Filed 8/18/21 P. v. Allen 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,

Plaintiff and Respondent,

v.

JOHN RANDALL ALLEN,

Defendant and Appellant.

 H047429

 (Santa Clara County

 Super. Ct. No. C1881085)

Defendant John Randall Allen pleaded no contest to rape (count 1; Pen. Code,

§ 261, subd. (a)(2)) and infliction of corporal injury on a cohabitant (count 2; Pen. Code, 

§ 273.5, subd. (a)). The trial court committed defendant to state prison for a total 

stipulated term of four years. Defendant timely appealed and obtained a certificate of 

probable cause. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 

25 Cal.3d 436 on behalf of defendant. We find no arguable issues and affirm the 

judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

On December 30, 2017, Santa Clara County Sheriff’s deputies responded to a 

report of a rape at Valley Medical Center. The victim reported she had been raped by 

defendant, who was her ex-boyfriend. The victim reported that defendant had arrived at 

her recreational vehicle trailer uninvited and approached her while she was lying in her 

bed. Defendant accused the victim of cheating on him. He got into the victim’s bed and 

straddled her, using his body weight to pin her down. He hit her on her head. Defendant 
2

then pulled the victim’s pants down and penetrated her vagina with his hand. Shortly 

thereafter, he inserted his penis and proceeded to rape the victim for approximately five 

minutes. The victim’s 18-year-old autistic daughter was present at the scene. The victim 

was left with multiple bruises and lacerations. She was later examined by a Sexual 

Assault Response Team (SART) nurse, who determined that her injuries were consistent 

with her report that she had been raped.

In January 2018, the Santa Clara District Attorney filed a complaint charging 

defendant with rape and infliction of corporal injury on a cohabitant.

A. First Motion to Replace Appointed Counsel

Prior to the preliminary examination, defendant moved to replace appointed 

counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Defendant 

indicated he believed there was a conflict of interest and a lack of communication. 

Appointed counsel had been assigned to the case recently to replace the prior deputy 

public defender. Defendant stated that counsel had only visited him twice, did not bring 

notes of what had been discussed with prior counsel, and was unable to answer questions 

about a video and phone records that defendant wanted subpoenaed. Defendant felt that 

counsel was unprepared. Defendant also felt that counsel was not ready for the 

preliminary hearing, and he was upset he did not have an opportunity to make 

suggestions about the defense of his case.

Counsel disagreed with defendant’s characterization of his preparation for the 

preliminary hearing. According to counsel, he met with defendant for approximately 

1.5 hours during their first meeting. He intentionally left the case file at his office 

because he had already reviewed it. His intent at the first meeting was to “just . . . hear 

[defendant’s] version of events.” He had already subpoenaed and received the phone 

records about which defendant was concerned. Counsel stated that he had a second 

meeting with defendant, which also lasted approximately 1.5 hours, during which he 

again asked “for [defendant’s] version of events . . . I just wanted full context.” By then, 
3

counsel “had already reviewed his discovery,” “had watched the videos,” and “had 

watched the body worn camera,” so he “didn’t need [defendant’s] take on the discovery.” 

Counsel stated that he reviewed “all of the notes” that defendant provided prior counsel 

and “every single piece of paper in his file.” Counsel noted that defendant had informed 

him he wanted to call witnesses to establish that the victim had numerous prior 

relationships, but counsel had told defendant that such witnesses were not called at a 

preliminary hearing. Counsel stated that he had contacted “every witness” except for one 

that defendant had identified and had obtained statements from them. Counsel also stated 

that he had spoken to the prosecutor and had been informed “that this case will not 

resolve for a [domestic violence] charge” as defendant wanted because the prosecutor 

was “very firm” on not dropping the rape charge. Finally, counsel related that he told 

defendant “that in my opinion there’s uncharged conduct” in this case and “after a 

preliminary hearing the [prosecutor] can add charges.”

The trial court concluded that there had not been a breakdown in the attorneyclient relationship and denied the motion. 

B. Change of Plea

Prior to the start of the preliminary hearing, defendant entered into a plea 

agreement in which he stipulated that he was pleading no contest to both counts in 

exchange for a four-year prison term. Both the prosecutor and defense counsel stipulated 

to a factual basis for the pleas. Defendant affirmed that he was not under the influence of 

any drugs, alcohol, or medication that would affect his ability to understand the 

proceedings. Defendant affirmed that he had had sufficient time to consider the felony 

waiver form with his attorney, that if he had any questions he had asked those questions, 

and that he was given satisfactory answers. Defendant confirmed that he had initialed 

and signed the felony waiver form, that when he did so he understood the contents of the 

form, and that it was his intent to waive those rights. Defendant pleaded no contest to 

both counts. Before entering the plea, the trial court asked defendant if he had any 
4

questions or concerns or needed any clarification about the proceedings. Defendant 

stated he did not. Having found that the plea was knowing and voluntary, that defendant 

was aware of the charges and possible defenses, and that there was a factual basis, the 

court entered the plea.

C. Second Motion to Replace Appointed Counsel

Before sentencing, defendant again moved to replace appointed counsel.

1

 At the 

hearing, defendant stated that there was a lack of communication and that counsel “had 

no notes from my prior attorney.” He also asserted that counsel failed to “come see me 

and make a game plan” prior to the preliminary hearing. Defendant felt that counsel was 

not prepared for the preliminary hearing. Defendant then accused counsel of being “in 

contact with my brother” “about the case without me knowing it.” Defendant also 

recounted that, one to two weeks after the change of plea hearing, counsel came to him to 

ask “how [defendant] was doing.” “[Defendant] said ‘How do you think I’m doing? 

I just took a plea and I’m innocent and I’m out of my mind. And I want you to get me 

out of this, and I want you to back off. You’re worthless.’ ” Defendant again raised the 

issue of the witnesses he wanted to interview, the phone records, and video recording.

According to defendant, he asked his counsel to file a motion to withdraw the plea and 

counsel failed to do so. Finally, he accused his counsel of “threaten[ing] me with saying 

they’re going to put a life sentence on me and this and that, and if you don’t do this deal, 

then blah, blah, blah . . . .”

Counsel indicated that he visited defendant “five or six times,” and on two 

occasions was turned away from visiting because the facility was in lockdown. Counsel 

stated he understood defendant’s strategy, which was to “impeach the credibility of the 

victim, the witness in this case. And that was the plan.” As to the phone records, counsel 

stated he had reviewed them and was prepared to question the victim about them. As for 

1 Defendant also moved to withdraw his plea, which will be discussed in further 

detail below.
5

the video, counsel stated it showed defendant and the victim on a shopping trip together, 

and “the complaining witness in this case doesn’t deny” that the trip occurred. Counsel 

also reiterated that all the witnesses but one had been interviewed and had “provided 

information which [counsel] thought was favorable to [defendant’s] case.” Counsel 

stated he “absolutely went over witness statements with [defendant] about the witnesses 

he gave me.” Counsel stated he had told defendant “that a life charge was being 

discussed . . . .” Counsel explained that the prosecutor had informed him “that she will 

not hesitate, if proven up at [the] preliminary hearing, to add a first degree burglary with 

the intent to commit a sexual crime.” Counsel stated it was his “legal obligation to tell 

[defendant] those are possibilities at the preliminary hearing.”

As to defendant’s brother, counsel stated that defendant’s brother called him 

“numerous times” and tried to contact counsel’s supervisor. Counsel told the brother, 

“ ‘I can’t talk to you about the case.’ ” Counsel admitted to making “small talk and 

jokes,” but “[i]t was not case specific at all.” Counsel made sure his supervisor also 

knew that defendant’s brother was attempting to learn details about the case without 

defendant’s permission. Finally, he informed defendant that he did not “ ‘see a legal 

basis [to withdraw his plea] based on everything I have in front of me.’ ” He told 

defendant that the “ ‘best vehicle’ ” to withdraw the plea would be to file a Marsden

motion and motion to withdraw the plea. Counsel explained that he is “not here to stop 

[defendant] from withdrawing his plea,” but that he did not see a legal basis to do so 

“short of an appeal,” which he promised to file.

The court determined that counsel’s representation of defendant “has been 

effective,” and the court denied the motion to replace appointed counsel.

D. Third Motion to Replace Appointed Counsel

Later, defendant made another motion to replace appointed counsel. Defendant 

complained that no DNA test had been performed, which would “clear [defendant] of the 

rape.” Defendant again mentioned the video recording and phone records. Defendant 
6

asserted that the victim’s Facebook page would show that she had made similar

accusations against other men, and that she had a history of mental illness and lying. 

Defendant also reiterated that counsel had threatened him with additional charges, had 

done nothing to assist in defendant’s case, and had failed to speak with witnesses.

Counsel explained that he had responded to most of the accusations at the last 

Marsden hearing. He also explained that a sexual assault expert had been retained, and 

after reviewing the evidence, the expert stated he would not be able to provide favorable 

testimony. Counsel reiterated that he had been prepared to cross-examine the victim on 

her history with men and about making similar accusations. As to the accusation that 

counsel did not speak to potential witnesses, counsel explained that attorneys do not

personally interview witnesses because if they did there might be a potential conflict if 

the witness’s trial testimony was inconsistent with his or her prior statement. Counsel 

again admitted to discussing the possibility of additional charges, explaining that he was 

obliged to inform defendant of the prosecutor’s comments.

The trial court determined that counsel was prepared to represent defendant and 

that any deterioration in the attorney-client relationship was based on defendant’s 

attitude. The court saw no reason “why in the future [defendant] and [counsel] cannot 

continue to work together on the issue of his sentencing.” The court denied the motion to 

replace appointed counsel.

E. Motion to Withdraw Plea

At the time of the second Marsden motion, defendant also moved to withdraw the 

plea. Defendant stated that he felt he was under duress, he was stressed out, and he was 

blackmailed into entering the plea agreement. Defendant added that he was told he had 

only 30 minutes to make his decision, but was later told he had until the following 

morning to do so. Defendant admitted he knew the agreement included a sentence of 

four years. He stated, however, that he was on suicide watch the night before. Defendant 

admitted he signed the plea waiver form and answered affirmatively to the court’s 
7

questions, but he claimed that he did so only because he was worried the plea deal would 

be withdrawn if he did not respond affirmatively. The court continued the hearing on the 

motion to withdraw the plea so that a transcript of the plea hearing could be prepared and 

so that medical records for defendant could be obtained.

At the continued hearing, defendant stated that he was under duress when he 

pleaded no contest because he had been told before the plea that he was facing a possible 

life sentence. He believed, based on conversations with prior counsel, that he would be 

able to plead to a domestic violence charge for a sentence of two to four years. When he 

learned that the prosecutor would not offer a domestic violence charge, defendant became 

stressed. Defendant stated that although he was allowed to think about the decision 

overnight, he “got bipolar, PTSD, bad, and I was out of my mind and I was in shock. 

I was not in the right mind.”

The trial court denied defendant’s motion to withdraw his plea. The court based 

its decision on the transcript of the hearing and its own recollections of the hearing. The 

court added that defendant’s hearing stood out “because I have had you in front of me a 

number of times . . . .” The court noted that it had “rejected many pleas in the middle of 

it even if there is a slight hesitation on the part of the person who is entering a change of 

plea if I feel that they are under stress or duress or they are not even clear about what they 

want to do.” Based on the court’s evaluation of defendant when he changed his plea and 

the transcript of the hearing, the court found no legal basis for withdrawal of the plea.

F. Sentencing

The trial court then imposed sentence on defendant consistent with the plea 

agreement—for count 1, three years, and for count 2, one year consecutive to count 1, for 

a total of four years. He was given credit for 622 days of actual time served, plus 93 days 

of conduct credit, for a total of 715 days of custody credit. The trial court waived all 

fines and fees based on an inability to pay, except for a $450 payment to the California 

Victim Compensation Board.
8

II. DISCUSSION

Appointed appellate counsel has filed an opening brief that states the case and the 

facts but raises no issues. Defendant was notified of his right to submit written argument 

on his own behalf on appeal. He has not done so. Having examined the entire record, we 

conclude that there are no arguable issues on appeal.

III. DISPOSITION

The judgment is affirmed.
_________________________________

ELIA, ACTING P.J.

WE CONCUR:

_______________________________

BAMATTRE-MANOUKIAN, J.

_______________________________

DANNER, J.

People v. Allen

H047429