Filed 11/20/15 P. v. Jones CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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. 2 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.
3 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
4 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
Free access — add to your briefcase to read the full text and ask questions with AI
Filed 11/20/15 P. v. Jones CA4/1 NOT TO BE PUBLISHED IN 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.
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. 2 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.
3 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
4 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
5 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
7 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.