People v. Turner CA2/8 ( 2021 )

Filed 10/12/21 P. v. Turner CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B312113
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA104294)
v.
KIRK BRIAN TURNER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Michael Villalobos, Judge. Affirmed.
Asya Ovsepyan, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
____________________
Conforming to People v. Wende (1979) 25 Cal.3d 436(Wende), Kirk Brian Turner’s counsel filed an opening brief
containing a statement of facts but raising no issues. Turner
submitted a supplemental brief. We have reviewed the briefs and
the entire record. We find no arguable issues exist. We affirm.
An information charged Turner with pandering by
encouraging. (Pen. Code, § 266i, subd. (a)(2).) It alleged Turner
had a prior conviction for a serious felony that qualified as a
strike. (Pen. Code, §§ 667, subds. (b)–(j), 1170.12.) The charge
and allegation carried a maximum sentence of 12 years.
On February 26, 2020, Turner accepted a plea agreement.
He pleaded no contest and admitted the prior serious felony
allegation. Under the agreement, the court would strike Turner’s
prior serious felony conviction and sentence him to the midterm
of four years in state prison.
Turner requested and the court granted several
continuances for sentencing.
On February 9, 2021, the court sentenced Turner pursuant
to the plea agreement.
Turner appealed. His counsel filed a Wende brief.
Turner filed a supplemental brief. He asks to withdraw his
plea and to proceed to trial. He claims counsel at his sentencing
hearing was ineffective for failing to tell him the new district
attorney had “changed policies that affected prior criminal
convictions.” If Turner had known about the policy change, he
says he would have withdrawn his plea before sentencing and
would have proceeded to trial.
Turner may not seek to withdraw his plea in the Court of
Appeal because he did not raise this issue in the trial court.
(People v. Barajas (1972) 26 Cal.App.3d 932, 937.)
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Turner has not proven his counsel was ineffective for not
telling him about the policy change. To prove ineffective
assistance, he must show counsel’s performance fell below an
objective standard of reasonableness and it prejudiced Turner.
(See Strickland v. Washington (1984) 466 U.S. 668, 687.) On
appeal, we presume counsel’s conduct fell within the wide range
of reasonable professional assistance and we accord great
deference to counsel’s tactical decisions. (People v. Lewis (2001)
25 Cal.4th 610, 674.)
If the record on appeal sheds no light on why counsel acted
or failed to act, we must reject a claim of ineffective assistance of
counsel unless counsel was asked for an explanation and failed to
provide one, or there could be no satisfactory explanation.
(People v. Carter (2003) 30 Cal.4th 1166, 1211.)
Turner has not proven counsel’s performance fell below an
objective standard of reasonableness. The policy change was
insignificant to Turner’s case. His sentence was consistent with
the change because the court struck the prior serious felony
conviction. Additionally, counsel reasonably could have
determined Turner lacked good cause to withdraw the plea. (See
Pen. Code, § 1018; People v. Cruz (1974) 12 Cal.3d 562, 566;
People v. Nance (1991) 1 Cal.App.4th 1453, 1456 [changing one’s
mind is not good cause]; People v. Brown (2009) 175 Cal.App.4th
1469, 1472 [counsel is not obligated to make a meritless motion to
withdraw a plea].) Had withdrawal been possible, it was not
necessarily desirable because Turner faced a potentially longer
sentence at trial. We reject Turner’s ineffective assistance of
counsel claim.
We have examined the entire record of the proceedings and
are satisfied Turner’s attorney has complied with the
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responsibilities of counsel and no arguable issues exist. (See
Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.
WILEY, J.
We concur:
GRIMES, Acting P. J.
OHTA, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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