Filed 4/30/14 P. v. Ross 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Plaintiff and Respondent,

v. TERRILL LEE ROSS, Defendant and Appellant. F066279 (Super. Ct. No. 12CM7533A)



### OPINION

THE COURT * APPEAL from a judgment of the Superi or Court of Kings County. John G. O’Rourke, Judge. Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-

* Before Levy, Acting P.J ., Kane, J., and Peña, J.2 INTRODUCTION On October 25, 2012, appellant, Terrill Lee Ross, entered into a plea agreement in which he would admit one count of conspiracy to furnish a controlled substance in a state prison (Pen. Code, §§ 182, su bd. (a)(1) & 4573.9, count 1) 1 and a prior serious felony conviction within the meaning of the three strikes law. In exchange for appellant’s change of plea, four other counts and thre e special allegations would be dismissed. Appellant would receive a stipulated sentence of four years, doubled to eight years under the three strikes law, to be se rved consecutively to the sentence he was already serving.
The trial court reviewed the terms of the plea agreement with appellant as well as the consequences of the plea. The cour t asked appellant if he understood the plea agreement and had any questions. Appellant re plied that he understood the terms of the plea agreement and had no questions. Defense co unsel told the court that he reviewed the consequences of the plea with appellant as well as appellant’s potential defenses. The court advised appellant of his constitutional ri ghts, which appellant waived pursuant to Boykin v

. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122. Appellant further waived his right to a preliminary heari ng. The parties stipulated to a factual basis for the plea. 2 Appellant pled guilty to the violation of sections 182, subdivision (a)(1) and 4573.9. Appellant admitted a prior serious fe lony conviction within the meaning of the three strikes law. Appellant waived the prep aration of a presentence report. The court

1 All statutory references are to the Penal Code.
2 On September 22, 2012, while incarcerated at Corcor an State Prison, appellant was visited by Tracy Henry, who removed a bl ack bindle weighing 123 grams from her person and handed it to appellant by placin g it into appellant’s clothing. Appellant attempted to secrete the bindle into his rectal cavity. Appellant was detained by prison authorities, who found four se parately wrapped cellophane bi ndles of heroin in usable quantities on his person.3 sentenced appellant to the stipul ated sentence of four years, doubled to eight years, to be served consecutively to the sentence appellant was already serving. The trial court granted appellant’s request for a certificate of probable cause. Appellate counsel has filed a brief seeking in dependent review of the case by this court pursuant to People v

. Wende (1979) 25 Cal.3d 436 ( Wende ).
APPELLATE COURT REVIEW Appellant’s appointed appellate coun sel has filed an opening brief that summarizes the pertinent facts, raises no issu es, and requests this court to review the record independently. ( Wende , supra , 25 Cal.3d 436.) The open ing brief also includes the declaration of appellate c ounsel indicating that appellant was advised he could file his
own brief with this court. By letter on February 8, 2013, we invited appellant to submit additional briefing. Appellant replied with a supplemental brief stating that his trial counsel was ineffective, had inappropriate side -bar conversations with the trial court and prosecutor, coerced appellant in to the plea agreement, failed to explain the terms of the plea agreement, and generally failed to re present appellant in a competent manner. Appellant’s challenges can be construed to be a challenge to the effectiveness of
his trial counsel. The defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffectiv e assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also pr ejudice. A court must indulge a strong presumption that counsel’s conduct falls with in the wide range of reasonable professional
assistance. Tactical erro rs are generally not deemed reversible. Counsel’s decisionmaking is evaluated in the context of th e available facts. To the extent the record fails to disclose why counsel acted or faile d to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or, unless there si mply could be no satisfactory ex planation. Prejudice must4 be affirmatively proved. The record mu st affirmatively demonstrate a reasonable probability that, but fo r counsel’s unprofessional errors , the result of the proceeding would have been different. ( People v

. Maury (2003) 30 Cal.4th 342, 389.) Attorneys are not expected to engage in tactics or to file motions that are futile. ( Id . at p. 390; also see People v

. Mendoza (2000) 24 Cal.4th 130, 166.) There is nothing in the re cord to support any of appe llant’s allegations concerning the competency of his trial counsel. Appella nt has failed to demonstrate that his trial counsel’s representation was be low professional standards or that he was prejudiced by counsel’s alleged ineffective representation. After independent review of the r ecord, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION The judgment is affirmed.