Filed 3/4/13 P. v. Glass 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                     F064256

                   v.                                                     (Super. Ct. No. DF9942A)

DONALD GLASS,                                                                        OPINION

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush, 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.
          It was alleged in an information filed September 16, 2010, that appellant, Donald
Glass, committed violations of Penal Code sections 4501.51 (battery on a nonprisoner by
a prisoner) and 69 (resisting an executive officer), and that appellant had suffered a
“strike.”2 The matter proceeded to jury trial, and during trial the court dismissed count 2
on the motion of the district attorney.
          On November 16, 2011, the court declared a mistrial after being informed by the
foreperson of the jury that the jury was unable to reach a verdict.
          On December 21, 2011, pursuant to a negotiated disposition, the information was
amended to add a charge of violating section 69; appellant pled no contest to that charge
and admitted the strike allegation; and the court dismissed the section 4501.5 charge,
struck appellant’s strike, and imposed a prison term of 16 months, to be served
consecutively to the term appellant was serving at the time of the instant offense.
          Appellant filed a timely notice of appeal. Insofar as the record reveals, appellant
did not request, and the court did not issue, a certificate of probable cause (§ 1237.5).
          Appellant’s appointed appellate counsel has filed an opening brief which
summarizes the pertinent facts, with citations to the record, raises no issues, and asks that
this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.)
Appellant, in response to this court’s invitation to submit briefing, has submitted a brief
in which he argues his right to the effective assistance of counsel was violated. We
affirm.




1         All statutory references are to the Penal Code.
2      We use the term “strike” as a synonym for “prior felony conviction” within the
meaning of the “three strikes” law (§§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony
conviction or juvenile adjudication that subjects a defendant to the increased punishment
specified in the three strikes law.


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                                           FACTS
       At appellant’s preliminary hearing, Correctional Officer Daniel Gonzalez testified
to the following: On April 8, 2010, at approximately 11:48 a.m., appellant, an inmate at
Kern Valley State Prison, unleashed a string of profanities at Gonzales’s partner, Officer
Trotta. Perceiving appellant’s statements as “threatening,” Trotta attempted to handcuff
appellant, at which point appellant struck Gonzalez in the face with his fist.
                                       DISCUSSION
       Appellant, as best we can determine, argues that his right to the effective
assistance of counsel was violated because trial counsel (1) “failed to present” a defense
of not guilty by reason of insanity, (2) “erroneously and deceptively persuaded” appellant
to plead no contest, and (3) failed to conduct plea negotiations in the presence of the trial
court and court clerk.
       It is well established that “where ineffective assistance of counsel results in the
defendant’s decision to plead guilty [or no contest], the defendant has suffered a
constitutional violation giving rise to a claim for relief from the guilty plea.” (In re
Alvernaz (1992) 2 Cal.4th 924, 934.) In order successfully to challenge a plea of guilty
or no contest on the ground of ineffective assistance of counsel, a defendant must make a
two-part showing; he or she must establish both (1) “incompetent performance by
counsel” and (2) resulting prejudice, i.e., “a reasonable probability that, but for counsel’s
incompetence, the defendant would not have pleaded guilty and would have insisted on
proceeding to trial.” (Ibid.) “[R]eview on a direct appeal is limited to the appellate
record.” (People v. Barnett (1998) 17 Cal.4th 1044, 1183.)
       When a defendant challenges the validity of his plea due to ineffective assistance
of counsel, he must obtain a certificate of probable cause in order to raise the issue on
appeal. (In re Chavez (2003) 30 Cal.4th 643, 649–651; People v. Stubbs (1998) 61
Cal.App.4th 243, 244–245.)

                                              3
       Since appellant did not obtain a certificate of probable cause, his claims of
ineffective assistance of counsel are not cognizable on appeal. In addition, as to
appellant’s first and third claims, appellant does not explain how, nor does the record
suggest that, counsel’s purported failings were either objectively unreasonable or
prejudicial, and there is nothing in the record to support appellant’s second claim.
       Following independent review of the record, we have concluded that no
reasonably arguable legal or factual issues exist.
                                      DISPOSITION
       The judgment is affirmed.




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