Filed 5/22/14 P. v. Tarango 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E059031

v.                                                                       (Super.Ct.No. FSB1102585)

MANUEL TARANGO,                                                          OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. William Jefferson

Powell IV, Judge. Dismissed.

         John F. Schuck, 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, Eric A. Swenson, Kristine

Gutierrez and Elizabeth M. Carino, Deputy Attorneys General, for Plaintiff and

Respondent.



                                                             1
       Defendant and appellant Manuel Tarango has filed a notice of appeal from a

judgment convicting him of carjacking (Penal Code section 215, subd. (a))1 and assault

with a firearm. (§ 245, subd. (a)(2).) The conviction came by way of a plea, and

defendant also admitted a firearm allegation enhancement with respect to the carjacking

charge. He received a total term of 19 years in prison. He now wishes to challenge the

denial of two motions for new counsel. (People v. Marsden (1970) 2 Cal.3d 118.)

Although in our view his contentions might be readily disposed of on the merits, we will

enforce defendant’s express waiver of the right to appeal, and dismiss the appeal.

                                 STATEMENT OF FACTS

       Following the preliminary hearing, defendant was charged with 11 felonies:

forcible rape (§ 261, subd. (a)(2)); carjacking with firearm use (§ 215, subd. (a));

aggravated kidnapping (§ 209, subd. (b)(1)); forcible oral copulation (§ 288a,

subd. (c)(2)); assault with a firearm (§ 245, subd. (a)(2)); corporal injury to

spouse/cohabitant/child’s parent (§ 273.5, subd. (a)); discharging a firearm with gross

negligence (§ 246.3, subd. (a)); shooting at an inhabited dwelling (§ 246); shooting from

a motor vehicle (former § 12034, subd. (d)); criminal threats (§ 422); and simple

kidnapping (§ 207, subd. (a)). Myriad enhancements relating to firearm use and great

bodily injury were attached to the charges. One of the charges (aggravated kidnapping)

and two enhancements alleged under former section 12022.53, subdivision (d), exposed

defendant to life terms—in the case of the enhancements, terms of 25 years to life.

       1   All subsequent statutory references are to the Penal Code.


                                              2
       With respect to most of the charges, the victim was Jane Doe, defendant’s former

girlfriend and the mother of his child. According to the deputy who testified at the

preliminary hearing, who had taken her to the hospital to be treated for her injuries,2

Jane Doe reported that she was sitting in a vehicle waiting for a (male) friend when

defendant approached with a handgun. Defendant ordered the victim’s (female)

companion out of the car, and then ordered the victim to move to the passenger side,

pointing the gun at her. Defendant then entered the car and drove off, accusing the victim

of cheating on him and repeatedly striking her with the pistol, while also threatening to

kill her. The victim told the deputy that after some time defendant parked the car in a

secluded area and ordered her to strip. He then forced her to perform oral copulation on

him and raped her. Shortly thereafter the vehicle was stopped by police. A nine-

millimeter Beretta handgun was found in the car with blood on the barrel.

       The first part of the incident was corroborated by Jane Doe’s female companion,

who spoke with police at the time. This witness also testified that as defendant drove the

vehicle past her, she could hear him threatening to kill Jane Doe and also saw him fire

shots at a residence.

       Defendant told the officers that he had “beat his girl and [] she deserved it.”

Defendant also described firing his gun into the air and striking the victim with the gun;

he also admitted keeping the victim in the vehicle against her will. However, he claimed


       2 The victim had a broken nose, a black eye and a concussion, and was covered
with dried blood.


                                              3
the victim had seduced him into sex. He also indicated that he intended to shoot the

victim at some point, but the gun jammed.3

       Finally, there was testimony to the effect that one of the shots fired by defendant

struck a bystander in the leg.

       The preliminary hearing was held on December 8, 2011. On January 9, 2012,

defendant made a Marsden motion which was heard in camera. Defendant told the court

that he felt that counsel had “already given up” and was “telling me basically do 19

years.” He asserted that the victim had recanted some of the charges (apparently relating

to the sex offenses). He also complained that counsel had not visited him in jail; counsel

admitted this and referred to the “holidays.”

       In response, trial counsel began by reciting his experience, which included about

15 years in practice and 50 to 60 jury trials with “lots and lots” of felonies. Trial counsel

then gave his version of their interaction, which focused on defendant’s reluctance to

accept that he faced a very significant amount of prison time. The trial court denied the

motion.

       On July 13, defendant again sought new counsel. He then complained that

counsel could only offer him a 12-year deal even though Jane Doe had by then indicated

that she had initiated the sexual conduct. The trial court explained to defendant that such

recantations were common and the prosecutor was rarely dissuaded from prosecuting the

charges. Defendant also expressed the inaccurate belief that a substantial portion of the

       3   The officer who retrieved the gun confirmed that it was jammed.


                                                4
case had already been dismissed. Again after hearing from trial counsel—who correctly

noted that there was “overwhelming evidence”4 and stated that defendant unrealistically

expected to resolve the case for five years or less—the trial court denied the request.

       Two months later, on September 14, 2012, defendant entered a plea of guilty to

the charges and enhancement noted at the beginning of this opinion. Trial counsel

informed the court that he had advised defendant against the plea but that he had fully

advised defendant concerning the rights he would be giving up. Defendant confirmed

that he had had ample time to review his rights, the evidence against him, and possible

defenses, and that he understood counsel’s advice. He also represented that he had not

been forced or threatened in any way, that he was not under the influence of drugs or

medication, and that he had no questions for the trial court. The trial court accepted the

plea, which it found to be voluntary and intelligent.

       As part of the written plea form, defendant expressly agreed to waive “any right to

appeal from any motion I may have brought . . . and from the conviction and judgment in

my case since I am getting the benefit of my plea bargain.”

       Nevertheless, this appeal followed.




       4  Trial counsel told the court that the victim had indeed stated to his investigator
that she had initiated the oral copulation, but had done so in order that defendant would
not shoot her.


                                              5
                                           DISCUSSION

       The People contend that, where the defendant does not contend that the actual plea

was invalid, any Marsden error is waived by a guilty plea. (People v. Lovings (2004) 118

Cal.App.4th 1305, 1311-1312 (Lovings), citing People v. Lobaugh (1987) 188

Cal.App.3d 780, 786 (Lobaugh).)5 In Lovings the court dismissed any attempt to claim

that the plea was the result of the defendant’s dissatisfaction with counsel by noting that

no animosity was visible at the time of the plea and that counsel opposed the plea,

indicating that he believed the chances of a better result at trial were substantial.

(Lovings, supra, at p. 1309.) Here too, trial counsel not only did not urge defendant to

enter the plea, he specifically advised him not to do so. Defendant expressly informed

the court that he understood counsel’s advice, and counsel, at least, agreed that the plea

was voluntary and intelligent, which he surely would not have done if defendant had

expressed any disappointment or resentment to him.

       However, in his reply brief, defendant cites federal authority to the effect that

denial of the right to counsel of choice is “structural error” and not implicitly waived by a

guilty plea. (See, e.g., United States v. Smith (7th Cir. 2010) 618 F.3d 657, 665-667

(Smith), citing United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 150-152.)




       5 In Lovings, the defendant was told by the court that his plea meant that he was
“waiving all your appellate rights concerning this voluntary plea.” (Lovings, supra, 118
Cal.App.4th at p. 1309.) However, the court’s reliance upon Lobaugh, clearly an
“implied waiver/forfeiture” case, indicates that it did not rely on this somewhat express
waiver.


                                               6
       We do not agree that these authorities mean that Lovings and Lobaugh were

wrongly decided, as the question of a defendant’s right to retained counsel of choice is

distinct from that of his far more limited right to seek the removal of competent counsel.

However, we need not rely upon the theory of implied waiver, because in this case

defendant expressly waived his right to appeal.

       Even federal courts accept that a defendant may affirmatively waive his right to

appeal issues relating to counsel, and in Smith, supra, 618 F.3d 657, the result depended

on the appellate court’s finding that the express waiver was not shown to have been

adequately informed. (See, e.g., United States v. Copeland (4th Cir. 2013) 707 F.3d 522,

528; United States v. Cook (2d Cir. 2013) 722 F.3d 477, 482.)

       This court has also held that a waiver of appellate rights should be enforced when

part of a guilty plea that is voluntarily and intelligently made. (People v. Vargas (1993)

13 Cal.App.4th 1653, 1658-1660.) As we pointed out, plea agreements benefit the justice

system by providing speed, economy, and—in theory—finality of judgments. (Id. at

p. 1658, citing United States v. Rutan (8th Cir. 1992) 956 F.2d 827, 829.) These benefits

are largely illusory when the defendant retains the right to challenge his conviction on

appeal.

       As set out above, defendant executed a change of plea form, which included an

express waiver of any right to appeal “any motion I may have brought.” We also note

that defendant does not directly assert that his plea, when entered, was not




                                             7
constitutionally valid or infected by his previous dissatisfaction with counsel.6 He only

argues that the denial of his Marsden motion was error.

       It is true that if defendant had directly raised the involuntariness of his plea as an

issue, he might present an appealable issue because it would be a challenge to the

“legality of the proceedings” as described in section 1237.5, subdivision (a). (See

Lobaugh, supra, 188 Cal.App.3d 780, 786; (dis. opn. of Callahan, J.) People v. Robinson

(1997) 56 Cal.App.4th 363, 376 at fn. 1.) But that is not how the appeal is written, and

indeed the record in no way supports the conclusion that by the time of the plea,

defendant was acting out of desperation. We also note that unlike Smith, supra, 618 F.3d

657, no question is raised as to the adequacy or voluntariness of the written waiver. The

case is therefore presented to us as one in which defendant voluntarily executed a full

waiver of his appellate rights and nevertheless seeks to appeal the denial of a “motion”

clearly covered by the waiver.

       We will accordingly enforce the waiver on its terms.7

       6  In his request for a certificate of probable cause—which the trial court
executed—defendant claimed that he felt “compelled” to plead guilty because he
believed that trial counsel would not adequately protect his interests. However, this
request was not filed until some nine months after the plea, and was prepared by appellate
counsel. It does nothing to establish defendant’s state of mind at the time of the plea.
       It is well-established that the fact that a court executes a certificate of probable
cause for a nonappealable issue does not make the issue cognizable on appeal. (People v.
Hoffard (1995) 10 Cal.4th 1170, 1178.)

       7  Having so concluded, in the interests of foreclosing further proceedings, we will
briefly (and reluctantly) address the merits. It is perfectly apparent that defendant’s
dissatisfaction with counsel was based on misapprehensions of fact (with respect to the
supposed dismissal of charges), a misunderstanding (with respect to the legal and
                                                                   [footnote continued on next page]


                                              8
                                          DISPOSITION

        The appeal is dismissed.

        NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                HOLLENHORST
                                                                          Acting P. J.
We concur:



KING
                                J.



MILLER
                                J.




[footnote continued from previous page]
practical effect of any recantation by the victim), and an inability to face the fact that he
was legitimately exposed to multiple life terms plus a massive determinate term. A trial
court only abuses its discretion in denying a Marsden motion if it is apparent that the
denial will interfere with the defendant’s right to effective assistance. (People v. Abilez
(2007) 41 Cal.4th 472, 488.) We do not at all agree with defendant’s assertion that it may
be “readily inferred” that the attorney-client relationship had irretrievably broken down.
Defendant’s reasons for desiring new counsel said nothing about counsel’s competence.
His lack of trust alone did not require new counsel (People v. Abilez, supra at p. 489),
and there was no showing at all that defendant either could not or would not cooperate
with counsel. (Cf. United States v. Moore (9th Cir. 1998) 159 F.3d 1154, 1159-1160 [a
case cited by defendant involving a relationship replete with accusations, threats, and
strained communication].) There was clearly no abuse of discretion.



                                             9
