victim can hardly be viewed as a client confidence which Hove was required not to disclose.

More particularly, here the court sought to determine whether Hove’s decision not to make a motion to withdraw the plea on defendant’s behalf had a sound basis. Hove’s comments to the court in response to the court’s inquiry were necessary to support his position that he could not bring the motion. (See People v. Makabali (1993) 14 Cal.App.4th 847, 849-850, 853 [conflict attorney acted properly when he refused to file a motion to withdraw the defendant’s plea after concluding the motion would not be viable]; People v. McLeod, supra, 210 Cal.App.3d at p. 589 [“not even the Sixth Amendment requires a defense attorney to act in violation of accepted ethical standards”]; People v. Brown (1986) 179 Cal.App.3d 207, 216 [counsel is not “compelled to make a motion, which, in counsel’s good faith opinion, is frivolous or when to do so would compromise accepted ethical standards].)

We must “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” (Strickland v. Washington, supra, 466 U.S. at pp. 668, 689.) Here, counsel, in good faith, informed the court of his investigation into whether defendant had good cause to bring a motion to withdraw a plea. (See People v. Makabali, supra, 14 Cal.App.4th at p. 853.) Defendant was not denied the effective representation of counsel because Hove concluded that there was not good cause to bring the motion. Rather, the record shows that Hove fully investigated the feasibility of bringing a motion and determined that he could not do so based on the record. Defendant has failed to establish that Hove provided inadequate representation.

Defendant’s additional assertion that Hove wrongly concluded that a motion to withdraw the plea was frivolous is not supported by the record. Defendant claims that Zaidi’s testimony at the preliminary hearing was impeachable by the police report and police dispatch evidence. The record belies defendant’s claim.

At the preliminary hearing, Zaidi testified that he saw defendant strike the victim multiple times with a black tire iron. Zaidi knew defendant from previous contacts and called out to him by his first name. The victim also identified defendant as the perpetrator in a photographic lineup. He told the police that he knew defendant because they had an ongoing civil dispute over a vehicle. Even if Zaidi failed to give the dispatch operator defendant’s name when he described the perpetrator, given the victim’s identification of defendant and the limited impeachment the dispatch report may have provided, it is not reasonably probable that defendant would have prevailed on a motion to withdraw his plea.

The dispatch report is not part of the record on appeal. It is defendant’s duty to furnish an adequate record on appeal that affirmatively shows error. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 518, pp. 562-563.)

III. Disposition

The judgment is affirmed.

We concur: REARDON, Acting P. J. SEPULVEDA, J.


Summaries of

People v. Sample

California Court of Appeals, First District, Fourth Division
Mar 14, 2008
No. A117408 (Cal. Ct. App. Mar. 14, 2008)
Case details for

People v. Sample

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOSEPH SAMPLE, Defendant and…

Court:California Court of Appeals, First District, Fourth Division

Date published: Mar 14, 2008

Citations

No. A117408 (Cal. Ct. App. Mar. 14, 2008)