Filed 7/31/13 P. v. Ferguson CA4/1 

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT 

DIVISION ONE 

STATE OF CALIFORNIA 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

TAMARI JAMIL FERGUSON, 

 Defendant and Appellant. 

 D063189 

 (Super. Ct. No. SCD236563) 

 APPEAL from a judgment of the Superior Court of San Diego County, Eugenia A. 

Eyherabide, Judge. Affirmed. 

 Theresa Osterman Stevenson, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

 No appearance for Respondent. 

 Tamari Jamil Ferguson entered a negotiated guilty plea to attempted robbery (Pen. 

Code, §§ 664, 211)1 and admitted a gang enhancement (§ 186.22, subd. (b)(1)) and a 

 

1 All further statutory references are to the Penal Code. 
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strike (§ 667, subds. (b)-(i)). The court granted Ferguson two continuances so he could 

retain counsel to file a motion to withdraw the guilty plea. At the sentencing hearing, 

Ferguson's retained counsel stated he could not find "a good-faith legal basis for 

withdrawing [the] plea." The court sentenced Ferguson to a stipulated seven-year eightmonth prison term: twice the 16-month lower term for attempted robbery and five years 

for the gang enhancement. Ferguson appeals and has obtained a certificate of probable 

cause (§ 1237.5). We affirm. 

BACKGROUND 

 Ferguson unlawfully attempted to take, with force, property from the person of 

another for the benefit of a criminal street gang. Ferguson had previously suffered a true 

finding in juvenile court of a strike offense. 

DISCUSSION 

 Appointed appellate counsel has filed a brief summarizing the facts and 

proceedings below. Counsel presents no argument for reversal, but asks this court to 

review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 

(Wende). Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders) counsel 

mentions as possible, but not arguable, issues: (1) whether the judgment should be 

vacated because there was no determination that there was an adequate factual basis for 

the plea, or because the record does not reflect a factual basis; (2) whether Ferguson 

received ineffective assistance of counsel due to a failure to investigate the factual basis 

or a failure to advise Ferguson before he entered his plea; (3) whether the plea was 

coerced; (4) whether the failure to file a motion to withdraw the plea constituted 
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ineffective assistance of counsel; (5) whether the court abused its discretion by not 

holding a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118) or asking Ferguson 

if he agreed with his counsel's refusal to move to withdraw the plea; (6) whether 

Ferguson received ineffective assistance of counsel because trial counsel failed to file a 

petition for writ of coram nobis after sentencing in light of Ferguson's express desire to 

withdraw his plea; (7) whether the court abused its discretion by refusing to modify the 

sentence by dismissing the strike; and (8) whether the court abused its discretion by 

ordering a $1,500 restitution fine. 

 We granted Ferguson permission to file a brief on his own behalf. He has 

responded with the following contentions: there was an inadequate factual basis for the 

plea; Ferguson received ineffective assistance of counsel; counsel forced him to sign the 

plea agreement with the threat of a sentence of 11 to 23 years failed to disclose all 

evidence; counsel and the court falsely stated that all three defendants would receive 

gang enhancements, but Ferguson was the only one who did; the court erred by denying 

Ferguson's motion to withdraw the guilty plea; and substantial evidence does not support 

the finding underlying the gang enhancement. 

 The court recited the facts set forth above in the background section of this 

opinion as the factual basis. The court then asked, "Is that what you did in this case, sir?" 

Ferguson said "Yes." The court found there was a factual basis for the plea and 

admissions. This was sufficient. (§ 1192.5, 3d par.) The record does not show any 

coercion, nondisclosure, false statements or impropriety in the plea bargaining process, or 

any grounds for a motion to withdraw the guilty plea. On appeal we cannot review 
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matters outside the scope of the record. (People v. Roberts (1963) 213 Cal.App.2d 387, 

394.) The record does not demonstrate that Ferguson received ineffective assistance of 

counsel, that is, that counsel failed to act in a manner to be expected of a reasonably 

competent attorney and that counsel's acts or omissions prejudiced Ferguson. (Strickland 

v. Washington (1984) 466 U.S. 668.) 

 A review of the record pursuant to Wende and Anders, including the possible 

issues listed pursuant to Anders, has disclosed no reasonably arguable appellate issues. 

Ferguson has been competently represented by counsel on this appeal. 

DISPOSITION 

 The judgment is affirmed. 

 

NARES, Acting P. J. 

WE CONCUR: 

 

HALLER, J. 

 

O'ROURKE, J.