Filed 8/29/18 P. v. Goodie CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from an order of the Superior Court of Fresno County. David Andrew Gottlieb, Judge.

Elaine Forrester, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

-ooOoo-

Appointed counsel for defendant Christopher Jhonte Goodie asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We sent a letter to defendant, advising him of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. He responded, arguing defense counsel provided ineffective assistance. We affirm.

BACKGROUND

We provide the following brief history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

On May 3, 2017, defendant and Jane Doe, who had been dating for four years, broke up. Doe left the apartment. When she returned to collect her property on May 8, 2017, defendant took her cell phone. He became upset when he saw she had been texting with another male. He beat and kicked her repeatedly until she was able to flee the apartment wearing only a towel. Defendant chased after her, telling her he was sorry. A passing female driver stopped and assisted her. Doe was taken by ambulance to the hospital. She required 10 days of hospitalization for her injuries.

On May 10, 2017, defendant was charged by complaint with assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4); count 1),[1] battery of a person in a dating relationship (§ 273.5, subd. (a); count 2), false imprisonment by violence (§ 236; count 3), and second degree robbery (§ 211; count 4).

On May 17, 2017, the complaint was amended to include, as to counts 1 and 2, allegations that defendant personally inflicted great bodily injury upon Doe (§ 12022.7, subd. (e)), and criminal threats (§ 422; count 5.).

On June 19, 2017, defendant raised a Marsden[2] motion for new appointed counsel. The trial court heard and denied the motion.

On June 22, 2017, at the preliminary hearing, private counsel appeared and requested to replace appointed counsel and complete the preliminary hearing. The trial court denied the motion as untimely for the purpose of the preliminary hearing only because of prejudice to the prosecution and the witness, Doe, who was fragile and had travelled 350 miles to testify.

On June 23, 2017, count 4 was discharged and removed from the amended complaint. The amended complaint was deemed an information and refiled.

On August 10, 2017, defendant pled no contest to count 2 and admitted personally inflicting great bodily injury. The prosecutor offered a five-year lid, but the trial court indicated a three-year state prison lid.

On September 22, 2017, the trial court sentenced defendant to three years in prison, staying the four-year term on the enhancement. The court awarded credits and imposed various fines and fees. Immediately after defendant was sentenced, he asked to withdraw his plea, arguing he was promised probation. The court denied the request as untimely.

On September 25, 2017, defendant filed a notice of appeal. The trial court granted defendant’s request for a certificate of probable cause.

DISCUSSION

Defendant contends defense counsel was ineffective because (1) counsel misled him by erroneously informing him he was eligible for probation and the trial court would grant it, and (2) counsel coerced him into taking a plea deal because counsel was overworked and too busy to manage his case. Defendant notes that he twice unsuccessfully sought new counsel at trial.

Defendant’s argument raises a claim of ineffective assistance of counsel. To establish ineffective assistance of counsel, a defendant must show (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and (2) counsel’s deficient performance was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) On review, we can adjudicate an ineffective assistance claim solely on the issue of prejudice, without determining the reasonableness of counsel’s performance. (Strickland, at p. 697; Ledesma, at pp. 216-217; People v. Hester (2000) 22 Cal.4th 290, 296-297.)

To establish prejudice, the defendant must make a showing “sufficient to undermine confidence in the outcome” that but for counsel’s deficient performance there was a “reasonable probability” that “the result of the proceeding would have been different.” (Strickland, supra, 466 U.S. at p. 694; Ledesma, supra, 43 Cal.3d at pp. 217-218.) “It is not sufficient to show the alleged errors may have had some conceivable effect on the trial’s outcome; the defendant must demonstrate a ‘reasonable probability’ that absent the errors the result would have been different.” (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.)

“[N]ormally a claim of ineffective assistance of counsel is appropriately raised in a petition for writ of habeas corpus (see, e.g., People v. Mendoza Tello [(1997)] 15 Cal.4th 264[, 266-267] ), where relevant facts and circumstances not reflected in the record on appeal, such as counsel’s reasons for pursuing or not pursuing a particular trial strategy, can be brought to light to inform the two-pronged inquiry of whether counsel’s ‘representation fell below an objective standard of reasonableness,’ and whether ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” (People v. Snow (2003) 30 Cal.4th 43, 111.) Review on direct appeal is limited to the appellate record (People v. Jenkins (2000) 22 Cal.4th 900, 952), and reviewing courts are not to become engaged “ ‘in the perilous process of second-guessing’ ” (People v. Pope (1979) 23 Cal.3d 412, 426, overruled on another ground in People v. Berryman (1993) 6 Cal.4^th 1048, 1081, fn. 10.).

Defendant’s claim of ineffective assistance of counsel fails. The record demonstrates defense counsel actively pursued probation for defendant and repeatedly attempted to convince the trial court that defendant was a candidate for probation based on his background, in spite of the serious injuries he inflicted on Doe and the slim prospects that the court would agree to grant probation. The record also demonstrates defendant was present during these in-court discussions. At the Marsden hearing, defendant explained that he was unhappy with counsel because the process was moving too slowly. Counsel responded that he was waiting for medical records because he thought they were relevant to whether defendant might be granted probation. Defendant’s plea form acknowledged his nine-year maximum sentence under the plea, and it noted the five-year lid offered by the prosecutor and the three-year lid indicated by the court. At the plea hearing, defense counsel informed the trial court that a resolution had been reached, stating:

“… My client will be accepting the D.A.’s offer of a five-year lid consisting of Count One, a violation of Penal Code Section 273.5(a) as a felony, admitting the great bodily injury enhancement for the five-year lid. We have discussed this matter with the Court. And at this point the Court indicated a three-year lid. The remaining counts and allegations are to be dismissed. Also, the two trailing misdemeanor cases for this matter, the traffic cases are also to be dismissed.”

Defendant responded to the trial court’s questions, indicating he understood what the attorney were saying, this was what he wanted to do, and no one had made any promises or threats to cause him to enter his plea. Defense counsel stated he had had enough time to discuss all the matters with defendant, and defendant confirmed he had signed and initialed the plea form. The court informed defendant of various facts and rights, and told him his maximum sentence was nine years in prison. After the court took the plea, it informed defendant that a probation officer would be visiting him and it would be important for defendant to talk to him. The court stated, “It’s usually very important for me to hear what you have to say, especially in this case when your attorney wants me to consider at least the possibility of probation. So I think it’s important that you provide as much information as you can that would assist me in making that determination.” (Italics added.) Defendant thanked the court, then confirmed that he was pleading to just one strike.

Based on the record before us, we conclude defense counsel’s performance was not deficient, and defendant’s plea was voluntarily and intelligently made. The record does not support defendant’s claim that he was misled by defense counsel regarding his prospects for probation or that he was coerced by counsel into taking the plea. If defendant has information outside the appellate record to support his contentions, he may present that evidence by way of a petition for writ of habeas corpus.

Having undertaken an examination of the entire record, we find no evidence of ineffective assistance of counsel or any other arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.