Filed 12/19/13 P. v. Heydaragha 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                     (Sacramento)
                                                            ----



THE PEOPLE,

                   Plaintiff and Respondent,                                                 C073375

         v.                                                                      (Super. Ct. No. 12F05431)

KAZEN HEYDARAGHA,

                   Defendant and Appellant.

         Appointed counsel for defendant Kazen Heydaragha has filed an opening brief
that sets forth the facts of the case and asks this court to review the record and determine
whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436
(Wende).) Defendant filed a supplemental brief, arguing he qualified for sentencing
under Assembly Bill No. 109 (AB 109)1 and the trial court should have granted his




1      Assembly Bill No. 109 (2011 Reg. Sess.) refers to the Realignment Act, which
enacted, among other things, Penal Code section 1170, subdivision (h). (See Stats. 2011,
ch. 15, § 450.)


                                                             1
request to substitute appointed counsel. He also requests a more lenient sentence,
including drug addiction treatment. We address these issues, in addition to undertaking a
review of the record as required by Wende, and affirm the judgment.
                                    BACKGROUND
       On August 11, 2012, defendant, who was on searchable probation, was stopped for
a Vehicle Code violation. In a search, the officer found a baggie with methamphetamine
residue on defendant’s person, two ounces of methamphetamine in a paper bag in the
back seat, a can with a hidden compartment that contained methamphetamine residue,
and a cell phone. The phone rang, the officer answered it and, in the officer’s opinion,
the caller was attempting to purchase one-eighth of an ounce of methamphetamine.
There were also text messages on the phone indicating drug-related transactions.
       Officers then searched defendant’s house. In the common areas, officers found
marijuana, a plastic bottle and several spoons containing methamphetamine residue, a
digital scale, empty baggies, and an empty magazine for a nine-millimeter Glock
handgun. In the master bedroom, officers found a full box of 20 live rounds of .223-
caliber rifle ammunition, a plastic bottle containing 6.5 grams of methamphetamine, a
baggy containing 5.25 grams of methamphetamine, a glass dish containing
methamphetamine residue, a digital scale, several baggies, plastic pieces and another
plastic bottle containing methamphetamine residue, 17 tablets of Sudafed, and a plastic
container containing three hydromorphone pills.
       Defendant was charged with possession of methamphetamine for sale (Health &
Saf. Code, § 11378), transportation of methamphetamine (Health & Saf. Code, § 11379,
subd. (a)), and unlawful possession of ammunition by a felon (Pen. Code, § 30305,




                                             2
subd. (a)(1)).2 It was further alleged that, with respect to the drug-related charges,
defendant had two prior convictions for possession of a controlled substance for sale and
one prior conviction for transportation of a controlled substance. (Health & Saf. Code,
§ 11370.2, subd. (c).)
       On February 20, 2013, defendant pled no contest to unlawful possession of
ammunition and possession of methamphetamine for sale, and admitted the two prior
drug convictions. In exchange for his plea, it was agreed he would serve the stipulated
term of eight years in state prison and the remaining charges would be dismissed.
Thereafter, in accordance with the plea agreement, the trial court sentenced defendant to
serve the midterm of two years for possession of methamphetamine for sale, a
consecutive three years each for the two prior convictions, and a concurrent two years for
possession of ammunition, for a total of eight years in state prison. The trial court also
ordered various fines and fees, and awarded defendant 62 actual days and 62 conduct
days, for a total of 124 days of presentence custody credit.
       Defendant appeals. The trial court granted his request for a certificate of probable
cause. (§ 1237.5.)
                                       DISCUSSION
                                              I
                          Request for Sentencing under AB 109
       Defendant contends he qualified for sentencing under AB 109. By this, we
assume defendant means to argue the trial court should have ordered his term be served
in local custody pursuant section 1170, subdivision (h). He is, however, incorrect




2      Undesignated statutory references are to the Penal Code.


                                              3
because his violation of section 30305 (unlawful possession of ammunition by a felon)
renders him eligible for state prison.
       Section 18 states in pertinent part: “Except in cases where a different punishment
is prescribed by any law of this state, every offense declared to be a felony is punishable
by imprisonment for 16 months, or two or three years in the state prison unless the
offense is punishable pursuant to subdivision (h) of Section 1170.” (§ 18, subd. (a).)
       Section 30305 does not state the crime is punished pursuant to section 1170,
subdivision (h). Section 30305, subdivision (a)(2), provides: “A violation of this
subdivision is punishable by imprisonment in a county jail not to exceed one year or in
the state prison, by a fine not to exceed one thousand dollars ($1,000), or by both the fine
and imprisonment.” (Italics added.) Because a violation of section 30305, subdivision
(a)(2), can be punished as either a felony or a misdemeanor, it is referred to as a
“wobbler” offense. (People v. Municipal Court (Kong) (1981) 122 Cal.App.3d 176, 179,
fn. 3 [wobblers are “those offenses punishable either as felonies or misdemeanors, in the
discretion of the court”].) Here, the trial court exercised its discretion and treated the
violation as a felony. As a felony, the violation is punished by imprisonment in state
prison for a term of 16 months, or two or three years. We conclude the trial court
correctly sentenced defendant to state prison for a concurrent term of two years.
       Additionally, “[w]hen a court imposes a concurrent term of imprisonment and
imprisonment for one of the crimes is required to be served in the state prison, the term
for all crimes shall be served in the state prison, even if the term for any other offense
specifies imprisonment in a county jail pursuant to subdivision (h) of Section 1170.”
(§ 669, subd. (d).) Based on defendant’s felony violation of section 30305 and
concurrent prison term, the term for all of defendant’s crimes must be served in
state prison.




                                              4
                                             II
                        Request for Substitute Appointed Counsel
       Defendant complains his Marsden3 motions were not granted. We conclude the
trial court did not err in denying defendant’s motions for new appointed counsel.
       “A defendant is entitled to have appointed counsel discharged upon a showing that
counsel is not providing adequate representation or that counsel and defendant have
become embroiled in such an irreconcilable conflict that ineffective representation is
likely to result. [Citations.]” (People v. Jones (2003) 29 Cal.4th 1229, 1244-1245.) We
review the trial court’s denial of defendant’s motion to substitute counsel under the
“deferential abuse of discretion standard.” (Id. at p. 1245.) “ ‘Denial of the 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.’ [Citations.]” (People v. Hart (1999) 20 Cal.4th 546, 603.)
       At the hearings on defendant’s Marsden motions, the trial court gave defendant
ample opportunity to specify his concerns.4 Defendant complained his trial counsel did
not believe in his innocence, counsel did not file a motion to preclude the arresting
officer’s testimony at the preliminary hearing based on the officer’s limited time on the
force, although defendant had admittedly been driving the car, counsel had not
investigated to whom the car was registered, the prosecution’s offer kept getting worse as
time went on, and he and counsel do not get along.
       The trial court also asked trial counsel to state his experience and explain the work
he had performed on behalf of defendant. Counsel did so and responded fully to each of


3      People v. Marsden (1970) 2 Cal.3d 118.
4      The Marsden hearings were held two weeks apart and by two different trial
court judges.


                                             5
defendant’s allegations. In doing so, he also explained he did object to the officer’s
qualifications but the officer had POST certification, which makes him qualified to
testify.5 He also stated it was frustrating, although not unexpected, that the offers kept
getting worse, he was prepared to proceed to trial if defendant did not accept an offer, and
he did not believe his relationship with defendant had broken down.
       With respect to defendant’s concern about the adequacy of counsel’s investigation
and trial preparation, the record contains no colorable claim that counsel’s performance
was deficient. Further, the fact defendant lacked confidence in or did not get along with
counsel did not entitle him to new counsel. (People v. Barnett (1998) 17 Cal.4th 1044,
1092 [“Although defendant’s frustration with counsel was clearly evident, the record
reflects substantial investigative efforts by [counsel] and his anticipated readiness to
proceed”].) We conclude the trial court did not abuse its discretion in denying
defendant’s motions.
                                             III
                           Request for More Lenient Sentence
       Defendant also pleads for a more lenient sentence, to include drug addiction
treatment. He emphasizes his employment history, his single prior prison term, and the
lack of previous treatment options to address his drug addiction.
       Although these are matters generally appropriate for the trial court to consider at
sentencing, we note defendant entered his plea in exchange for a stipulated term. The
acceptance of a stipulated sentence precludes him from challenging the trial court’s
failure to impose a more lenient one. (People v. Chatmon (2005) 129 Cal.App.4th
771, 772-774.)



5     POST certification refers to the California Commission of Peace Officers
Standards and Training.


                                              6
                                            IV
                                     Wende Review
       Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
                                     DISPOSITION
       The judgment is affirmed.



                                                       HOCH       , J.



We concur:



      ROBIE       , Acting P. J.



      BUTZ       , J.




                                            7
