Filed 12/21/15 P. v. Spencer CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069368
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF151653A)
                   v.

JOVAUN MONAY SPENCER,                                                                    OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Colette M.
Humphrey, Judge.
         Rachel Varnell, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff
and Respondent.
                                                        -ooOoo-




*        Before Kane, Acting P.J., Poochigian, J. and Smith, J.
                                    INTRODUCTION
       On April 4, 2014, defendant pled no contest to one count of unlawful possession
of a firearm by a convicted felon and, pursuant to his plea agreement, was subsequently
sentenced to a term of eight years in prison. Following the entry of his plea, defendant
made a Marsden1 motion seeking the substitution of his appointed counsel. After a
hearing on the matter, the superior court denied defendant’s motion. On appeal,
defendant argues the superior court failed to sufficiently inquire into the specifics of
defendant’s complaints concerning his trial counsel. We affirm.
                                           FACTS
       On December 4, 2103, an information was filed charging defendant with unlawful
possession of a firearm (Pen. Code,2 § 29800, subd. (a)(1); count 1), carrying a loaded
firearm in public (§ 25850, subd. (c)(3); count 2), carrying a concealed firearm (§ 25400,
subd. (c)(3); count (3), participating in a criminal street gang (§ 186.22(a); count 4), and
resisting a police officer (§ 148, subd. (a)(1); count 5). The information also alleged that
defendant committed the firearm charges in furtherance of criminal street gang, and that
defendant had a prior strike conviction, a prior serious felony conviction, and two prior
prison terms. On April 4, 2014, defendant pled no contest to the unlawful possession
charge—as well as the gang and prior strike allegations—in exchange for an eight-year
prison sentence and the dismissal of the remaining charges and allegations
       Prior to sentencing, defendant filed a Marsden motion seeking the substitution of
his appointed counsel. At a hearing on defendant’s motion, defendant informed the trial
court that his counsel “didn’t help [him] at all,” and failed to file motions on his behalf.
Specifically, defendant alleged he had gone to the law library and researched a motion to
dismiss his charge for participation in a criminal street gang, but defense counsel had


1      People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
2      All further statutory references are to the Penal Code, unless otherwise indicated.


                                              2.
filed no such motion. Defendant also alleged that his counsel had failed to negotiate a
more favorable plea deal, and had merely presented defendant with the People’s offer. In
response, defense counsel stated he had reviewed defendant’s case and determined there
were no meritorious motions to be filed.
       After defendant and defense counsel were given the opportunity to speak, the trial
court asked if defendant had further complaints about his counsel, and defendant stated
he did not. The trial court then denied defendant’s motion, finding that, under People v.
Valdez (2004) 32 Cal.4th 73, counsel’s failure to file specific motions and conduct the
defense in the way defendant would have liked were insufficient grounds to grant a
Marsden motion. This appeal followed.
                                      DISCUSSION
       Defendant argues the superior court erred by denying his Marsden motion, as the
court failed to sufficiently inquire into the specifics of defendant’s complaints concerning
his trial counsel. We disagree.
       Under Marsden, a trial court may not deny an indigent defendant’s request for a
new attorney without first providing the defendant the opportunity to present argument or
evidence in support of the request. (Marsden, supra, 2 Cal.3d at p. 123.) “[A] Marsden
hearing is not a full-blown adversarial proceeding, but an informal hearing in which the
court ascertains the nature of the defendant’s allegations regarding the defects in
counsel’s representation and decides whether the allegations have sufficient substance to
warrant counsel’s replacement.” (People v. Hines (1997) 15 Cal.4th 997, 1025.)
Replacement of counsel is a matter of judicial discretion, and denial of a Marsden motion
is not an abuse of discretion unless the defendant has shown that a failure to replace the
appointed attorney would substantially impair the defendant’s right to assistance of
counsel. (People v. Hart (1999) 20 Cal.4th 546, 603.)
       Here, the trial court provided defendant ample opportunity to relate specific
instances of his attorney’s alleged inadequate performance, asked follow-up questions to

                                             3.
clarify the nature of defendant’s complaints, and even verified that defendant had no
further complaints before rendering its decision. Given those facts, it must be concluded
that the trial court sufficiently inquired into defendant’s allegations of ineffective
assistance prior to denying his Marsden motion.
       Nevertheless, defendant claims the trial court erred by concluding that complaints
concerning unfiled motions were legally insufficient to warrant the replacement of
counsel. According to defendant, the trial court’s decision represented a general rejection
of unfiled motions as grounds for granting a Marsden motion, and prevented the trial
court from considering the specific merits of defendant’s complaints.
       This claim, however, oversimplifies the trial court’s ruling. The trial court did not
conclude that counsel’s failure to file motions never merits the granting of a Marsden
motion, but rather that counsel’s failure to file specific motions defendant would have
liked was not a sufficient basis to grant such a motion. We find this to be an accurate
statement of the law. “When a defendant chooses to be represented by professional
counsel, that counsel is ‘captain of the ship’ and can make all but a few fundamental
decisions for the defendant.” (People v. Carpenter (1997) 15 Cal.4th 312, 376.) While
failure to file dispositive motions could certainly form the basis for a successful Marsden
motion, “defense counsel’s decision not to file a motion he believes will be futile does
not ‘“‘substantially impair’ ... defendant’s right to effective assistance of counsel.”’
[Citations.]” (People v. Guitierrez (2009) 45 Cal.4th 789, 804.)
       Here, defendant described a motion he felt should have been filed by defense
counsel and, upon questioning, defense counsel stated that defendant’s file presented no
opportunities for a meritorious motion of any kind. “To the extent there was a credibility
question between defendant and counsel at the hearing, the court was ‘entitled to accept
counsel’s explanation.’” (People v. Smith (1993) 6 Cal.4th 684, 696.) Accordingly, we
conclude the trial court did not abuse its discretion by denying defendant’s Marsden
motion.

                                              4.
                            DISPOSITION
The judgment is affirmed.




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