Filed 5/18/15 P. v. Cavazos CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068176
         Plaintiff and Respondent,
                                                                         (Fresno Super. Ct. No. F12907169)
                   v.

GILBERT ADAME CAVAZOS,                                                                   OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Denise L.
Whitehead, Judge.
         Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-




         *   Before Franson, J., Poochigian, Acting P.J., and Detjen, J.
                                        INTRODUCTION
          Appellant/defendant Gilbert Adame Cavazos was sentenced to the second strike
term of eleven years after pleading no contest to assault with a deadly weapon with a
personal use enhancement. On appeal, his appellate counsel has filed a brief that
summarizes the facts with citations to the record, raises no issues, and asks this court to
independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We
affirm.
                                             FACTS1
          On September 11, 2012, Paula Camarena visited defendant’s home. They had
been friends since childhood. Defendant welcomed her in, and they sat down and visited.
          After they had talked for 10 minutes, defendant excused himself and went into
another room. He returned a few minutes later, and he acted differently. He seemed
confused and did not recognize her. Defendant asked Camarena who she was and what
she was doing in the house. Camarena had never seen him like this. She tried to talk to
him and asked what he did when he left the room. Defendant acted “kind of scary,” and
she became frightened and decided to leave.
          As Camarena tried to leave, defendant called her name and told her not to leave.
He suddenly grabbed her hair, she felt something poke at her, and then felt something
tear from her head and back. Camarena felt “gushes and strains” of blood dripping down
her face. She pushed defendant away and ran out the door.
          Camarena ran into the front yard. She was screaming for help and washing off the
blood with a hose. Defendant’s neighbor saw her and called 911.
          Camarena was taken to the hospital for treatment of multiple slashing wounds on
her body. She had a five-centimeter laceration to her scalp that required six staples; a
two-centimeter laceration to her forehead that required six stitches; and a 0.5-centimeter

          1   The facts are from the preliminary hearing and the probation report.


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laceration to her shoulder which required two stitches. The wounds left scars on her
body.
        The police arrested defendant. He had a blank stare on his face, he acted
confused, and there was blood on his shoulder and shorts. His behavior was consistent
with being under the influence of PCP, and he later tested positive for the drug. The
police found a knife in the kitchen’s trash can.
Procedural History
        On October 9, 2012, an information was filed in the Superior Court of Fresno
County charging defendant with assault with a deadly weapon, a knife (Pen. Code, § 245,
subd. (a)(1)),2 with the special allegations that he personally inflicted great bodily injury
(§ 12022.7, subd. (a)), and had one prior strike conviction and one prison term
enhancement. Defendant pleaded not guilty.
        On July 22, 2013, defendant rejected the prosecution’s offer of a stipulated
midterm of nine years. However, he pleaded no contest to the charged offense, and
admitted the great bodily injury enhancement and the prior conviction. He entered into
an open plea for the court to consider dismissing the prior strike conviction or imposing
the low term, and acknowledged he faced a maximum term of 11 years. The court
granted the prosecution’s motion to dismiss the prior prison term enhancement and
another unrelated case. Thereafter, defendant filed a motion for the court to dismiss his
prior strike conviction for voluntary manslaughter with a gun in 1991.
        On August 20, 2013, the court denied defendant’s request to dismiss the prior
strike conviction. The court imposed the upper term of four years, doubled to eight years
as the second strike sentence, plus a consecutive term of three years for the enhancement,
for an aggregate term of 11 years.



        2   All further statutory citations are to the Penal Code unless otherwise indicated.


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       On October 10, 2013, defendant filed a timely notice of appeal based on the
sentence or other matters occurring after the plea. He did not request or obtain a
certificate of probable cause.
       On January 29, 2014, defendant filed a motion in superior court to correct the
calculation of custody credits in the abstract of judgment. On February 25, 2014, the
court filed an amended and corrected abstract.
                                      DISCUSSION
       As noted above, defendant’s counsel has filed a Wende brief with this court. The
brief also includes the declaration of appellate counsel indicating that defendant was
advised he could file his own brief with this court. By letter on March 5, 2014, we
invited defendant to submit additional briefing. To date, he has not done so.
       In our review of the record, we note that prior to his plea, defendant filed a motion
to discharged his appointed attorney pursuant to People v. Marsden (1970) 2 Cal.3d 118
(Marsden), and the court never addressed the motion. As we will explain, however,
defendant abandoned the motion.
Defendant’s Marsden Motion
       On May 28, 2013, defendant filed a Marsden motion with the superior court. The
motion was a preprinted form, in which defendant filled in his name and case number.
He signed a declaration in support of the motion and checked three preprinted boxes as
the reasons for relieving his attorney, based on counsel’s alleged refusal and/or failure to
perform investigations that were critical and necessary to the defense; prepare and file
motions critical to the defense; and declare prejudice and/or a conflict against defendant
and had taken the role of a surrogate prosecutor against defendant’s interests.
Defendant’s motion stated that he wanted it to be heard on May 28, 2013.
       While this motion contains a file-stamp from the superior court, the instant record
contains a declaration from a deputy clerk, that the motion was filed at the felony



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department counter on May 28, 2013, and not during the proceedings that day in the
courtroom.
       In any event, the superior court never addressed defendant’s Marsden motion or
conducted a hearing on the matter. When a defendant seeks to replace his appointed
counsel, “the trial court must permit the defendant to explain the basis of his contention
and to relate specific instances of counsel’s inadequacy. [Citations.]” (People v. Cole
(2004) 33 Cal.4th 1158, 1190.) However, a defendant who makes a timely Marsden
motion may, by his postmotion conduct, abandon his request for a Marsden hearing.
(People v. Vera (2004) 122 Cal.App.4th 970, 981–982; People v. Jones (2012) 210
Cal.App.4th 355, 361.) Moreover, when a “court’s failure to hear or rule on [a] motion
appears to be inadvertent,” a defendant will be deemed to have waived or abandoned the
motion unless the defendant “make[s] some appropriate effort to obtain [a] hearing or
ruling. [Citations.]” (People v. Braxton (2004) 34 Cal.4th 798, 813; People v. Jones,
supra, 210 Cal.App.4th at pp. 361–362.)
       Based on the entirety of the record, we find defendant waived or abandoned his
Marsden motion. On May 28, 2013, the day he wanted the motion heard, the court
conducted the pretrial hearing. Defendant appeared with his appointed counsel, who said
defendant wanted to settle the case. The prosecutor replied there was an outstanding
offer. Defense counsel asked for a continuance, and the court granted the motion and set
the trial for June 10, 2013. Defendant entered a general time waiver. The court did not
address the Marsden motion, and defendant did not raise the matter.
       On July 22, 2013, Judge Conklin assigned the matter for trial. Defendant was
present with his appointed counsel and did not raise the Marsden motion, and the court
did not address it. The parties appeared before Judge Vogt for trial, where defendant
entered into the plea agreement. The court advised defendant of his constitutional rights,
and defendant stated he understood and waived his rights. The court asked defendant if
he had enough time to talk to his attorney about the plea, and if he reviewed the plea form

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with his attorney. Defendant said yes. The court asked defendant if he had any
questions, and defendant said no. The court did not address the Marsden motion, and
defendant did not address the matter.
       On August 20, 2013, defendant appeared for the sentencing hearing with his
appointed counsel, who made a lengthy argument to dismiss the prior strike conviction.
The court did not address the Marsden motion, and defendant did not raise it.
       In this case, the court’s failure to conduct a Marsden hearing was plainly
inadvertent. As the proceedings progressed, defendant continued to appear with his
appointed counsel, accepted her assistance during the plea hearing, said he had reviewed
the plea form with his attorney, he had adequate time to talk with her about the plea, he
was entering the plea freely and voluntarily, and never raised the Marsden issue again.
       “Defendant had the duty of bringing his motion to the trial court’s attention at a
time when the oversight could have been rectified. [Citation.] We conclude defendant’s
failure to raise the issue before the matter proceeded to trial constituted abandonment of
his claim.” (People v. Jones, supra, 210 Cal.App.4th at p. 362.)
       After further independent review of the record, we find that no reasonably
arguable factual or legal issues exist.
                                          DISPOSITION
       The judgment is affirmed.




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