People v. Smith CA6

Filed 2/20/14 P. v. Smith CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039670 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1236414)

v.

GOLDEN SMITH,

Defendant and Appellant.

Defendant Golden Smith pleaded no contest to assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) and admitted a prior strike conviction.1 Prior to sentencing, Smith moved to withdraw his plea on the ground that he was pressured to accept it by his attorney. Following a combined Marsden2 and motion- to-withdraw hearing, the court denied the motion and sentenced Smith to a term of six years. Smith appealed, challenging the validity of his plea. For the following reasons, we affirm. I. FACTUAL AND PROCEDURAL BACKGROUND Smith was charged with battery inflicting serious bodily injury in violation of section 243, subdivision (d). The information alleged Smith had a prior conviction for battery inflicting serious bodily injury in violation of section 243, subdivision (d) that constituted a “violent” felony under section 667.5, subdivision (c) and a “serious” felony

1 Further unspecified statutory references are to the Penal Code. 2 People v. Marsden (1970) 2 Cal.3d 118.

within the meaning of section 1192.7, subdivision (c). Accordingly, the prior conviction constituted a strike for purposes of the Three Strikes law. The information also alleged that the prior conviction constituted a “serious” felony within the meaning of section 667, subdivision (a), which imposes a five-year sentence enhancement on all defendants convicted of a serious felony who have a prior serious felony conviction. Such five-year enhancements are known as “ ‘Prop. 8 priors.’ ” (People v. Vera (2004) 122 Cal.App.4th 970, 975.) Smith accepted a plea bargain pursuant to which the charge was amended to assault by means of force likely to produce great bodily injury in violation of section 245, subdivision (a)(4), which is not a strike offense. (See People v. Winters (2001) 93 Cal.App.4th 273.) The Proposition 8 prior also was stricken pursuant to the plea agreement, which called for Smith to receive a six-year sentence. On January 25, 2013, Smith pleaded no contest to assault by means of force likely to produce great bodily injury in violation of section 245, subdivision (a)(4). He also admitted the prior strike conviction. At a hearing three months later, Smith informed the court that he wished to withdraw his plea. Smith stated that he had pleaded no contest because he felt pressured to do so by his attorney, Kipp Davis. Immediately following that statement, the court held a hearing pursuant to People v. Marsden, supra, 2 Cal.3d 118, under which a defendant has the right to discharge appointed counsel for inadequate representation and substitute another appointed counsel. In conjunction with the Marsden hearing, the court also held a hearing on the motion to withdraw the plea. Smith explained that he has mental health issues, which caused him to feel nervous and prevented him from thinking clearly at the time he pleaded no contest. He said that his attorney spoke quickly and told him that his options were restricted. Attorney Davis responded that he viewed the plea as a “very good disposition” because, without it, Smith faced nine years in prison and a second serious felony conviction.