Filed 12/4/15 P. v. Rivas CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G050417

         v.                                                            (Super. Ct. No. 12NF1089)

JEFFERY RIVAS,                                                         OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Steven
D. Bromberg, Judge. Affirmed.
                   Stephen M. Lathrop, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and
Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
                                                   *                   *
              A jury convicted Jeffery Rivas of second degree robbery (Pen. Code,
§§211, 212.5, subd. (c); all statutory citations are to the Penal Code) and felon in
possession of a firearm (§ 29800, subd. (a)(1)). The jury found he committed both crimes
to benefit a criminal street gang. (§ 186.22, subd. (b)(1).) The jury also found he
personally used a firearm during the commission of a robbery. (§ 12022.53, subd. (b).)
Rivas admitted he had served a prior prison term within the meaning of section 667.5,
subdivision (b). Rivas contends the court abused its discretion by denying his motion to
relieve his court appointed attorney (People v. Marsden (1970) 2 Cal.3d 118, 123
(Marsden)) made six months before trial. For the reasons expressed below, we affirm.
                                              I
                   FACTUAL AND PROCEDURAL BACKGROUND
              On April 1, 2012, around 11:00 p.m., Rivas flagged down John Doe in
Anaheim as Doe was driving home. Rivas asked Doe his name and where he was “from,”
an inquiry commonly understood to refer to gang affiliation. Doe said “nowhere,”
communicating he was not a gang member. Rivas identified himself as “Minor from
Small Town.” Doe had a portable hard drive connected to his stereo, and Rivas demanded
to know what else Doe had in the car. Rivas threatened to take out a pistol, and reached
under his shirt. Doe saw the handle of a gun protruding from Rivas’s waistband. Rivas
forced Doe out of the car, reached into Doe’s pockets, and took Doe’s cell phone and
debit card. He also removed the hard drive from the stereo. Rivas ran away, along with
another man who stood nearby during the robbery. A police officer arrested Rivas the
next day and found Doe’s phone in his pocket.
              Following trial in April 2014, a jury convicted Rivas as noted above. In
June 2014, the court sentenced Rivas to an aggregate prison term of 23 years, comprised
of the three-year middle term for second degree robbery (count 1), a 10-year consecutive
term for the firearm enhancement (§ 12022.53, subd. (b)), a 10-year consecutive term for



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the gang enhancement as to count 1 (§ 186.22, subd. (b)(1)(C)), a concurrent two-year
middle term for felon in possession of a firearm (count 2), and a three-year concurrent
term for the gang enhancement as to count 2 (§ 186.22, subd. (b)(1)(C)).
                                                II
                                          DISCUSSION
 Marsden Motion

                Rivas contends the trial court erred in denying his Marsden motion because
 his complaints at the hearing established an irreconcilable conflict with his court
 appointed attorney. We do not find his argument persuasive.
               The court conducted a Marsden hearing on October 30, 2013. Rivas
complained his attorney, Deputy Alternate Defender Ray Chen, had not met with him
after being assigned to the case four months earlier. Rivas complained Chen had not sent
him any “paperwork, police reports, discovery, lineup, anything.” Rivas explained, “I
haven’t been able to receive anything. I can’t even get a simple legal pad from him.”
Rivas asserted Chen had called him a liar, and was not receptive to Rivas’s desire to go to
trial. Rivas stated: “I mean, I don’t feel comfortable leaving my case in his hands if – if
all he’s going to do is just call me a liar. [¶] So I mean, I want to push for trial on this
case. And he seems to think what I want is a deal, and that’s not what I want.”
               The court asked Chen about his criminal law experience. Chen replied he
had been a deputy alternate defender since 2000 and had tried over 75 felony cases. Chen
received the case after the Public Defender declared a conflict.
               Chen conceded he may not have visited Rivas in jail to discuss the case.
Chen had not sent Rivas paperwork because Rivas’s prior attorney told Chen she had
already given Rivas all of the paperwork, including a copy of the police report. Chen was
willing to mail Rivas an additional copy if he no longer had one. Chen denied calling
Rivas a liar, but acknowledged tension with Rivas, and understood how Rivas might



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conclude Chen accused Rivas of lying, but this was not Chen’s intention. Chen explained
to Rivas the evidence in the case did not correspond well with Rivas’s explanation
concerning how he came into possession of Doe’s cell phone, and the jury likely would
disbelieve Chen’s account. Chen also told Rivas he would have a hard time convincing a
jury to believe Rivas’s proposed witness.
              Concerning his efforts on Rivas’s behalf, Chen stated his investigator had
interviewed the victim. Chen had also filed a writ petition to have Rivas’s prior
conviction for a violation of section 186.22, subdivision (a), alleged as a strike in the
current case, dismissed for insufficient evidence. (See People v. Rodriguez (2012)
55 Cal.4th 1125, 1133 [section 186.22, subdivision (a), requires the criminal act be done
collectively with other gang members].) Chen agreed with the trial court if the court
granted the writ petition, it might also require dismissal of a section 667, subdivision (a),
enhancement based on the same conviction. Chen advised Rivas he should not seek a trial
date until the petition was resolved.
              The court asked Rivas if he would like to respond or provide any additional
information. Rivas said he did not know Chen’s investigator interviewed the victim and
that “would make me feel comfortable knowing that an investigator has come.” Rivas
repeated his complaint about not receiving paperwork, saying his other attorney sent only
his “charges.”
The court denied the Marsden motion, explaining “there just needs to be better
communication between counsel and Mr. Rivas.” The court concluded Chen had
correctly prioritized the writ petition over trial, and the misunderstanding over the delay in
getting to trial was “just a matter of explaining” to Rivas it was in his best interest to wait
for a decision on the writ. The court stated it did not observe the requisite “complete
breakdown in communication” to grant a Marsden motion. Instead, the court found “Mr.
Rivas’s main concern is that he hasn’t received enough communication from his lawyer,”
but “that can be rectified. That can be solved.” The court emphasized Rivas would be

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well-served by a senior alternate defender like Chen, and counsel reasonably placed the
highest priority on addressing Rivas’s strike prior before trial.
              Under Marsden, “‘“[w]hen 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.”‘“ (People v. Abilez (2007)
41 Cal.4th 472, 487-488 (Abilez); Marsden, supra, 2 Cal.3d at p. 123.) To obtain relief, a
defendant must clearly show that counsel is either providing inadequate representation or
“‘“that defendant and counsel have become embroiled in such an irreconcilable conflict
that ineffective representation is likely to result.”‘“ (People v. Abilez, supra, 41 Cal.4th
at p. 488.) A Marsden motion is addressed to the discretion of the trial court (People v.
Vera (2004) 122 Cal.App.4th 970, 979), and a defendant bears a heavy burden to prevail
on such a motion. (People v. Bills (1995) 38 Cal.App.4th 953, 961.) No abuse of
discretion will be found unless refusal to relieve “‘counsel and appoint replacement
counsel would “substantially impair” the defendant’s right to effective assistance to
counsel.’” (Abilez, supra, 41 Cal.4th 472, 487-488.)
       Rivas asserts there was an irreconcilable conflict because Chen concluded Rivas
was guilty, as evidenced by the fact Chen’s investigator had not yet interviewed the
witnesses Rivas identified. A defendant is not entitled to an attorney who believes in his
innocence, however. An attorney may believe the client to be guilty so long as the belief
in the client’s guilt does not prevent the attorney from vigorous and effective advocacy.
(Cf. People v. Munoz (1974) 41 Cal.App.3d 62, 64, 66 [defendant entitled to a new
attorney where current counsel told client “You are guilty; you ain’t got a chance”].)
Here, despite ample opportunity, Rivas offered no evidence counsel’s representation was
inadequate. Chen explained he told Rivas his witnesses would be problematic at trial.
While Rivas may have taken offense, counsel enjoys dominion over tactical decisions.
(See People v. Nakahara (2003) 30 Cal.4th 705, 719 [tactical decisions furnish no basis

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for Marsden discharge].) Chen reasonably directed his efforts to resolving the specter of
Rivas’s strike prior. Chen admitted not visiting Rivas, and this may have fostered some
misunderstanding. But a lack of trust, or inability to get along with counsel, is not
sufficient to relieve counsel. (See People v. Berryman (1993) 6 Cal.4th 1048, 1070,
overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800.)
              Finally, Rivas faults the court for failing to make a sufficient inquiry into
Rivas’s reasons for requesting substitute counsel. (People v. Ivans (1992) 2 Cal.App.4th
1654, 1666 (Ivans).) “‘“[A] Marsden hearing is not a full-blown adversarial proceeding,
but an informal hearing in which the court ascertains the nature of the defendant’s
allegations regarding the defects in counsel’s representation and decides whether the
allegations have sufficient substance to warrant counsel’s replacement.”‘“ (People v.
Gutierrez (2009) 45 Cal.4th 789, 803, (Gutierrez).) In Ivans, the trial court erred in
denying the defendant’s request for new counsel after failing to inquire into all of the
defendant’s reasons for requesting another attorney. (Ivans, supra, 2 Cal.App.4th at p.
1666.) Here, in contrast, Rivas listed his concerns with counsel, and the trial court asked
counsel to respond. Counsel provided a thorough response to Rivas’s complaints. The
court gave Rivas an opportunity to reply before denying the motion and finding Chen’s
representation was adequate. The “trial court made an adequate inquiry as to the
existence of a conflict between defendant and counsel.” (Gutierrez, supra, at p. 804.)
We discern no abuse of discretion.




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                                          III
                                      DISPOSITION
            We affirm the judgment.



                                                ARONSON, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



MOORE, J.




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