Filed 4/30/14 P. v. Ross CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,

         Plaintiff and Respondent,                                                      F066279

                   v.                                                    (Super. Ct. No. 12CM7533A)

TERRILL LEE ROSS,
                                                                                     OPINION
         Defendant and Appellant.


                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kings County. John G.
O’Rourke, Judge.
         Deborah Prucha, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-


*        Before Levy, Acting P.J., Kane, J., and Peña, J.
                                    INTRODUCTION
       On October 25, 2012, appellant, Terrill Lee Ross, entered into a plea agreement in
which he would admit one count of conspiracy to furnish a controlled substance in a state
prison (Pen. Code, §§ 182, subd. (a)(1) & 4573.9, count 1)1 and a prior serious felony
conviction within the meaning of the three strikes law. In exchange for appellant’s
change of plea, four other counts and three special allegations would be dismissed.
Appellant would receive a stipulated sentence of four years, doubled to eight years under
the three strikes law, to be served consecutively to the sentence he was already serving.
       The trial court reviewed the terms of the plea agreement with appellant as well as
the consequences of the plea. The court asked appellant if he understood the plea
agreement and had any questions. Appellant replied that he understood the terms of the
plea agreement and had no questions. Defense counsel told the court that he reviewed the
consequences of the plea with appellant as well as appellant’s potential defenses. The
court advised appellant of his constitutional rights, which appellant waived pursuant to
Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122. Appellant
further waived his right to a preliminary hearing. The parties stipulated to a factual basis
for the plea.2
       Appellant pled guilty to the violation of sections 182, subdivision (a)(1) and
4573.9. Appellant admitted a prior serious felony conviction within the meaning of the
three strikes law. Appellant waived the preparation of a presentence report. The court

1      All statutory references are to the Penal Code.
2      On September 22, 2012, while incarcerated at Corcoran State Prison, appellant
was visited by Tracy Henry, who removed a black bindle weighing 123 grams from her
person and handed it to appellant by placing it into appellant’s clothing. Appellant
attempted to secrete the bindle into his rectal cavity. Appellant was detained by prison
authorities, who found four separately wrapped cellophane bindles of heroin in usable
quantities on his person.


                                             2
sentenced appellant to the stipulated sentence of four years, doubled to eight years, to be
served consecutively to the sentence appellant was already serving.
       The trial court granted appellant’s request for a certificate of probable cause.
Appellate counsel has filed a brief seeking independent review of the case by this court
pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
                            APPELLATE COURT REVIEW
       Appellant’s appointed appellate counsel has filed an opening brief that
summarizes the pertinent facts, raises no issues, and requests this court to review the
record independently. (Wende, supra, 25 Cal.3d 436.) The opening brief also includes
the declaration of appellate counsel indicating that appellant was advised he could file his
own brief with this court. By letter on February 8, 2013, we invited appellant to submit
additional briefing. Appellant replied with a supplemental brief stating that his trial
counsel was ineffective, had inappropriate side-bar conversations with the trial court and
prosecutor, coerced appellant into the plea agreement, failed to explain the terms of the
plea agreement, and generally failed to represent appellant in a competent manner.
       Appellant’s challenges can be construed to be a challenge to the effectiveness of
his trial counsel. The defendant has the burden of proving ineffective assistance of trial
counsel. To prevail on a claim of ineffective assistance of trial counsel, the defendant
must establish not only deficient performance, which is performance below an objective
standard of reasonableness, but also prejudice. A court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance. Tactical errors are generally not deemed reversible. Counsel’s
decisionmaking is evaluated in the context of the available facts. To the extent the record
fails to disclose why counsel acted or failed to act in the manner challenged, appellate
courts will affirm the judgment unless counsel was asked for an explanation and failed to
provide one, or, unless there simply could be no satisfactory explanation. Prejudice must

                                              3
be affirmatively proved. The record must affirmatively demonstrate a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389.) Attorneys are
not expected to engage in tactics or to file motions that are futile. (Id. at p. 390; also see
People v. Mendoza (2000) 24 Cal.4th 130, 166.)
       There is nothing in the record to support any of appellant’s allegations concerning
the competency of his trial counsel. Appellant has failed to demonstrate that his trial
counsel’s representation was below professional standards or that he was prejudiced by
counsel’s alleged ineffective representation.
       After independent review of the record, we have concluded there are no
reasonably arguable legal or factual issues.
                                       DISPOSITION
       The judgment is affirmed.




                                                4
