The People v. Cobb CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD245582
- Trial judge
- Laura W. Halgren
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Judith L. Haller, O'Rourke
Analysis
The trial court denied the defendant's Marsden motion to relieve counsel and affirmed his guilty plea and sentence. The Court of Appeal affirmed the judgment, finding no arguable issues on independent review under Wende and Anders.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of Marsden motion to relieve counsel“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.” | unclear | not reached | agree with court The appellate court identified the denial of the Marsden motion as the only 'possible, but not arguable' issue in the record. It concluded that because the trial court found no basis for relief and the defendant did not file a motion to withdraw his plea, there was no arguable basis for reversal. The court did not explicitly state a standard of review (e.g., abuse of discretion) but applied the Wende/Anders framework to determine if the issue was arguable enough to warrant reversal. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires independent review of the record by appointed appellate counsel to identify arguable issues when counsel finds none.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from a case where no arguable issues exist, requiring court review of the record.
- relied: People v. Marsden (1970) 2 Cal.3d 118 — Establishes the standard for a defendant's motion to relieve counsel based on a breakdown in the attorney-client relationship.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the Wende/Anders framework to an unpublished appeal where counsel identified no arguable issues. It accurately summarizes the Marsden hearing and correctly concludes that the failure to move to withdraw the plea precludes a successful challenge to the plea's validity on appeal.
How this analysis was made · dispute it
unusual dispositionThe trial court accepted Cobb's guilty plea to possession of a controlled substance in county jail (Pen. Code, § 4573.6), denied his pre-sentencing Marsden motion after an in camera hearing, and placed him on probation with 270 days custody and release to a residential treatment program. On appeal, counsel filed a Wende/Anders brief; the Court of Appeal independently reviewed the record, identified the Marsden denial as the only possible but not arguable issue, found no arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of Cobb's Marsden motion to relieve appointed counsel“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.” | unclear | correct | agree with court The court conducted an in camera hearing, heard Cobb's complaints about the plea agreement, and heard counsel's denial that he promised a dismissal or military re-enlistment; counsel had told Cobb he would seek program placement and that his record likely barred enlistment. On this record there was no showing of inadequate representation or an irreconcilable conflict, so denial of the Marsden motion was within the trial court's discretion. The appellate court did not expressly state the abuse of discretion standard, but its conclusion is consistent with Marsden. |
Acceptance of guilty plea and sentence imposed under the plea agreement (probation, 270 days custody, release to residential treatment program)“He was sentenced in accordance with the plea agreement and was ordered released into a program as soon as possible.” | unclear | correct | agree with court The sentence conformed to the negotiated plea agreement, the remaining count was dismissed and prison priors stricken, and Cobb never moved to withdraw his plea despite being told how to do so. The Wende review found nothing in the plea record suggesting error, and the opinion discloses no basis to question the plea's validity. |
Authorities
- relied: People v. Marsden (1970) 2 Cal.3d 118 — A defendant seeking substitution of appointed counsel must be given an opportunity to state the reasons, and the court must relieve counsel if the record shows inadequate representation or an irreconcilable conflict.
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record to determine whether any arguable issue exists.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and refer to anything in the record that might arguably support the appeal.
The appellate opinion: sound with gaps — The court followed the Wende/Anders procedure, independently reviewed the record, and identified and resolved the one possible issue (the Marsden denial) with a brief but adequate account of the hearing. It did not articulate the abuse of discretion standard for Marsden review or cite further Marsden authority, but the result is well supported by the record described.
Opinion
Filed 10/4/13 P. v. Cobb 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, D063554
Plaintiff and Respondent, v. (Super. Ct. No. SCD245582)
JOSHUA LEE COBB,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego 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 possession of a controlled substance while in the county jail (Pen. Code,1 § 4573.6). The remaining count was dismissed and the court struck the alleged prison priors.
1 All further statutory references are to the Penal Code unless otherwise specified. 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 People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (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.
2 "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, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S.
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 3 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.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12
- People v. Marsden Crim. 14119 · 1970-02-26