Filed 11/4/14 P. v. Valadez 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Yolo)
                                                            ----




THE PEOPLE,                                                                                  C075652

                   Plaintiff and Respondent,                                   (Super. Ct. Nos. CRF124768,
                                                                                       CRF133973)
         v.

FELIPE VALADEZ,

                   Defendant and Appellant.




         Within a three-week period, defendant Felipe Valadez twice fled from police
officers in his vehicle while intoxicated and while in possession of large amounts of
marijuana. After both car chases, police had to use force to subdue defendant, and both
times the car chases were recorded by patrol car dashboard camera (dash cam). Nine
months later, defendant was arrested for shoplifting $224.95 worth of merchandise from
Wal-Mart.
         As a result of the two car chases, defendant was charged with nine felony counts
and one misdemeanor. As a result of the shoplifting incident, defendant was charged

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with one felony count of petty theft with a prior conviction. The charges surrounding
defendant’s two car chases were combined into one case (case 1), and defendant’s
shoplifting charge remained a separate case (case 2).
       Upset with how his appointed counsel was handling his defense in both cases,
defendant filed a Marsden1 motion, which was denied.
       In a single plea agreement for both cases, defendant pled no contest to two counts
of driving under the influence within 10 years of a prior felony driving under the
influence and one misdemeanor count of resisting a peace officer; he also pled no contest
to the felony count of petty theft with a prior conviction and admitted one prior
conviction enhancement.
       Subsequently, defendant filed another Marsden motion and a motion to withdraw
his no contest plea. Both motions were denied and defendant was sentenced to the
stipulated term of six years and eight months in prison. On appeal, defendant challenges
the denial of both Marsden motions and the denial of his motion to withdraw his plea.
We affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
                                             I
                                   The First Car Chase
       On November 19, 2012, defendant fled from police officers who attempted to pull
him over for running a red light. While chasing defendant, the officers saw defendant
throw a can of beer out of his window. Defendant drove onto a highway and exited
toward a residential neighborhood, throwing another can of beer out of his window.
Defendant briefly stopped and two uninvolved passengers fled from the car. He again




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

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began to flee. Using a patrol car, officers spun defendant’s car 180 degrees until he was
blocked by other patrol cars.
       Defendant got out of his car and raised his hands. The officers claim that
defendant then yelled “shoot me,” while defendant contends he yelled “don’t shoot me.”
The officers also say that defendant refused to get down on the ground, so they had to use
force to subdue him, including striking him in the shins with a baton. Defendant claims
he voluntarily submitted and the police officers hit him in the shins after he was already
on the ground. The dash cam recording was unable to resolve these discrepancies
because defendant and the officers were not in view. In the recording, an officer yells at
defendant to stop resisting and then there are several thumps that presumably are the
baton hitting defendant. Defendant was arrested; his car was searched, and police found
approximately two pounds of marijuana in his trunk.
       The strikes to defendant’s shins fractured bones in both of his legs, and defendant
had to be taken to the hospital to have his legs put in casts. Defendant was eventually
released by hospital personnel.
                                             II
                                  The Second Car Chase
       Three weeks later, on December 9, 2012, defendant again did not stop for police
officers while driving under the influence. Defendant veered around spike strips that
were deployed in an attempt to stop him. He exited the freeway and ran a red light.
More spike strips were deployed to stop defendant; this time, he ran over the spikes but
still continued to flee. Defendant pulled into a parking lot, and police held him at
gunpoint and ordered him out of the car. Defendant remained in the car, and police saw
him casually drinking from a can of beer. Police attempted to get defendant out of the car
with a Taser, a dog, and then a baton. When police got him out of the car, they
discovered he had casts on both of his legs. Defendant was arrested; police searched his
vehicle and found 145.3 grams of marijuana and a digital scale in his trunk.

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                                             III
                   The Charges Surrounding Both Car Chases (Case 1)
        On December 12, 2012, defendant was charged with two felony counts of
transporting marijuana, two felony counts of possessing marijuana, two felony counts of
DUI within 10 years of a prior felony DUI, two felony counts of evading a peace officer
with reckless driving, one felony count of resisting an executive officer (first car chase),
and one misdemeanor count of resisting or obstructing a peace officer (second car chase).
The complaint also alleged four conviction enhancements for prior felonies. At
arraignment on December 12, 2012, defendant pled not guilty to all counts and denied the
special allegations.
                                             IV
                                The First Marsden Hearing
        On June 19, 2013, defendant moved to substitute counsel at a Marsden hearing.
Defendant desired new counsel because he disagreed with defense counsel’s decision to
negotiate a plea agreement instead of filing a Pitchess2 motion to obtain the police
records of the officers who had broken his legs. In defendant’s opinion, either defense
counsel should have filed a complaint against the officers for breaking his legs or the
district attorney should have filed charges against the officers.
        Defense counsel told the court he would rather not file a Pitchess motion because
that motion would be relevant to only one of the charges -- resisting an executive
officer --and favorable resolution of that charge would reduce defendant’s prison term by
16 months at most. Negotiating a plea, on the other hand, could result in many charges
being dismissed and his sentence being significantly lowered. More importantly, defense
counsel believed that if he filed the Pitchess motion, the negotiations with the district



2       Pitchess v. Superior Court (1974) 11 Cal.3d 531; Evidence Code sections 1043-
1045.

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attorney would stop and defendant would face 14 to 17 years in prison. Nevertheless,
defense counsel said that he would file the Pitchess motion if defendant rejected the
proposed plea agreement. The trial court, Judge Timothy Fall, denied defendant’s
Marsden motion, stating that defense counsel had not fallen below the standard of care.
                                              V
                             The Shoplifting Incident (Case 2)
       On September 29, 2013, while out on bail, defendant entered Wal-Mart, put
$224.95 worth of merchandise in his shopping cart, and left without paying. Defendant
was arrested and charged with a felony count of petty theft with a prior conviction; the
complaint also alleged five prior felonies.
                                              VI
                                     Defendant’s Plea
       On November 8, 2013, pursuant to the terms of a plea agreement, for case 1
defendant pled no contest to the misdemeanor count of resisting or obstructing a peace
officer (resulting from the second car chase) and two felony counts of DUI within 10
years of a prior felony DUI. In case 2, defendant pled no contest to a felony count of
petty theft with a prior conviction. Defendant also admitted prior conviction
enhancement “a” in both cases. Pursuant to the plea agreement, four prior conviction
enhancements were dropped and seven felony counts against defendant were dismissed
(including the charge of resisting an executive officer following the first car chase.)
Sentencing was postponed.
                                              VII
                               The Second Marsden Hearing
       On January 7, 2014, defendant brought a second Marsden motion. When asked to
provide specific instances of inadequate performance, defendant alleged that defense
counsel: (1) failed to file a Pitchess motion; (2) cussed at and intimidated defendant;
(3) failed to argue that the dash cam videos had been edited; (4) failed to subpoena

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defendant’s doctor who prescribed him medical marijuana; and (5) conspired with the
district attorney and the West Sacramento Police Department to “railroad” him into
accepting a plea for a crime he did not commit. The court, Judge Paul Richardson,
denied defendant’s Marsden motion, finding defense counsel adequately represented
defendant, and the conflict was nothing more than tactical disagreements over how the
case should proceed.
                                            VIII
                       The Motion To Withdraw The No Contest Plea
       At defendant’s subsequent sentencing hearing, defendant asked to withdraw his
plea. The court, Judge David Rosenberg, denied his request, finding the plea was freely,
voluntarily, and intelligently given, and there was not sufficient cause to withdraw the
plea. For both of his cases, the court sentenced defendant to a stipulated six years and
eight months in prison.
                                      DISCUSSION
       On appeal, defendant argues the trial court erred in denying both Marsden motions
and his request to withdraw his plea. We disagree.
                                              I
             The Trial Court Properly Denied Defendant’s Marsden Motions
       Defendant first contends the trial court erred in denying his Marsden motions
because defendant and his counsel had become embroiled in such an irreconcilable
conflict that ineffective representation was likely to result. We review the denial of a
Marsden motion for abuse of discretion. (People v. Streeter (2012) 54 Cal.4th 205, 230).
“Denial is not an abuse of discretion ‘unless the defendant has shown that a failure to
replace counsel would substantially impair the defendant’s right to assistance of
counsel.’ ” (People v. Taylor (2010) 48 Cal.4th 574, 599.)
       On a Marsden motion, the defendant is entitled to substitute his appointed counsel
“ ‘if the record clearly shows that the appointed counsel is not providing adequate

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representation or that the defendant and counsel have become embroiled in such an
irreconcilable conflict that ineffective representation is likely to result.’ ” (People v.
Taylor, supra, 48 Cal.4th at p. 599.) An attorney’s representation is ineffective when it
falls below an objective standard of reasonableness under prevailing professional norms.
(Strickland v. Washington (1984) 466 U.S. 668, 688 [80 L.Ed.2d 674, 693].) Moreover,
“tactical disagreements between a defendant and his attorney or a defendant’s frustration
with counsel are not sufficient cause for substitution of counsel.” (People v. Streeter,
supra, 54 Cal.4th at p. 231.)
       The trial court did not abuse its discretion in denying defendant’s Marsden
motions because defendant never showed that ineffective representation was likely to
result. Assuming that defendant and his counsel did have an irreconcilable conflict,
defendant never put forth any evidence to show that defense counsel’s representation was
likely to fall (or had fallen) below the standard of care.
       At the first Marsden hearing defendant argued his counsel was not adequately
representing him because his counsel had not filed a Pitchess motion despite defendant’s
request to do so. Defendant’s eagerness to file a Pitchess motion was apparently due to
his belief that the charges against him would be dropped or significantly reduced if he
could show that the officers used excessive force and broke his legs unnecessarily.
       It is clear to us, as it was clear to defense counsel, that defendant’s punishment for
driving under the influence and fleeing from police twice would not have been
significantly reduced by a showing that police used excessive force when they
apprehended him the first time. Defense counsel explained that filing a Pitchess motion
would only dispute the resisting an executive officer charge, which would reduce his
sentence by approximately 16 months at most. More importantly, defense counsel
explained that filing the motion would halt plea negotiations with the district attorney and
defendant would face approximately 17 years in prison if convicted. Defense counsel
recognized that negotiating a plea for a term of six years and eight months benefited

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defendant more than fighting for a 16-month reduction off of a 17-year sentence.
Therefore, counsel’s tactical decision not to file the Pitchess motion was reasonable.
       At the second Marsden hearing (after defendant had pled no contest), defendant
again argued his counsel failed to adequately represent him because he had not filed a
Pitchess motion. Defense counsel explained that he did not file a Pitchess motion
because the charge of resisting an executive officer from the first car chase had been
dropped as part of the negotiated plea bargain. Defense counsel even said he did his best
to preserve defendant’s civil lawsuit against the police officers by negotiating for the
dismissal of the resisting charge.
       Defendant also told the court that his counsel “failed to call the prosecutor” on the
dash cam videos from the first car chase, which he believes were edited and (in their
supposed original form) prove he was not resisting. This again is irrelevant to his
counsel’s representation since the resisting charge from the first car chase had been
dismissed.
       Defendant also complained that his counsel failed to subpoena the doctor who
prescribed defendant his medical marijuana. Defense counsel did not subpoena the
doctor as a witness because the marijuana charges were dropped in accordance with the
plea agreement. It was therefore reasonable for counsel not to subpoena the doctor.
       Furthermore, all of these disagreements involved purely tactical decisions, and
tactical disagreements between a defendant and his attorney are not by themselves
sufficient cause for substitution of counsel. (People v. Streeter, supra, 54 Cal.4th at
p. 231.)
       Defendant did make a few arguments of inadequate representation that did not
involve tactical decisions. Defendant said his counsel did not like coming to the jail to
visit him; he also said his counsel cussed at him, intimidated him, and made him afraid to
talk to him. Defendant did not cite any dates or times when this occurred. Defense
counsel explained that he had used profanity out of frustration, but it was not directed at

                                              8
defendant. Furthermore, once defendant broached the issue, counsel became very careful
not to use profanity around defendant.
       The court did not inquire into how many times counsel had visited defendant, but
instead asked counsel what he had done so far for defendant in this case. This is likely
because the “ ‘number of times one sees his attorney, and the way in which one relates
with his attorney, does not sufficiently establish incompetence.’ ” (People v. Streeter,
supra, 54 Cal.4th at p. 230.) The number of visits to prison and other disagreements with
counsel do not warrant substitution of counsel unless defendant can show inadequate
representation. (Ibid.)
       Based on defendant’s successful plea negotiations, seven felony counts against
defendant were dismissed and four prior conviction enhancements were dropped. The
trial court found defense counsel had not fallen below the objective standard of
reasonableness. We agree and conclude the trial court did not abuse its discretion in
denying defendant’s Marsden motions.
                                              II
      The Trial Court Properly Denied Defendant’s Motion To Withdraw His Plea
       Defendant also argues the trial court erred in denying his motion to withdraw his
plea because he asserts he did not enter his plea voluntarily. The withdrawal of a guilty
plea rests in the sound discretion of the trial court and the trial court’s ruling may not be
disturbed unless the trial court abused its discretion. (People v. Francis (1954) 42 Cal.2d
335, 338.)
       Penal Code section 1018 provides that “the court shall, for a good cause shown,
permit the plea of guilty to be withdrawn and a plea of not guilty substituted.” (Italics
added.) The burden of proof necessary to establish good cause in a motion to withdraw a
guilty plea is by clear and convincing evidence. (People v. Cruz (1974) 12 Cal.3d 562,
566.) Any factor overcoming the exercise of free judgment is good cause for withdrawal
of a guilty plea. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) Such factors

                                              9
include mistake, ignorance, inadvertence, fraud, or duress. (Ibid.) Conversely, a plea
may not be withdrawn simply because the defendant has changed his mind. (People v.
Nance (1991) 1 Cal.App.4th 1453, 1456.)
       The trial court did not abuse its discretion in denying defendant’s motion to
withdraw his plea because defendant did not prove with clear and convincing evidence
that he was coerced into involuntarily accepting a plea. In defendant’s written request to
withdraw his plea he stated a desire to withdraw his plea due to a conflict with his
attorney. He stated his counsel participated in organized crime in an effort to convict him
and intimidate him into taking a plea deal. He continued to reiterate all of his previous
allegations made during his Marsden motion, most of which were irrelevant to his plea.
These allegations included his belief that his counsel was in conspiracy with the district
attorney and West Sacramento Police Department, and that his counsel, the district
attorney, and the police officers all falsified evidence, committed perjury, and tampered
with evidence. Defendant did not indicate how or when his counsel intimidated him into
taking a plea agreement. He did not provide any evidence of any coercion or intimidation
by counsel.
       On the contrary, defendant initialed and signed several statements in his plea
agreement indicating that he understood the plea agreement, discussed it with his
attorney, and freely and voluntarily chose to plead no contest. When the trial court
accepted defendant’s plea agreement it asked defendant if the initials and signatures were
his, and defendant confirmed they were. Defendant also confirmed he had enough time
to review the plea and discuss it with his attorney; his attorney answered all of his
questions; he understood the rights he was giving up; and he knew he would receive a
six-year and eight-month prison sentence in exchange for the plea. The court asked
defendant if anyone made any promise to him in exchange for the plea and defendant
said, “No.” The court asked defendant if anyone threatened him or put pressure on him



                                             10
to enter the plea and defendant said, “No.” Lastly, defendant said he had no questions for
the court and he pled no contest.
       The evidence suggests that defendant pled no contest freely, voluntarily, and
intelligently. Defendant asserts that “the record demonstrates that [he] was coerced into
accepting the plea agreement without sufficient knowledge of the consequences of
proceeding to hearing.” We find no evidence in the record that shows coercion or other
good cause to withdraw the plea; therefore, we conclude the trial court acted within its
discretion in denying defendant’s motion.
                                     DISPOSITION
       The judgment is affirmed.



                                                       ROBIE                 , Acting P. J.



We concur:



      MAURO                 , J.



      HOCH                  , J.




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