Filed 8/28/13 P v. McCabe 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                       (Tehama)
                                                            ----



THE PEOPLE,                                                                                  C071417

                   Plaintiff and Respondent,                                    (Super. Ct. No. NCR83093)

         v.

RYAN SCOTT MCCABE,

                   Defendant and Appellant.




         Defendant Ryan Scott McCabe entered into a negotiated plea agreement whereby
he pleaded guilty to felony evading a peace officer, admitted a prior strike, and waived all
custody credits up to the day of entry of the plea, in exchange for a maximum state prison
term of six years and dismissal of all remaining charges and allegations. The trial court
sentenced him to state prison for six years and awarded him 80 days of presentence
custody credit.




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       Defendant appeals, claiming the trial court failed to conduct a hearing pursuant to
People v. Marsden (1970) 2 Cal.3d 118 (Marsden), and miscalculated his presentence
custody credits. We affirm the judgment.

                                FACTS AND PROCEEDINGS
       The following particulars of defendant’s crimes are taken from the Tehama
County Sheriff’s report, which formed the factual basis of his plea:
       A Tehama County Sheriff was driving on Kaer Avenue when the car behind him
driven by defendant flashed its high beams five times and passed him. Noticing
defendant’s car had no tail lights, the officer attempted to make a traffic stop. Defendant
stopped briefly in front of a residence, then sped off, leading the officer on a high speed
chase which at times reached speeds of 100 miles per hour. During the chase, defendant
drifted into oncoming traffic, narrowly missed a big rig truck parked on the side of the
road, failed to stop at a stop sign, and ran a red light. He eventually jumped out the
driver’s side door and continued to flee on foot, leaving the car to roll unattended until it
struck a telephone pole wire.
       The officer continued the pursuit on foot, following defendant into the bushes and,
after catching up with him, ordering him from his hiding spot. A second sheriff’s deputy
arrived and, together, the two officers were eventually able to pin defendant to the ground
and place him in handcuffs. The officers were informed the vehicle had just been
reported stolen, and the ignition had been “punched.”
       Defendant was charged by information with evading a peace officer (Veh. Code,
§ 2800.2, subd. (a)--count I), unlawful driving or taking a vehicle with a prior (Pen.
Code, § 666.5; further unspecified references are to this code--count II), and receiving
stolen property (§ 496d, subd. (a)--count III), all felonies. The information alleged that,
as to all counts, defendant had a prior strike (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-




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(i)), two prior prison terms (§ 667.5, subd. (b)), and he committed the offense while out
on bail (§ 12022.1).
       As part of a negotiated plea agreement, defendant pleaded guilty to count I,
admitted the prior strike allegation, and waived all presentence custody credits up to the
date of entry of his plea, in exchange for dismissal of all remaining charges and
allegations and a maximum six-year prison sentence in case No. NCR83093. The parties
further agreed the People would reduce the charge in pending case No. NCR80364 to a
misdemeanor and dismiss the special allegation in that case.
       Thereafter, defendant filed two motions, one to strike the strike prior (People v.
Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero); § 1385), and the other to
withdraw his plea (§ 1018). After hearing oral argument, the court denied both motions.
       The trial court sentenced defendant to six years in state prison in case No.
NCR83093, a concurrent one-year county jail term in case No. NCR80364, and imposed
terms and conditions, including fees and fines, as recommended in the probation report.
With defendant’s limited waiver of presentence custody credits in mind, the court
calculated credits and arrived at a total of 80 days in case No. NCR83093, and two days
in case No. NCR80364.
       Defendant filed a timely notice of appeal. The trial court denied his request for a
certificate of probable cause. Defendant filed a timely amended notice of appeal.

                                       DISCUSSION
                                             I
                               Substitution of Trial Counsel
       Defendant contends the trial court failed to conduct a Marsden hearing after he
“clearly indicated” he wanted substitute counsel when he told the court he wanted to
“fire” his attorney, his attorney “doesn’t even talk with” him, his attorney was “scaring”
him, his attorney “does not like” him, and he and his attorney had “millions of


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breakdowns in the communication.” Defendant urges that those statements, coupled with
the fact that he had to be handcuffed when in the presence of his attorney, demonstrated
the probability that he and his attorney “had become embroiled in such an irreconcilable
conflict that ineffective representation is likely to result.”
       We review the trial court’s decision denying defendant’s motion to substitute
counsel under the “deferential abuse of discretion standard.” (People v. Jones (2003)
29 Cal.4th 1229, 1245 (Jones); see also People v. Earp (1999) 20 Cal.4th 826, 876.) As
we shall explain, there was no error.
       Here, as aptly noted by the People, context is everything. While defendant focuses
on his post-plea comments (properly conceding pre-plea Marsden issues are waived on
appeal after the entry of a guilty plea (People v. Lobaugh (1987) 188 Cal.App.3d 780,
786; People v. Lovings (2004) 118 Cal.App.4th 1305, 1311)), his discussions with the
court prior to entry of his plea are not only revealing, but relevant and necessary to place
his claim into perspective for proper review.
A.     Pre-Plea Discussions
       On March 22, 2012, the following discussions (some of which were held in
chambers) occurred between counsel, defendant, and Judge Richard Scheuler, the judge
presiding over the matter, regarding entry of defendant’s plea:
“THE COURT: [¶] . . . [¶] Speaking to Mr. McCabe, I understand that there are two
charges against you in this trial. There has been certain negotiations, which you have
declined, which is your right, but I understand that you are going to admit the two --
excuse me, the special allegations, the enhancements, that go along with the charges, that
is the prior convictions; is that the case, sir?
“THE DEFENDANT: Does that mean the jury doesn’t get to hear it?
“THE COURT: I will be happy to answer that for you, but you really need to talk to your
attorney about legal matters. [¶] If you admit a prior allegation, allegation of a prior,



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then it does not go to the jury, which is usually seen as an advantage from the defense.
But, nonetheless, it is your choice as to whether you do it or not.
“THE DEFENDANT: I am going to admit it.
“THE COURT: I don’t want to mislead you, you should really talk to your counsel about
this.”
         A detailed exchange continued between the court and defendant regarding the
special allegations:
“THE COURT: As to each of those charges, there are these three separate special
allegations that I am going to read to you. So far, do you understand what we’re doing,
sir?
“THE DEFENDANT” Not really.
“THE COURT: Well, let’s back up to anything that you don’t understand. [¶] First of
all, let me ask you: As you sit here today, is there anything that would prevent you from
understand [sic] me or making an intelligent comment to me? For example, are you
under the influence of drugs or anything like that?
“THE DEFENDANT: I am on Seroquel and a whole bunch of pills for antipsychotics.
“THE COURT: Those are pills which may be helping or not but they are designed to
help you. Are they doing any good for you?
“THE DEFENDANT: Not really. I can’t decipher what is true and what is not.
“THE COURT: All right. Well, that is an important point, because before I can accept
an admission, I have to know that you’re understanding what you admit. If you do not
understand what you’re admitting, then I cannot accept your admission and the matter
will have to go to the jury; do you understand that?
“THE DEFENDANT: Uh-huh.
“THE COURT: So let’s go through this. Pardon me.
“THE DEFENDANT: I don’t understand nothing.



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“THE COURT: All right. I understand the words, but I am going to start over and I want
you to tell me what you don’t understand. Okay? [¶] Do you understand that I am going
to go through these rights with you again? [¶] Would you please answer out loud?
“THE DEFENDANT: Yes.”
       The court explained to defendant the difference between charges and special
allegations, and the following discussion ensued:
“THE COURT: The question of whether you want it to go to the jury or not is a question
between you and your attorney. Some people say they want it to go to the jury; some
people say I would rather the jury not hear about that. But, I don’t want to get involved
in advising you; I just want to make sure you understand what you’re doing and get on
the record that you understand it.
“THE DEFENDANT: Well, I basically kind of understand now, because you explained
it to me; my lawyer, I have tried to fire him, I don’t have no communication with the
dude. He makes me so mad, I have to put on handcuffs. So, there has been a breakdown.
“[DEFENSE COUNSEL]: For the record, I have explained everything the Court has
explained to my client. I thought he understood that. He indicated to me earlier that he
wished to admit the special allegations with the understanding that those would not go to
the jury and the jury would not hear that evidence. Thank you.
“THE COURT: Speaking to you, Mr. McCabe. I understand what you said, but right
now it is important that you put aside any thoughts about anything else[:] your attorney,
your family, the jury. You know, just kind of concentrate[] on what I am saying and then
we can either decide that you’re going to admit these or not.”
       After a detailed explanation by the court regarding the consequences of admitting
or denying the special allegations, defendant admitted the enhancements. The following
colloquy ensued:
“THE COURT: All right. [¶] Thank you, sir. We will go out and start your trial.
(Pause)

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“THE BAILIFF: Do you prefer him cuffed or not cuffed?
“[DEFENSE COUNSEL]: I prefer him cuffed.
“[THE PROSECUTION]: The question is not of competence of counsel --
“THE COURT: Defendant --
“THE DEFENDANT: I asked if that is lack of counsel? There is a break between me
and him. If he doesn’t want me around him and wants me to be cuffed, how am I
supposed to let this go [sic] represent me like that?
“THE COURT: I don’t think he said he doesn’t want you to be around him.
“THE DEFENDANT: He prefers --
“THE COURT: The implication is what you might have said earlier today, you said you
had to be cuffed in order to not do something.
“THE DEFENDANT: No, I need to be cuffed at that moment because I think he is a shit
ball, you know what I mean.
“THE COURT: All right. [¶] Counsel for the People?
“[THE PROSECUTION]: I submit it to the Court.
“THE COURT: That is a hard one. Counsel, do you want to come back in chambers for
a minute? We’ll go off the record and take a look at some books.
“THE DEFENDANT: I already tried to fire him.
“THE COURT: We will be right back, I am just going to look at some law books.”
       The court took a brief recess, then reconvened and confirmed defendant’s
acceptance of the negotiated plea agreement as stated in the waiver form signed by
defendant. During those discussions, the court asked defendant, “I know you have talked
with your attorney before and talked to your attorney today, I know that you have had
perceived difficulties but have you had an adequate opportunity to talk with your attorney
right now?” Defendant replied, “Yes, sir.” When asked if he required any more time to
speak with his attorney before taking the plea, defendant answered, “No, sir.” At



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defendant’s request, the court agreed to retain the matter for sentencing, and defendant
waived time accordingly.
B.     Post-Plea Discussions
       On May 14, 2012, Judge Scheuler presided over the hearing on defendant’s
Romero motion and motion to withdraw the plea, and imposition of sentence. The
hearing commenced as follows:
“THE COURT: The files are action number 83093 and action 80364. Mr. McCabe is
present.
“THE DEFENDANT: Excuse me, Your Honor. I’d like to use my one only time right
[sic] to fire you today.
“[DEFENSE COUNSEL]: Can I have just a second, Your Honor?
“THE DEFENDANT: I’d like to fire him too. He doesn’t even talk to me. We’ve had a
failure -- my lawyer is scaring me. You set me up to go all the way through this. I
couldn’t even see when I signed the deal. I was on Seroquel and you set me up all the
way through this thing to -- when, you know, I didn’t want to take the crime and I didn’t
know what was going on and now today this man does not like me, but he represents me
still with millions of breakdowns in the communication and at the end of the day he still
gets to represent me and I get to go up state for fucking something I didn’t even do.
“THE COURT: Sir, there are a number of cases before me. I may be wrong, but who
was your attorney at the time you entered the plea?
“THE DEFENDANT: What do you mean? Explain that.
“THE COURT: Never mind, I’ll find out for myself.
“[DEFENSE COUNSEL]: I represented him at the time of the plea, Your Honor.
“THE COURT: Okay. I have just announced the cases. One of them is a misdemeanor.
One of them is a felony. One of them -- the felony -- has also a motion to withdraw a
plea and a Romero motion. Absent the granting of those, there is a sentencing in the
felony matter and the misdemeanor matter. This matter -- these matters -- have been

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continued several times for reasons that are reflected in the file. The Court will not
accept a [section] 170.6 challenge at this time. [¶] Counsel, are you ready to proceed?
“[DEFENSE COUNSEL]: I am, Your Honor.
“THE COURT: Counsel for the People?
“[THE PROSECUTION]: Yes.”
       “A defendant is entitled to have appointed counsel discharged upon a showing that
counsel is not providing adequate representation or that counsel and defendant have
become embroiled in such an irreconcilable conflict that ineffective representation is
likely to result. [Citations.]” (Jones, supra, 29 Cal.4th at pp. 1244-1245; see also People
v. Dickey (2005) 35 Cal.4th 884, 917.) “[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] . . . .” (People v. Smith (1993) 6 Cal.4th 684, 696.)
       A trial court need not conduct a Marsden hearing in the absence of a request for
new counsel or articulation of grounds compelling such relief from deficient
representation. “Although no formal motion is necessary, there must be ‘at least some
clear indication by defendant that he wants a substitute attorney.’ (People v. Lucky
(1988) 45 Cal.3d 259, 281, fn. 8.)” (People v. Mendoza (2000) 24 Cal.4th 130, 157.)
       Here, the trial court’s response to defendant’s statements was reasonable. During
the pre-plea discussions, defendant expressed dissatisfaction with his attorney, telling the
court he “tried to fire” his attorney, he had “no communication” with his attorney, his
attorney made him so mad he “ha[d] to put on handcuffs,” and there “has been a
breakdown.” Defendant’s attorney, Ronald McIver, immediately assured the court he
had already explained “everything the Court has explained” to defendant and was under
the impression defendant understood what was going on. Attorney McIver added that
defendant “indicated to me earlier that he wished to admit the special allegations with the

                                              9
understanding that those would not go to the jury and the jury would not hear that
evidence.”
       Defendant did not object in any manner or voice any disagreement with counsel’s
explanation to the court, nor did he request the appointment of substitute counsel.
Indeed, following a detailed explanation by the court regarding the consequences of
admitting or denying the special allegations, defendant admitted the special allegations,
and Attorney McIver joined in the admissions, all without incident.
       The court also responded reasonably when, prior to entry of the plea, defense
counsel told the bailiff he preferred that defendant be handcuffed, causing defendant to
complain, “There is a break between me and [defense counsel]. If [defense counsel]
doesn’t want me around him and wants me to be cuffed, how am I supposed to let this go
represent me [sic] like that?” The court explained that Attorney McIver’s request was
likely the result of defendant’s earlier statement that he “had to be cuffed in order to not
do something.” Defendant explained that he “need[ed] to be cuffed at that moment
because I think [defense counsel] is a shit ball,” and reminded the court, “I already tried
to fire him.”
       Again, defendant did not request the appointment of substitute counsel. His
complaint dealt specifically with the issue of being handcuffed, a point the court directly
addressed. Then, without further complaint, defendant entered his guilty plea, assisted by
defense counsel who joined in the plea. Thereafter, defendant enlisted his attorney to file
the Romero motion and the motion to withdraw his plea.
       At the hearing of the two motions, defendant made a request to “fire” Judge
Scheuler and then said of his attorney, “I’d like to fire him too. He doesn’t even talk to
me. We’ve had a failure -- my lawyer is scaring me.” Defendant went on to complain
about his previously-entered plea, arguing the court “set me up to go all the way through
this,” and adding, “I didn’t want to take the crime and I didn’t know what was going on
and now today this man does not like me, but he represents me still with millions of

                                             10
breakdowns in the communication and at the end of the day he still gets to represent me
and I get to go up state for fucking something I didn’t even do.”
       Defendant claims these post-plea statements “clearly indicated” his desire for
substitute counsel, thus necessitating a Marsden hearing. We disagree. Defendant never
requested substitute counsel, either prior to or after entry of his plea. He said he wanted
to fire his current counsel, but made no indication that he wanted new counsel appointed
to represent him for purposes of sentencing or to move for a new trial. In fact, at the time
of the statements in question, he had already enlisted counsel to file the pending motions
to withdraw his plea and to strike the strike prior. Thereafter, counsel acted on his behalf
for purposes of arguing the motions and sentencing.
       In any event, any duty the court had to permit defendant to state his reasons for
dissatisfaction with Attorney McIver was appropriately discharged, and the court’s
response to defendant’s complaints was reasonable. Defendant’s post-plea claim of an
absence of communication with counsel was belied not only by Attorney McIver’s pre-
plea statements to the contrary, but also by defendant’s own response to the court that he
had had an adequate opportunity to talk with Attorney McIver and did not require any
more time to communicate with counsel before entering his plea. Thereafter, Attorney
McIver assisted defendant in entering his plea, filed and argued the two motions on
defendant’s behalf, and argued on his behalf for a lesser sentence. Defendant’s claim of
being afraid of his attorney similarly lacks credibility in light of his prior statement that
counsel made him so angry he (defendant) needed to be handcuffed. Viewing
defendant’s post-plea statements in light of his pre-plea discussions with the court, it is
clear that defendant, unhappy with his plea arrangement, was raising complaints the court
had already heard and adequately addressed.
       We find no abuse of discretion. Defendant has not demonstrated an irreconcilable
conflict with counsel that impaired his right to assistance of counsel. (People v. Smith,
supra, 6 Cal.4th at p. 696.)]

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                                              II
                               Presentence Custody Credits
       Defendant committed his offense on July 20, 2011. As part of his negotiated plea
agreement, he waived all presentence custody credit prior to March 22, 2012, the date of
entry of his plea. The trial court awarded him 54 actual time credits “divided by 4
rounded down and multiplied by 2 is 26 days, so 54 and 26 . . . is 80 days.”
       Defendant contends the trial court applied the wrong formula, depriving him of
additional custody credit to which he is entitled.
       Under the law in effect at the time defendant committed the crime, a defendant
with a prior serious conviction was entitled to two days of conduct credit for every four
days of presentence custody. (Former § 4019, as amended by Stats. 2009, 3d Ex. Sess.,
ch. 28, § 50.)
       The Criminal Justice Realignment Act of 2011 (Stats. 2011, ch. 15, § 482,
Stats. 2011, ch. 39, § 53, and Stats. 2011, 1st Ex. Sess., ch. 12, § 35) amended the law,
entitling a defendant to four days of conduct credits for every two days of presentence
custody. (§ 4019, subds. (b), (c), (f).) The award of credits is not reduced by a
defendant’s current or prior conviction for a serious felony. The provision contains a
savings clause, which states: “The changes to this section enacted by the act that added
this subdivision shall apply prospectively and shall apply to prisoners who are confined
to a county jail, city jail, industrial farm, or road camp for a crime committed on or after
October 1, 2011. Any days earned by a prisoner prior to October 1, 2011, shall be
calculated at the rate required by the prior law.” (§ 4019, subd. (h), italics added.)
       Defendant claims this provision is inherently inconsistent. He admits the phrase
“shall apply prospectively and shall apply to prisoners who are confined to a county jail
. . . for a crime committed on or after October 1, 2011” indicates the changes to conduct
credits apply only to crimes committed after that date. However, he asserts that the last
sentence--Any days earned by a prisoner prior to October 1, 2011, shall be calculated at

                                             12
the rate required by the prior law”--creates an ambiguity because, “if a defendant
commits a crime after October 1, 2011, there would be no conceivable purpose for the
second sentence since, by definition, all of his or her time in custody will be served after
October 1, 2011.” He concludes the statute should be interpreted as providing for the
“enhanced, four-for-two credit scheme” even where the crime was committed prior to
October 1, 2011. Thus, he argues, he is entitled to day for day conduct credits for the
time he was in custody after July 20, 2011, for a total of 108 days of presentence custody
credit.
          As defendant acknowledges, his statutory construction contention was recently
rejected in People v. Ellis (2012) 207 Cal.App.4th 1546 (Ellis), in which the Court of
Appeal stated: “In our view, the Legislature’s clear intent was to have the enhanced rate
apply only to those defendants who committed their crimes on or after October 1, 2011.
(See People v. Lara [(2012)] 54 Cal.4th [896,] 906, fn. 9 [(Lara)].) The second sentence
does not extend the enhanced rate to any other group, but merely specifies the rate at
which all others are to earn conduct credits. So read, the sentence is not meaningless,
especially in light of the fact the October 1, 2011, amendment to section 4019, although
part of the so-called realignment legislation, applies based on the date a defendant’s
crime is committed, whereas section 1170, subdivision (h), which sets out the basic
sentencing scheme under realignment, applies based on the date a defendant is
sentenced.” (Ellis, supra, 207 Cal.App.4th at p. 1553.)
          Defendant urges us to reject the court’s reasoning in Ellis as faulty because it
effectively renders the second sentence of section 4019, subdivision (h), meaningless.
We decline to do so, and accordingly reject defendant’s claim.




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                                  DISPOSITION
     The judgment is affirmed.



                                                HULL   , J.



We concur:



     RAYE               , P. J.



     NICHOLSON          , J.




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