P. v. Cobb
Filed 10/4/13 P. v. Cobb CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSHUA LEE COBB,
Defendant and Appellant.
D063554
(Super. Ct.
No. SCD245582)
APPEAL from
a judgment of the Superior Court
of
County, Laura W. Halgren, Judge. Affirmed.
Charles R.
Khoury Jr., under appointment by the Court of Appeal, for Defendant and
Appellant.
No
appearance by Plaintiff and Respondent.
As part of
a plea agreement, Joshua Lee Cob entered a guilty plea to one count of
while in the county jail (Pen. Code,
§ 4573.6). The remaining count was
dismissed and the court struck the alleged prison priors.
Prior to the sentencing
hearing, Cobb made a motion under People
v. Marsden (1970) 2 Cal.3d 118 (Marsden),
at which Cobb complained about the plea agreement and raised the possibility of
withdrawing his guilty plea. The court
conducted an in camera hearing on the motion.
The motion to relieve counsel was denied. The defense did not file a motion to withdraw
the guilty plea.
The court
granted Cobb probation on various terms and conditions. The court imposed a custody sentence of 270
days, but authorized Cobb's release into a residential treatment program as
soon as space became available.
Cobb filed
a timely notice of appeal and the
trial court granted a certificate of probable cause (§ 1237.5).
Counsel has
filed a brief pursuant to
Cal.3d 436 (Wende) and
(Anders) asking this court to
independently review the record for arguable issues for reversal on
appeal. Although counsel has not
specifically pointed to a "possible," but "not arguable
issue," counsel has set out the details of the proceedings such that we
discern the possible, but not arguable, issue present in this record is whether
the trial court properly denied Cobb's Marsden
motion. We have carefully reviewed the
entire record and we are satisfied no arguable issue for reversal on appeal
exists in this record.
We offered
Cobb the opportunity to file his own brief on appeal but he has not responded.
STATEMENT
OF FACTS
The summary
of facts is taken from the probation officer's report.
"On 12/11/2012,
while walking by a cell at San Diego Central Jail, a Sheriff's Deputy noticed
an inmate had signs of being under the influence of a controlled
substance. The deputy escorted the
inmate and his cellmate, the defendant, to another holding cell and performed a
strip search of both. During the search,
the deputy found a syringe and a small plastic baggie that contained a brown
tar-like substance inside the waistband of the defendant's jail issued
pants. The substance subsequently tested
positive to be .04 grams of heroin.
"The defendant admitted the pants were his, but
denied the drugs and paraphernalia belonged to him. He provided no further statement.
"The other inmate denied being under the influence
of drugs. He stated he had been up for a
few days and was going through withdrawal symptoms of heroin, but insisted he
used the drug while he was on the streets."
DISCUSSION
As we have
previously noted, appellate counsel has filed a brief indicating he is unable
to identify any argument for reversal and asks this court to review the record
for error as mandated by Wende,
738, we can discern from the brief one possible but arguable issue. That issue relates to the trial court's
denial of the Marsden motion.
At that
motion, Cobb complained about the plea
agreement because he thought he would get a "program," that there
would be a dismissal of the case following probation and that he had a goal of
re-enlisting in the military. He said
trial counsel had told him these things.
The court
heard from counsel who denied telling Cobb he would get a dismissal of the case
at any particular point. Counsel did
advise Cobb he would seek Cobb's release into a program after sentencing and
that he had told Cobb he did not think Cobb's significant criminal history
would allow him to successfully enlist in the military.
The court
found no basis to relieve counsel and told Cobb if he wished to withdraw his
plea he would have to make an appropriate motion. As we have noted, Cobb did not move to
withdraw his guilty plea. He was
sentenced in accordance with the plea agreement and was ordered released into a
program as soon as possible. We find
nothing in the record of the guilty plea, or the Marsden hearing that would lead to any arguable basis for reversal
on appeal.
We have
reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S.
738 and have not found any reasonably
arguable appellate issues. Competent
counsel has represented Cobb on appeal.
DISPOSITION
The
judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER,
J.
O'ROURKE,
J.
name="_ftn1" title="">[1] All further statutory references are to the Penal Code
unless otherwise specified.
