Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. DF009078A John R. Brownlee, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari L. Ricci, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Detjen, J. and Franson, J.
This is an appeal from an order granting probation after defendant pled no contest to a felony. We will affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Defendant Michael William Tinkle broke into the home of Christian Hernandez on November 1, 2008. Hernandez came home and found defendant in his residence holding Hernandez’s Playstation 3 deck. Defendant jumped out the kitchen window and fled over the back fence. He was later arrested and was positively identified by Hernandez.
Defendant was charged by information with count 1, burglary of an inhabited dwelling (Pen. Code, §§ 459, 460, subd. (a).) The information charged that the offense is a serious felony, making it a “strike” under the Three Strikes law. (See Pen. Code, § 1192.7, subd. (c)(18).) The information also alleged an additional felony and two misdemeanor counts.
On the day set for trial, March 10, 2010, defendant entered into a plea agreement. He entered a plea of no contest to count 1 in return for dismissal of the remaining counts and dismissal of other pending misdemeanor counts. The court gave an indicated disposition of a grant of probation with one year of custody in the county jail as a condition of probation. During the colloquy concerning the terms of the agreement and defendant’s waiver of rights, defendant specifically acknowledged that the count to which he was pleading no contest “is a strike, meaning a serious felony under the strike law[.]” He also acknowledged that no one had “made any threats or promises to [him] other than what we’ve discussed here today[.]”
When the case was called for sentencing on May 25, 2010, defendant’s attorney responded: “Your Honor, my client was here and he said he had a letter. He was going to go to the car and give it to me. I don’t know why he didn’t bring it, but he should be back momentarily.” After defendant returned to the courtroom, counsel informed the court that defendant wanted to make a Marsden motion. The court convened such a hearing outside the presence of the prosecutor and other court personnel.
See People v. Marsden (1970) 2 Cal.3d 118.
The court invited defendant to explain why his appointed attorney should be discharged from the case. Defendant said counsel had been unprepared and difficult to reach. He said counsel had told him that if the police investigation of the crime “found no fingerprints, that there would be no strike.” Defendant stated that counsel had made this representation to him in writing, that the paper was “out in the car, and I just ran out there and tried to get the other piece of paper, and I left it.” He asked to go back out to the car, but the court refused because it was “not convinced you’re going to come back at this point.” The court called upon defense counsel. Counsel stated: “With regards to specifically the paper, I -- it’s been a long time, but I certainly couldn’t guarantee what the D.A. would do on a case. [¶] I recall writing out some things for Mr. Tinkle to think about in terms of what they were seeking, but I certainly didn’t make any guarantees.”
The court denied the motion on the basis that there was no indication of ineffective assistance of counsel or of a serious breakdown in the attorney-client relationship. When the case resumed in open court, the court gave defendant the option of delaying the sentencing hearing so defendant could file a motion to withdraw his no contest plea. After the court answered several additional questions that defendant posed, defendant advised the court he wanted to leave his no contest plea in place.
Thereafter, the court suspended imposition of sentence, admitted defendant to three years probation, and imposed various fines and fees. One condition of probation was that defendant be incarcerated in county jail for the first year of his period of probation.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends the trial court abused its discretion in denying defendant’s motion for appointment of new appointed counsel. We disagree.
The trial court, as required by People v. Marsden, supra, 2 Cal.3d at page 123, permitted defendant to explain his reasons for wanting a different attorney. Defendant contended his attorney had misrepresented to him the nature of the plea bargain. He said counsel had told him that if investigators did not discover defendant’s fingerprints on the victim’s property, the burglary charge would not be deemed a strike.
The court, having heard defendant’s representations, and having reviewed the record and the responses of counsel, was entitled to disbelieve defendant. Defendant’s story was wholly implausible. The proceedings had been delayed specifically because defendant had gone to his car to bring in papers he supposedly had forgotten. His request to repeat the trip to the car was, therefore, suspect. In addition, the alleged content of the document was completely contradicted by defendant’s on-the-record assertions at the time of the no contest plea: At the change of plea hearing, defendant acknowledged that the offense he was pleading to was a strike, and that there were no other promises or representations about that plea, other than those stated on the record.
The court reasonably could have concluded, and inferably did conclude, that there had not been any prior representation by counsel to defendant concerning reduction of the burglary to a non-strike offense based on some further investigation that was to occur after the change of plea. As the court stated in open court after the conclusion of the Marsden hearing, “You know what I think is happening here, Mr. Tinkle? I think you realize you’re going into custody today and you’re doing the dance to make sure that doesn’t happen.”
Defendant has not established that he was denied a full hearing on the request for new counsel, that his trial counsel was providing or would provide ineffective assistance to defendant, or that there was a conflict between defendant and counsel that resulted in ineffective assistance. As a result, defendant has not shown that the trial court abused its discretion in denying defendant’s request for appointment of new counsel. (See 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 222, pp. 347-349 (collecting cases).)
DISPOSITION
The judgment of conviction and order for probation are affirmed.