Filed 10/4/13 P. v. Cobb CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063554
Plaintiff and Respondent,
v. (Super. Ct. No. SCD245582)
JOSHUA LEE COBB,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Laura W.
Halgren, Judge. Affirmed.
Charles R. Khoury Jr., under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance by Plaintiff and Respondent.
As part of a plea agreement, Joshua Lee Cob entered a guilty plea to one count of
possession of a controlled substance while in the county jail (Pen. Code,1 § 4573.6). The
remaining count was dismissed and the court struck the alleged prison priors.
1 All further statutory references are to the Penal Code unless otherwise specified.
Prior to the sentencing hearing, Cobb made a motion under People v. Marsden
(1970) 2 Cal.3d 118 (Marsden), at which Cobb complained about the plea agreement and
raised the possibility of withdrawing his guilty plea. The court conducted an in camera
hearing on the motion. The motion to relieve counsel was denied. The defense did not
file a motion to withdraw the guilty plea.
The court granted Cobb probation on various terms and conditions. The court
imposed a custody sentence of 270 days, but authorized Cobb's release into a residential
treatment program as soon as space became available.
Cobb filed a timely notice of appeal and the trial court granted a certificate of
probable cause (§ 1237.5).
Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436
(Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) asking this court to
independently review the record for arguable issues for reversal on appeal. Although
counsel has not specifically pointed to a "possible," but "not arguable issue," counsel has
set out the details of the proceedings such that we discern the possible, but not arguable,
issue present in this record is whether the trial court properly denied Cobb's Marsden
motion. We have carefully reviewed the entire record and we are satisfied no arguable
issue for reversal on appeal exists in this record.
We offered Cobb the opportunity to file his own brief on appeal but he has not
responded.
STATEMENT OF FACTS
The summary of facts is taken from the probation officer's report.
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"On 12/11/2012, while walking by a cell at San Diego Central Jail, a
Sheriff's Deputy noticed an inmate had signs of being under the
influence of a controlled substance. The deputy escorted the inmate
and his cellmate, the defendant, to another holding cell and
performed a strip search of both. During the search, the deputy
found a syringe and a small plastic baggie that contained a brown
tar-like substance inside the waistband of the defendant's jail issued
pants. The substance subsequently tested positive to be .04 grams of
heroin.
"The defendant admitted the pants were his, but denied the drugs and
paraphernalia belonged to him. He provided no further statement.
"The other inmate denied being under the influence of drugs. He
stated he had been up for a few days and was going through
withdrawal symptoms of heroin, but insisted he used the drug while
he was on the streets."
DISCUSSION
As we have previously noted, appellate counsel has filed a brief indicating he is
unable to identify any argument for reversal and asks this court to review the record for
error as mandated by Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S.
738, we can discern from the brief one possible but arguable issue. That issue relates to
the trial court's denial of the Marsden motion.
At that motion, Cobb complained about the plea agreement because he thought he
would get a "program," that there would be a dismissal of the case following probation
and that he had a goal of re-enlisting in the military. He said trial counsel had told him
these things.
The court heard from counsel who denied telling Cobb he would get a dismissal of
the case at any particular point. Counsel did advise Cobb he would seek Cobb's release
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into a program after sentencing and that he had told Cobb he did not think Cobb's
significant criminal history would allow him to successfully enlist in the military.
The court found no basis to relieve counsel and told Cobb if he wished to
withdraw his plea he would have to make an appropriate motion. As we have noted,
Cobb did not move to withdraw his guilty plea. He was sentenced in accordance with the
plea agreement and was ordered released into a program as soon as possible. We find
nothing in the record of the guilty plea, or the Marsden hearing that would lead to any
arguable basis for reversal on appeal.
We have reviewed the entire record in accordance with Wende, supra,
25 Cal.3d 436 and Anders, supra, 386 U.S. 738 and have not found any reasonably
arguable appellate issues. Competent counsel has represented Cobb on appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
O'ROURKE, J.
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