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Filed 8/ 3/21 P. v. Spears CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,

v.
DOMIN IC EMANUEL SPEARS,
Defendant and Appellant. A161304

(Solano County Super. Ct. No. FCR338966)

Defendant Dominic Emanuel Spears, also known as Demetrus Elijah

Spears, appeals from a judgment imposing a two

- year prison sentence

following a no contest plea. Counsel for defendant has filed an opening brief

in which s he raises no issues and asks this court for an independent review

pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel informed

defendant of his right to submit a supplemental brief and he has not filed

one. We have conducted the review and

, finding no arguable issues to be

briefed, affirm the judgment.

BACKGROUND 1

On July 11, 2018, defendant stole various items from a convenience

store. When an employee attempted to stop defendant from leaving,

defendant repeatedly punched the employee in the face.

1 We take the facts from the probation report.2

Defendant was charged with second degree robbery (Pen. Code, § 211

[count 1] ), 2 assault by means likely to produce great bodily injury (§ 245,

subd. (a)(4) [count 2] ), and petty theft (§§ 484, subd. (a), 490.2 [count 3] ).

On September 20, 2018, defendant waived his right to counsel and

pleaded no contest to second degree robbery (count 1) in exchange for

dismissal of the remaining counts and a promise of probation.

On October 19, 2018, the trial court granted defendant’s motion to

withdraw his plea on the grounds that the complaining witness had been

arrested for pepper spraying a customer ; this information was releva n t to
defendant’s claim that he assaulted the employee in self

- defense.

On December 19, 2018, defendant pleaded no contest to assault by

means like ly to produce great bodily injury (count 2) in exchange for the

dismissal of counts 1 (second degree robbery) and 3 (petty theft) with a

waiver under People v. Harvey (1979) 25 Cal.3d 754 and a promise of

probation. The trial court suspended imposition of s entence and placed

defendant on formal probation for three years.

On June 6, 2019, the trial court granted probation’s request to revoke

defendant’s probation for failure to report as ordered and issued a bench

warrant for his arrest.

On December 31, 2019, defendant admitted the violations as alleged.

The trial court reinstated defendant on probation subject to certain

modifications.

On July 13, 2020, the trial court granted the prosecution’s request to

revoke probation for defendant’s failure to obey the law based on his arrest

for four misdemeanor violations (§§ 243, subd. (d) , 594, subd. (a), 273a,

1203.2.)

2 All further undesignated statutory references are to the Penal Code.3

On July 22, 2020, defendant admitted the probation violations as

alleged in exchange for the dismissal of the misdemeanor case.

On August 18, 2020, defendant orally moved to replace his appointed

counsel under People v. Marsden (1970) 2 Cal.3d 118 and to withdraw his

negotiated plea. Following a hearing, t he trial court denied the Marsden

motion.

On August 26, 2020, defendant filed a formal motion to withdraw his

negotiated plea entered on December 19, 2018, based on the following

reasons: (1) the anti

- inflammatory medication defendant was prescribed at

the time he entered the plea “interfered with his ability to understand the

requirement he would be placed on Post Community Release Supervision” ;
(2) his own pro se research indicated that he had a “ ‘ heat of passion ’ ”

defense; (3) his mother “told him to take the plea” or she would “disown him” ;
and (4) he would not have entered the plea had he known that, due to

COVID

- 19 restrictions , he would have to remain in c ounty jail instead of

serving his sentence in prison.

On September 2, 2020, after the trial court denied the motion to

withdraw for lack of a “legal or valid cause,” defendan t orally made a second

motion t o replace his appointed counsel

. The trial court conduct ed a Marsden

hearing and denied the motion

, whereupon defendant left the courtroom,

telling the court to send its sentence to him “in the mail.” After noting that

def endant had voluntarily left the proceedings, the trial court sentenced

defendant to the low term of two years in state prison. He received a total of

512 days credit: 256 actual days and 256 good/work days.

Defendant appealed, challenging the denial of h is motions to replace

counsel and withdraw his plea. He obtained a certificate of probable cause.4 DISCUSSION

A Marsden motion is successful only upon a showing that there was

ineffective assistance of counsel or an irreparable breakdown in

communications between the defendant and counsel. ( People v. Vera (2004)

122 Cal.App.4th 970, 979.) After thoroughly reviewing the sealed

t ranscripts, we conclude d efendant failed to make the requisite showing at

either of the Marsden hearings

. A plea may be withdrawn if the defendant establishes good cause for

withdrawal by clear and convincing evidence. (§ 1018; People v. Huricks

(1995) 32 Cal.App.4th 1201, 1207.) We review the denial of a motion to
withdraw a plea for abuse of discretion. ( Huricks

, at p. 1208.) Good cause is

established upon a showing “that [the] defendant was operating under

mistake, ignorance, or any ot her fa ctor overcoming the exercise of his free

judgment.” ( Ibid. ) The record indicates that defendant entered into a

knowing and voluntary plea. Defendant’s own legal research into a possible

defense, his communications with his mother, and his taking anti

in flammatory medication do not constitute good cause to withdraw his plea.

Accordingly, the trial court did not abuse its discretion in denying defendant ’ s

motion to withdraw his plea.

DISPOSITION

The judgment is affirmed.5 _________________________ Jackson, J.

WE CONCUR:

_________________________ Fujisaki, Acting P. J.

_________________________ Petrou, J.

A161304/ People v. Dominic Emanuel Spears