Filed 10/16/13 P. v. Thao 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                                           NOT TO BE PUBLISHED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
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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Butte)
                                                            ----


THE PEOPLE,                                                                                  C069868

                   Plaintiff and Respondent,                                    (Super. Ct. No. CM034158)

         v.

TOUA DELYNN THAO,

                   Defendant and Appellant.




         Defendant Toua Delynn Thao pleaded no contest to first-degree felony murder
(Pen. Code, § 187, subd. (a); unless otherwise stated, statutory references that follow are
to the Penal Code) and admitted he was engaged in a home-invasion robbery (Pen. Code,
§ 190.2, subd. (a)(17)) at the time of the offense. Before sentencing, defendant moved to
withdraw his plea, claiming ineffective assistance of counsel. The trial court held an in
camera hearing and, after applying the standard set forth in People v. Marsden (1970) 2
Cal.3d 118 (Marsden), also denied defendant’s request for new counsel and his motion to
withdraw his no contest plea.



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          On appeal, defendant contends the trial court failed to appoint new counsel to
represent him on the plea withdrawal motion and, alternatively, failed to make proper
inquiry in conducting the Marsden hearing. We affirm the judgment.

                                  FACTS AND PROCEEDINGS
          Defendant and five other juveniles (the co-defendants) broke into the home of 73-
year old Frank B. Frank B. had been targeted after one of the co-defendants spotted
money and other items while visiting Frank B.’s home.
          Once inside the house, defendant and his cohorts were confronted by Frank B.
One of the co-defendants struck Frank B. on the head several times with a baseball bat.
Frank B. collapsed in the hallway, bleeding. Defendant and the others spent another 20
minutes ransacking the house before finally leaving with their plunder. Frank B. crawled
to the phone and called 911. He was transported to the hospital, where he later
succumbed to his injuries.
          Defendant was charged with felony murder of Frank B. (§ 187, subd. (a)--count 1)
and home invasion robbery in concert (§§ 211, 213, subd. (a)(1)(A)--count 2). The
complaint alleged that, with respect to count 1, the murder of Frank B. was aided and
abetted by defendant while engaged in the commission of the home invasion robbery (§
190.2, subd. (a)(17)).
          Defendant entered a plea of no contest to count 1 in exchange for dismissal of
count 2 and the People’s stipulation not to proceed with life without the possibility of
parole.
          Before sentencing, defendant moved to withdraw his plea. At defense counsel’s
request, the court held an in camera hearing for the purpose of conducting a Marsden
inquiry to determine whether substitute counsel should be appointed to present
defendant’s motion to withdraw his plea (People v. Smith (1993) 6 Cal.4th 684, 695-696
(Smith)). Aided by his attorney, defendant argued he was innocent and explained why


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defense counsel was incompetent and why he should not have heeded counsel’s advice to
accept the plea deal offered to him. At the conclusion of the hearing, the court denied
both motions, finding they were the result of defendant’s change of heart and not a
misunderstanding about the consequences of his plea or a breakdown in the attorney-
client relationship.
       The court sentenced defendant to 25 years to life. Defendant filed a timely notice
of appeal. The court granted his application for certificate of probable cause.

                                       DISCUSSION
                                              I
                                Post-plea Marsden Hearing

       Defendant contends the trial court failed to properly conduct the post-plea
Marsden hearing. He urges us to remand for further Marsden proceedings. Concluding
there was no error, we decline to do so.
       In a case such as this, where the defendant indicates to the court, after conviction,
his desire to withdraw his plea based on a claim that his current counsel provided
ineffective assistance, a trial court is obligated to conduct a Marsden hearing on whether
to discharge current counsel for all purposes and appoint new counsel “only when there is
‘at least some clear indication by defendant,’ either personally or through his current
counsel, that defendant ‘wants a substitute attorney.’ [Citation.]” (People v. Sanchez
(2011) 53 Cal.4th 80, 90 (Sanchez).)
       Once a defendant has so indicated, the trial court must permit him to articulate the
basis for his concerns so that the court can determine if they have merit and, if necessary,
appoint new counsel. (Marsden, supra, 2 Cal.3d at pp. 123-124; accord, Smith, supra, 6
Cal.4th at p. 691.)
       “[T]he trial court should appoint substitute counsel when a proper showing
[pursuant to Marsden] has been made at any stage [of the proceedings]. A defendant is


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entitled to competent representation at all times, including presentation of a . . . motion to
withdraw a plea.” (Smith, supra, 6 Cal.4th at p. 695; accord, Sanchez, supra, 53 Cal.4th
at pp. 88-89.)
       “[S]ubstitute counsel should be appointed when, and only when, necessary under
the Marsden standard, that is whenever, in the exercise of its discretion, the court finds
that the defendant has shown that a failure to replace the appointed attorney would
substantially impair the right to assistance of counsel [citation], or, stated slightly
differently, if the record shows that the first appointed attorney is not providing adequate
representation or that the defendant and the attorney have become embroiled in such an
irreconcilable conflict that ineffective representation is likely to result [citation]. This is
true whenever the motion for substitute counsel is made.” (Smith, supra, 6 Cal.4th at
p. 696; accord, Sanchez, supra, 53 Cal.4th at p. 89.)
       “[T]he standard expressed in Marsden and its progeny applies equally
preconviction and postconviction.” (Smith, supra, 6 Cal.4th at p. 694; accord, Sanchez,
supra, 53 Cal.4th at p. 88.) That is, the alternative language in People v. Stewart (1985)
171 Cal.App.3d 388, 395 and People v. Reed (2010) 183 Cal.App.4th 1137, 1144,
requiring that a defendant make a “colorable claim” of the “possibility” of ineffective
representation is synonymous with the “substantial showing” requirement in Marsden.
(Smith, supra, 6 Cal.4th at p. 693.)
       A trial court’s denial of a request for substitute counsel “will not be overturned on
appeal absent a clear abuse of . . . discretion.” (Smith, supra, 6 Cal.4th at p. 696.)
       There was no abuse of discretion here. First, the court explored the reasons
underlying defendant’s request for substitute counsel, giving him several opportunities to
articulate his concerns regarding both the plea and his relationship with his attorney.
Defendant proclaimed his innocence, said he was confused about why he had been
charged with first-degree murder, and complained that he thought it unfair to have been
charged with a crime in which he had no role. Defendant said he was prepared to go to

                                               4
trial, but his attorney told him to take the plea deal because he could not win at trial and
the district attorney was “going to get what he wants in the end.” Defendant also said he
felt intimidated and bullied into taking a plea offer he “did not want to agree with,” the
ramifications of which he claimed not to understand.
       The court made inquiry into each of defendant’s complaints, pressing for the
details about the consequences of his plea he did not understand. Defendant claimed he
did not understand “the rules and everything.” He also claimed he did not know he was
going to get life with parole but, after looking up the definition of first-degree murder
while in jail awaiting trial, he decided he should not have accepted the plea deal because
he was innocent of the charges against him. Defendant confirmed that he knew what the
maximum punishment was at the time he entered his plea, but claimed he did not really
understand the deal and just agreed to “get the deal over with.”
       The court asked defendant how he was intimidated and bullied into taking the
plea. Defendant said the numbers intimidated him (i.e., “25 years to life, 34 years to life,
or life without parole”), as well as the fact that the day he entered his plea was a “long
day” and he felt pressured after hearing other people in the holding cell complain about
their own plea arrangements.
       When asked how his attorney failed him, defendant said counsel and the private
investigator told him he was going to lose if he went to trial. He lamented the fact that he
did not know he had the option of obtaining new counsel so that he “might have a better
defense,” but admitted he did not tell his attorney all the facts and circumstances
pertinent to his case.
       Next, the court asked defense counsel to respond to defendant’s claims. Counsel
described the efforts he undertook in representing defendant, including investigation,
preparation for trial, discussions with counsel for each of the co-defendants, and
participation in plea negotiations with the district attorney, and explained that, given the
dearth of potential witnesses to testify on behalf of defendant, his trial preparation

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consisted mainly of reviewing the co-defendants’ interviews with law enforcement and
defendant’s own statements to police.
       Counsel stated that all the co-defendants had agreed to make statements and
provide testimony against defendant. He noted that while there was no physical evidence
tying defendant to the murder of Frank B., other evidence tied him to the home invasion
robbery that led to Frank B.’s death, such as defendant’s own inculpatory statements,
physical evidence tying him to the vehicle that transported him and his co-defendants to
Frank B.’s home the night of the crime, and the co-defendants’ statements placing him at
the scene of the crime. Counsel noted further that there was evidence both of a prior
relationship between defendant and his co-defendants going back some years, and of a
meeting between them which led to the trip to Frank B.’s home the night of the crime.
       Defense counsel described conversations he had with defendant regarding what
was necessary to prove the crimes charged and the fact that, given the evidence
(including defendant’s apparent admission to police that he “ended up with” money taken
from Frank B.’s home), there did not appear to be a defense to the first-degree burglary
charge which, if established, would satisfy the felony murder charge. Counsel also
described his fruitless efforts to negotiate a plea deal for a second-degree murder charge.
       The court invited defendant to state any additional reasons why the plea should be
withdrawn or substitute counsel appointed, offering him the opportunity to write his
thoughts down on paper. At defendant’s request, defense counsel assisted him in
communicating a response. Through his counsel, defendant informed the court that his
description to police of what occurred at Frank B.’s house the night of the crime was
based not on defendant’s own personal experience but on information defendant learned
from one of his co-defendants. Defendant told the court he was afraid during the police
interviews and did not realize the impact of his statements, and that he told police
investigators, when they came to talk to him the second time, that he wanted to talk to his
attorney.

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       When the court asked defense counsel whether this new information changed his
analysis of defendant’s likelihood of success at trial, counsel said it did not, explaining
that “that aspect of [defendant’s] case was considered somewhat,” and that he and
defendant had discussed the police interviews “several times.” Counsel explained that, in
contemplating the admissibility of defendant’s police interviews, he considered
defendant’s youth, that the two “experienced” investigators were interviewing defendant
without an adult present, and that the investigators “repeatedly during the course of that
interview . . . called [defendant] a liar,” concluding he “believed and would have made a
motion . . . if that interview was to be admitted or the result of that interview were to be
admitted into evidence, prior to that happening there would have been a challenge to the
admissibility of that interview against [defendant].” Counsel explained further that he
intended to rely on Doody v. Schriro (9th Cir. 2010) 596 F.3d 620 (Doody I), as he “felt
that perhaps those facts fit [defendant’s] case,” but concluded that “[t]here was then a
supreme court case that came down that basically, as far as I’m concerned, made that
argument under [Doody I] almost impossible to support as far as--well, it just wasn’t
available.” Given that, defense counsel said, he concluded defendant’s statements during
the police interview “would likely be admitted into evidence,” and “that was again a
factor that I discussed with [defendant] and indicated that that was again a reason or a
basis as far as the steps that he took to change his plea and accept the plea offer . . . .”
       The trial court offered defendant a final opportunity to state why substitute counsel
should be appointed. Defendant told the court he had difficulty communicating with
defense counsel, and that he tried to but could not convince counsel of his innocence.
       The court denied defendant’s motion, concluding there was no evidence of a
breakdown in the attorney-client relationship or that defendant was misadvised of either
the law or the consequences of his plea, only that defendant had had a change of heart
regarding the plea.



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       We conclude the trial court properly discharged its obligations under Marsden,
giving defendant a full opportunity to specify his concerns, eliciting an explanation from
defense counsel in response to each of those concerns, and making such inquiries of
defendant and trial counsel as necessary. (People v. Reed, supra,183 Cal.App.4th at
p. 1144.)
       Defendant argues the trial court failed to “make any effort to find out what the law
was” before concluding he was not misadvised. He argues his own statement that he told
detectives he wanted to talk to his attorney, and defense counsel’s statement indicating
counsel would have challenged the admissibility of defendant’s statements to police but
believed the Doody I case no longer provided authority to do so, “should have been a
direct cue” for the trial court to take action, namely, to develop the record to determine
whether defense counsel properly considered the Miranda issue raised by defendant, and
whether defense counsel was correct in his legal assessment of the Doody I case.
(Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].) The claim lacks merit.
       Defendant cites no authority, and we know of none, compelling the trial court to
conduct legal research of its own to determine whether defense counsel’s assessment of
the Doody I case was correct. “[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. Hines (1997) 15 Cal.4th 997, 1025.) Defense counsel explained that he
discussed with defendant several times the police interviews, and that he conducted legal
research to determine whether a potential motion to suppress might be viable. The court
is entitled to accept counsel’s explanation of his conduct and is not obliged to inquire, sua
sponte, into the actual efficacy of his efforts. (Smith, supra, 6 Cal.4th at pp. 696-697;
People v. Webster (1991) 54 Cal.3d 411, 436.)



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       In any event, defendant’s complaints relate to trial tactics and strategy and, under
the circumstances of this case, do not constitute the type of “irreconcilable conflict” that
indicates defense counsel’s representation was inadequate. (People v. Welch (1999) 20
Cal.4th 701, 728-729.)
       “ ‘Accordingly, we find no basis for concluding that the trial court either failed to
conduct a proper Marsden inquiry or abused its discretion in declining to substitute
counsel.’ ” (Smith, supra, 6 Cal.4th at p. 697, quoting People v. Fierro (1991) 1 Cal.4th
173, 206-207.)
                                              II
                             Ineffective Assistance of Counsel

       Defendant contends he made a “colorable claim” of ineffective assistance of
counsel when, during the post-plea Marsden hearing, it was revealed that his trial
attorney’s advice to enter a no contest plea was based in part on counsel’s belief, later
found to be erroneous, that Doody I, the opinion upon which counsel hoped to rely to
suppress defendant’s statements to police, had been nullified. Thus, defendant contends,
the trial court should have appointed substitute counsel to represent him in his motion to
withdraw his plea. We conclude defendant failed to demonstrate a reasonable probability
that, but for defense counsel’s incompetence, he would not have entered a plea of no
contest and would instead have insisted on proceeding to trial.
       A criminal defendant has a constitutional right to effective assistance of counsel.
(U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466
U.S. 668, 684-685 [80 L.Ed.2d 674, 691-692].) To prevail on a claim of ineffective
assistance of counsel, the defendant must demonstrate his attorney’s representation was
deficient--that is, that it “fell below an objective standard of reasonableness”--and that the
deficiency was prejudicial. (Id. at p. 688; see also id. at pp. 687-688, 692.) To show
prejudice, the defendant must demonstrate that “there is a reasonable probability that, but



                                              9
for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” (Id. at p. 694.)
       In the context of a plea bargain, we specifically ask whether there is a reasonable
probability that, but for counsel’s incompetence, defendant would not have pleaded guilty
and would have insisted on proceeding to trial. (Hill v. Lockhart (1985) 474 U.S. 52, 58-
59 [88 L.Ed.2d 203, 209-210].) The answer here is no.
       Because defendant’s motion to withdraw his plea was based on a claim of
ineffective assistance of counsel, it was incumbent upon him to demonstrate the
incompetence of which he now complains at the Marsden hearing. He did not, indeed
because the error was not yet known to either him or his attorney. Nor did defendant
demonstrate any incompetence of counsel at all. When asked to explain his allegation of
attorney incompetence, defendant complained of difficulty convincing defense counsel of
his innocence. Defendant also complained of communication troubles with his attorney,
but defense counsel’s explanation showed quite the opposite, as did the fact that
defendant specifically requested the assistance of his attorney to communicate with the
court during the Marsden hearing, suggesting that any “asserted communication
problems were not insoluble and had not given rise to such an irreconcilable conflict that
ineffective representation was likely to result.” (People v. Hines, supra, 15 Cal.4th at
p. 1026.) Defendant said he felt bullied and intimidated into taking the plea deal, but
upon inquiry revealed he felt bullied and intimidated not by his attorney, but by the
numbers, the long day, and the people in the holding cell with him complaining about
their own plea negotiation woes.
       Although he told the court he took the plea deal because his attorney told him he
could not win at trial, he made no substantive complaints regarding his attorney’s
incompetence in doing so. “[P]resenting, and even urging, acceptance of the
prosecution’s settlement offer is an insufficient basis for substitution of counsel.”

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(People v. Shoals (1992) 8 Cal.App.4th 475, 497.) Proclamations of innocence and
statements of regret for having entered the plea aside, defendant provided no evidence of
attorney incompetence.
       Even assuming counsel’s error had been brought to the attention of the trial court,
defendant has not shown a reasonable probability that, but for the error, the result would
have been different. At the Marsden hearing, defendant told the trial court that, on the
day he entered his no contest plea, he was ready to go to trial but accepted the plea offer
on counsel’s advice instead. However, he did not allege then, nor does he contend now,
that he would have rejected the plea deal and proceeded to trial had he known counsel’s
advice regarding the potential suppression of his statements to police was erroneous.
       Defendant claims the prejudice standard “would be an easy burden to meet” given
that he was induced by counsel’s wayward advice to plead no contest, something he
would not otherwise have done as evidenced by the fact that he previously turned down
the same plea offer just weeks prior to entry of his no contest plea. This argument is
lacking for several reasons.
       First, as previously discussed, defendant made no claim at the Marsden hearing
that he would not otherwise have accepted the plea offer but for defense counsel’s error.
Even on appeal, appellate counsel offers no argument as to the ways in which a cure of
trial counsel’s misadvice regarding the Doody I case would have actually resulted in a
determination more favorable to defendant, arguing simply that defendant is entitled to
reversal and remand for appointment of substitute counsel for the purpose of conducting
further proceedings on the motion to withdraw his plea. However, such further
proceedings would be fruitless, the trial court having already determined not only that
defendant was well aware of the consequences of his plea, but also that, in the face of
significant evidence against him, defendant elected to forego trial in exchange for a plea
deal that guaranteed he would not face a sentence of life without the possibility of parole.



                                             11
       Next, the record makes clear that the admissibility of defendant’s statements to
police was only “a factor . . . a reason or a basis” for counsel’s advice that defendant
accept the plea offer. (Italics added.) That is, defense counsel’s advice to enter a no
contest plea had as much to do with the perceived inability to suppress defendant’s
statements to police as it did the cumulative effect of the other evidence against defendant
which, as defense counsel pointed out, included evidence of a meeting between defendant
and his co-defendants leading to the trip to Frank B.’s house, physical evidence tying
defendant to the car used to transport them there, and the fact that all of the co-defendants
had agreed to make statements or testify against defendant, placing him squarely inside
Frank B.’s house at the time of the home invasion robbery which led to the deadly attack
on Frank B.
       Moreover, on the question of prejudice, while it is certainly true that defendant’s
trial counsel should have found Doody v. Ryan (9th Cir. 2011) 649 F.3d 986 (Doody II),
we are not convinced that it would have or should have changed the defense attorneys
advice to defendant to accept the plea he did.
       In Doody II, the defendant, a juvenile, was interrogated concerning multiple
homicides over a span of “nearly thirteen hours of relentless overnight questioning of a
sleep-deprived teenager by a tag team of officers” (Doody II, supra, 649 F.3d at p. 990)
and the detectives undertaking the interrogation, in giving him his Miranda rights made
“significant deviations from the printed Miranda form and [repeatedly minimized] the
warnings’ significance.” (Doody II, at p. 1002.)
       First, the trial court was not bound to follow federal precedent. But even if
persuasive on its facts, Doody II presented a far more serious and significant violation of
Doody’s rights against self-incrimination than is reflected in this record. While we do
not have a copy of the statement, other than defendant’s belated claim that he asked for a
lawyer which no doubt his attorney had looked into, there is no inkling here that his
rights were violated in any way or that his statement to the law enforcement officers was

                                             12
involuntary. Thus, a familiarity with Doody II would in all likelihood have made little
difference to counsel in rendering his advice on the plea offer.
          Finally, prejudice has not been shown in light of defendant’s understanding of the
benefits of his plea bargain. The record reveals that defendant’s no contest plea was the
product of significant discussion between, and consideration by, defendant and his
attorney. Prior to entry of the plea, counsel and defendant spoke for several hours, during
which time counsel explained his analysis of the case, answered defendant’s questions,
and reviewed and discussed the plea form, which expressly states that the negotiated
settlement includes dismissal of count 2 and the district attorney’s agreement not to seek
life without the possibility of parole. The trial court confirmed defendant’s
understanding of the plea form at the plea hearing, verifying in particular that he
“carefully read” and “carefully review[ed]” the document before signing it. When the
court asked defendant if he had any questions “about what you’re doing in entering your
plea,” defendant replied, “No.” The court asked defendant if he understood “that the
maximum sentence that you can receive as a result of your plea would be 25 years to
life.” Defendant replied, “Yeah.” The court explained further, “I say that it’s 25 years to
life because the People have agreed not to seek life without the possibility of parole. Is
that your understanding?” Defendant responded that it was. Even assuming defendant
knew about counsel’s erroneous belief regarding the state of the law, we cannot say with
any certainty that he would not have entered the plea and would have proceeded to trial.
          On the face of this record, defendant has not shown a reasonable probability that,
but for defense counsel’s erroneous understanding of the state of the law pertaining to the
Doody I case, he would have foregone the plea offer in favor of going to trial and risking
guilty verdicts on both counts and a possible sentence of life without the possibility of
parole.




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                                 DISPOSITION
     The judgment is affirmed.



                                               HULL   , Acting P. J.



We concur:



     BUTZ               , J.



     MURRAY             , J.




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