Filed 11/20/15 P. v. Jones CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D067589

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD259105)

GUY JONES,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Charles G.

Rogers, Judge. Affirmed.

         Devin Burstein, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G.

McGinnis and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and

Respondent.
       Guy Jones entered a guilty plea to one count of assault with a deadly weapon (Pen.

Code,1 § 245, subd. (a)(1)). He also admitted he personally used a deadly weapon during

the offense (§ 1192.7, subd. (c)(23)).

       As part of the plea agreement, the parties agreed that Jones would be released

pending sentencing and that if he appeared for sentencing and if he was not arrested for

any new offense, the court would impose a time-served sentence.

       By the time the sentencing hearing had taken place, Jones had been arrested for a

new offense. Jones brought a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118

(Marsden) to replace appointed counsel. After an in camera hearing the court denied the

motion.

       Jones was sentenced to the midterm of three years in prison.

       During the Marsden hearing, defense counsel advised the court that Jones had

wanted counsel to file a motion to withdraw the plea based upon duress and that counsel

had declined to do so as there was no basis for such claim. There was no further

discussion of plea withdrawal in the case.

       Jones filed a timely notice of appeal. The court granted a certificate of probable

cause based on the assertion that defense counsel refused to file an appropriate motion to

withdraw the plea.

       Jones contends defense counsel was ineffective for failing to file a motion to

withdraw the guilty plea. He contends such motion would not have been frivolous, and



1      All further statutory references are to the Penal Code unless otherwise specified.
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therefore counsel had a duty to file it. He contends failure to file the motion deprived

him of effective assistance of counsel. Jones requests us to vacate the judgment and

remand the case to the trial court to hold a hearing to determine if he should be allowed to

withdraw his plea.

       The change of plea process in this case was extremely detailed and the court

carefully advised Jones of his rights and the consequences of his plea. The court

conducted a lengthy Marsden hearing, which is not challenged here. Based on our

review of the record, we are satisfied counsel provided effective assistance and that

counsel could reasonably conclude there was absolutely no basis for a motion to

withdraw the guilty plea. Failure to file a frivolous motion is not ineffective assistance.

                                STATEMENT OF FACTS

       The facts of the offense are not significant in resolving this appeal. The charge

arose out of a confrontation between Jones and a homeless woman. At some point she

threw a stick at him. After that he beat her a number of times with a three or four foot

metal shower curtain rod.

                                       DISCUSSION

       Jones contends he was denied effective assistance of counsel because his attorney

refused to file a motion to withdraw his guilty plea. Jones argues, without identifying

any significant issues which would justify such a motion, that defense counsel had an

absolute duty to file the motion and that failure to do so deprived him of his Sixth

Amendment right to effective assistance of counsel.



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       Before we discuss the law and the merits of the appellate issue, we will discuss the

background events leading up to the event which serves as the basis of this appeal.

                                      A. Background

       At a pretrial settlement conference a judge indicated that if Jones pleaded guilty,

the court would impose probation with no further custody. Jones decided he wanted to

accept the plea, notwithstanding defense counsel's objection. As the change of plea form

was being filled out, the prosecutor overheard Jones complaining he was not guilty and

that as an African-American he could not receive a fair trial. The prosecutor and defense

counsel objected to the plea. Defense counsel said:

          "Your Honor, I believe Mr. Jones is pleading guilty just so he can
          get out today. From my understanding of the facts, as I see them, I
          think that Mr. Jones acted in self-defense. I believe he should try the
          case to see what a jury has to say about that.

          "I certainly don't believe that even if he were guilty that his actions
          on that merit a strike conviction.

          [¶] . . . [¶]

          "I guess my personal feeling is I believe that Mr. Jones has had a
          tough time in custody and wants to get out. I believe that may be
          driving his acceptance of the plea. But . . . a second thing also is that
          even though Mr. Jones believes he's innocent, he understands he
          could be convicted. I think he's worried of the potential
          consequences of being convicted at trial. . . . I think he's also
          rationally weighing what could happen to him and is worried that a
          much more severe sentence could happen if he were to be found
          guilty at trial."

The court observed it believed Jones was pleading guilty to get out of custody. The court

declined to take the plea because Jones contended he was not guilty.      Jones offered to

retract his statement that he was not guilty. The court still declined to take the plea and

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put the case over to the following week. Jones became outraged, and verbally abusive.

Ultimately he was removed from the courtroom. The court continued with the in limine

motions as the trial was set to start the following week.

       The following week, Jones again offered to plead guilty with an agreement that he

would be placed on probation with credit for time served, and would admit the personal

use of a deadly weapon which would make this conviction a "strike." The court

conducted a lengthy examination of Jones and very carefully explained his rights and the

consequences of his plea. Jones repeatedly stated he understood the advice he was

receiving. Jones admitted he struck the victim with a metal pole and pleaded guilty.

Jones was released from custody pending sentencing. He was advised pursuant to People

v. Cruz (1988) 44 Cal.3d 1247, 1254, footnote 5, that if he failed to appear for sentencing

or if he was again arrested before sentencing, the plea would stand but any limitation on

sentence would no longer apply. Jones again stated he understood.

       Prior to sentencing, Jones was again arrested. At the sentencing hearing, Jones

made a motion to replace trial counsel. It was during the Marsden hearing that Jones

again proclaimed his innocence. The court asked if Jones had lied to the court during the

change of plea as to whether he was guilty of the offense. Jones responded he had not

lied, but that he had been under duress because of his alleged HIV positive status and his

mother's long term cancer diagnosis.

       During the Marsden hearing defense counsel discussed a number of issues about

his representation of Jones, including Jones's current view that he should withdraw his

plea. Counsel said in part: "One of the things he did indicate to me is that he thought

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that all this duress, his illnesses and everything, led him to think not clearly and led him

to plead guilty. And he wanted me to file a motion on that. And I indicated to him that

from my experience with him and my conversations with him, I did not think that was the

case. I did not think that he was not acting--that he was out of his mind and not thinking

clearly at the time he made the decision. I thought he made a poor choice. But I did not

think that he was not--that it was not something that he did fully conscious."

       At the conclusion of the Marsden hearing the court denied the motion to replace

counsel. No motion to withdraw the guilty plea was made or filed.

                                        B. Analysis

       Jones contends his trial counsel's refusal to file a motion to withdraw the guilty

plea amounted to ineffective assistance of counsel. In order to establish ineffective

assistance, the appellant must show that not only did trial counsel's performance fall well

below the objective standard of effective assistance, but must also show the alleged

failures of counsel caused him prejudice. (Strickland v. Washington (1984) 466 U.S. 668,

687; see People v. Mayfield (1993) 5 Cal.4th 142, 206.) In order to demonstrate

prejudice, an appellant must show a reasonable likelihood that a different outcome would

have occurred in the absence of the alleged error. (Williams v. Taylor (2000) 529 U.S.

362, 391, 394.)

       Jones relies principally on two cases for the proposition that counsel had an

absolute duty to file a motion to withdraw the plea. He relies on People v. Brown (1986)

179 Cal.App.3d 207, 216 (Brown), and People v. Osorio (1987) 194 Cal.App.3d 183

(Osorio). In each case the court held that trial counsel had a duty, under the facts of each

                                              6
case, to file a motion to withdraw the plea on the defendant's behalf. In those cases the

courts remanded the matters to the trial court to allow a motion to withdraw the guilty

plea to be heard. Jones seeks the same relief here.

       Neither of the cases relied on by Jones establishes a per se rule that defense

counsel must file a motion to withdraw the guilty plea regardless of the merits of such

motion. The court in Brown, supra, 179 Cal.App.3d at page 216, recognized that trial

counsel are not required to file frivolous motions merely because a defendant requests

such filings. Such motions should not be filed where there is a good faith belief by

counsel that such motion would be frivolous. (People v. Makabali (1993) 14 Cal.App.4th

847, 853.)

       In People v. Brown (2009) 175 Cal.App.4th 1469, 1472, the court rejected a

contention similar to that made here. The court concluded that trial counsel was not

ineffective for failing to file a motion to withdraw a guilty plea where counsel reasonably

believed such motion would be meritless.

       In the earlier Brown opinion (179 Cal.App.3d 207), and the opinion in Osorio,

supra, 194 Cal.App.3d 183, the appellate courts found there were reasonably arguable

grounds for the motions, hence they should have been filed. The present case is plainly

distinguishable. Counsel had extensive contact with Jones, who changed his position on

pleading guilty depending upon his perceived advantage at the moment. Counsel

described Jones as intelligent, notwithstanding his often offensive behavior. Counsel's

view, which is supported by the record, was that there was no factual basis to argue that

Jones was under some form of duress or that he failed to understand his plea. Not only

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are trial counsel's observations persuasive, but the record of the change of plea

proceedings, which Jones said he "clearly" understood, debunks any last moment claims

of duress from previously diagnosed illnesses of his mother or himself.

       Simply stated, this record does not demonstrate any ineffectiveness of trial counsel

for failing to file a motion, based on alleged facts that counsel knows are false. Nor is

there even the slightest possibility that a motion to withdraw the plea, on this record,

would have been granted.

                                      DISPOSITION

       The judgment is affirmed.




                                                                   HUFFMAN, Acting P. J.

WE CONCUR:


                        NARES, J.


                  McDONALD, J.




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