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Filed 7/1/14 P. v. Obra CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Yolo)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT SHERMAN OBRA,

Defendant and Appellant.

C072979

(Super. Ct. No. CRF123847)

Defendant Robert Sherman Obra entered a no contest plea to infliction of corporal 

injury on a cohabitant or former cohabitant (Pen. Code, § 273.5, subd. (a))1 and admitted 

a prior strike (§ 667, subds. (b)-(i)) and two prior prison term allegations (§ 667.5, 

subd. (b)) in exchange for a stipulated 10-year state prison sentence and the dismissal of 

the remaining counts and allegations. 

After denying defendant’s motion to withdraw his plea/substitute counsel, the trial 

court imposed the agreed-upon sentence. Defendant appeals, challenging the court’s 

 

1 Undesignated section references are to the Penal Code.
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denial of his motion.2 We conclude defendant knowingly, intelligently, and voluntarily 

entered his plea. As defendant did not request substitute counsel, the trial court’s duty 

under Marsden3 was not triggered. We affirm the judgment.

FACTS

On September 25, 2012, the victim and defendant had a conversation outside his 

home during which defendant became very angry. He then physically assaulted the 

victim by punching her in the left ear and chest, head-butted her nose, grabbed at her 

neck, pulling off her necklaces, and then tried to drag her into the garage, saying he was 

going to kill her. The victim provided photos of her injuries to the police. One photo 

showed a bleeding nose and blood on her shirt. Law enforcement officers found 

defendant at the address provided by the victim. A search of defendant’s car revealed 

17.92 grams of marijuana, about half of which was packaged into separate baggies. 

DISCUSSION

Defendant contends the trial court abused its discretion in denying his motion 

(which he labels a Marsden motion) after he demonstrated he entered his plea without 

knowing the contents of the victim’s new statement given to the prosecutor. We reject 

defendant’s contention.

Background

At sentencing on January 10, 2013, the trial court conducted a hearing on what it 

labeled a “modified hybrid Marsden motion” (defendant’s motion to withdraw his plea 

based on ineffective assistance of counsel). During the hearing, defendant provided no 

 

2 “[A] defendant who has filed a motion to withdraw a guilty plea that has been 

denied by the trial court still must secure a certificate of probable cause in order to 

challenge on appeal the validity of the guilty plea. [Citations.]” (In re Chavez (2003) 

30 Cal.4th 643, 651.) Here, defendant obtained a certificate of probable cause (§ 1237.5).

3 People v. Marsden (1970) 2 Cal.3d 118.
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reason to substitute counsel. Defendant admitted counsel provided “good advice based 

upon what [defendant] knew” at the time of his plea. Defendant sought to withdraw his 

plea, complaining he entered his plea without knowing the contents of a new victim 

statement given to the prosecutor before defendant entered his plea and that defense 

counsel did not share with defendant because defense counsel stated he did not receive 

the new statement until after defendant entered his plea. In the victim’s new statement, 

she claimed she instigated the confrontation and disputed some of the statements 

attributed to her in the police report, and defendant may not have head butted her on 

purpose. Defense counsel knew from his own investigation prior to defendant entering 

his plea that the victim was recanting. The day before he entered his plea, defendant 

admitted the victim told him not to take the plea deal because, apparently, she was going 

to recant but, defendant complained, she did not “show up.” Defendant conceded he had 

always taken a plea deal and was afraid of the charges if he “pull[ed] [his] plea.” After 

an in-camera hearing, the trial court determined defendant knowingly, intelligently, and 

voluntarily entered his plea. 

Analysis

Initially, we consider the People’s response that defendant cannot raise this nonsentencing issue because he waived all issues other than sentencing errors when he 

signed the written plea form. Anticipating this response, defendant argues his waiver, 

and decision to enter the plea bargain, was a product of counsel’s ineffectiveness. Citing 

People v. Orozco (2010) 180 Cal.App.4th 1279 (Orozco), he asserts a waiver of appellate 

rights cannot bar a challenge to the effectiveness of counsel relating to advice received

concerning the plea agreement containing the waiver. We agree with defendant.

On the written plea form, defendant initialed the statement, “I waive all right to 

appeal on both the judgment of the Court and any decisions on motions which precede 

this plea or judgment. Appeal is not waived as to sentencing errors.” 
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“ ‘When a guilty [or nolo contendere] plea is entered in exchange for specified 

benefits such as the dismissal of other counts or an agreed maximum punishment, both 

parties, including the state, must abide by the terms of the agreement.’ [Citations.] Of 

course, before taking the plea, the trial court must admonish defendant of the 

constitutional rights that are being waived, as well as the direct consequences of the plea.

[Citation.] Just as a defendant may affirmatively waive constitutional rights to a jury 

trial, to confront and cross-examine witnesses, to the privilege against self-incrimination, 

and to counsel as a consequence of a negotiated plea agreement, so also may a defendant 

waive the right to appeal as part of the agreement.” (People v. Panizzon (1996) 

13 Cal.4th 68, 80.) “To be enforceable, a defendant’s waiver of the right to appeal must 

be knowing, intelligent, and voluntary. [Citations.] Waivers may be manifested either 

orally or in writing. [Citation.] The voluntariness of a waiver is a question of law which 

appellate courts review de novo.” (Ibid.)

Defendant claimed his plea, which included his waiver of his right to appeal, was 

not knowing, voluntary, and intelligent based on ineffective assistance of counsel. 

Whether the trial court should have granted defendant’s motion to withdraw his plea

depends on whether defendant’s plea, and thus waiver, was knowing, voluntary, and 

intelligent. (Orozco, supra, 180 Cal.App.4th at pp. 1281-1282, 1285.) We thus reach the 

merits of his ineffective assistance and Marsden claims.

“On application of the defendant at any time before judgment . . . , the court may,

. . . for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not 

guilty substituted.” (§ 1018.) “Mistake, ignorance or any other factor overcoming the 

exercise of free judgment is good cause for withdrawal of a guilty plea. [Citations.] But 

good cause must be shown by clear and convincing evidence.” (People v. Cruz (1974) 

12 Cal.3d 562, 566.)

Here, the trial court considered whether defendant should be permitted to 

withdraw his plea at the “hybrid Marsden” hearing. Defendant claimed that after he 
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entered his plea, he received the victim’s new statement given to the prosecutor before 

defendant entered his plea. Had he received the new statement before he entered his plea,

he thought he would have been able to beat some of the charges at trial. Defendant 

claimed that although there was an “incident,” he did not “inflict the [victim’s] bloody

nose . . . with malice.” 

Defendant failed to establish, by clear and convincing evidence, good cause for 

withdrawal of his plea. Defendant was charged with false imprisonment with force and 

violence and possession of marijuana for sale, in addition to the infliction of corporal 

injury offense. Another prior strike and prior prison term were alleged in addition to 

those admitted. He pled no contest to infliction of corporal injury on a cohabitant or 

former cohabitant and admitted a prior strike and two prior prison terms in exchange for 

being sentenced to serve 10 years in prison and dismissal of the remaining charges. At 

the entry of plea hearing, defense counsel acknowledged there was evidence defendant 

used force on the victim resulting in a traumatic condition. Through his investigation 

prior to defendant’s plea, defense counsel knew the victim planned to recant. And 

defendant admitted at the motion to withdraw his plea that he knew before he entered his 

plea the victim had planned to change her story but she did not “show up.” We conclude 

the trial court did not abuse its discretion in denying defendant’s motion to withdraw his 

plea. The victim’s statement, received after the plea, added nothing to the 

decisionmaking calculus of defendant or his attorney.

As to the purported Marsden claim, defendant did not request substitution of 

counsel and did not present any grounds for substitution. Defendant complained he did 

not have the victim’s new statement prior to entering his plea and defense counsel 

explained he did not have the new statement until after defendant entered his plea. 

Defendant did not then request new counsel. Having not requested new counsel, the trial 

court’s duty under Marsden was not triggered. (People v. Martinez (2009) 47 Cal.4th 

399, 418.)
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DISPOSITION

The judgment is affirmed.

 HOCH , J.

We concur:

 RAYE , P. J.

 NICHOLSON , J.