Filed 2/9/16 P. v. Garcia CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D068091

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCS274445)

JOSEPH GARCIA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of San Diego County, Garry

Haehnle, Judge. Affirmed.

         Benjamin B. Kington, under appointment by the Court of Appeal, for Defendant

and Appellant.

         No appearance for Respondent.
       In September 2014, Joseph Garcia entered a not guilty plea to charges of making a

criminal threat (count 1, Pen. Code, § 422);1 possession of a firearm by a felon (count 2,

§ 29800, subd. (a)(1)); and possession of ammunition (count 3, § 30305, subd. (a)(1)). In

a negotiated plea agreement, the court dismissed count 3, Garcia pled guilty to counts 1

and 2 and admitted one strike prior conviction. (§§ 677, subds. (b)-(i), 1170.12, 668.)

Garcia was sentenced to five years and four months in prison.

                    FACTS AND PROCEDURAL BACKGROUND

       In August 2014, appellant threatened to "smoke" Hugo Laborin, appellant's

stepfather; appellant then left the residence with a firearm. Laborin called 911. Within

10 minutes, San Diego police officers arrived at Laborin's residence, arrested appellant,

and conducted a search of appellant incident to his arrest. Appellant was on parole at the

time and a parole violation warrant was outstanding for his arrest. A loaded handgun and

22 rounds of ammunition were found in appellant's backpack. It was later determined

that the gun had been stolen.

       Prior to a preliminary readiness hearing in September 2014, Garcia completed a

change of plea form and entered a negotiated plea of guilty to counts 1 and 2 and

admitted one strike prior conviction. The court dismissed count 3 and sentenced Garcia

to an agreed five-year four-month term. During the hearing, the court questioned Garcia

about his decision, knowledge of his rights, the assistance of counsel and other potential


1      All subsequent statutory references are to the Penal Code.

                                             2
consequences of his plea. After confirming appellant had not consumed any alcohol,

drugs or medication in the preceding 24 hours, the following discussion took place:

          "The Court: Before you initialed and signed the [change of plea]
          form, did you read it or have it read to you?"

          "Garcia: Yes."

          "The Court: You went over it with your attorney . . . ?"

          "Garcia: Yes."

          "The Court: Did you have enough time to spend with him?"

          "Garcia: Yes."

          "The Court: You understand you are pleading guilty to count 1, the
          criminal threats; count 2, felon in possession of a firearm; and you
          are admitting that you have previously been convicted of a strike?"

          "Garcia: Yes."

          "The Court: [D]id anybody promise you anything else or threaten
          you in any way to make you sign this form?"

          "Garcia: No."

          "The Court: And the other charges and allegations would be
          dismissed against you, and you'd be serving five years, four
          months . . . ? Is that your understanding?"

          "Garcia: Yes."

       Prior to sentencing, defense counsel (Anthony Hernandez) informed the court that

Garcia wished to withdraw his plea and that there would be a conflict of interest if

Hernandez were to bring the motion. The court then held a "Marsden" hearing, referring

to People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

                                             3
       Following the Marsden hearing the trial court relieved Hernandez and Christine

Basic was appointed to represent Garcia.

       In January 2015, appellant filed his motion to withdraw his 2014 guilty plea on the

grounds he had made the plea under duress and not freely or voluntarily, and that his

counsel provided ineffective representation by not informing him of the required element

of "sustained fear" regarding the criminal threat charge. (§ 422, subd. (a).) At the change

of plea hearing in March 2015, the following colloquy took place:

          "Defense Counsel: [Y]ou [and former defense counsel] went over
          the six different elements that are required for the criminal threat;
          right?"

          "Garcia: Yes."

          "Defense Counsel: And we talked about Element No. 5, whether the
          threat actually caused the victim to be in sustained fear; right?"

          "Garcia: Yes."

          "Defense Counsel: [I]f you had been advised about the . . . elements
          of [section] 422 at the time you took your plea, would you still have
          pled guilty?

          "Garcia: "No, I wouldn't have."

       Later during the same hearing, defense counsel stated: "Garcia wasn't aware of

whether or not his stepfather was in sustained fear, and to be honest, I don't think

[defendant's prior counsel] knew whether or not his stepfather was in sustained fear . . . ."

The court responded: "I honestly don't see how you can make that argument, to be honest




                                              4
with you. . . . [Defendant] pulls a gun out, racks it, and tells [Laborin] 'I'm going to

smoke you.' "

       The trial court found counsel's representation was competent and the record

supported the "sustained fear" element of section 422. The court denied appellant's plea

withdrawal motion and Garcia was sentenced to the midterm on count 1, doubled for the

strike to four years, and one-third the midterm, doubled to 16 months, on count 2, for a

total term of five years and four months. Garcia filed a notice of appeal.

                                       DISCUSSION

       When a defendant moves to withdraw a guilty plea, that person must demonstrate

good cause. (§ 1018.) "It is the defendant's burden to produce evidence of good cause by

clear and convincing evidence." (People v. Wharton (1991) 53 Cal.3d 522, 585;

People v. Nance (1991) 1 Cal.App.4th 1453, 1456.)

       The transcript of the change of plea hearing demonstrates the trial court carefully

questioned Garcia as to his understanding of his rights and the potential outcome of the

conviction. There is nothing in the record to support an argument that there was a

potentially meritorious basis for a motion to withdraw the plea. Counsel was entitled to

make the appropriate decision on how to proceed and there is nothing in the record that

might support a finding that counsel was ineffective.

       Appointed appellate counsel has filed a brief summarizing the proceedings below.

Counsel presents no argument for reversal but asks that this court review the record for

error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v.

                                              5
California (1967) 386 U.S. 738, counsel refers to a possible but not arguable issue

whether the court erred in denying defendant's motion to withdraw his guilty plea.

       We granted defendant permission to file a brief on his own behalf. He has not

responded.

       A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and

Anders v. California, supra, 386 U.S. 738, including the possible issues referred to by

appellate counsel, has disclosed no reasonably arguable appellate issues. Competent

counsel has represented Garcia on this appeal.

                                     DISPOSITION

       The judgment is affirmed.


                                                                    HALLER, Acting P. J.

WE CONCUR:



HUFFMAN, Acting P.J.



O'ROURKE, J.




                                            6
