Filed 7/17/14 P. v. Rios CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H040478
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1243147)

         v.

ULYSSES ALEXANDER RIOS,

         Defendant and Appellant.


         Defendant Ulysses Alexander Rios pleaded no contest to forcible rape (Pen. Code,
§ 261, subd. (a)(2)),1 simple kidnapping (§ 207), and assault with intent to commit rape
(§ 220). Prior to sentencing, Rios sought to withdraw his plea and to replace his
appointed counsel. Following a Marsden2 hearing, the court denied the motion and
sentenced Rios to a term of 15 years.
         Rios’s counsel has filed an opening brief in which no issues are raised and asks
this court for an independent review of the record as required by People v. Wende (1979)
25 Cal.3d 436. We notified Rios of his right to submit a written argument on his own
behalf. Rios submitted a letter brief, which we accepted for filing and have considered,
despite the fact that it was submitted two months late.
         Pursuant to Wende, we reviewed the entire record and have concluded that there
are no arguable issues on appeal. As required by People v. Kelly (2006) 40 Cal.4th 106,

         1
             Further unspecified statutory references are to the Penal Code.
         2
             People v. Marsden (1970) 2 Cal.3d 118.
110, we will provide “a brief description of the facts and procedural history of the case,
the crimes of which the defendant was convicted, and the punishment imposed.” We will
further include information about aspects of the trial court proceedings that might become
relevant in future proceedings. (Id. at p. 112.)
I.     FACTUAL BACKGROUND3
       Late one evening in August 2012, victim 1, a 59-year-old woman, was walking
home because she missed the last bus. A man, who she identified at the preliminary
hearing as Rios, approached her and offered her a ride home. She accepted. Rios drove
victim 1 in the wrong direction and ignored her pleas to pull over and let her out.
Eventually, Rios stopped outside a house and told victim 1, “I’m just going to have quick
sex with you and then I’ll take you home.” Victim 1 ran away. Rios followed her in his
vehicle until she flagged down another car. Victim 1 acknowledged that Rios never
displayed any weapons or touched her during the incident. She did not report the incident
to police, believing no crime had been committed.
       Two months later, on October 4, 2012, Rios approached victim 1 again while she
was waiting at a bus stop. Recognizing Rios, victim 1 walked towards a nearby Burger
King. On her way, she saw the vehicle from the August incident parked near the Burger
King and took a picture of its license plate with her cell phone. Rios, who had followed
her, grabbed her arm and tried to take her phone. Following a brief struggle, victim 1 got
away and ran to the Burger King where a customer called the police. The probation
report’s summary of the police report is consistent with victim 1’s testimony at the
preliminary hearing.
       On October 11, 2012, victim 2, a 20-year-old woman, was waiting at a bus stop
when a man she did not know pulled up in his car and started a conversation with her. At

       3
        Our recitation of the facts is taken from the transcript of the preliminary hearing
and from the probation report.


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the preliminary hearing, victim 2 identified the man as Rios. Victim 2 got into Rios’s
vehicle and the two went to a couple of stores together and took shots of vodka in the car.
Rios then drove victim 2 to a place she was not familiar with and stopped the car at the
side of the road near a lake. The two kissed for a while. Rios touched victim 2’s breast
and she pushed his hand away and said she wanted to go home. Rios did not take her
home, instead persisting in his advances. At some point, victim 2 took a pocket knife out
of her purse and threatened Rios with it. Rios took the knife away and drove victim 2 to
a second location. By this point, victim 2 was “very intoxicated” and she remembered
few details at the preliminary hearing. Eventually, the two ended up in the backseat of
the vehicle where victim 2 said Rios raped her. After unsuccessfully trying to push Rios
off her, victim 2 told him to “get it over with.” Victim 2 then accompanied Rios to his
friend’s house. After a few hours, he took her home. She told her father what had
happened and he called the police. The probation report’s summary of the police report
is consistent with victim 2’s preliminary hearing testimony.
II.    PROCEDURAL BACKGROUND
       The Santa Clara County District Attorney filed an information on July 11, 2013,
charging Rios with forcible rape (§ 261, subd. (a)(2), count 1), kidnapping with the intent
to commit rape (§ 209, subd. (b)(1), count 2), simple kidnapping (§ 207, subd. (a), count
3), and attempted robbery (§§ 664, 211, 212.5, subd. (c), count 4). On August 14, 2013,
the prosecutor amended the information to add a fifth count, assault with intent to commit
rape (§ 220). That same day, Rios pleaded no contest to counts 1, 3, and 5--forcible rape,
simple kidnapping, and assault with intent to commit rape.
       Prior to sentencing, Rios moved to withdraw his plea and for substitution of his
appointed counsel, Phong Do, under Marsden. In that motion, Rios stated that Mr. Do
had “wrongfully encouraged” and “pushed” him into accepting the plea agreement. Rios
also pointed to inconsistencies between victim 1’s statements to police and her
preliminary hearing testimony. In particular, Rios claimed that one police report

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indicated that victim 1 reported having been raped by Rios, while a second police report,
and victim 1’s testimony, indicated that he had not assaulted or threatened her.
       On November 22, 2013, the trial court held a hearing in closed court on the
Marsden motion. At the hearing, Rios added that attorney Do had failed to provide him
with the full police reports and preliminary hearing transcript, despite his request. Mr.
Do responded that, in plea negotiations prior to the preliminary hearing, the district
attorney proposed a sentence of at least 30 years. After the preliminary hearing, the
district attorney offered 15 years eight months. Mr. Do stated that he had discussed the
offer with Rios during two in-person meetings, he had countered the district attorney’s
offer with a deal for 12 years at Rios’s request, and Rios had agreed to a deal for 15
years. Mr. Do noted that Rios was charged with two counts that each carried a potential
life sentence. As to the claimed inconsistencies in victim 1’s statements, Mr. Do
explained that no police report indicated that victim 1 ever claimed Rios raped her. Mr.
Do stated that he and Rios “discussed all of the possible areas that we could bring up
inconsistencies” to attack the People’s case. He further indicated that, “because of how
some of the evidence came out at the preliminary hearing, the offer from the district
attorney dropped dramatically” from over 30 years to 15 years. Finally, Mr. Do stated
that a note in his file indicated that a prior attorney had sent a redacted police report to
Rios. The court denied the Marsden motion.
       Also on November 22, 2013, the court sentenced Rios to 15 years as provided for
in the plea agreement. Specifically, the court imposed a six-year mid-term sentence for
forcible rape, a consecutive mid-term sentence of five years for kidnapping, and a
consecutive mid-term sentence of four years for assault with intent to commit rape.
       Rios timely appealed. It is not clear from the record whether he requested or
obtained a certificate of probable cause. Rios submitted a letter brief urging that he
received ineffective assistance of counsel and that his right to review the evidence against
him was violated because his trial counsel failed to inform him about unspecified

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inconsistencies in the victims’ statements. He also maintained the trial court erred in
denying his Marsden motion.
III.   DISCUSSION
       Rios’s brief does not raise any viable issues on appeal.
       We understand Rios’s brief to be an attack on the validity of his plea on grounds
of ineffective assistance of counsel. As an initial matter, it is not clear from the record
whether Rios obtained a certificate of probable cause. If he did not, his challenge to the
validity of his plea is not reviewable. (People v. Johnson (2009) 47 Cal.4th 668, 679
[certificate of probable cause required to appeal from denial of motion to withdraw plea];
In re Chavez (2003) 30 Cal.4th 643, 651 [same where motion to withdraw is based on
alleged ineffective assistance of counsel in advising defendant regarding plea].) Even
assuming we can reach the argument, it fails. Rios’s claim of ineffective assistance of
counsel rests on the theory that significant discrepancies in the victims’ statements
undermined the People’s case against him, such that Mr. Do provided deficient
representation by encouraging Rios to accept a plea deal rather than go to trial. As noted,
we perceive no significant discrepancies between the preliminary hearing testimony and
the probation department’s summaries of the police reports. The police reports
themselves are not in the record. Thus, on the current record, Rios has failed to carry his
burden to demonstrate that counsel’s performance was deficient. To the extent Rios’s
claim of ineffective assistance of counsel is based on matters outside the record (i.e., the
full police reports), it is more appropriately raised by writ of habeas corpus. (People v.
Salcido (2008) 44 Cal.4th 93, 172.)
       Rios also argues that the court erred by denying his Marsden motion. “We review
a trial court’s decision declining to relieve appointed counsel under the deferential abuse
of discretion standard.” (People v. Jones (2003) 29 Cal.4th 1229, 1245.) No abuse of
discretion has been shown here. Mr. Do represented to the trial court that he and Rios
discussed mounting a defense based in part on inconsistencies in the victims’ statements

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and with the evidence. “ ‘[T]he court was “entitled to accept counsel’s explanation” ’ ”
over Rios’s contention to the contrary. (Ibid.)
       In addition to considering the issues submitted by Rios, pursuant to Wende and
Kelly, we have reviewed the whole record and have concluded there is no arguable issue
on appeal.
IV.    DISPOSITION
       The judgment is affirmed.




                                                             Premo, Acting P.J.


       WE CONCUR:




              Elia, J.




              Mihara, J.




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