Filed 5/2/16 P. v. Jimenez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069887
         Plaintiff and Appellant,
                                                                         (Fresno Super. Ct. No. F11901771)
                   v.

RICHARD JIMENEZ,                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Houry A.
Sanderson, Judge.
         John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-



*        Before Gomes, Acting P.J., Detjen, J. and Peña, J.
       Defendant Richard Jimenez was convicted by no contest plea of petty theft with a
prior (Pen. Code, § 666).1 He admitted a prior strike conviction allegation and a prior
prison term allegation (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b)).
The trial court sentenced him to 11 years in prison. On appeal, he contends the trial court
abused its discretion by denying his post-plea Marsden2 motion for substitute appointed
counsel.3 We affirm.
                                     BACKGROUND
       At the July 29, 2014 Marsden hearing, the Marsden court asked defendant why he
believed counsel had not properly represented him. Defendant explained that counsel did
not let him finish watching a video of himself, and then misrepresented to a court that
defendant had watched the entire video. When the Marsden court inquired, defendant
agreed this video was part of a case against him that had since been dismissed.
       Defendant explained that he had been having problems with counsel for a long
time. Defendant said he had been granted pro per status in September 2011, but counsel
entered the courtroom anyway and initiated competency proceedings against him. The
Marsden court examined the relevant minute orders and informed defendant that in fact
he had not been granted pro per status in September 2011 when counsel initiated
competency proceedings; thereafter defendant was found incompetent and was
committed to the mental hospital to regain his competency.
       Defendant next explained that upon his return to court after regaining his
competency, he requested a Marsden hearing. He believed counsel was working with the
district attorney and Home Depot, the store from which defendant was accused of


1      All statutory references are to the Penal Code unless otherwise noted.
2      People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
3      To differentiate between courts in which defendant appeared, we will refer to the
court that heard the current Marsden motion as the Marsden court.


                                              2.
stealing.4 Competency proceedings were instituted against him again. The Marsden
court explained, however, that defendant’s previous Marsden motion was denied, as was
his subsequent Faretta5 motion to represent himself; that defendant later raised another
Faretta motion, which was denied; that eventually competency proceedings were
instituted; that two more Marsden motions were denied; and that defendant was then
found incompetent again. Defendant explained that one of the examining psychiatrists
told him he would find defendant competent if he agreed to get along with his attorney,
but then the psychiatrist found him incompetent instead. Defendant knew counsel had
done it again: he had convinced the psychiatrist to find defendant incompetent so they
could send him back to the mental hospital. Defendant told the Marsden court, “My
point is that I am competent, and they keep sending me. This guy does it right here.”
       Defendant then explained that counsel lied to him when he told him his exposure
was 52 years to life. The Marsden court explained that when all the counts and
enhancements were added up, his exposure was in fact 55 years to life; his plea was to
only one count and the court had struck all his priors but one, agreeing to sentence him to
only 11 years.
       Defendant explained that although he still wanted to pursue a jury trial on his
dismissed case, counsel was conspiring to make sure he did not win the case. Counsel
would not come to see him, lied to him constantly, knew nothing about his case, and
refused to file motions on his Fourth Amendment rights. Defendant did not trust counsel
and could not work with him. Defendant believed counsel was working for Home Depot.
In fact, he believed the whole courthouse was working for Home Depot. Defendant
insisted he would go to trial even if he was stuck with counsel. Defendant would inform


4      Home Depot alleged that defendant fraudulently exchanged paint when he
returned a partially used can and replaced it with a full can.
5      Faretta v. California (1975) 422 U.S. 806 (Faretta ).


                                            3.
the jury of the troubles he was having with counsel. The Marsden court explained to
defendant that counsel had successfully convinced the prosecutor to dismiss charges
without the right to comment on the case.
       The Marsden court then turned to counsel, who explained that he had never lied to
defendant. Defendant had become fixated on a conspiracy theory and a video in another
case, which defendant did watch in its entirety. Counsel investigated and interviewed the
witnesses defendant told him about. Counsel was going to subpoena one of those
witnesses, but his number was disconnected and he was homeless. The other witness
refused to testify. Counsel saw defendant numerous times and went over his case with
him. Counsel did not see a basis for a suppression motion. Counsel had never worked
for Home Depot and was not involved in a conspiracy.
       The Marsden court concluded defendant had not made an adequate showing that
counsel was providing ineffective representation, and it denied the motion for substitute
counsel.
                                       DISCUSSION
       Defendant contends the Marsden court should have granted his Marsden motion
because the attorney-client relationship had irretrievably broken down such that
defendant and counsel could not work together effectively. Defendant argues he lost trust
in counsel and his dissatisfaction with him was deeply rooted and long standing, as
shown by his numerous Marsden motions.
       “When a defendant seeks to discharge his appointed counsel and substitute another
attorney, and asserts inadequate representation, the trial court must permit the defendant
to explain the basis of his contention and to relate specific instances of the attorney’s
inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly
shows that the first appointed attorney is not providing adequate representation [citation]
or that defendant and counsel have become embroiled in such an irreconcilable conflict
that ineffective representation is likely to result.” (People v. Crandell (1988) 46 Cal.3d

                                              4.
833, 854, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-
365.) “ ‘A trial court should grant a defendant’s Marsden motion only when the
defendant has made “a substantial showing that failure to order substitution is likely to
result in constitutionally inadequate representation.” ’ ” (People v. Streeter (2012) 54
Cal.4th 205, 230.) “A Marsden motion is addressed to the discretion of the trial court,
and a defendant bears a very heavy burden to prevail on such a motion. The defendant
must show that appointed counsel is not adequately representing him, and that the
deficiency in representation is so great as to substantially impair the defendant’s right to
the effective assistance of counsel. [Citation.] The defendant must give specific
examples of counsel’s inadequacies, and cannot rest upon mere failure to get along with
or have confidence in counsel.” (People v. Bills (1995) 38 Cal.App.4th 953, 961.) A
defendant who does not make this showing is not entitled to substitute counsel. (People
v. Smith (1993) 6 Cal.4th 684, 696.)
       We conclude the Marsden court did not abuse its discretion when it denied
defendant’s Marsden motion. The court was exceedingly solicitous and patient in
allowing defendant to thoroughly and repeatedly voice his concerns regarding counsel’s
representation and alleged failings. The court pursued and investigated defendant’s
accusations and concerns thoroughly, finding ultimately that there were no grounds to
support ineffective assistance. In our opinion, the record overwhelmingly supports the
trial court’s conclusion. The court was entitled to make a credibility determination and
accept counsel’s explanations that defendant’s accusations were not true or simply did
not amount to ineffective representation. (People v. Smith, supra, 6 Cal.4th at p. 696.) In
sum, defendant did not make “ ‘ “a substantial showing that failure to order substitution
[was] likely to result in constitutionally inadequate representation.” ’ ” (People v.
Streeter, supra, 54 Cal.4th at p. 230.) The trial court did not abuse its discretion in
denying defendant’s motion for substitute counsel.



                                              5.
                               DISPOSITION
The trial court’s order is affirmed.




                                       6.
