P. v. McClure CA5

Filed 3/20/13 P. v. McClure CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F064207 & F064445

Plaintiff and Respondent, (Super. Ct. Nos. BF136005A & BF138195A) v.

HOWIE MALONE MCCLURE, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge.

Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

*Before Wiseman, Acting P.J., Kane, J. and Peña, J.

Appellant Howie Malone McClure pled no contest to discharging a firearm in a negligent manner (Pen. Code,1 § 246.3, subd. (a)), and in a separate case he pled no contest to felony failure to appear (§ 1320.5), agreeing to a total term of two years eight months. After entering his plea, appellant obtained new counsel and moved to withdraw his plea, arguing that he received ineffective assistance of counsel in making his decision to plead to the charges. The trial court heard and denied the motion, ultimately sentencing him to two years eight months as provided for in the plea agreement. Appellant, after receiving a certificate of probable cause, filed timely notices of appeal in both cases. This court granted a motion to consolidate both appeals as they arose from a single plea. On appeal, appellant contends the trial court erred in denying his motion to withdraw his plea. He argues he was provided ineffective assistance of counsel in making his decision to plead because his counsel failed to fully advise him as to the future consequences of a strike conviction. He further argues his plea was not knowingly and intelligently made. We find appellant’s contentions lack merit and therefore affirm the judgment.2 FACTUAL AND PROCEDURAL HISTORY On March 16, 2011, appellant was charged in case No. BF136005A with willfully discharging a firearm in a negligent manner (§ 246.3, subd. (a)). It was further alleged that he personally used a firearm in the commission of the offense. (§ 12022.5, subd. (a).) Appellant posted a bond for the offense on March 31, 2011. On July 13, 2011, appellant failed to appear in court and his bond was forfeited. On August 24, 2011, appellant was charged in case No. BF138195A with felony failure to appear (§ 1320.5)