Filed 7/19/13 P. v. Agundez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E056435

v.                                                                       (Super.Ct.No. RIF1104591)

JOEY ALEXANDER AGUNDEZ,                                                  OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Michele D. Levine,

Judge. Affirmed.

         Michael Clough, 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, James D. Dutton and Donald W.

Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.




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       Defendant and appellant Joey Alexander Agundez (defendant) pled guilty,

pursuant to a negotiated plea agreement, to attempted murder (Pen. Code, §§ 664, 187,

subd. (a)) and admitted the criminal street gang special allegation (Pen. Code, § 186.22,

subd. (b)). The trial court, in turn, sentenced defendant to the agreed upon term of

17 years in state prison.

       Defendant contends in this appeal that the trial court failed to conduct an adequate

inquiry into defendant‟s postplea request to appoint substitute counsel to represent him at

sentencing. We conclude defendant‟s claim is meritless, and therefore we will affirm the

judgment.

                                      DISCUSSION

       Our resolution of the issue defendant raises in this appeal does not depend on the

circumstances of defendant‟s crime, nor could it because the trial court denied

defendant‟s request for a certificate of probable cause. Only the procedural details of the

trial court proceeding are pertinent to defendant‟s claim on appeal and they reveal that on

the date originally set for his sentencing hearing, defendant requested a continuance so

his family could retain private counsel to explore the possibility of filing a motion to

withdraw his guilty plea. The trial court granted defendant‟s request, and continued the

sentencing hearing for 30 days.

       At the continued sentencing hearing, defendant‟s court-appointed attorney

informed the trial court defendant wanted a different attorney appointed to represent him

in order to withdraw his plea based on incompetence of counsel, a motion counsel




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described as a Sanchez1 hearing or a quasi-Marsden2 hearing. The trial court set that

hearing for later that same day.

       At the outset of the hearing, the trial court ordered the courtroom closed to the

prosecutor, explained the Marsden process to defendant, and then gave defendant an

opportunity to speak. Defendant responded that he wanted to go forward with

sentencing. When the trial court indicated she had not heard what defendant had said,

defendant repeated, “I think I want to just go forward with sentencing, with the

sentencing.” The trial court then asked defendant, “Are you indicating, sir, that you‟re

satisfied [your attorney] can continue in her representation of you and do so through the

sentencing in this matter?” Defendant answered, “Yes, your Honor.” The trial court then

confirmed that defendant did not “want to discuss with [the court] having another counsel

appointed.” Before sentencing defendant, the trial court said, “The . . . Court is satisfied

that based upon what has been said to the Court by [defendant], there‟s a withdrawal of

the request to have a Marsden slash Sanchez motion before the Court; that he otherwise

wishes to go forward with the sentencing today pursuant to the plea bargain that was

entered into with the People.”

       Defendant now contends the trial court should have conducted a Marsden hearing

because the record suggests defendant‟s plea was not “„a voluntary and intelligent

choice,‟” which in turn suggests his decision to abandon his Marsden hearing also was


       1   People v. Sanchez (2011) 53 Cal.4th 80 (Sanchez).

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


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not a voluntary and intelligent choice. In other words, defendant contends the trial court

should have determined whether defendant knowingly and intelligently withdrew his

request for a Marsden hearing. We disagree.

       “Marsden motions are subject to the following well-established rules. „“„When a

defendant seeks to discharge his appointed counsel and substitute another attorney, and

asserts inadequate representation, the trial court must permit the defendant to explain the

basis of his contention and to relate specific instances of the attorney‟s inadequate

performance. [Citation.] A defendant is entitled to relief if the record clearly shows that

the first appointed attorney is not providing adequate representation [citation] or that

defendant and counsel have become embroiled in such an irreconcilable conflict that

ineffective representation is likely to result [citations].‟ [Citations.]”‟” (People v.

Barnett (1998) 17 Cal.4th 1044, 1085, 1086.)

       The record in this case reflects clearly and unequivocally that defendant withdrew

his request for a Marsden hearing. Defendant does not claim otherwise. Instead,

defendant contends the trial court had an obligation to determine whether that withdrawal

was done knowingly and voluntarily. Defendant does not cite any authority to support

that claim. Moreover, even if he were able to establish such an obligation, the trial court

conducted the requisite inquiry. As set out above, the trial court first explained the

structure and purpose of a Marsden hearing to defendant. When defendant indicated he

did not want to proceed with that hearing, the trial court confirmed that defendant was

satisfied with his attorney and wanted that attorney to represent him at his sentencing

hearing.


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       In short, and simply stated, defendant withdrew his request for a Marsden hearing

and therefore cannot complain that the trial court did not conduct that hearing.

Defendant‟s other arguments, although presented in the guise of supporting his Marsden

hearing claim, are actually directed at challenging the voluntariness of his guilty plea.

Defendant did not obtain a certificate of probable cause and therefore he is precluded

from raising that issue. (People v. Panizzon (1996) 13 Cal.4th 68, 76.)

                                      DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                                McKINSTER
                                                                                   Acting P.J.

We concur:



RICHLI
                           J.



KING
                           J.




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