P. v. Fenn CA6

Filed 9/24/26 P. v. Fenn CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H053310
(Santa Cruz County
Plaintiff and Respondent, Super. Ct. No. 25CR01189)

v.

JUSTIN FENN,

Defendant and Appellant.

By agreement with the prosecution, defendant Justin Fenn pleaded no contest to a
felony violation of Health and Safety Code section 113951 in return for dismissal of a
prior strike allegation (Pen. Code, §§ 667, subds. (b)–(i), 1170.12) and other charges, a
grant of probation, and release from custody to a treatment program (requiring Fenn’s
reinstatement on postrelease community supervision in prior cases). On appeal, Fenn
contends that the trial court erred in denying his postplea request for treatment-based
deferred entry of judgment under section 11395 subdivisions (b) and (d). Fenn also
contends that the court abused its discretion by denying his postjudgment request for a
hearing under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). But Fenn waived his
right to deferred entry of judgment in return for the district attorney’s dismissal of a strike
prior, which significantly reduced his sentencing exposure. And any error the court

1
Undesignated statutory references are to the Health and Safety Code.
committed in failing to conduct a Marsden hearing upon Fenn’s request was harmless
beyond a reasonable doubt. Finding no prejudicial error, we will affirm.
I. BACKGROUND

The Santa Cruz County District Attorney charged Fenn with possession of a hard
drug with two or more prior convictions (§ 11395; count 1) and possession of drug
paraphernalia (§ 11364, subd. (a); counts 2 through 5). The prosecution also alleged a
prior conviction for a strike offense (Pen. Code, §§ 667, subds. (b)–(i); 1170.12). When
Fenn committed the charged offenses, he was on postrelease community supervision
(PRCS) in three other matters—case Nos. 20CR05633 (possession for sale of a controlled
substance), 21CR02477 (possession for sale of a controlled substance), and 21CR05024
(assault with a deadly weapon).
The prosecution’s settlement offer was for Fenn to plead no contest to the
section 11395 felony “for probation and treatment.” Before the preliminary hearing,
Fenn sought dismissal of the pending charges in return for an admission to the violation
of his PRCS conditions and “serv[ing] the remainder of his custody time.”
On the day set for the preliminary hearing, however, Fenn accepted the
prosecution’s offer and pleaded no contest to a violation of section 11395 for “probation”
and “treatment,” with dismissal of the remaining counts and prior strike allegation. In the
plea colloquy, Fenn agreed with the trial court that he had “numerous prior convictions
for possession of drugs.”2 He also confirmed that he understood his plea of no contest
was a basis to revoke his postrelease community supervision in his prior cases. The trial
court found a “knowing, intelligent and voluntary waiver of rights.”

2
Section 11395, subdivision (d)(1)(A) requires that a defendant pleading guilty or
no contest to the underlying violation also “admit[] the alleged prior convictions” that
meet the statutory criteria. Fenn does not challenge the adequacy of his generic
admission of “numerous prior convictions” to support his conviction.

2
The parties did not state their agreement on any sentencing terms. But the court in
advising Fenn that the maximum penalty for count 1 included up to three years’
imprisonment added, “That’s not what’s [going to] happen to you” unless “in the future,
you were to violate your probation.” The matter was referred without objection to the
probation office for preparation of “a presentence report and recommendation.” The trial
court stated that it would “let probation know that [the court] want[s] Mr. Fenn to get
treatment.” The prosecutor moved to dismiss the strike allegation but deferred dismissal
of the remaining charges to the sentencing hearing.
The next day, Fenn moved to withdraw his plea on grounds that “he [had] not
[been] able to fully process the intricacies of the plea deal” until “[t]hree minutes after the
plea.” But at the hearing on the motion, Fenn instead asked the trial court to grant him
deferred entry of judgment under section 11395, subdivision (d)(3), with dismissal upon
completion of the drug treatment program, “as opposed to … withdrawing his plea.” The
court countered, “If I grant him [treatment under subdivision (d)], then he’s [going to]
serve out the rest of his time in custody on mandatory supervision in the other case[s].”
Fenn did not accept the court’s counterproposal, and his counsel replied, “I guess we will
just wait for a probation report.” When the prosecutor asked whether Fenn wished to
“vacate[]” his motion to withdraw his plea, Fenn’s counsel deferred to Fenn, who then
asked to speak with counsel. After a recess for this purpose, Fenn’s counsel then told the
court, “Mr. Fenn would like to be sentenced today and serve the time in [a treatment]
program, as we talked about when he originally pled.” Counsel confirmed that Fenn was
no longer seeking to withdraw his plea, and Fenn himself did not object, dispute his
counsel’s representations, or ask for more time to consult with counsel.
The trial court suspended the imposition of sentence, granting Fenn formal
probation, and ordered him to serve 116 days in county jail, satisfied by time served, as a
condition of probation. The court found that Fenn had violated PRCS in case Nos.
20CR05633, 21CR02477, and 21CR05024, reinstated supervision with concurrent terms

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of 116 days in county jail, likewise satisfied by credit for time served. Asked by the
court if he had any questions, Fenn said, “No, Your Honor.”
After a brief pause following sentencing, however, Fenn’s counsel reported that
Fenn “wants to ask the [c]ourt to withdraw the sentencing and now wants to serve out his
mandatory supervision in full” and then participate in treatment under section 11395,
subdivision (d) to ultimately seek dismissal of the case. After the court denied the
request, counsel stated, “I think he’s going to ask for a Marsden, [f]or ineffective
assistance of counsel.” Fenn added: “Your Honor, it wasn’t clear to me when I spoke to
my attorney. … I thought that I was sentenced so I could go to the program, so I could
get the dismissal upon completion. I didn’t realize it was this or that. That wasn’t made
clear to me.” The trial court declined to conduct a Marsden hearing, stating: “It’s over,
Mr. Fenn.”
Fenn timely appealed. He obtained a certificate of probable cause to challenge the
validity of the plea on the basis that he “did not ha[v]e enough time to speak with his
attorney to truly understand the options he had.”
II. DISCUSSION

On appeal, Fenn does not challenge the validity of his felony plea or admission of
the predicate prior convictions but contends the trial court erred in denying his request for
deferred entry of judgment under section 11395, subdivision (d), absent a finding that he
was not amenable to treatment. Fenn also contends the court should not have summarily
denied his post-sentence request for a Marsden hearing. Neither contention has merit on
this record.
A. Section 11395, Subdivisions (b) and (d)

“In 2024, the voters passed Proposition 36, ‘The Homelessness, Drug Addiction,
and Theft Reduction Act,’ ” which (among other things) added section 11395. (Prop. 36,
as approved by voters, Gen. Elec. (Nov. 5, 2024); Reed v. Superior Court (2025)
117 Cal.App.5th 697, 702, 705–707 [summarizing key provisions of § 11395].)

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Section 11395 established a new class of offenses known as “[t]reatment-[m]andated”
felonies for individuals possessing a “hard drug” with “two or more prior convictions for
a felony or misdemeanor violation” of enumerated narcotics offenses. (§ 11395,
subds. (a)–(c); Reed, at p. 705)
“In lieu of a jail or prison sentence, or a grant of probation with jail as a condition
of probation, a defendant charged with a violation of … section [11395] may elect
treatment by pleading guilty or no contest to a violation of this section and admitting the
alleged prior convictions, waiving time … and agreeing to participate in, and complete, a
detailed treatment program developed by a drug addiction expert and approved by the
court.” (§ 11395, subd. (d)(1)(A).) Upon successful completion of the prescribed
treatment program, the court “shall dismiss this charge” against the defendant. (§ 11395,
subd. (d)(3).) A different provision of subdivision (d) specifies circumstances under
which treatment under the statute may be terminated. (§ 11395, subd. (d)(4).) And even
when entry of judgment is not deferred under subdivision (d)(1)(A), “[a] person shall not
be sentenced to jail or prison pursuant to this section unless a court determines that the
person is not eligible or suitable for treatment or that any other circumstance described in
paragraph (4) of subdivision (d) applies to that person.” (§ 11395, subd. (b)(2).)
Nothing in section 11395’s treatment provisions, however, restricts the trial
court’s authority to adjudicate a defendant’s other matters, including PRCS revocation
proceedings. Nor does section 11395’s requirement that a defendant plead guilty or no
contest and admit the prior convictions elemental to a section 11395 felony limit the
prosecution’s authority to prove enhancement allegations or strike priors.
Fenn suggests that subdivision (b)(2)’s presumption favoring treatment over a
“sentence[] to jail or prison” likewise prohibits a trial court from even granting probation
with a time-served custodial term unless the defendant is found to be ineligible or
unsuitable for treatment. Fenn’s interpretation, however, misunderstands what it means
to be “sentenced to jail or prison” (§ 11395, subd. (b)(2)), as distinct from receiving “a

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grant of probation with jail as a condition of probation” (Id., subd. (d)(1)(A)). Under the
former, “the defendant acquires the legal status of a person who has both been convicted
of a felony and sentenced to such imprisonment.” (People v. Brasley (1974)
41 Cal.App.3d 311, 315, italics omitted.) “[B]ut by granting probation and withholding
commitment the court retains jurisdiction over the defendant under the probation
procedures.” (Ibid.; see also Penal Code, § 1203.1, subd. (a) [“[t]he court … in the order
granting probation, may suspend the imposing … of the sentence”].)
“ ‘ “Ordinarily, where the Legislature [or electorate] uses a different word or
phrase in one part of a statute than it does in other sections … concerning a related
subject, it must be presumed that the Legislature [or electorate] intended a different
meaning.” ’ ” (People v. Smith (2024) 100 Cal.App.5th 741, 760; People v. Calhoun
(2019) 38 Cal.App.5th 275, 297 [explaining that courts “ ‘ “apply the same principles that
govern statutory construction” ’ ” when interpreting ballot initiatives].) And “ ‘ “when
the Legislature [or electorate] has carefully employed a term in one place and has
excluded it in another, it should not be implied where excluded.” ’ ” (Smith, at p. 760.)
Section 11395, subdivision (b) prohibits the trial court from “sentenc[ing] [a person] to
jail or prison pursuant to this section unless a court determines that the person is not
eligible or suitable for treatment,” but does not extend that same prohibition to persons
receiving a “grant of probation with jail as a condition of probation” under
subdivision (d)(1)(A). We take this omission to be deliberate, so we decline Fenn’s
invitation to engraft onto section 11395, subdivision (b) an implicit requirement that the
court make ineligibility or unsuitability findings before releasing a defendant on
probation. Because subdivision (b)(2) does not support any claim that the probation
conditions were improper, we look to whether the record shows that Fenn invoked his
right to elect deferred entry of judgment under section 11395, subdivision (d).

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B. Waiver of Deferred Entry of Judgment

Although section 11395, subdivision (b)(2)’s requirement that the trial court make
a determination of ineligibility or unsuitability does not apply to a defendant granted
probation with a time-served jail condition, Fenn did have the right to elect deferred entry
of judgment under section 11395, subdivision (d). But “defendants may waive [statutory]
provisions that are intended for their benefit,” provided that the waiver is “knowing and
intelligent.” (People v. Johnson (2002) 28 Cal.4th 1050, 1057, 1055; see id. at pp. 1055–
1057 [holding that defendants are entitled to waive custody credits under Pen. Code
§ 2900.5].) In determining whether Fenn waived his right to pursue dismissal of charges
through deferred entry of judgment under subdivision (d), we presume the trial court’s
judgment is correct, and “[a]ll intendments and presumptions are indulged to support it
on matters as to which the record is silent and error must be affirmatively shown.”
(People v. Malabag (1997) 51 Cal.App.4th 1419, 1422.)
Here, the record shows that in agreeing to plead no contest to a violation of
section 11395 for “probation and treatment,” Fenn waived his right to pursue deferred
entry of judgment under the statute, in exchange for the district attorney’s dismissal of
the strike prior, which reduced Fenn’s maximum sentencing exposure from six to three
years.
Fenn made this election for the first time at the change of plea hearing, and the
trial court found a “knowing, intelligent and voluntary waiver of rights”—a finding Fenn
does not challenge on appeal. But even assuming Fenn did not then understand the terms
of the parties’ settlement, he soon understood those terms well enough to reconsider them
and move to withdraw his plea. And despite initially moving to withdraw his plea, Fenn
reaffirmed his election at the motion hearing by withdrawing the motion and informing
the court that he “would like to be sentenced today and serve the time in program” as
contemplated when he agreed to plead no contest. True, this reaffirmation of the plea
agreement followed the trial court’s statement that “[i]f I grant him [deferred entry of

7
judgment under section 11395], then he’s [going to] serve out the rest of his time in
custody on mandatory supervision in the other case[s].” But under the unique
circumstances of this case, the exchange between the court and the defense does not
undermine the validity of Fenn’s waiver. Serving out the remainder of his custody in the
PRCS cases had been Fenn’s original settlement proposal, albeit in return for outright
dismissal of this case. So Fenn’s own early settlement posture shows that he did not
consider his maximum custodial exposure in the PRCS cases as the harm he sought to
avoid; instead, he hoped to minimize his sentencing exposure in his newest case.
Consistent with this objective, Fenn first waived his right to defer entry of judgment for
treatment under subdivision (d) at the change of plea hearing, before the trial court’s
suggestion that he serve the maximum time remaining on his PRCS cases, thereby
reducing his sentencing exposure in his latest case by the negotiated dismissal of the
strike allegation. On this record, we understand the trial court to have conveyed that
Fenn could exercise the statutory right to defer entry of judgment in the instant case to
preserve the possibility of eventual dismissal, or he could instead secure his release on
both his section 11395 case and his PRCS cases by proceeding as originally agreed, but
that he could not do both. As we have explained, nothing in the text of section 11395
prohibits a trial court from revoking a defendant’s PRCS supervision in unrelated
adjudicated cases.
Drawing all inferences in favor of the judgment, we conclude that Fenn effectively
waived his right to treatment-deferred entry of judgment under section 11395,
subdivision (d), in exchange for accepting a settlement offer that resulted in dismissal of
the strike allegation that would have increased his exposure if judgment were later
entered.
C. Right to Marsden Hearing

Fenn next argues the trial court erred in refusing to hold a Marsden hearing upon
his postjudgment request. Under Marsden, a criminal defendant is entitled to a hearing

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on a request to substitute counsel based on inadequate representation. (See Marsden,
supra, 2 Cal.3d at pp. 124–125.) To trigger a trial court’s duty to hold a Marsden
hearing, there must be “ ‘ “at least some clear indication by defendant that he wants a
substitute attorney.” ’ ” (People v. Valdez (2004) 32 Cal.4th 73, 97; People v. Sanchez
(2011) 53 Cal.4th 80, 90, fn. 3 [reaffirming rule and rejecting as “incorrect[]” the
proposition that a “Marsden motion can be triggered with something less than a clear
indication”].) But a Marsden hearing is a “forward-looking [inquiry] in the sense that
counsel would be substituted in order to provide effective assistance in the future.”
(People v. Smith (1993) 6 Cal.4th 684, 695; see also People v. Dennis (1986)
177 Cal.App.3d 863, 871, 870 [explaining that Marsden motions are of a “prospective
nature,” and the issue in a Marsden hearing is “whether the continued representation by
an appointed counsel would substantially impair or deny the right to effective counsel”].)
Here, the criminal proceeding had come to an end, if only moments earlier, and
what Fenn sought to litigate was not the efficacy of continued representation by his trial
counsel but a retrospective inquiry into the decisions Fenn had made (and remade) with
counsel’s assistance and whether Fenn should be held to the judgment that followed from
those decisions. Fenn contends that a Marsden hearing “would have been critical for
[Fenn] to be heard on [counsel’s ineffectiveness] so that he could make a record serving
the basis for plea withdrawal.”3 He supplies, however, neither authority nor reasoned
argument for why the vehicle for his retrospective challenge to the judgment would be a

3
Implicit in Fenn’s appellate argument is a concession that neither Fenn nor his
counsel had alleged facts that, if true, would state a claim of ineffective assistance of
counsel. Rather, counsel represented that Fenn “now want[ed]” something different than
he had wanted before, and Fenn represented in conclusory terms only that the limits on
his settlement options were not “made clear.” We understand that in camera exposition
of privileged communications is what a Marsden hearing would ordinarily permit. But in
the postjudgment posture at which Fenn requested the hearing, it was Fenn’s burden to
allege sufficient facts to support habeas relief and the appointment of counsel.

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postjudgment Marsden hearing and not a petition for writ of habeas corpus, where it
would be his burden to allege a prima facie case for relief (and for appointment of
postconviction counsel). (See, e.g., McIntosh v. Superior Court (2025) 110 Cal.App.5th
33, 42 [noting long-standing “rule that the right to counsel in … habeas corpus
proceedings is ‘triggered’ only when a ‘ “petition attacking the validity of a judgment
states a prima facie case leading to issuance of an [order to show cause]” ’ ”].) We are
aware of none.
Even assuming that the trial court erred by declining to conduct a Marsden hearing
on Fenn’s belated request, that error was harmless beyond a reasonable doubt. (See
Marsden, supra, 2 Cal.3d at p. 126 [assessing effect of error under the standard of
Chapman v. California (1967) 386 U.S. 18].) When Fenn made his Marsden request, his
case had been adjudicated, so counsel’s remaining duties were limited. Counsel was
obliged to help Fenn file a notice of appeal and seek a certificate of probable cause. (See
In re Benoit (1973) 10 Cal.3d 72, 87–88 [where defendant indicates a desire to appeal,
“ ‘trial attorney is under a duty either to file the notice of appeal, or to instruct the
defendant as to the proper procedure, or to see that the defendant has counsel to do these
things for him’ ”]; People v. Hodges (2009) 174 Cal.App.4th 1096, 1106 [trial counsel’s
“ ‘obligation to assist in filing the notice of appeal necessarily encompasses assistance
with the statement [of probable cause] required by [Penal Code] section 1237.5’ ”].) The
record here shows that counsel timely discharged both duties. So even if the trial court
had heard the Marsden request and then granted the appointment of substitute counsel,
there could be no more favorable result.
Any error the trial court committed in declining to hear Fenn’s Marsden request
was thus harmless beyond a reasonable doubt.
III. DISPOSITION

The judgment is affirmed.

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LIE, J.

WE CONCUR:

DANNER, Acting P. J.

CHUNG, J.

People v. Fenn
H053310


Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.