Opinion
A164420
11-21-2023
THE PEOPLE, Plaintiff and Respondent, v. MARWAN SAJIH HATOUM, Defendant and Appellant.
NOT TO BE PUBLISHED
(San Mateo County Super. Ct. No. 19-NF-008676-A)
Miller, J.
After the jury had been sworn, and before opening statements began, defendant Marwan Sajih Hatoum entered a plea of no contest to first degree burglary, and, pursuant to a plea agreement, the trial court placed him on probation for two years with the condition he serve 120 days in county jail and a recommendation for alternative service through the sheriff's work program.
On appeal, defendant contends the trial court abused its discretion in denying his motion to withdraw his plea, he received ineffective assistance of counsel at the time he entered his plea, and the denial of his Marsden motion after the jury had been sworn was an abuse of discretion.
During the pendency of this appeal, defendant's appellate counsel filed a petition for habeas corpus relief in this court. We deny the habeas petition (A167065) by separate order filed this day.
FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of May 25, 2019, police were dispatched to an apartment in South San Francisco, where Officer Conor McGuire found defendant inside. The residents of the apartment, Leticia M. and Abraham G., were defendant's in-laws. Leticia reported to McGuire that she and her husband (together with defendant's wife) were out-of-town and that, via surveillance camera, she had observed defendant, who she recognized, enter the apartment using a key. Neither she nor Abraham had given defendant permission to enter their home. McGuire also spoke with defendant's wife, who said her brother (Abraham) had given her a key to the apartment years ago, and she had not seen the key in about five or six months. McGuire viewed the surveillance footage and saw defendant enter the apartment and look through a bag, a coat or jacket, a backpack, and a sunglass case; defendant also picked up some paperwork that read "tax documents" and put it back down.
In July 2019, the San Mateo District Attorney filed a felony complaint charging defendant with first degree burglary (Pen. Code, § 460, subd. (a)). Defendant, then represented by attorney Cory Fuller, waived time for the preliminary hearing and entered a plea of not guilty.
In September 2020, the preliminary hearing was held, and McGuire was the only witness. McGuire testified about what Leticia had told him and described the surveillance footage. Court-appointed attorney Emily Andrews represented defendant. She noted that defendant did not take anything from the apartment and argued the prosecution failed to show intent to commit a theft or other felony as required to prove burglary. The trial court found sufficient cause to hold defendant to answer on the charge of first degree burglary.
At all times, it has been defendant's position that he entered the apartment to look for evidence that his brother-in-law "did some IRS scam" using defendant's address (and, thus, he had no felonious intent). The day he was found in his in-laws' apartment, defendant told officers he was there, in the prosecution's words, "to search for documentation that would confirm his belief that his brother-in-law was committing tax fraud."
At the preliminary hearing, Officer McGuire did not testify about what defendant said when he was found in his in-laws' apartment. But the prosecution described defendant's statement to the police in a motion in limine seeking to preclude the defense from referring to defendant's out-ofcourt statements.
In support of defendant's position, on the day of the trial readiness conference (February 19, 2021), defense counsel provided the prosecution a copy of a 1099 tax form. The document itself is not part of the appellate record, but, in a motion in limine to exclude it, the prosecution described the document as a tax form "for a business owned by the victims [Leticia and Abraham]" showing a named employee who "is a family member who will not be a witness in this trial and currently lives in Mexico."
On February 22, 2021, the matter was sent to Department 25 for jury trial before the Honorable Joseph C. Scott. Counsel for the parties stated they were ready to proceed, and the court ruled on several of the parties' motions in limine. The prosecution's motion to exclude the tax form was reserved for an Evidence Code section 402 hearing to be held before opening statements.
On February 25, 2021, a jury was selected and sworn. The next day, defendant informed the court he wished to discharge defense counsel (that is, he raised a Marsden motion), and the trial court referred the matter to another judge in Department 21 (Honorable Robert D. Foiles).
A Marsden motion (People v. Marsden (1970) 2 Cal.3d 118) refers to a defendant's request for new counsel on the ground appointed counsel is providing inadequate representation. (People v. Smith (2003) 30 Cal.4th 581, 604 (Smith).)
At the Marsden hearing, defendant explained why he wanted a new attorney, and defense counsel responded to defendant's complaints. The court denied the motion to relieve counsel, finding there was no breakdown in the attorney-client relationship and the motion was tardy.
When the parties returned to Department 25 for trial, defense counsel indicated defendant was prepared to enter a change of plea. In response to the court's extensive questioning of defendant before accepting the plea, defendant stated he knew he was innocent, but he was agreeing to a plea "to protect my family." The court asked whether defendant was "doing this on your own free will," and he said he was. Defendant entered a plea of no contest to first degree burglary, and the prosecutor stated the factual basis for the plea "pursuant to People vs. West." The trial court found defendant made a free, knowing, and intelligent waiver of his rights, and a factual basis existed for the plea.
A plea pursuant to People v. West (1970) 3 Cal.3d 595 is" 'a plea of nolo contendere, not admitting a factual basis for the plea.' Such a plea, also referred to as an Alford plea, . . . allows a defendant to plead guilty in order to take advantage of a plea bargain while still asserting his or her innocence." (People v. Rauen (2011) 201 Cal.App.4th 421, 424, fn. omitted.)
In September 2021, defendant, represented by new counsel, filed a motion to withdraw his plea. The written motion argued, "the totality of the circumstances indicate that (1) [defendant] felt like he had no choice but to enter a plea, and (2) that his plea was not knowingly and intelligently entered." It asserted, "the record shows that [defendant] did not understand certain fundamental details of the plea." The motion concluded, "Despite being represented by counsel, [defendant] expressed doubt about his faith that [his attorney] was representing his interests, and he expressed confusion about fundamental components of his plea. That type of dynamic undermines the spirit of the Sixth Amendment."
In November 2021, Judge Scott, who accepted the change of plea several months earlier, heard argument on defendant's motion to withdraw his plea. The court denied the motion, noting it took a "significant period of time" at the plea "to make sure that [defendant] knew of and was intelligently waiving his constitutional rights," and the court was "satisfied that he did."
In January 2022, the trial court placed defendant on probation and ordered that he serve 120 days in county jail with a recommendation of alternative service in accordance with the terms of his plea agreement.
DISCUSSION
Defendant contends (1) the trial court abused its discretion in denying his motion to withdraw his plea, (2) he received ineffective assistance of counsel at the time he entered his plea, and (3) the denial of his Marsden motion was an abuse of discretion. We consider his third contention first, since the discussion at the Marsden hearing provides context for all of defendant's appellate claims.
A. Denial of Marsden Motion
1. Marsden Hearing
The Marsden motion was made, and the hearing was held, the day after the jury had been sworn. At the start of the Marsden hearing, defense counsel explained to the court that a jury had been selected, and an Evidence Code section 402 hearing was scheduled for that morning after which, counsel would give opening statements.
The court asked defendant why he wanted his counsel relieved. Defendant began his response by stating his case had been going on for almost two years and he wanted "a speedy trial." He complained that defense counsel had previously said she wanted to file a motion to have his case dismissed, but when he texted her asking about the motion, she replied," 'I have not filed because good judges [have] been out all year and the two judges fill[ing] in are awful.' "
Next, defendant said defense counsel told him not to let his wife testify and later, according to defendant, his counsel "said oh, maybe have her testify." He said defense counsel was confusing him and not giving him information, and he needed to know his rights.
Defendant continued, "And then at the plea deal, I was outside, she came out and she said, 'We have an offer. Sixty-two days, half of it is 31 days. No jail time.' I was like, 'Well, I want to try.' 'You should not take it.' Something like that. Okay. That's fine. [¶] And then last Friday, 'Oh, the offer now is 90 days.' No, she didn't say that, she said 62 days. She said, 'sixty-two days and ninety days, same thing.' 'No, it's not the same thing.' Makes a difference. [¶] She's not giving me the information I need. She's not representing me at all. I feel like I've been misrepresented and I need a fair trial. A fair judgment. I need someone to be representing me fairly and the information what I'm supposed to do. What's go[ing to] happen? I need to clear it because this is my case, this is my life, this is my future.... Mistakes happen in life, but I have reason why this happened. And she never was clear.
"I'm always confused with her.... She's just lying here. Like last night I was thinking about what's going on with the jury, she said she gave me this list about how much I can be convicted and all this stuff. And later on 'I promise you, I promise 100 percent you're not go[ing to] get more than 122 days, and then no jail time.' And before she said, 'Oh, you can get this, you can get two years,' stuff like this. I was like, 'I'm just confused. I don't know what's going on here. This is my trial.' [¶] Your Honor, I'm just like living in fear for two years. I don't know what's going on here, what to expect."
Defendant, apparently referring to some unspecified time in the past, said he "went to the office to file a complaint and she was there and then she was just rude" and told him to make an appointment. He told the court he "talked to her supervisor." "I go to her supervisor and he gave me his card. I said give that to the jury and you give that to the judge and tell him what's going on. She showed up that day. She never did that. Maybe I should have back then, but I was probably, like, okay, I had pleaded and continued going on until now. And there is a trial. I need to get a fair trial, fair judgment. That's all I ask for, your Honor."
The court then allowed defense counsel to respond. Defense counsel first explained she was not defendant's attorney when he waived time, and she said that COVID had slowed court processes. Next, she said she "underst[oo]d the emotional toll this case has taken on" defendant because, "[i]t involves his family members, his wife, his brother-in-law, sister-in-law."
"[S]o I understand that it's been tearing him apart personally." She noted that defendant had no criminal record, and she had asked the district attorney multiple times "to give him a more reasonable charge than a residential burglary strike charge, which I think is excessive in this case for what the circumstances were."
Regarding the plan to file a motion to dismiss, defense counsel explained she decided not to file such a motion because it would not dispose of the case. She said, "[T]he defense is intent, there's no intent.... [T]hey're just assuming his intent, so I was go[ing to] say insufficient evidence as to intent, but the [preliminary hearing] judge felt that the circumstances were such that there was rummaging through things [by defendant when he was in the apartment], that the intent could be circumstantially proved at prelim."
She told the court, "So if I had filed the 995 and even if it was granted, the People could refile. That's not to say I probably could have done that for him and should have done that for him if I felt like it would have resulted in a dismissal, but the reality is the People can refile."
Responding to defendant's stated confusion about different plea offers, counsel said, "[P]art of the problem is I know that [defendant] is so overwhelmed emotionally that when I say something and I'm not telling him what he wants to hear, he's not hearing it, and so I'm doing my best to write things down for him and explain things to him because I know how emotionally hard this is for him." She elaborated, "So the first offer was a 90-day offer and that was revoked. And then I told him if he wanted to plead before the jury selection, I'm not go[ing to] get the 90 back, I could try for 120, no guarantees. So that was the discussion we had."
The court asked defendant if he wanted to respond to defense counsel. Defendant then raised another complaint. He said, "About the evidence [defense counsel] said she can hire an investigator to do some investigation about my case. She never did. And an investigation is very important in the case why the reason I was there and because there's evidence my brother-inlaw did some IRS scam using my address. That's the only reason I'm going there. This investigation [sic] said she wanted to do an investigation, she never did no investigation. How can I get a fair trial? I mean she just never did anything she said she want to do, your Honor."
Defense counsel responded that an investigation into whether defendant's brother-in-law engaged in tax fraud was neither realistic nor necessary for the defense position of lack of felonious intent. She explained defendant requested that she try to obtain "IRS documents to prove that his brother is committing tax fraud," but she had "no way of accessing those tax documents." Recently, however, defendant had given defense counsel a 1099 Form with his brother-in-law's address and defendant's address "and a name of a relative in Mexico." She said she found this document "so compelling" and observed, "That's exactly what I would have liked to have had two years ago." She told the court there was going to be an Evidence Code section 402 hearing on whether the tax form would be admissible. And she explained that she told defendant his defense theory did not require investigation on whether the brother-in-law actually committed tax fraud. She said that, since the day Officer McGuire found him in his in-laws' apartment, defendant had consistently offered an innocent explanation for his entry-that he was there to investigate tax fraud. "And I told him . . . the posture of the case as it stands doesn't require us to go much outside of what we have." In other words, defense counsel explained to defendant that the relevant evidence at trial would be defendant's testimony about his suspicion and intentions on the day he entered the apartment, not evidence about whether his brother-inlaw was actually engaging in tax fraud.
Recall the prosecution filed a motion in limine to exclude defendant's statement to the police. This motion was to be resolved in the Evidence Code section 402 hearing that was to take place before counsel gave opening statements.
Defendant told the court he showed defense counsel the same tax form at the first court date. Defense counsel responded, "I think that was the day that the P.D. was appointed, so I wasn't technically his attorney at that point. I probably said give it to your attorney and then I'm sorry I didn't recall that I had mentioned that."
The court then ruled. It first noted, "[T]his is a tardy request. This is late." But then the court went on to fully consider the merits of defendant's specific complaints. The court found, "I do not see a breakdown in the attorney-client relationship. This is a case where-Ms. Andrews is an experienced attorney, has presented hundreds of felonies and misdemeanors. The issue becomes a question of intent and that I think is truly what's going to be tried before the jury."
After looking at the preliminary hearing transcript, the court stated that it "d[id]n't see the need for a 995 motion" and found it was "quite appropriate" that defense counsel decided not to file a motion to dismiss. The court also explained that early plea offers from the district attorney "usually evaporate[]" "once you start the jury process." It concluded its ruling by finding that "[t]his case is two years old. And if these were the issues, they should have been brought before the jury was selected, so the motion is denied."
2. Applicable Law and Standard of Review
"When a defendant seeks new counsel on the basis that his appointed counsel is providing inadequate representation-i.e., makes . . . a Marsden motion [citation]-the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. Substitution of counsel lies within the court's discretion. The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel." (Smith, supra, 30 Cal.4th at p. 604.)
" 'The denial of a motion to substitute counsel implicates the defendant's Sixth Amendment right to counsel....' [Citations.] On direct review of the refusal to substitute counsel, [the appellate court] considers 'the following three factors: "(1) timeliness of the motion; (2) adequacy of the court's inquiry into the defendant's complaint; and (3) whether the conflict between the defendant and his attorney was so great that it resulted in a total lack of communication preventing an adequate defense." '" (Smith, supra, 30 Cal.4th at p. 606.)" 'It is within the trial court's discretion to deny a motion to substitute made on the eve of trial where substitution would require a continuance.'" (Id. at p. 607.)
3. Analysis
Defendant now argues the denial of his Marsden motion was an abuse of discretion because (1) defense counsel provided inadequate representation when she failed to undertake a pretrial investigation and (2) defendant and defense counsel were embroiled in an irreconcilable conflict.
a. Adequacy of Representation
Defendant claims on appeal, "[C]ounsel failed to conduct any pretrial investigation into [his] claimed intent as to why he was in the apartment, i.e., looking for evidence of an IRS scam perpetrated by his cousin [sic], that was falsely linked to [defendant] and his wife. Had she investigated [defendant]'s defense claims, interviewed witnesses, obtained documentary evidence inculpating [defendant]'s brother-in-law, that evidence would have been devastating to the prosecution's case. After a full and complete investigation, at that point, defense[] counsel could have adequately advised [defendant] on how to proceed."
We disagree with defendant's premise that adequate representation in this case required an investigation into whether the alleged victim of burglary was engaging in tax fraud. The factual issue that was going to be in dispute at trial was what defendant intended at the time he entered his inlaws' apartment without their permission, not whether defendant's brotherin-law committed tax fraud. Indeed, even if defense counsel investigated defendant's claim and discovered evidence suggesting his brother-in-law, in fact, committed tax fraud, this evidence would not be relevant to establishing defendant's beliefs and intentions on the day he entered the apartment. As the Attorney General points out, evidence of potential wrongdoing by the brother-in-law would be subject to a (likely meritorious) motion to exclude under Evidence Code section 352 on the ground that any slight probative value of such evidence would be substantially outweighed by undue consumption of time and the risk of confusing the issues and misleading the jury. Therefore, defense counsel's decision not to investigate whether the brother-in-law actually engaged in tax fraud did not render her representation inadequate.
The trial court that ruled on defendant's Marsden motion explained the defense theory was "a question of intent and that I think is truly what's going to be tried before the jury." The court thus implicitly found defendant and defense counsel were in agreement about the defense to be pursued at trial (lack of felonious intent and an innocent intent to investigate tax fraud), and defense counsel was providing adequate representation. We see no abuse of discretion.
b. Conflict Between Defendant and Defense Counsel
Next, defendant argues he and defense counsel were embroiled in such an irreconcilable conflict that ineffective representation was likely to result. But the trial court found no "breakdown in the attorney-client relationship," and defendant has not shown this finding was an abuse of discretion.
Defendant accuses defense counsel of "being untruthful in her actions and her words with" him. However, "[a] defendant may not effectively veto an appointment of counsel by claiming a lack of trust in, or inability to get along with, the appointed attorney" (Smith, supra, 30 Cal.4th at p. 606), and we defer to the trial court's credibility determinations. (See People v. Jones (2003) 29 Cal.4th 1229, 1245-1246 [when there is a credibility question between a defendant and defense counsel, the trial court is"' "entitled to accept counsel's explanation"' "].) In this case, it was within the trial court's discretion to accept defense counsel's version of events over defendant's. For example, while defendant said defense counsel confused him and was "just lying here," the court reasonably could accept defense counsel's explanation that she did not lie to defendant or the court. Rather, as defense counsel described, defendant was "so overwhelmed emotionally" by the situation that when defense counsel told defendant things he did not "want[] to hear," defendant sometimes was "not hearing it," that is, he was not taking in all the information she was giving him.
In describing "the emotional toll this case has taken on him," defense counsel explained the alleged victims were defendant's wife's brother and sister-in-law, and defendant had no criminal record. In addition, the defense theory involved accusing defendant's wife's brother of wrongdoing.
Defendant's remaining complaints about defense counsel do not demonstrate an irreconcilable conflict. He asserts defense counsel "fail[ed] to remember" that he offered her the tax form at his initial appearance. Defense counsel's lapse of memory does not show a complete breakdown in the attorney-client relationship, nor does it suggest that defense counsel's continued representation of defendant would substantially impair his right to assistance of counsel. (See Smith, supra, 30 Cal.4th at p. 604 [denial of Marsden motion is not an abuse of discretion "unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel"].) The record very clearly shows defense counsel was prepared to go forward with defendant's theory that he entered his in-laws' apartment to investigate tax fraud and lacked felonious intent. Moreover, the tax form at issue had been produced, and a hearing on its admissibility was scheduled to take place before opening statements.
Defendant also claims defense counsel was "unprofessional" in failing to file a motion to dismiss after telling defendant she would do so, and she failed "to undertake any pretrial investigation as to the facts and potential defenses to the charges." But" '[t]actical disagreements between the defendant and his attorney do not by themselves constitute an "irreconcilable conflict." '" (People v. Valdez (2004) 32 Cal.4th 73, 95.) And, as discussed above, defense counsel was not inadequate in choosing not to try to prove defendant's brother-in-law was actually committing tax fraud.
Defendant complained to the court that defense counsel told him she was not filing a motion to dismiss because the judges were "awful." Thus, even in defendant's version of events, defense counsel explained to him her reason for deciding not to file a motion to dismiss. Defendant does not claim defense counsel lied to him about what she was doing in his defense. It is not inadequate representation merely to discuss the possibility of filing a motion to dismiss with one's client and then decide not to do so.
Defendant has failed to show the denial of his Marsden motion was an abuse of discretion.
B. Denial of The Motion to Withdraw Plea
1. Entry of Plea
After defendant's Marsden motion was denied, the parties returned to Department 25 where the trial had begun. Outside the presence of the jury, defense counsel informed the court she had reviewed a plea form with defendant, he had not signed the plea form yet, and he wanted to address the court. Defendant then told the court, "The reason I'm doing this just for my family, my wife. Because she has been-you know, it is just-I know, if the trial continues, I know I am innocent from all these charges if the trial continues.... [¶] But for my wife been dragged here ....It's been going on and on. It is killing me inside my core what I'm going through right now and what my family going through. [¶] I'm going to do anything just to protect my family. And that is why I'm here, to protect my family. I'm going to have this charge for the rest of my life....My life is destroyed, Your Honor. And I'm going to [¶] . . . [¶] [s]ign it and just to, you know, protect my family."
Defense counsel then said she "want[ed] to make sure he is not feeling forced or threatened by anyone to enter the plea." Judge Scott asked defendant, "You are doing this on your own free will, sir?" Defendant responded, "I am, but I'm going to be free-inside-the way I was raised, Your Honor, is with dignity and honor. And this is charged against me. It is killing me inside, my core. Spend the rest of my life to have it inside there. [¶] And that is not me.... I mean, I'm trying to do the right thing with my wife. [¶] I'm here because my brother-in-law used my address, scammed the IRS. Trying to protect my wife. And he tells my wife to go pick up a check for him from Mountain View. I drive her there."
The court asked defendant again, "[N]obody is going to force you to do it. And that was my question. Is anybody coercing you in any way?" Defendant responded, "No, nobody forcing me, Your Honor. Just thinking about all these two years-" The court confirmed, "So, you are doing this freely and voluntarily?" Defendant said, "Yes, Your Honor."
Defendant said, "The charges against me [are] overaggressive." The court responded, "It is up to you. We've selected a jury. We are not going to waste any more time. We either go forward with your plea, or we continue with the jury trial. It is that simple. [¶] What is it that you want to do?"
The prosecutor observed, "[T]his is a little ridiculous at this point. This is not a therapy session. We are here for trial. There are witnesses outside. There is a jury outside. [¶] . . . [W]e have now been doing this for an hour. We need to start. So, are we going to trial or are you pleading of your own free will?" The court addressed defendant, "That is what I'm asking. Are you going to sign the plea form or not?" Defendant replied, "I'll sign it."
The court confirmed defendant understood the nature of the charges against him. The court asked, "Have you discussed the charge and possible defenses with your attorney?" The reporter's transcript reflects an "[i]naudible conversation between defense counsel and the defendant," and then defense counsel said: "So, I have done this before. I will do it again. [¶] So, for a residential burglary, the elements are that you entered a dwelling house with the intent to commit either a . . . theft, or any felony. [¶] You and I discussed that, in this case . . . we felt you had a defense of intent. That you did not intend to steal or commit a felony when the residence was entered into. And that would have been our defense at trial. So, you are giving up that right by pleading no contest today. [¶] Do you understand?" Defendant responded, "Yes, I understand."
The court then confirmed defendant understood his rights to a jury trial, to confront witnesses, to subpoena witnesses, and to remain silent or testify in his own defense. Defendant said he understood he was giving up those rights by entering a plea. The court asked whether "anyone made any threats to you or anyone closely related or associated with you in order to get you to enter this plea." Defendant responded, "No, no. No, Your Honor." Defendant pleaded no contest to first degree burglary.
2. Applicable Law and Standard of Review
"At any time before judgment, or within six months after an order granting probation if entry of judgment is suspended, a trial court may permit a defendant to withdraw a guilty plea for 'good cause shown.' ([Pen. Code.,] § 1018.) 'Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea' under section 1018 [citation], and section 1018 states that its provisions 'shall be liberally construed . . . to promote justice. A defendant seeking to withdraw a guilty plea on grounds of mistake or ignorance must present clear and convincing evidence in support of the claim. [Citation.] A trial court's decision whether to permit a defendant to withdraw a guilty plea under section 1018 is reviewed for abuse of discretion." (People v. Patterson (2017) 2 Cal.5th 885, 894.) "[A] reviewing court must adopt the trial court's factual findings if substantial evidence supports them." (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) We "defer to a trial court's credibility determinations that are supported by substantial evidence." (People v. Dillard (2017) 8 Cal.App.5th 657, 665.)
3. Analysis
On appeal, defendant contends his plea "was the direct result of his trial attorney's failure to prepare for, to investigate, and to be ready to present a viable defense to the first-degree burglary charge at trial." He "argues that he only pleaded no contest to the charge because he believed that there was no favorable evidence to his case, that he had no way to fight the case, and that he would lose the case without a viable defense."
Again, we reject the premise of defendant's argument. Defendant has not shown defense counsel failed to prepare for trial. The record shows, to the contrary, defense counsel was ready to present his defense that he lacked felonious intent and entered the apartment only to investigate possible tax fraud by his brother-in-law. Defendant suggests "surprise or influence" caused him to enter his plea, but he identifies no surprise or improper influence. There was, for example, no undisclosed exculpatory evidence. (Cf. People v. Ramirez (2006) 141 Cal.App.4th 1501, 1506-1508 [defendant's ignorance of an exculpatory police report materially affected his decision to accept a plea agreement and warranted withdrawal of the plea].) And the mere fact that he faced a choice of either entering a plea or going to trial where his in-laws were going to testify against him does not constitute duress or improper influence. (Cf. People v. Huricks (1995) 32 Cal.App.4th 1201, 1208 [pressure to enter a plea from the defendant's family was "not enough to constitute duress" where "[n]othing in the record indicates [the defendant] was under any more or less pressure than every other defendant faced with serious felony charges and the offer of a plea bargain"].)
In short, defendant has failed to show good cause to withdraw his plea. Therefore, the trial court properly denied his motion.
C. Ineffective Assistance of Counsel
Defendant argues defense counsel's representation "fell below an objective standard of reasonableness" when she "failed to investigate the validity of [defendant]'s sole defense to the charge" and when "she failed to file a section 995 motion to dismiss as she had promised." We considered these arguments in reviewing the denial of his Marsden motion and rejected them. Defense counsel did not provide inadequate representation by choosing not to investigate whether defendant's brother-in-law actually committed tax fraud and electing not to file a motion to dismiss. Ineffective assistance of counsel will be found when "counsel's incompetence deprive[s] defendant of a potentially meritorious defense." (People v. Shaw (1984) 35 Cal.3d 535, 541.) But that did not occur here. Defendant was not deprived of his defense that he had an innocent explanation for entering his in-laws' apartment and lacked felonious intent.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Stewart, P.J., Richman, J.