P. v. Morales
Filed 7/23/13 P. v. Morales CA6
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opinion has not been certified for publication or ordered published for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,
Plaintiff and
Respondent,
v.
ISRAEL
SEBASTIAN MORALES,
Defendant and
Appellant.
H038311
(Santa Clara
County
Super. Ct.
No. C1114025)
Defendant Israel Sebastian Morales pleaded no contest to
prior conviction for a serious felony.
(Pen. Code, § 212.5, subd. (c); Pen. Code, § 667, subd. (a).) Before sentencing, defendant moved to
withdraw his plea, and moved for substitution of counsel under
him to six years in state prison
under the terms of his plea agreement.
Defendant
contends the trial court erred in denying his motions because, at the
the court defendant was “playing games,†undermining defendant’s credibility
and causing a breakdown in the attorney-client relationship. He argues that the court should have granted
his motion to withdraw his plea or should have postponed the case for a further
hearing after appointing new counsel.
Respondent contends the trial court properly denied the defendant’s
decision below.
FACTS
Defendant
borrowed a teenager’s cell phone but used it longer than he was allowed. When the victim asked defendant to return the
phone, defendant acted in a threatening and menacing manner, and expressed his
intent to keep the phone until he was ready to return it. The victim then surrendered his phone out of
fear.
PROCEDURAL
BACKGROUND
Defendant
was charged by felony complaint with one count of robbery in the second
degree. The complaint further alleged
that appellant had a prior strike for a serious felony conviction and three
prison priors.
Defendant
entered into a plea agreement. He pleaded no contest to second degree
robbery and admitted the prior strike.
In exchange, defendant received a six-year sentence, he was ordered to
pay restitution, and the District Attorney dismissed the remaining
allegations.
Before
sentencing, defendant moved to withdraw his no contest plea and moved for
substitution of counsel under Marsden. The court held a Marsden hearing
and allowed defendant and his attorney to
speak in regard to the motion.
Defendant
alleged counsel failed to obtain discovery, failed to contact witnesses, failed to file a Romero
motion, failed to show letters of recommendation to the court, failed to
communicate with him, and coerced him into pleading no contest. In response, defense counsel offered tactical
explanations for her decisions. She also
recalled describing to defendant the weight of the evidence and his
options. And she stated that she felt
defendant was playing games because he was indecisive about pleading or
proceeding with the preliminary hearing.
After defendant and
counsel were heard, the court found no deficiency in representation and denied
both motions.
DISCUSSION
I.
Defendant
contends that the Marsden motion
should have been granted. He claims his
appointed counsel argued against his interest and undermined his credibility
when she stated defendant was “playing games.â€
Respondent
contends that the trial court properly denied defendant's Marsden motion. Respondent
argues that the context of the interaction between the appellant and defense
counsel, a Marsden hearing, was an
appropriate venue for defense counsel
to address defendant’s complaints.
II. Standard
of Review
motion for abuse of discretion. (People
v. Memro (1995) 11 Cal.4th 786, 857.)
“Denial ‘is not an abuse of discretion unless the defendant has shown
that a failure to replace the appointed attorney would “substantially impairâ€
the defendant’s right to assistance of counsel.
[Citations.]’ †(
1044, 1085.)
III. Defense
Counsel Provided Relevant Information to the Court During the Marsden Hearing
It is
well established that Marsden
hearings provide a forum for defendants to present complaints about the
effectiveness of their counsel and seek removal. (Marsden,
supra, 2 Cal.3d at p. 126.)
Defendants can confidentially voice their concerns because
camera. (People v. Dennis (1986) 177 Cal.App.3d 863, 871.) Marsden hearings also afford defense
counsel “the opportunity to address the defendant’s concerns with respect to
the defendant’s representation and to explain counsel’s performance.†(People
v. Horton (1995) 11 Cal.4th 1068, 1123.)
The parties ultimately aid the court in determining whether the
complaining party received adequate representation or whether defendant and
counsel “have become embroiled in such an irreconcilable conflict that
ineffective representation is likely to result.†(People v. Memro, supra, 11 Cal.4th at p. 857.)
In
to a plea agreement sought to withdraw his plea prior to sentencing, and
claimed his court-appointed attorney provided ineffective assistance. (Id.
at p. 687.) At
a Marsden hearing, defense counsel
responded to each of defendant’s complaints.
(Id. at p. 688.) In addition, defense
counsel admitted to arguing with the defendant on the day set for trial. (Ibid.) He admitted
to becoming “a little irritated†with the
defendant, and using foul language when he became “fed up with the
accusations.†(Ibid.) The Supreme Court of
California upheld the denial of the Marsden
motion and concluded that although some “heated words†were expressed,
substitution of counsel was not required.
(Id.
at p. 687.)
Defendant
argues that defense counsel’s allegation that he was “playing games†went
beyond addressing particular claims, damaging his credibility and establishing
a breakdown in the attorney-client relationship sufficient to grant a
times during the Marsden hearing that
defendant was “playing games.â€
Nevertheless, the statement’s effect on defendant’s credibility is not a
determining factor as to whether the court should grant a Marsden motion. Instead, the
court should remove counsel only if defendant is not adequately represented or
if an irreconcilable conflict between defendant and counsel is likely to result
in ineffective representation. (People
v. Memro, supra, 11 Cal.4th at p. 857.)
Here, counsel investigated her client’s case and presented defendant
with his options. She was also prepared
to either accept the plea offer or move forward with the preliminary
hearing. The statements made by
substance of the ability of [defense counsel] to properly represent†the
defendant, and therefore the trial court properly denied the
v. Smith, supra, 6 Cal.4th at p.
689.)
IV. Forfeiture
of Arguments Not Raised on Appeal
At the Marsden
hearing, defendant argued that his attorney failed to adequately represent him
for several reasons, such as failing to obtain certain discovery. But as appellant, it was incumbent on
defendant to discuss all of his contentions in his opening brief, which he
failed to do.
title="">[2]
An appellant who fails “to
advance any pertinent or intelligible legal argument†abandons the claim. (Berger
v. Godden (1985) 163 Cal.App.3d 1113, 1117.) Thus, our review is limited to those claims
raised by defendant in his opening brief, accompanied by meaningful legal
analysis, and supported by citations to authority and facts. (In re
S.C. (2006) 138 Cal.App.4th 396, 408.)
Accordingly, we disregard those contentions made by defendant during the
Marsden hearing that were not
appropriately raised and argued in his opening
brief.
DISPOSITION
The
judgment is affirmed.
.
_________________________
MÃRQUEZ,
J.
WE CONCUR:
_________________________
RUSHING,
P.J.
_________________________
GROVER, J.
Our summary of the facts is based on defense counsel’s statements at the
name="_ftn2" title="">[2]
Defendant also chose not to file a reply brief.
