Filed 7/29/14 P. v. Jones CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B250726

         Plaintiff and Respondent,                                   (Los Angeles County Super. Ct.
                                                                      No. BA382185)
         v.

RAVON JONES,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Craig
Richman, Judge. Affirmed with directions.
         Catherine White, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson,
Supervising Deputy Attorney General, and Mark E. Weber, Deputy Attorney General, for
Plaintiff and Respondent.
                                            _____________________
       Pursuant to a case settlement agreement, defendant and appellant Ravon Jones
entered a plea of no contest in count 1 to evading an officer (Veh. Code, § 2008.2, subd.
(a)) and in count 2 of indecent exposure (Pen. Code, § 314).1 Defendant also admitted he
had suffered a prior serious or violent felony conviction within the meaning of the three
strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court dismissed
another open case against defendant (No. BA382107)2 pursuant to the plea agreement.
The court denied probation and sentenced defendant to the high term of three years on
count 1 and eight months on count 2 (one third of the middle term), both doubled as a
result of the strike prior conviction, for a total of seven years four months in state prison.
Defendant was ordered to pay $110 in attorney fees pursuant to section 987.8, in addition
to other fines.
       On appeal, this court conditionally reversed and remanded to the trial court to
allow defendant to present any complaints regarding trial counsel in a Marsden3 hearing
(People v. Jones (Dec. 18, 2012, B236963) [nonpub. opn.]). Any claim of ineffective
assistance of counsel was to be resolved at the Marsden hearing. (Ibid.) This court also
reversed the trial court’s order directing defendant to pay $110 in attorney fees and
remanded for the court to provide notice and a hearing under section 987.8, subdivision
(b) concerning his ability to pay attorney fees. (Ibid.)
       Defendant argues that upon remand that the trial court erred in denying his
Marsden motion and refusing to consider his ineffective assistance of counsel claims.
This court requested briefing regarding presentence credits and attorney fees, which the
parties also addressed.

       1   Unless otherwise indicated, all statutory references are to the Penal Code.

       2 Defendant was charged with indecent exposure (§ 314) based on the preliminary
hearing testimony of a librarian who saw him masturbating on a stairway landing in the
library.

       3   People v. Marsden (1970) 2 Cal.3d 118, 124-125.

                                               2
       We conclude that the trial court did not abuse its discretion in denying defendant’s
Marsden motion and direct the court to correct the errors in the abstract of judgment in
conformance with our opinion. In all other respects, the judgment is affirmed.


                                          FACTS


Circumstances of Defendant’s Arrest4


       On the morning of March 15, 2011, a witness reported observing defendant
masturbating in a grocery store parking lot. Los Angeles Police Officers Pelczar and
Mateus responded to the scene in a marked police car. Officer Pelczar was in uniform.
The officers spotted defendant, who matched the description the witness had given,
driving a car consistent with the vehicle the witness had described. When the officers
began to follow him, defendant accelerated to a speed of 20-30 miles per hour in
disregard of the safety of people walking in the parking lot. Defendant stopped his
vehicle facing the officers, who activated the patrol car’s lights and sirens. Officer
Pelczar got out of the patrol car, made eye contact with defendant, and yelled for him to
stop. In response, defendant put his car in reverse and left the parking lot. He
accelerated to approximately 50 miles per hour, ran a red light, and abandoned his vehicle
in an alley. He was found in a crawlspace. The witness identified defendant as the man
who had been masturbating.




       4Because defendant entered pleas of no contest, the facts are drawn from the
preliminary hearing transcript.


                                              3
Marsden Hearing5


       On May 9, 2013, the trial court held a Marsden hearing following remand by this
court in our opinion in defendant’s first appeal. Defendant identified five grounds for
making his Marsden motion: (1) defendant was on psychiatric medication when he
entered his plea and was not in his right state of mind; (2) counsel failed to file a motion
to withdraw defendant’s plea; (3) counsel failed to investigate the underlying facts of the
case and hire an investigator to interview witnesses; (4) counsel failed to file a motion for
exculpatory evidence under Brady v. Maryland (1963) 373 U.S. 83, which defendant
claimed would have required the prosecution to produce his DNA samples and a
videotape of him “committing the crime;” and (5) counsel failed to file a motion to
suppress (§ 1538.5) the videotape, DNA samples and an arrest warrant, on a theory that
there was no probable cause for his arrest. 6
       On the issue of medication, defendant complained that counsel failed to subpoena
Dr. Knapke to testify about the psychiatric medication he claimed to be taking and its
side effects at the August 15, 2011 hearing. On May 18, 2011, Dr. Knapke conducted a

       5 Deputy Public Defender Rigoberto Arrechiga was defendant’s counsel in the
case he entered a plea of no contest to two counts, and Deputy Public Defender David
Kanuth was defendant’s counsel in the case that was dismissed pursuant to the plea
agreement. Arrechiga was responsible for negotiating the plea agreement that settled
both cases for defendant. By the time of the sentencing hearing, Arrechiga had been
transferred, so Kanuth appeared for defendant. When the Marsden hearing took place
after defendant’s initial appeal in this case, Kanuth had left the Public Defender’s Office
and no longer represented defendant. Defendant had new counsel, but both Kanuth and
Arrechiga were present at the Marsden hearing and responded throughout the hearing to
defendant’s allegations.

       6 Defendant’s allegation that he was inadequately represented by his trial counsel
is solely directed at Kanuth. The defendant stated, “This Marsden hearing is not on you
Rigoberto. This is on David Kanuth.” The court then asked, “So you feel that Mr.
Arrechiga . . . did everything that you asked him to do; is that correct? He adequately
represented you?” And defendant answered, “Well, he don’t have nothing to do with this
case. The Marsden hearing is on David Kanuth.”


                                                4
mental health evaluation of defendant in county jail; defendant believed that his report
would include a list of the psychiatric medication he was taking at the time. Counsel7
responded that the issue of medication or being impaired was brought up at the hearing
on August 15, 2011, and with defendant’s permission, the court reviewed Dr. Knapke’s
report. The evaluation found defendant competent to stand trial and did not reflect that
he was taking any medication. Counsel read aloud the conclusion of Dr. Knapke’s
report, which stated “even though the defendant claims to have a history of mental health
treatment, he did not present any symptoms during this examination.” Counsel also
received defendant’s medical records from jail dating before and after his plea (June 11,
2011, and June 23, 2011) that found defendant “is doing well and has no problem with
medication or mental state.” Also on the date of defendant’s plea, counsel was concerned
that defendant was not understanding “and I don’t mean that in a lack of competency
way. I mean, he was frustrated, and there was some stubbornness about [the case].”
Counsel ended up talking with him for hours and had no concerns about his competency
or noticed any side effects that would result from psychiatric medication. Defendant also
was wearing a blue jail uniform; inmates who are taking psychiatric medication typically
wear a yellow uniform, a point defendant disputes.
       On the issue of moving to withdraw defendant’s plea, counsel stated that the case
in which he initially represented defendant (No. BA382107) had been dismissed as part
of the plea agreement. Withdrawing from the plea agreement would then reinstate the
charges against defendant in both cases. In counsel’s professional opinion, defendant’s
chances in the dismissed case were “very, very bad,” and defendant had no viable defense
in the remaining case. He explained that defendant had two prior strikes. The prosecutor
told counsel that if defendant withdrew his plea, upon his conviction the prosecutor
would seek a three strikes sentence of 25 years-to-life. In response to both defendant’s
contention that he was on psychiatric medication at the time of his plea and counsel failed



       7 All references to “counsel” denote Kanuth and/or Arrechiga for ease and
readability.

                                             5
to withdraw his plea, counsel stated, “Based on the fact that I never observed any
problems with him nor did two other public defenders, and there’s no indication based on
every medication that’s been prescribed to him that any of these would have that side
effects, and based on my own personal experience, I just didn’t see any legal basis to
withdraw the plea. . . .”
       As to defendant’s remaining complaints, trial counsel emphasized that he went
through all the evidence and tried to establish a viable defense. Counsel stated that an
investigator was sent to talk to the complaining witness, who alleged that defendant
masturbated in his car in the grocery store parking lot. Counsel also obtained the dash
cam video of the police in pursuit of defendant. Counsel spoke to defendant’s parole
agent, who attached a GPS device on defendant and tracked him to every location where
the police chase took place. Counsel contended that “[t]hings were done. We
investigated everything.” For the case that was dismissed, counsel explained that a
credible witness testified at the preliminary hearing and there were at least two other
witnesses that were very credible. He even inquired about the DNA samples and had
been told that no DNA samples were found. Counsel said he had made all necessary
discovery motions and notes that no motion was necessary to be entitled to exculpatory
Brady materials.
       After listening to defendant and trial counsel, the court denied defendant’s
Marsden motion: “I do believe that the record is quite clear at this point in time. All of
the complaints that are being made would be ineffective assistance of counsel as opposed
to a Marsden hearing. I’m not finding ineffective assistance of counsel, nor am I
considering it. That’s not a role for me.8 My issue here is to conduct a Marsden hearing.
[¶] I am not finding that there was an irreconcilable conflict between the attorney and
client that would result in ineffective assistance of counsel. The Marsden [motion] is



       8 At one point previously the court stated, “. . . I’m not going to address ineffective
assistance of counsel. That’s an issue for an appellate court.”


                                              6
denied.” The trial court resentenced defendant to seven years four months pursuant to the
plea agreement.


                                       DISCUSSION


Denial of Marsden Motion


       Defendant contends the trial court erred in denying his Marsden motion and
refusing to consider his ineffective assistance of counsel claims. We reject defendant’s
argument that the trial court should have removed counsel as being constitutionally
ineffective based on counsel’s statements at the Marsden hearing. As we read the record,
counsel did the best he could in the face of a seemingly insurmountable prosecution case
and an intractable defendant. The trial court had no basis for concluding at the Marsden
hearing that defense counsel was ineffectively representing defendant, because the record
was entirely to the contrary.
       “When a defendant seeks new counsel on the basis that his appointed counsel is
providing inadequate representation . . . , the trial court must permit the defendant to
explain the basis of his contention and to relate specific instances of inadequate
performance. A defendant is entitled to relief if the record clearly shows that the
appointed counsel is not providing adequate representation or that defendant and counsel
have become embroiled in such an irreconcilable conflict that ineffective representation
is likely to result. Substitution of counsel lies within the court’s discretion. The court
does not abuse its discretion in denying the motion unless the defendant has shown that a
failure to replace counsel would substantially impair the defendant’s right to assistance of
counsel. [Citation.]” (People v. Smith (2003) 30 Cal.4th 581, 604.) We review a ruling
on a request to relieve counsel for abuse of discretion. (People v. Marsden, supra, 2
Cal.3d at p. 124.)
       Defendant contends he was on psychiatric medication and “I was not in [the] right
state of mind” when he entered his plea. In the same vein, trial counsel should have filed

                                              7
a motion to withdraw defendant’s plea. Although a criminal defendant has the right to
move to withdraw his or her plea (People v. Brown (1986) 179 Cal.App.3d 207, 215),
trial counsel is not obligated to file a meritless motion (People v. Brown (2009) 175
Cal.App.4th 1469, 1473 (Brown)). Where, as here, counsel declines to file the motion,
the proper procedure is for the defendant to seek new counsel under Marsden. If the
court concludes that counsel properly declined to file the motion, the Marsden request
should be denied. (Brown, supra, at p. 1473.)
       In support of his contentions, defendant states that trial counsel should have
subpoenaed Dr. Knapke to testify about the side effects of his medication. However,
based on the fact that that defendant’s mental health evaluation and medical jail records
did not report any psychiatric medication, counsel found no grounds to withdraw his plea.
Dr. Knapke’s evaluation details that defendant was under no such influence and nothing
in the record indicates that the doctor would contradict his evaluation if subpoenaed.
Counsel received and reviewed defendant’s jail medical records dated before and after his
plea, and reached the same conclusion. Defendant’s uniform in jail was the color blue
rather than a yellow, which denotes that the inmate is taking medication while in custody.
Defendant’s conclusory allegation that he was taking psychiatric medication runs in
direct contradiction of Dr. Knapke’s evaluation. Counsel “never observed any problems
with him nor did two other public defenders, and there’s no indication based on every
medication that’s been prescribed to him that any of these would have that side effects.”
Relying on Dr. Knapke’s report and counsel’s responses, the court found that defendant’s
claim of being under the influence of psychiatric medication was unfounded and provided
no basis for the withdrawal of the plea or appointment of new counsel.
       In direct response to his failure to file a motion to withdraw defendant’s plea,
counsel explained that withdrawal of the plea would have resulted in reopening the case
against defendant (No. BA382107) that was dismissed pursuant to the plea agreement.
After reviewing the case file, counsel did not see a viable defense in that case. In the
Marsden hearing, counsel stated, “In . . . my professional opinion, very, very bad chances
for [defendant].” Complaints consisting of “nothing more than tactical disagreements

                                             8
between defendant and counsel” do not constitute a basis for substitution of appointed
counsel. (People v. Panah (2005) 35 Cal.4th 395, 432.) Defendant also had two prior
strikes and counsel was told by the prosecution that should defendant be successful at
withdrawing his plea, the prosecution would “proceed on 25 years to life as a third
strike.” The plea agreement counsel obtained for defendant ― only seven years four
months in prison and a dismissal of another open case against defendant ― was
incredibly favorable given his exposure under the three strikes law on the two cases.
Defendant has failed to make a proper showing of inadequate representation as counsel’s
responses during the Marsden hearing reveal he performed with reasonable diligence in
determining whether to subpoena Dr. Knapke, and ultimately withdraw defendant’s plea.
       Defendant’s remaining allegations are irrelevant based on the fact that the case
which counsel represented defendant was dismissed pursuant to the plea agreement and
only represented him in the case before the court at the sentencing hearing on October 19,
2011. Regardless, even if the case was not dismissed pursuant to the agreement, counsel
explains that a credible witness testified at the preliminary hearing and there were at least
two other witnesses that were very credible. Counsel even inquired about the DNA
samples and had been told that no DNA samples were found. Counsel explained that he
made “all the necessary discovery motions,” and added that no motion was necessary to
require the prosecution to produce Brady material. As to the case that came before the
trial court, counsel notes that an investigator was sent to talk to the complaining witness,
who stated that defendant masturbated in his car in the grocery store parking lot. Counsel
also obtained the dash cam video of the police in pursuit of defendant. Counsel spoke to
defendant’s parole agent, who attached a GPS device on defendant and tracked him to
every location where the police chase took place. Counsel contended that “[t]hings were
done. We investigated everything.” Where the evidence of a defendant’s guilt is
overwhelming, defense counsel is “not obliged to pursue futile lines of defense simply
because defendant demanded them, and his refusal to do so did not justify his removal as
counsel. (People v. Welch (1999) 20 Cal.4th 701, 728-729 [‘Tactical disagreements



                                              9
between the defendant and his attorney do not by themselves constitute an “irreconcilable
conflict”’].)” (People v. Panah, supra, 35 Cal.4th at pp. 431-432.)
       The court did err when stating it would not consider ineffective assistance of
counsel claims at the Marsden hearing, for “[i]neffective assistance of counsel is the
underlying plank which supports the Marsden rule.” (People v. Maese (1980) 105
Cal.App.3d 710, 723.) Marsden requires the trial court to “permit the defendant to
articulate his causes of dissatisfaction and, if any of them suggest ineffective assistance,
to conduct an inquiry sufficient to ascertain whether counsel is in fact rendering effective
assistance. (Marsden, supra, 2 Cal.3d at pp. 123-124.) In light of the fact the court
considered each of defendant’s five complaints with counsel and gave defendant every
opportunity to explain the basis for his motion to substitute counsel, these statements by
the court, standing alone, were harmless. After the court listened to defendant’s
complaints, it allowed counsel to respond to each in turn. The then court concluded, “I’m
not finding ineffective assistance of counsel . . .” It went on to find that there was no
“irreconcilable conflict between the attorney and client that would result in ineffective
assistance of counsel” and denied the motion. While the court did not articulate a
specific ruling on the withdrawal motion, it implicitly did so in its denial of defendant’s
Marsden motion to substitute counsel. (See People v. Garcia (1991) 227 Cal.App.3d
1369, 1377, fn. 3, disapproved on another ground in People v. Smith (1993) 6 Cal.4th
684, 692 [if a defendant does not present a colorable claim, the court may deny the
motion without providing for new counsel].) Since the court found defendant has failed
to make a sufficient showing of inadequate representation and thereafter denied the
Marsden motion, the court reinstated the judgment against defendant pursuant to this
court’s instruction.
       Applying the Marsden test to this case, we find no error in denying the motion for
substitute counsel. The reasons stated by defendant at a Marsden hearing to substitute
counsel do not, taking into consideration any explanation offered by counsel, show any
inadequacy of counsel or irreconcilable differences. “Accordingly, we find no basis for
concluding that the trial court either failed to conduct a proper Marsden inquiry or abused

                                             10
its discretion in declining to substitute counsel. [Citation.]” (People v. Fierro (1991) 1
Cal.4th 173, 206-207.)


Abstract of Judgment


          After the denial of defendant’s Marsden motion and the imposition of defendant’s
original sentence of seven years four months in state prison, the trial court orally granted
defendant 1,569 days of presentence credit, based on 433 days in custody and 1,136 days
of good conduct credits. The court’s minute order and the abstract of judgment state that
defendant received presentence credit for 785 days in custody and 784 days of good
conduct. The court orally ordered defendant to pay a $40 court security fee (§ 1465.8,
subd. (a)(1)) and a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)), but
the court’s minute order and the abstract of judgment state defendant is to pay $80 in
court security fees, and $60 in court facilities assessment. The trial court orally struck its
prior order that defendant pay $110 in attorney fees. The court’s minute order reflects
that the court struck the attorney fees previously imposed, but the abstract of judgment
states that defendant is to pay $110 in attorney fees. Lastly, the abstract of judgment
states that the execution of sentence was imposed “at initial sentencing hearing.”
          The defendant first argues, and the Attorney General properly concedes, that the
trial court incorrectly calculated the amount of presentence custody and conduct credits.
Generally, it is the duty of the trial court to determine the periods of the defendant’s
custody and the number of days to be credited. (§ 2900.5, subd. (d).) When the facts are
undisputed, however, a defendant’s entitlement to custody credits presents a question of
law for the appellate court’s independent review. (People v. Shabazz (1985) 175
Cal.App.3d 468, 473-474.) Here, the periods of time during which defendant was in
custody, and the grounds for his custody, are contained in the record. Calculation of
defendant’s custody credits is therefore a question of law, which we review de novo.
(Ibid.)



                                              11
       With respect to custody credit, defendant argues that he is entitled to presentence
credit for 219 days in custody. The Attorney General contends that defendant is actually
entitled to presentence credit for 362 days in custody. It is undisputed that defendant
served 219 days in jail from the date of his arrest on March 15, 2011, to the date of
sentencing on October 19, 2011, and defendant was entitled to custody credit for those
219 days. (People v. Taylor (2004) 119 Cal.App.4th 628, 645 [the defendant was entitled
to presentence custody credits for days he served in jail from the date of his arrest to date
of sentencing].) However, when this court reversed the judgment against defendant on
December 18, 2012, and the trial court resentenced him on May 9, 2013, defendant was
entitled to presentence credit for 143 days in custody. Defendant was therefore entitled
to 362 days (219 days plus 143 days in custody) of presentence custody when the trial
court resentenced him on May 9, 2013. Defendant is not entitled to presentence credit for
the period of time he was in prison after the trial court sentenced him in October 2011,
but before this court reversed the judgment against him in December 2012. (In re
Martinez (2003) 30 Cal.4th 29, 31 (Martinez) [the defendant’s “prereversal prison time
ought not be viewed as presentence custody, and her credit accrual should be calculated
in accordance with her ultimate postsentence status”].)
       With respect to conduct credit, defendant argues and Attorney General agrees that
defendant is entitled to two days of credit for every four days served. (§ 4019.) As a
result, when the trial court resentenced defendant, defendant was entitled to 180 days
(362 days of custody credit divided by 4 equals 90.5, and 90 multiplied by 2 equals 180)
of presentence good conduct. (People v. Smith (1989) 211 Cal.App.3d 523, 527 [for
purposes of determining a defendant’s entitlement to conduct credit, credits are allowed
only in increments of four days, and thus “rounding up” is not permitted].) The abstract
of judgment must be modified to reflect total credits of 542 days, consisting of 362 days
of custody credit and 180 days of conduct credit. Calculation of the actual days of
conduct credit earned by defendant from his initial sentencing on October 19, 2011, to
this court’s reversal on December 18, 2012, is left to the Department of Corrections and
Rehabilitation. (Martinez, supra, 30 Cal.4th at p. 37.)

                                             12
       Defendant further contends the abstract of judgment must be amended to reflect
that defendant should pay only a $40 court security fee and a $30 court facilities
assessment, instead of $80 and $60, respectively. We disagree. The trial court should
have ordered defendant to pay a court security fee and a court facilities assessment for
each count to which he pled no contest. (§ 1465.8 [“an assessment of $40 shall be
imposed on every conviction for a criminal offense”]; Gov. Code, § 70371, subd. (a)(1)
[“an assessment shall be imposed on every conviction for a criminal offense . . . in the
amount of $30 for each misdemeanor or felony”].) Here, defendant pled no contest in
count 1 to evading an officer (Veh. Code, § 2008.2, subd. (a)) and in count 2 of indecent
exposure (§ 314).
       Lastly defendant argues, and the Attorney General properly concedes, the abstract
of judgment should be modified to strike the entry requiring him to pay $110 in attorney
fees. The trial court’s oral order striking the attorney fee controls this issue. (See People
v. Mitchell (2001) 26 Cal.4th 181, 185 [“An abstract of judgment is not the judgment of
conviction; it does not control if different from the trial court’s oral judgment . . .”].) We
also agree with defendant that the abstract of judgment should be modified to indicate the
execution of sentence occurred “at resentencing per decision on appeal,” rather than “at
initial sentencing hearing.”




                                              13
                                      DISPOSITION


       The trial court is instructed to correct the abstract of judgment to properly reflect
an award of 542 days of credit, consisting of 362 days of custody credit and 180 days of
conduct credit, and to strike the entry requiring defendant to pay $110 in attorney fees.
The abstract of judgment shall also be modified to indicate the execution of sentence
occurred “at resentencing per decision on appeal.” In all other respects, the judgment is
affirmed.




              KRIEGLER, J.


We concur:




              TURNER, P.J.




              MOSK, J.




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