P. v. Brown

Filed 2/24/06 P. v. Brown CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Clarence Westra, Judge.

William A. Malloy, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, John G. McLean and Mark A. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

On December 10, 2004, appellant Tommy Lee Brown pled guilty to one count of possession of cocaine base for sale (Health & Saf. Code, § 11351.5, count one) and he admitted a prior serious felony conviction within the meaning of the three strikes law.^[1] In exchange for his plea, the trial court granted a prosecution motion to dismiss allegations Brown maintained a place for selling or using cocaine base (Health & Saf. Code, § 11366, count two), actively participated in a criminal street gang (Pen. Code, § 186.22, subd. (a), count three), and obstructed a peace officer (Pen. Code, § 148, subd. (a), count four). The court also dismissed an allegation that Brown suffered a prior narcotics conviction (Health & Saf. Code, § 11370.2, subd. (a)) and allegations Brown had served three prior prison terms (Pen. Code, § 667.5, subd. (b)).

Under the plea agreement, there was an eight-year lid on Brown's sentence. On January 13, 2005, Brown made a motion to withdraw his plea. On January 25, 2005, the trial court denied Brown's motion to withdraw his plea. On April 21, 2005, the court sentenced Brown to a four-year prison term which it doubled to eight years pursuant to the three strikes law. The court ordered Brown to pay a restitution fine and awarded applicable custody credits.

On appeal, Brown contends the trial court erred in failing to appoint him conflict counsel and in denying his motion to withdraw his plea.

FACTS

Offense

On November 26, 2004, Bakersfield police officers executed a search warrant on a room at the Park Motel. Brown and three other suspects were arrested and taken into custody. During a search of the room, officers found cash and 1.19 grams of cocaine base. One of the women who was arrested told officers that everyone had cocaine base prior to the officers' arrival.

Motion to Withdraw Plea

On January 11, 2005, Brown's counsel informed the court that Brown sought to withdraw his plea on the ground of ineffective assistance of trial counsel. Counsel further stated, however, that he did not believe Brown had a legal basis for setting aside his plea. The court insisted upon a written motion and continued the hearing for counsel to prepare one. On January 13, 2005, defense counsel filed a written motion for Brown to withdraw his plea.

In the points and authorities to the motion, trial counsel stated the motion would be made â€