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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 

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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 Superior 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, subd. (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 three 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 served 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 court asked appellant if he understood the plea 

agreement and had any questions. Appellant replied that he understood the terms of the 

plea agreement and had no questions. Defense counsel 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 rights, 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 hearing. 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 felony conviction within the meaning of the 

three strikes law. Appellant waived the preparation of a presentence report. The court 

 

1 All statutory references are to the Penal Code. 

2 On September 22, 2012, while incarcerated at Corcoran State Prison, appellant 

was visited by Tracy Henry, who removed a black bindle weighing 123 grams from her 

person and handed it to appellant by placing it into appellant’s clothing. Appellant 

attempted to secrete the bindle into his rectal cavity. Appellant was detained by prison 

authorities, who found four separately wrapped cellophane bindles of heroin in usable 

quantities on his person. 
3 

sentenced appellant to the stipulated 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 independent 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 counsel has filed an opening brief that 

summarizes the pertinent facts, raises no issues, and requests this court to review the 

record independently. (Wende, supra, 25 Cal.3d 436.) The opening brief also includes 

the declaration of appellate counsel 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 into the plea agreement, failed to explain the terms of the 

plea agreement, and generally failed to represent 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 ineffective assistance of trial counsel, the defendant 

must establish not only deficient performance, which is performance below an objective 

standard of reasonableness, but also prejudice. A court must indulge a strong 

presumption that counsel’s conduct falls within the wide range of reasonable professional 

assistance. Tactical errors are generally not deemed reversible. Counsel’s 

decisionmaking is evaluated in the context of the available facts. To the extent the record 

fails to disclose why counsel acted or failed 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 simply could be no satisfactory explanation. Prejudice must 
4 

be affirmatively proved. The record must affirmatively demonstrate a reasonable 

probability that, but for 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 record to support any of appellant’s allegations concerning 

the competency of his trial counsel. Appellant has failed to demonstrate that his trial 

counsel’s representation was below professional standards or that he was prejudiced by 

counsel’s alleged ineffective representation. 

 After independent review of the record, we have concluded there are no 

reasonably arguable legal or factual issues. 

DISPOSITION 

The judgment is affirmed.