P. v. Agundez

 

 

 

 

 

 

 

 

 

 

 

Filed 7/19/13  P. v. Agundez CA4/2

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL
REPORTS

 

 

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA>

 

FOURTH APPELLATE DISTRICT

 

DIVISION TWO

 

 

 
>

THE PEOPLE,               Plaintiff and Respondent,   v.   JOEY ALEXANDER AGUNDEZ,               Defendant and Appellant.

E056435               (Super.Ct.No. RIF1104591)               OPINION

 

            APPEAL
from the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County.  Michele D.
Levine, Judge.  Affirmed.

            Michael
Clough, under appointment by the Court of Appeal, for Defendant and Appellant.

            Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, James D. Dutton and
Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.

            Defendant and appellant Joey Alexander Agundez
(defendant) pled guilty, pursuant to a negotiated plea agreement, to href="http://www.mcmillanlaw.com/">attempted murder (Pen. Code, §§ 664,
187, subd. (a)) and admitted the criminal street gang special allegation (Pen.
Code, § 186.22, subd. (b)).  The trial
court, in turn, sentenced defendant to the agreed upon term of 17 years in
state prison.

            Defendant
contends in this appeal that the trial court failed to conduct an adequate
inquiry into defendant’s postplea request to appoint substitute counsel to
represent him at sentencing.  We conclude
defendant’s claim is meritless, and therefore we will affirm the judgment.

>DISCUSSION

            Our
resolution of the issue defendant raises in this appeal does not depend on the
circumstances of defendant’s crime, nor could it because the trial court denied
defendant’s request for a certificate of
probable cause.  Only the procedural
details of the trial court proceeding are pertinent to defendant’s claim on
appeal and they reveal that on the date originally set for his sentencing
hearing, defendant requested a continuance so his family could retain private
counsel to explore the possibility of filing a motion to withdraw his guilty
plea.  The trial court granted
defendant’s request, and continued the sentencing hearing for 30 days.

At the continued href="http://www.fearnotlaw.com/">sentencing hearing, defendant’s
court-appointed attorney informed the trial court defendant wanted a different
attorney appointed to represent him in order to withdraw his plea based on
incompetence of counsel, a motion counsel described as a Sanchezhref="#_ftn1"
name="_ftnref1" title="">^[1] hearing or a quasi-Marsdenhref="#_ftn2"
name="_ftnref2" title="">^[2] hearing. 
The trial court set that hearing for later that same day.

At the outset of the
hearing, the trial court ordered the courtroom closed to the prosecutor,
explained the Marsden process to
defendant, and then gave defendant an opportunity to speak.  Defendant responded that he wanted to go
forward with sentencing.  When the trial
court indicated she had not heard what defendant had said, defendant repeated,
“I think I want to just go forward with sentencing, with the sentencing.”  The trial court then asked defendant, “Are
you indicating, sir, that you’re satisfied [your attorney] can continue in her
representation of you and do so through the sentencing in this matter?”  Defendant answered, “Yes, your Honor.”  The trial court then confirmed that defendant
did not “want to discuss with [the court] having another counsel
appointed.”  Before sentencing defendant,
the trial court said, “The . . . Court is satisfied that based upon what has
been said to the Court by [defendant], there’s a withdrawal of the request to
have a Marsden slash >Sanchez motion before the Court; that he
otherwise wishes to go forward with the sentencing today pursuant to the plea
bargain that was entered into with the People.”

Defendant now contends the
trial court should have conducted a Marsden
hearing because the record suggests defendant’s plea was not “‘a voluntary and
intelligent choice,’” which in turn suggests his decision to abandon his >Marsden hearing also was not a voluntary
and intelligent choice.  In other words,
defendant contends the trial court should have determined whether defendant
knowingly and intelligently withdrew his request for a Marsden hearing.  We
disagree.

“Marsden motions are subject to the following well-established
rules.  ‘“‘When a defendant seeks to
discharge his appointed counsel and substitute another attorney, and asserts
inadequate representation, the trial court must permit the defendant to explain
the basis of his contention and to relate specific instances of the attorney’s
inadequate performance.  [Citation.]  A defendant is entitled to relief if the
record clearly shows that the first appointed attorney is not providing
adequate representation [citation] or that defendant and counsel have become
embroiled in such an irreconcilable conflict that ineffective representation is
likely to result [citations].’ 
[Citations.]”’”  (>People v. Barnett (1998) 17 Cal.4th
1044, 1085, 1086.)

The record in this case
reflects clearly and unequivocally that defendant withdrew his request for a >Marsden hearing.  Defendant does not claim otherwise.  Instead, defendant contends the trial court
had an obligation to determine whether that withdrawal was done knowingly and
voluntarily.  Defendant does not cite any
authority to support that claim. 
Moreover, even if he were able to establish such an obligation, the
trial court conducted the requisite inquiry. 
As set out above, the trial court first explained the structure and
purpose of a Marsden hearing to
defendant.  When defendant indicated he
did not want to proceed with that hearing, the trial court confirmed that
defendant was satisfied with his attorney and wanted that attorney to represent
him at his sentencing hearing.

In short, and simply stated,
defendant withdrew his request for a Marsden
hearing and therefore cannot complain that the trial court did not conduct that
hearing.  Defendant’s other arguments,
although presented in the guise of supporting his Marsden hearing claim, are actually directed at challenging the
voluntariness of his guilty plea. 
Defendant did not obtain a certificate of probable cause and therefore
he is precluded from raising that issue. 
(People v. Panizzon (1996) 13
Cal.4th 68, 76.)

>DISPOSITION

            The
judgment is affirmed.

            NOT
TO BE PUBLISHED IN OFFICIAL REPORTS

 

 

McKINSTER                        

                                                Acting
P.J.

 

We concur:

 

 

 

RICHLI                                  

                                             J.

 

 

 

KING                                     

                                             J.