>P. v. Glass

















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NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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, v. DONALD GLASS, Defendant and Appellant.

F064256 (Super. Ct. No. DF9942A) >OPINION

>THE COURThref="#_ftn1" name="_ftnref1" title="">^*

APPEAL
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">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-

It was alleged in an information filed September 16,
2010, that appellant, Donald Glass, committed violations of Penal Code sections
4501.5href="#_ftn2" name="_ftnref2" title="">^[1] (battery on a nonprisoner by a prisoner) and
69 (resisting an executive officer), and that appellant had suffered a
“strike.”href="#_ftn3" name="_ftnref3" title="">^[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.

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.)

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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id=ftn1>

href="#_ftnref1"
name="_ftn1" title="">^* Before
Levy, Acting P.J., Kane, J., and Peña, J.

id=ftn2>

href="#_ftnref2"
name="_ftn2" title="">^[1] All
statutory references are to the Penal Code.