California Court of Appeal Jul 1, 2021 No. E075713Unpublished
Filed 7/1/21 P. v. Burchstead CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075713
v. (Super.Ct.No. SWF1900419)
JOSEPH PAUL BURCHSTEAD, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Mark Mandio and
Stephen J. Gallon, Judges. Affirmed.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J.
Williams, Deputy Attorneys General, for Plaintiff and Respondent.
1
INTRODUCTION
Defendant and appellant Joseph Paul Burchstead entered a plea agreement and
pled guilty to forcible sexual penetration (Pen. Code,1 § 289, subd. (a)(1)(A), count 2),
dissuading a witness by force or violence (§ 136.1, subd. (c)(1), count 3), infliction of
Here, the record reflects that defendant’s counsel simply stated she believed that
filing a notice of appeal was the “appropriate method.” It sheds no light on why she did
not file a motion to withdraw, and there is no indication she was asked for an explanation.
Moreover, this is not a case where this court can conceive of no satisfactory explanation
for counsel’s decision not to file a motion to withdraw. The plausible explanation in this
case is that a motion to vacate the plea was not only generally untimely,5 counsel could
have reasonably determined that such a motion was meritless. Defendant initialed and
signed a plea form, indicating that no one had made any threats or placed pressure on him
to make him plead guilty, he had adequate time to discuss with his attorney his
constitutional rights, the consequences of a guilty plea, and any potential defenses to the
5 Section 1018 provides, in relevant part, as follows: “On application of the defendant at any time before judgment . . . the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.” We understand defendant’s argument that there were other methods available by which defendant could seek to vacate his plea. Such reasons do not affect our analysis. 7
charges, he “did the things that [were] stated in the charges,” and he read and understood
the entire plea agreement. His counsel had also signed the plea form indicating that she
was satisfied that defendant understood his rights and that he understood that a plea of
guilty would be a waiver of those rights; that defendant had enough time to discuss the
case with her including any defenses he may have had; and that defendant understood the
consequences of his plea. Therefore, counsel clearly had a plausible rational reason for
not filing a motion to withdraw or vacate the plea.
In view of the silence of the record on the reason why counsel did not file a
motion to withdraw, we cannot presume she was ineffective. (See People v. Pope (1979)
23 Cal.3d 412, 425, overruled in part on other grounds, as stated in People v. Berryman
(1993) 6 Cal.4th 1048, 1081, fn. 10; Mendoza Tello, supra, 15 Cal.4th at pp. 266-268.)
Rather, we must reject the claim on appeal. (People v. Wilson (1992) 3 Cal.4th 926, 936
[An IAC claim “must be rejected” when the record on appeal sheds no light on counsel’s
actions.]; see Mendoza Tello, at p. 266.)
2. Defendant Cannot Established Prejudice
We further note that defendant has not established how counsel’s failure to file a
motion to withdraw prejudiced him. Based on the limited record, there is no support for
concluding counsel prejudiced him by failing to bring what was likely a frivolous motion.
There is nothing in the record or appeal process that would permit this court to find that
any error has been demonstrated and that, but for that error, there is a reasonable
probability that defendant would be permitted to withdraw his plea or otherwise obtain a
more favorable result.
8
We conclude that defendant has failed to establish his counsel was ineffective.
Therefore, no reversal is required.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J. We concur:
MILLER Acting P. J.
SLOUGH J.
9
AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant failed to establish ineffective assistance of counsel because the record did not demonstrate that counsel's decision to forgo a motion to withdraw the plea was deficient or prejudicial.
Issues
Whether appointed counsel provided ineffective assistance by failing to file a motion to withdraw the defendant's guilty plea after sentencing.
Whether the defendant demonstrated prejudice resulting from counsel's decision to file a notice of appeal instead of a motion to withdraw the plea.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“As long as [a] defendant is represented by counsel, the decision on whether to file a motion to withdraw his plea is left with counsel.”
“We conclude that defendant has failed to establish his counsel was ineffective.”