Filed 8/27/13 P. v. Barker CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----


THE PEOPLE,

                   Plaintiff and Respondent,                                                 C069907

         v.                                                                     (Super. Ct. No. SF116142E)

JONATHAN WILLIAM BARKER,

                   Defendant and Appellant.

         A jury found defendant Jonathan William Barker guilty of two misdemeanors,
acting without a real estate license (Bus. & Prof. Code, § 10130) and failure to provide
borrowers a required loan modification notice (Civ. Code, § 2944.6, subd. (a)). In
addition, the jury found him guilty of a felony, grand theft of property in excess of $400
(Pen. Code, § 487, subd. (a)),1 and not guilty of another felony, conspiracy (§ 182, subd.
(a)(1)). Defendant admitted allegations that he had a prior strike conviction (§§ 667,
subds. (b)-(i), 1170.12) and committed a felony while released on bail or his own
recognizance (§ 12022.1).




1        Undesignated statutory references are to the Penal Code.

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       Defendant was sentenced to prison for eight years. Concurrent jail terms were
imposed for the misdemeanors. Defendant was awarded 187 days’ custody credit and 37
days’ conduct credit.
       On appeal, defendant contends (1) his request to discharge his retained counsel
was erroneously denied, (2) his felony grand theft conviction must be reduced to
misdemeanor petty theft, and (3) principles of equal protection entitle him to additional
conduct credit. Although defendant has forfeited any claim of error with respect to the
trial court’s ruling on reconsideration denying his request to discharge retained counsel,
we conclude there was no error. The trial court acted within its discretion to deny
defendant’s untimely request. We agree with defendant that his felony grand theft
conviction must be reduced to a misdemeanor petty theft because the threshold amount
for grand theft had been increased to $950 and this increased amount applied to cases not
yet final on appeal. As to defendant’s conduct credits, we reject defendant’s argument
based on an opinion issued by the California Supreme Court. We also note the trial court
made a mistake by applying the three strikes law’s limitation on postcommitment credits
to defendant’s presentence conduct credits. As a result, we modify the judgment to
reduce the felony grand theft conviction to a misdemeanor petty theft and dismiss the
enhancement for committing a felony while released from custody. We remand the
matter to the trial court to resentence defendant based on his conviction of three
misdemeanors and recalculate his presentence conduct credits.
                                          FACTS
       The facts of defendant’s offenses are not at issue in this appeal and may be briefly
stated. Victim Keith Sellons owned a home in Long Beach; victims Daniel Forsythe and
Linda Forsythe owned a home in Stockton; and victim Byron Hays owned a home in
Spokane, Washington. All three victims had trouble making mortgage payments and
sought modifications of their home loans. Defendant told each victim that his employer,
Home Care Mortgage Solutions, could obtain the desired loan modification. Each victim

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paid money to obtain the modification, but no modifications were obtained. As relevant
to the felony grand theft conviction, the Forsythes paid $750 to obtain a loan
modification that defendant never obtained.
                                      DISCUSSION
                                              I
                             Discharge of Retained Counsel
       Defendant contends the trial court violated his Sixth Amendment right to counsel
of his choice when it denied his request to discharge his retained counsel. We are
not persuaded.
                                       Background
       On August 18, 2011, approximately a week prior to defendant’s scheduled jury
trial, defendant appeared before the trial court for a Marsden hearing.2 Defendant
informed the court he was dissatisfied with his attorney because they had not seen each
other in approximately a month, she would not file the motions he requested, and she
would not seek to continue the case. For example, defendant claimed his attorney would
not file a suppression motion, a motion to dismiss, or a motion alleging vindictive
prosecution. Defendant indicated he and his counsel disagreed about trial strategy, and
he felt “rushed into this [proceeding].” He claimed she argued with him about his
requests to file motions and wanted him to pay more money to represent him. Defendant
reiterated he felt rushed to take a plea deal or proceed to trial. He added he did not know
he would have a Marsden hearing because he “thought if you hired your own attorney
you could fire your own attorney because she’s a private attorney and she was paid. [He]
didn’t know you had to have a Marsden hearing.”




2      People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

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       The trial court replied that defendant could fire his own attorney if he had cause.
The court noted the docket entry from July 1, 2011, indicated time had not been waived
and inquired whether the entry reflected the wishes of the prosecution or the defense.
Defense counsel replied that both sides had declined to waive time. The reply appears to
have been incorrect: the minute entry for July 1, 2011, indicates defense counsel, but not
defendant or the prosecution, had declined to waive time. Defendant stated he knew
nothing about time not being waived and said he was trying to get time waived.
       The trial court remarked that time had been waived until July. Defendant
reiterated he was trying to get time waived “for a little period of time so [he] can try and
get something done on [his] behalf” because his counsel refused to honor his requests to
file motions.
       Defendant’s counsel replied that, while she had considered making a suppression
motion earlier in the case, she made a tactical decision to forego the motion when she
received additional discovery from the prosecutor. She indicated she would not file
meritless or frivolous motions on defendant’s behalf.
       Defendant responded he and his counsel had agreed on the motions to be filed, but
she never filed them. Because of the disagreement over trial strategy, defendant wanted
more time to find another lawyer. Defendant reiterated he knew nothing about revoking
his time waiver at the beginning of July.
       The trial court denied defendant’s request to discharge his counsel, explaining,
“[a]t this time, in light of the time-not-waived status on both sides, I’m going to deny
your motion on the fact that, number one, I don’t think there’s grounds [sic] and I don’t
think it’s timely.”
       Defendant inquired whether he was allowed additional time to find another
attorney. The court replied, “[i]t’s changed slightly on time-not-waived status. However,
you are able to hire a different lawyer, but you may find yourself in the situation where
the court would only allow the substitution of the lawyer provided that person is ready to

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proceed on the trial date, which is next Friday.” Defendant then requested appointment
of the public defender, which the court denied.
       Three days prior to the scheduled start of defendant’s jury trial, the prosecution
filed a motion asking the trial court to reconsider its earlier ruling using the legal standard
applicable to motions to discharge retained counsel. The motion argued that, even under
the correct standard, defendant should not be allowed a continuance to retain new
counsel. The motion argued: “This case . . . may be just a last minute attempt by
[defendant] to discharge counsel and delay the start of the trial. [Defendant] did not raise
the issue of terminating his defense counsel until it became clear that the case was not
going to settle and [defendant] was not satisfied with the settlement offer made to him by
the Strike Committee. [¶] Moreover, the People have three victims, one from Stockton,
one from Riverside, California, and another . . . from Spokane, Washington. Other
witnesses are under subpoena and prepared to testify. It would be a disruption to the
People and its [sic] witnesses to delay this case.”
       Six days later, on August 29, 2011, all parties appeared before the trial court for
reconsideration of the motion. The court confirmed it previously had conducted a
Marsden hearing based on its mistaken belief defense counsel had been appointed to
represent defendant. The court then explained, “Well, one of the rulings I made on
[August] the 18th was that I didn’t think that the motion, whether Marsden or otherwise,
had been filed timely because the matter was in the status of being time not waived.”
Defense counsel and the prosecutor both confirmed that, as of that date, time had not
been waived. The trial court then ruled: “If it remains time not waived I’m going to find
a motion to change counsel is not timely.”
                                          Analysis
       Defendant’s claim of error in his opening brief is confined to the August 18, 2011,
Marsden hearing. The brief makes no mention of the August 29, 2011, reconsideration
ruling under the proper legal standard for retained counsel. The Attorney General

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addressed the reconsideration in her brief. Defendant, who has not filed a reply brief,
makes no claim of error with respect to the reconsideration. Under these circumstances,
defendant has forfeited any claim of error with respect to the reconsideration ruling. (Cf.
People v. Battle (2011) 198 Cal.App.4th 50, 62; People v. Dougherty (1982)
138 Cal.App.3d 278, 282.)
       In any event, there was no error. A criminal defendant has a right to retain counsel
of choice, which includes the right to discharge an attorney whom he or she hired but no
longer wishes to retain. (People v. Ortiz (1990) 51 Cal.3d 975, 983 (Ortiz).) While a
defendant may discharge appointed counsel only if that lawyer is rendering inadequate
representation or there exists an irreconcilable conflict between counsel and client (Ortiz,
at p. 984; Marsden, supra, 2 Cal.3d at p. 123), a defendant may discharge retained
counsel with or without cause (Ortiz, at p. 983).
       However, as the court recognized in Ortiz, a defendant’s right to retained counsel
of his choice is not absolute, and the trial court has discretion to deny a motion to
substitute counsel if it is not timely. (Ortiz, supra, 51 Cal.3d at pp. 982-983.) “A
criminal defendant’s right to decide how to defend himself [or herself] should be
respected unless it will result in ‘significant prejudice’ to the defendant or in a ‘disruption
of the orderly processes of justice unreasonable under the circumstances of the particular
case.’ [Citation.] In other words, we demand of trial courts a ‘resourceful diligence
directed toward the protection of [the right to counsel] to the fullest extent consistent with
effective judicial administration.’ [Citation.]” (Ibid.)
       Thus, the trial court “must balance the defendant's interest in new counsel against
the disruption, if any, flowing from the substitution.” (People v. Lara (2001)
86 Cal.App.4th 139, 153.) The disruption must be “unreasonable under the
circumstances of the particular case.” (People v. Crovedi (1966) 65 Cal.2d 199, 208.)
       In this case, the trial court’s initial ruling on August 18, 2011, was based on a
mistaken understanding that defense counsel had been appointed rather than retained.

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However, upon reconsideration, the trial court corrected its mistake and applied the
correct legal standard. We conclude the trial court reasonably concluded defendant’s
request to discharge his counsel was untimely. At the August 29, 2011, hearing, defense
counsel and the prosecutor both confirmed that, at that point, time no longer was waived.
Thus, the statutory deadline for trial to commence was August 30, 2011. Given the late
date of defendant’s request and the upcoming trial date, it was more than reasonable for
the trial court to deny defendant’s request based on untimeliness.
       First, defendant did not raise the issue of discharging defense counsel until one
week before his jury trial was scheduled to start.
       Second, defendant did not offer any information about how soon he could retain
new counsel. Although he claimed he needed only “a little period of time,” defendant
gave no indication of the steps he had taken to retain new counsel or the time it would
take him to do so. The court could conclude any delay would be substantial based on
defendant’s claim he was “isolated in DVI” where “[t]here’s [sic] no phones.” At the
close of the August 18, 2011, hearing, defendant asked the trial court to appoint the
public defender to represent him “[i]f [he] can’t afford another attorney,” thus implying
he had not contacted other attorneys and did not know whether he could afford their
services.
       Finally, the trial court could conclude it would be disruptive to continue the case.
The case involved three victims -- one from Stockton, one from Riverside, and one from
Washington. The prosecution had the three victims and other witnesses under subpoena
and ready to testify at trial.
       For all these reasons, the trial court did not abuse its discretion when it
reconsidered defendant’s request to discharge defense counsel and found the request
untimely. There was no error.




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                                              II
                               Reduction of Theft Conviction
         Defendant contends, and the People concede, his felony grand theft conviction
must be reduced to misdemeanor petty theft. We agree.
         The grand jury indictment alleged in relevant part that, on or about March 9, 2010,
defendant and his codefendants “did willfully and unlawfully take money or personal
property of victims, DANIEL FORSYTHE and LINDA C. FORSYTHE in the amount
of $750.”
         At that time, section 487, subdivision (a), provided that grand theft is committed
“[w]hen the money, labor, or real or personal property taken is of a value exceeding four
hundred dollars ($400).” (Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 17, eff. Jan. 25,
2010.)
         While this case was pending, the Legislature amended section 487, subdivision
(a), to increase the threshold for committing grand theft to $950. (Stats. 2010, ch. 693,
§ 1.) At the jury instructions conference, defense counsel objected that the dollar amount
had been amended. The trial court acknowledged the amendment but elected to use the
lower amount in effect at the time of the offense.
         The First District Court of Appeal concluded the Legislature intended that the
amendment to section 487 be applied retroactively to cases not yet final on appeal.
(People v. Wade (2012) 204 Cal.App.4th 1142, 1150-1152 (Wade).) Wade reasoned:
“An August 3, 2010, Senate Rules Committee analysis provided the following argument
in support of the amendment to section 487: ‘According to the author’s office . . .
“existing law sets the minimum threshold for grand theft at $400. This amount has not
been indexed for inflation and has not been adjusted since 1982. Last year, we adjusted
the threshold for 39 property crimes but did not adjust grand theft. . . . [¶] . . . AB 2372
adjusts the threshold amount for the first time in a generation, taking into consideration
these inflationary factors, and sets the amount at $950. . . . In 2009, the Department of

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Corrections estimated savings of $68.4 million dollars for the 2010/11 Budget if all
property crimes were adjusted for inflation. Leaving the grand theft threshold unchanged
undermines these savings. The Department estimates there will be 2,152 fewer
defendants sent to state prison for these property crimes by December 2011 if AB [2372]
is enacted into law.”’ [Citation.] . . . [T]he 2010 amendment to section 487 mitigated
punishment by raising the value of the stolen property required to establish the crime of
grand theft, and the Legislature was motivated by a desire to save money by avoiding
sentencing certain defendants to prison. In the absence of an express statement to the
contrary, we conclude the Legislature intended that the amendment to section 487 be
applied retroactively.” (Id. at pp. 1151-1152.)
       We agree with the reasoning in Wade, supra, 204 Cal.App.4th 1142. Because
defendant’s conviction was not yet final when the amendment to section 487, subdivision
(a), became effective, and the Legislature’s rationale for raising the threshold for grand
theft was to reflect inflationary factors and achieve budgetary savings, the trial court
erred by failing to instruct the jury the threshold amount for the crime of grand theft
was $950.
       The error was prejudicial. The indictment alleged, and the evidence showed, the
Forsythes gave defendant a check for $750. There was no other evidence to support a
grand theft conviction. (Cf. Wade, supra, 204 Cal.App.4th at p. 1153, fn. 5 [allowing
retrial where sufficient evidence was presented].)
       Accordingly, we modify defendant’s grand theft conviction to misdemeanor petty
theft. Because this was defendant’s only felony, the enhancement for committing a
felony while released from custody (§ 12022.1) must be dismissed.
                                             III
                                      Conduct Credit
       Defendant contends prospective application of section 4019, the conduct credit
provision of the Realignment Act, violates equal protection principles. The California

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Supreme Court rejected this contention in People v. Lara (2012) 54 Cal.4th 896, 906,
footnote 9 (Lara).3
       In Lara, the Supreme Court explained its rejection of the defendant’s equal
protection argument as follows: “As we there [People v. Brown (2012) 54 Cal.4th 314,
328-330 (Brown)] explained, ‘“[t]he obvious purpose”’ of a law increasing conduct
credits ‘“is to affect the behavior of inmates by providing them with incentives to engage
in productive work and maintain good conduct while they are in prison.” [Citation.]
“[T]his incentive purpose has no meaning if an inmate is unaware of it. The very concept
demands prospective application.”’ (Brown, at p. 329, quoting In re Strick (1983)
148 Cal.App.3d 906, 913.) Accordingly, prisoners who serve their pretrial detention
before such a law’s effective date, and those who serve their detention thereafter, are not
similarly situated with respect to the law’s purpose. (Brown, at pp. 328-329.)” (Lara,
supra, 54 Cal.4th at p. 906, fn. 9.)
       Defendant is not entitled to additional presentence conduct credit.
       We note that, at sentencing, the trial court limited defendant’s presentence conduct
credit to 80 percent “because of the strike.” However, the three strikes law’s 20 percent
limit on the accrual of credit (§ 667, subd. (c)(5)) applies to postcommitment (in-prison)
credit, not precommitment conduct credit. (People v. Caceres (1997) 52 Cal.App.4th
106, 110.)
       On remand, the trial court shall resentence defendant based on his conviction of
three misdemeanor offenses.




3       The People contend that, in light of our modification of the judgment in part II,
ante, defendant’s section 4019 contention “is likely moot.” No authority is cited and no
effort is made to identify factors we should consider in assessing the likelihood of
mootness. Accordingly, and in an abundance of caution, we consider defendant’s
section 4019 argument on its merits.

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                                      DISPOSITION
      Defendant’s felony grand theft conviction is reduced to a misdemeanor petty theft
and the enhancement for committing a felony while released from custody is dismissed.
As so modified, the judgment of conviction is affirmed. Defendant’s prison sentence is
stricken and the matter is remanded for resentencing and recalculation of conduct credits
in accordance with this opinion.



                                                     HOCH            , J.



We concur:



      BLEASE             , Acting P. J.



       BUTZ             , J.




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