Filed 3/29/16 P. v. Perez 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                    (San Joaquin)
                                                            ----




THE PEOPLE,                                                                                  C075717

                   Plaintiff and Respondent,                                    (Super. Ct. No. SF116239A)

         v.

MIGUEL ALVARADO PEREZ,

                   Defendant and Appellant.




         Convicted of attempted murder and other crimes for attacking his estranged wife
with a knife and sentenced to state prison for more than 45 years to life, defendant
Miguel Alvarado Perez appeals. He contends that: (1) the trial court violated his right to
counsel when it denied his motion to relieve retained counsel at the hearing on his motion
for new trial and for sentencing, and (2) there was insufficient evidence to support the
court’s true finding on his prior strike based on a Texas robbery. We conclude that:


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(1) the trial court did not violate defendant’s right to counsel; however, (2) the evidence
was insufficient to support the strike finding. We therefore reverse the strike finding,
vacate the sentence, and remand.
                                     BACKGROUND
       The facts concerning defendant’s current convictions are not germane to
discussion of the issues raised by defendant in this appeal. Most seriously, defendant
entered his estranged wife’s house at approximately 5:30 a.m. on October 31, 2010, and
attacked her with a knife, severely injuring her and endangering the child that was with
her.
       A jury convicted defendant of attempted murder, infliction of corporal injury to a
spouse with a knife and with great bodily injury, residential burglary with a knife, child
endangerment, robbery, dissuading a witness, and contempt of court. And the trial court
found true that defendant was convicted of a serious felony, based on defendant’s robbery
conviction in Texas in 2001.
       Relying on the convictions and the prior serious felony, the trial court sentenced
defendant to an aggregate term of 45 years, eight months to life in state prison.
                                       DISCUSSION
                                              I
                           Right to Discharge Retained Counsel
       Defendant contends that the trial court violated his right to counsel when it, in
defendant’s words, “deni[ed his] motion to discharge retained counsel in order to file a
new trial motion grounded on ineffective assistance [of counsel].” We conclude the
contention is without merit because (1) defendant did not move to discharge retained
counsel and (2), even assuming for the purpose of argument that he actually moved to
discharge retained counsel, his motion was untimely and properly denied.




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       A.     Procedural Analysis
       Defendant was represented at trial by retained counsel, Michael Platt. Court trial
on the prior conviction and sentencing were scheduled for December 16, 2013. Attorney
Platt filed a motion for new trial on November 27, 2013, arguing absence of sufficient
evidence to convict and improper admission of other-crimes evidence. On attorney
Platt’s request, the hearing on the new trial motion, the court trial on the prior conviction,
and sentencing were continued to January 21, 2014, to allow defendant and counsel more
time to confer.
       Some time before the January 21 hearing, defendant attempted to file a letter with
the trial court, but it was sent back to him unfiled because he was represented.
       At the hearing on January 21, attorney Platt notified the court that defendant
desired to make a Marsden motion based on ineffective assistance of counsel.1 Counsel
informed the court that he had met with defendant prior to the hearing and had conferred
concerning the new trial motion and sentencing but that defendant had previously said
nothing about seeking a new trial based on ineffective assistance of counsel. Counsel
suggested that the court “may want” to appoint counsel on the issue of ineffective
assistance of counsel.
       The trial court informed defendant that he could not make a Marsden motion
because counsel was retained. The court also informed defendant that it would not
consider granting a continuance to hire new counsel. At first, the court told defendant he
could fire attorney Platt and proceed unrepresented at the hearing, but, soon thereafter,
the court changed its mind and told defendant it would not allow him to fire attorney Platt
and proceed unrepresented at that point because it was “not going to continue the
sentence” and “have him go forward unrepresented.”




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

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       The court then immediately proceeded with the hearing on the new trial motion,
the court trial on the prior conviction, and sentencing.
       B.      Analysis
       “The right of a nonindigent criminal defendant to discharge his retained attorney,
with or without cause, has long been recognized in this state [citations] . . . .” (People v.
Ortiz (1990) 51 Cal.3d 975, 983 (Ortiz).) A defendant may discharge appointed counsel
only if that lawyer is rendering inadequate representation or there exists an irreconcilable
conflict between counsel and client. (See Marsden, supra, 2 Cal.3d at p. 123; People v.
Lara (2001) 86 Cal.App.4th 139, 151 (Lara).) A defendant represented by retained
counsel, on the other hand, may discharge retained counsel at any time with or without
cause. (Lara, supra, at p. 152.)
       The right to discharge retained counsel, however, is not absolute. The trial court is
entitled to consider the stage of the proceedings at which the request is made, and the
effect the substitution will have on “ ‘orderly and expeditious’ ” judicial administration.
The trial court may deny a request for substitution of counsel if the request “is not timely,
i.e., if it will result in ‘disruption of the orderly processes of justice.’ ” (Ortiz, supra, 51
Cal.3d at pp. 983-984.) The court may exercise its discretion and deny the motion to
discharge retained counsel if the defendant has been “ ‘unjustifiably dilatory’ ” in making
the request. (Lara, supra, 86 Cal.App.4th at p. 153.) “[T]he ‘fair opportunity’ to secure
counsel of choice provided by the Sixth Amendment ‘is necessarily [limited by] . . . the
interest in proceeding with prosecutions on an orderly and expeditious basis, taking into
account the practical difficulties of “assembling the witnesses, lawyers, and jurors at the
same place at the same time.” ’ ” (Ortiz, supra, 51 Cal.3d at pp. 983-984.)
       Here, defendant never made a motion to discharge retained counsel. At the
beginning of the hearing on the new trial motion, court trial on the prior conviction, and
sentencing, counsel for defendant informed the trial court that defendant had “shown”
him a Marsden motion based on ineffective assistance of counsel. Counsel continued:

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“Apparently he had filed something or attempted to file something and was given some
correspondence back [from the trial court]. This is the first I have been made aware of
that.” The court informed defendant that he could not file a Marsden motion, but that he
could fire his attorney. The court then backtracked and said defendant could not fire his
attorney because no continuance would be granted to hire a new attorney and defendant
would not be allowed to proceed unrepresented. In these proceedings, defendant did not
move to discharge his retained attorney. In fact, it is anything but clear that defendant
wanted to discharge his retained counsel at the hearing and proceed unrepresented.
However, since it could be argued (even though it is not) that such a motion would have
been futile given the court’s statements, we continue to a discussion concerning whether
the trial court should have granted a motion to discharge retained counsel. In doing so,
we also note that defendant did not apply for a continuance to retain new counsel.
       The trial court did not abuse its discretion in denying a hypothetical motion to
discharge retained counsel because such a motion was untimely. While it appears that
defendant may have tried to file a letter with the court and that the letter may have
complained about the effectiveness of counsel, defendant did not apprise either his
retained attorney or the court that he desired to discharge retained counsel until all parties
were present to proceed on the hearing on the new trial motion, court trial on the prior
conviction, and sentencing. The court, which had already granted the defense a
continuance, informed the defense that it would not grant another continuance at that
point. Under these circumstances, discharge of retained counsel at that late date would
have disrupted the orderly processes of justice. (Ortiz, supra, 51 Cal.3d at pp. 983-984.)
The court and the attorneys were assembled and ready to proceed. Therefore, the motion
was untimely, and the court did not abuse its discretion in denying it.




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                                               II
                         Sufficiency of Evidence of Prior Conviction
       The prosecution alleged and the trial court found that defendant committed a
serious felony, relying on defendant’s conviction for robbery in Texas in 2001. We
conclude that the record does not support the finding that the Texas robbery was a serious
(or violent) felony under California law.
       A.      Relevant Law
       “Under the Three Strikes law, a prior conviction from another jurisdiction
constitutes a strike if it is ‘for an offense that includes all of the elements of the particular
felony as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section
1192.7.’ (Pen. Code §§ 667, subd. (d)(2), 1170.12, subd. (b)(2.)” (People v. Jenkins
(2006) 140 Cal.App.4th 805, 810.) “[T]he relevant inquiry in deciding whether a
particular prior conviction qualifies as a serious felony for California sentencing purposes
is limited to an examination of the record of the prior criminal proceeding to determine
the nature or basis of the crime of which the defendant was convicted.” (People v.
McGee (2006) 38 Cal.4th 682, 691.) “To make this determination, the court may
consider the entire record of the prior conviction as well as the elements of the crime.
[Citation.]” (People v. Avery (2002) 27 Cal.4th 49, 53.) When a defendant challenges
the sufficiency of the evidence to sustain the trial court’s finding that the prosecution has
proven all elements of the enhancement, we must determine whether substantial evidence
supports that finding. “ ‘The test on appeal is simply whether a reasonable trier of fact
could have found that the prosecution sustained its burden of proving the enhancement
beyond a reasonable doubt.’ [Citation.]” (People v. Rodriguez (2004) 122 Cal.App.4th
121, 129.) In making this determination, we review the record in the light most favorable
to the trial court’s findings. (Ibid.)




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       B.     Factual and Procedural Background
       In Texas, robbery is committed if, during the course of a theft, the person
“(1) intentionally, knowingly, or recklessly causes bodily injury to another; or [¶]
(2) intentionally or knowingly threatens or places another in fear of imminent bodily
injury or death.” (Texas Pen. Code, § 29.02, subd. (a).) The robbery is aggravated
robbery if, during the course of the robbery, the person additionally “(1) causes serious
bodily injury to another; [¶] (2) uses or exhibits a deadly weapon; or [¶] (3) causes bodily
injury to another person or threatens or places another person in fear of imminent bodily
injury or death, if the other person is: [¶] (A) 65 years of age or older; or [¶] (B) a
disabled person.” (Texas Pen. Code, § 29.03, subd. (a).)
       A Texas grand jury indicted defendant in 2000. The indictment did not name the
crime but described it, alleging that defendant “[i]ntentionally or knowingly, while in the
course of committing theft of property and with intent to obtain or maintain control of
said property, threaten or place Timothy Hollingsworth in fear of imminent bodily injury
or death, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a
firearm.” These allegations supported both robbery (because during the course of a theft
defendant placed the victim in fear of bodily injury or death) and aggravated robbery
(because during the course of the robbery defendant used a firearm) under Texas law.
       In 2001, defendant pleaded guilty to robbery (not aggravated robbery) under Texas
Penal Code section 29.02. The clerk’s transcript recounting the guilty plea noted that
defendant was charged by indictment but it does not adopt the facts alleged in the
indictment, nor does it set forth the factual basis of the plea. The clerk’s transcript
recounted: “[T]he information was read, and the Defendant entered a plea of guilty
thereto . . . .” (Italics added.) There is no indication of an information from the Texas
prosecution in the exhibits presented by the prosecution. Although it is not clear, it may
have been a misstatement, referring to the indictment. Or, possibly, there was an
information charging defendant with robbery instead of aggravated robbery. Finally, the

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clerk’s transcript recounted that evidence was submitted in support of the guilty plea, but
no indication is given concerning what that evidence was, only that it was consistent with
the guilty plea, which was to robbery.
       A rap sheet submitted by the prosecution reflects that defendant was charged with
aggravated robbery on July 3, 2000. On some unspecified date, the prosecutor in that
case reduced the charge to robbery. And on January 17, 2001, defendant pleaded guilty
to the robbery charge.
       A serious felony (or strike) in California includes, among other things, (1) “any
felony in which the defendant personally uses a firearm” (Pen. Code, § 1192.7, subd.
(c)(8)), (2) “robbery” (Pen. Code, § 1192.7, subd. (c)(19)), or (3) “any felony in which
the defendant personally used a dangerous or deadly weapon” (Pen. Code, § 1192.7,
subd. (c)(23)).
       The trial court in this case noted that robbery in Texas is not necessarily the same
as robbery in California because, in Texas, robbery may be committed if the perpetrator
recklessly causes bodily injury during the course of a theft and the property need not be
taken from the immediate presence of the victim. In those two regards, the Texas
robbery statute differs from the more limited California robbery statute, which provides:
“Robbery is the felonious taking of personal property in the possession of another, from
his person or immediate presence, and against his will, accomplished by means of force
or fear.” (Pen. Code, § 211.)
       Nevertheless, the trial court concluded that the Texas robbery was a serious felony
in California because defendant used a firearm. (See Pen. Code, § 1192.7, subd. (c)(8).)
To support that determination, the court stated that defendant pleaded guilty to the
indictment, which alleged that he used a firearm, and the indictment had not been
amended.




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       C.     Analysis
       The problem with the trial court’s finding is that the record does not support the
conclusion that defendant pleaded guilty based on the facts charged in the indictment. At
best, the record reflects that defendant pleaded guilty based on facts charged in an
information. As noted, that may have been a misstatement and actually referred to the
indictment. There is no reporter’s transcript from the guilty plea proceedings, which may
have clarified the basis of defendant’s guilty plea. Under these circumstances, the
reference to an information in the clerk’s transcript does not logically support the trial
court’s finding that defendant pleaded guilty based on the facts alleged in the indictment.
       Because robbery in Texas is not necessarily a serious felony under California law
and because this record does not establish that defendant actually used a firearm when he
committed the Texas robbery, we cannot conclude that the record is sufficient to support
the trial court’s finding that the Texas robbery qualifies as a strike offense in California.
       The Attorney General bases her defense of the strike finding entirely on the fact
that defendant admitted the allegations of the indictment. As noted, the record does not
support that argument. Accordingly, we must reverse the strike finding and remand.
(See People v. Barragan (2004) 32 Cal.4th 236, 239, 259 [retrial of strike allegation
permissible where appellate court reverses for insufficient evidence].)
                                       DISPOSITION
       The strike finding is reversed and remanded, and the sentence is vacated. In all
other respects, the judgment is affirmed. If the People elect to retry the strike allegation,
the trial court is directed to resentence defendant following retrial. If, within 60 days
after the remittitur issues from this court, the People have not filed and served an election




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to retry the strike allegation, the trial court is directed to dismiss the allegation and
resentence defendant.2


                                                           NICHOLSON              , Acting P. J.



We concur:



      BUTZ                   , J.




      RENNER                 , J.




2       As to count five, second degree robbery, the trial court sentenced defendant to a
consecutive term of two years eight months; however, the abstract of judgment
incorrectly reflects that defendant was sentenced to a consecutive term of only two years
as to that count. Since defendant will be resentenced at some point, we need not order
amendment of the abstract of judgment. But we note the discrepancy so that it will not be
repeated.

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