Filed 5/14/15 P. v. Blocker CA1/3
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                         A141733
v.
KEVIN JOHN BLOCKER,                                                      (Contra Costa County
                                                                         Super. Ct. No. 1214964)
         Defendant and Appellant.

In re KEVIN JOHN BLOCKER
                                                                         A143540
         on Habeas Corpus.


         Defendant appeals a judgment entered following his no contest plea to five counts
arising out of an incident involving domestic violence. On appeal, he challenges the
denial of his Marsden1 motion made during the sentencing hearing. In his petition for
habeas corpus, defendant argues that his trial attorney provided ineffective assistance
with respect to his plea bargain.2 We shall affirm the judgment and deny the writ petition.




1
    People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
2
  We ordered the petition consolidated with the appeal and deferred deciding whether to
issue an order to show cause. We hereby grant the request in defendant’s petition to take
judicial notice of the record in this appeal.


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                          Factual3 and Procedural Background
       From approximately February through April 2012, defendant and the victim lived
together with the victim’s five-year-old son. When the victim came home on the evening
of April 23, 2012, defendant was angry and accused her of being with another man.~ (CT
25, 135)~ He locked the door while yelling, “nobody’s leaving this house” and demanded
to see her cell phone. He told her he was “going to beat [her] ass” because she would not
tell him her cell phone password. Over the next few hours, defendant sexually assaulted
her and beat her with a belt demanding the password. He plugged in her curling iron and
threatened to stick it inside of her and tried to drown her in the toilet and bathtub, saying
that he was going to kill her. When she finally unlocked the cell phone, defendant said,
“all you had to do was give me the phone and this would have never happened.” The
following morning, the victim sent a message to her sister asking her to call the police.
When the police arrived later that morning, an officer observed significant bruising on the
victim’s legs. The victim’s son was in the home at the time of the attack and reported to
the police that during the assault he felt sad and scared because he thought his mother
was going to die and he could not do anything for her.
       Defendant was charged by information with 15 counts arising out of the incident.
On February 18, 2014, defendant entered a plea of no contest to the following five
counts: attempted torture (§ 206/664 – count 15), inflicting corporal injury to cohabitant
(§ 273.5, subd. (a) – count 4); false imprisonment by violence (§§ 236, 237, subd. (a) –
count 9); child endangerment (§ 273a, subd. (a) – count 13); and assault by force likely to
produce great bodily injury (§ 245, subd. (a)(1) – count 14). He also admitted the section
12022, subdivision (b)(1) and section 12022.7, subdivision (e) enhancements alleged
under count 4 and admitted four prior prison terms alleged pursuant to section 667.5,
subdivision (b). In exchange for his plea he was promised a maximum state prison term
of 18years and eight months and dismissal of the remaining counts and allegations.


3
  Because defendant pled no contest, we provide only a brief summary of the facts taken
from the transcript of the preliminary hearing.


                                              2
Defense counsel stipulated to a factual basis for the plea, and the court determined that
the pleas and admissions were knowingly, intelligently, and voluntarily entered.
       On March 14, 2014, the court imposed the upper term of nine years on count 15
(attempted torture), consecutive terms of one year on count four (inflicting corporal
injury) plus four months for use of a belt as a deadly weapon and 16 months for great
bodily injury amounting to domestic violence; eight months on count nine (false
imprisonment); sixteen months on count thirteen (child endangerment); and one year on
count fourteen (assault by force likely to cause great bodily injury). The court also
imposed an additional one year for each of the four alleged prior convictions under
section 667.5, subdivision (b), for a total state prison term of 18 years and eight months.
       At the conclusion of the sentencing hearing, the court asked defendant if he was
giving up his right to appeal “this conviction and sentence including any ruling on any
motions heard prior to this plea.” Defendant indicated he was not, and after a bench
discussion was held, he explained that he was dissatisfied with his trial counsel.
Defendant stated, “I wasn’t represented and from what I heard my lawyer say that I
would have gotten life if I would have tried to go forward. So what I’m supposed to do? I
mean, he never even told me that I could not appeal my case.”
       Based on defendant’s comments, a Marsden hearing was held. At the hearing,
defendant explained the reasons for his dissatisfaction with his attorney as follows: “I
have been here for like two years and two months. From the time that I’ve been here I
never really seen my lawyer. . . . All I get from my lawyer is he comes and he had tell me
we got court the next day. That’s the only time I really see him is the day before court,
you know. And it’s like if I’m facing time like this, why haven’t any motions or anything
been filed on my behalf in my case? I asked for motions to be filed. He told me no. . . .
[¶] . . . He’s never like – he never even told me that I didn’t have a chance to appeal. So I
don’t even – I didn’t even know how that worked because I never even fought a case
before. So I just feel that the representation with me and him is just – it’s been nothing.
There’s no contact. I’ve been here two years. I barely see him. I don’t see him at all and
when I do see him it’s never about the case. It’s just about we going to court.”


                                              3
       The court asked defense counsel to respond and to describe his experiences as a
criminal defense attorney. Counsel stated: “That’s all I practiced in the last 15 years so
I’ve represented thousands of clients mostly charged with serious and violent felonies
court appointed and retained. I’ve been a certified criminal law specialist since 2007. I’m
qualified through the conflicts program to handle the highest level of cases. I’ve
represented probably at least 150 people facing life sentences, probably more. Probably
26 cases—life sentence cases. [¶] . . . [¶] I’ve represented Mr. Blocker for two years. I
probably visited him in the jail at a conservative estimate of 10 times. I understand some
of those conversations were not lengthy but more about scheduling type issues. I
provided him with every piece of discovery that I’ve had in this case and [at] his
suggestion and his urging to get DNA testing done. It took a while to do that because I’m
trying to do it without the DA. I mean, there was – there was – and it came back very
favorable and it would have been presented at trial. I was prepared – I understand Mr.
Blocker is frustrated that there’s no pretrial motions. I did spend a lot of time thinking
whether there’s a 995 but the standard as the court explained is fairly low. So I was
prepared to go to trial. I had a DNA expert. I had medical testimony. I had a number of
witnesses. This unfortunately would have had to been a trial case and I was prepared to
go to trial but I know that there is a huge downside. I think in my conversation with Mr.
Blocker I expressed that. He may disagree with me. I’ve always tried to be straight
forward with him both for bad and the good as to what I thought the evidence was and
what would happen and what his exposure was if there may have been some lapses on my
part in communicating certain things but I do remember a few times us talking about the
995 type motion and sort of what that means. It means you have to look at the prelim
transcript and see if there’s any evidence. And I agree that one of the counts that they
asked him to plead was done through hearsay but unfortunately you can do hearsay at a
preliminary hearing and a 995 would not have been successful. So my intention if Mr.
Blocker did not resolve his case was to go to trial and focus on trying to win the life
counts. I think even if I had been successful in that and I think there was a lot to say he
still would have gotten a prison sentence given his record and given the charges in the


                                              4
teens said at best [sic]. I have conveyed all these things to him. I’ve conveyed all these
things to his family who I met with them in my office on two different occasions. I do
agree with him that maybe our communication was not optimal. I take any responsibility
for that. If there were things that I did not make clear to him, I do recall everything that
we’ve talked about at one time or another mostly the things that he has expressed and he
did give me some helpful information which I intend to use in trial to impeach the
witness. I did not think it was in his interest to disclose that impeachment evidence to the
District Attorney’s Office because that actually would have would allow[ed] them to
prepare and make it less effective but if it would have had to been produced at trial it
would have made a difference and possibly undermine the credibility of the witness—the
complaining witness in this case. So he did provide me with helpful stuff which I was
intending to utilize in this case. I probably in hindsight if he felt that we didn’t have time
talking about his case that’s something I regret because I don’t want anybody especially
facing serious charges to feel that way. Mr. Blocker never contacted me by phone or by
letter telling me that he needed to talk about – and, you know, you get busy with things
and you feel – and also Mr. Blocker is an adult with some experience in the criminal
justice system but there are other clients that I think really don’t get what’s going on. I
did not feel that Mr. Blocker was one of those clients who had that. I would have been
glad I talked to him had he contacted me anytime about anything that he wanted to do
but, yes, there were some visits where I, you know, just been brought in the day in court
and had to be in trial and just saying what would happen so I completely agree that he
may have interpreted it that way.”
       The court denied the Marsden motion, explaining “I haven’t heard anything that
would lead me to believe that Mr. Feuerwerker isn’t doing the best that he can. . . .
[¶] And now the next question, sir, is do you want to go forward with the sentencing or
do you want to — I mean, withdraw your plea and go to trial? I mean, what do you want
to do?” Defendant responded, “But how am I going to sentence with somebody I don’t
trust, I mean, go to trial? You’re making me go to trial with someone that just said he told
you on record that he hasn’t been representing me like that and you’re denying me. This


                                               5
is my life. This is not 9 months.” He questioned, “I want to know what do I got to do if I
proceed to move on? How can I get me a new attorney?” The court explained that if
defendant wanted to withdraw his plea and go to trial, he could but that the court would
not be appointing a new attorney. The court reiterated, “if you don’t trust him I think both
of you – both of you need to work on communicating better. Mr. Feuerwerker has said
here that he’s ready to go to trial if that’s what you want to do. So if you want to
withdraw the plea, let me know.” Defendant indicated that he would like to continue
under the plea but wanted the right to appeal. The court agreed and advised defendant
that he would not be asked to waive “any appellate issues.”
       Defendant timely filed a notice of appeal and the trial court denied his request for
a certificate of probable cause. Thereafter, defendant filed a petition of writ of habeas
corpus, which was consolidated with the present appeal.
                                           Discussion
1.     Marsden Motion
       The law regarding this court’s review of a denial of a Marsden motion is well
settled. “When a defendant seeks substitution of appointed counsel pursuant to People v.
Marsden, supra, 2 Cal.3d 118, ‘the trial court must permit the defendant to explain the
basis of his contention and to relate specific instances of inadequate performance. The
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.’
[Citations.] [¶] We review the denial of a Marsden motion for abuse of discretion.
[Citation.] Denial is not an abuse of discretion ‘unless the defendant has shown that a
failure to replace counsel would substantially impair the defendant’s right to assistance of
counsel.’ [Citation.] [¶] . . . [¶] . . . The mere ‘ “lack of trust in, or inability to get along
with,” ’ counsel is not sufficient grounds for substitution.” (People v. Taylor (2010) 48
Cal.4th 574, 599-600.)
       We agree with the trial court that there was no basis for granting the motion in this
case. Contrary to defendant’s argument, the trial judge properly inquired into the nature


                                                 6
of the disagreement, not only into counsel’s ability to provide adequate assistance. While
the record reflects defendant’s considerable frustration, much of that frustration stemmed
from his belief that he was unfairly overcharged in this case. The record, quoted
extensively above, does not reflect an irreconcilable conflict between defendant and his
attorney.
2.     Ineffective Assistance of Counsel
       “To establish a claim of inadequate assistance [under the Sixth and Fourteenth
Amendments to the United States Constitution], a defendant must show counsel’s
representation was ‘deficient’ in that it ‘fell below an objective standard of
reasonableness . . . under prevailing professional norms.’ [Citations.] In addition, a
defendant is required to show he or she was prejudiced by counsel’s deficient
representation. [Citation.] In determining prejudice, we inquire whether there is a
reasonable probability that, but for counsel’s deficiencies, the result would have been
more favorable to the defendant.” (People v. Frye (1998) 18 Cal.4th 894, 979, quoting,
Strickland v. Washington (1984) 466 U.S. 668, 687-688, overruled on another point in
People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) To successfully challenge a guilty
plea on the ground of ineffective assistance of counsel, as defendant attempts to do in this
case, “a defendant must establish not only incompetent performance by counsel, but also
a reasonable probability that, but for counsel’s incompetence, the defendant would not
have pleaded guilty and would have insisted on proceeding to trial.” (In re Alvarez (1992)
2 Cal.4th 924, 934.)
       In his petition for writ of habeas corpus, defendant argues that his defense counsel
provided inadequate assistance when he (1) improperly coerced a plea bargain;
(2) improperly advised defendant to admit to two of the four prior prison terms under
section 667.5, which he contends he did not in fact serve; and (3) failed to object to the
trial court’s erroneous pledge that if defendant proceeded with sentencing under the plea
bargain, he would not be waiving “any appellate issues.”




                                              7
       a. Counsel did not coerce defendant to enter the plea bargain
       Defendant argues that counsel coerced him into taking the plea bargain by telling
him “that he had to agree to the terms of the plea bargain or he would get life in prison.”
Counsel’s implicit recommendation that defendant accept the plea bargain rather than
risk life in prison is clearly not a threat. It was also not unreasonable advice given the
evidence against defendant and the maximum exposure under the charges in the
complaint. In the course of the Marsden hearing, both the court and counsel explained
that his maximum exposure was significant and the likelihood that he would face lengthy
prison time if he went to trial was real. In response to defendant’s protestation that he did
not commit the sexual assault offenses charged, the court explained, “Mr. Feuerwerker is
not responsible or he has . . . nothing to say about how the District Attorney chooses to
file the case. And the way they chose to file the case you have a few different counts
where if you got convicted of just those counts you could get life in prison, an
indeterminate life sentence. It may be true that you can beat one or two or a few of these
counts at trial. But unless you were convinced that you could beat everything, then you
have looming over you when you go to trial the very real possibility that you could fall
on just one of these counts and get an indeterminate life sentence . . . So it’s much better
in the general scheme of things to get a determinate number of years when you know – it
may be a lot of years – but you know that you are definitely getting out of prison at some
point as opposed to going to trial, risking getting convicted of a crime that carries a life
sentence where you don’t get a release date.”
       Defendant also claims that he did not know that he was facing a sentence of more
than 18 years under the plea and that counsel told him “that he could get a better deal” at
sentencing. The plea waiver form signed by defendant expressly states, however, “I
understand that my sentence in state prison . . . will be 18 years and 8 months.” The plea
form further advises defendant that he was facing a prison term of 120 years and 8
months under the charges in the information. At the hearing, the judge confirmed that no
one had threatened defendant or promised him anything other than the terms of the plea
agreement. Finally, at the Marsden hearing held after defendant was sentenced, defendant


                                              8
was given the opportunity to withdraw his plea but chose not to do so. Had he really been
caught off guard regarding the terms of his plea, he had the opportunity at that point to
withdraw the plea. Accordingly, we find no merit in defendant’s claim that his plea was
coerced.
       b. Counsel did not provide prejudicially deficient advice regarding the prior prison
          term enhancements.
       The record establishes that defendant signed a comprehensive rights waiver, which
contained all of the appropriate language, and which expressly included the four prior
prison term enhancements. At the plea change hearing, the trial court confirmed that
defense counsel had discussed the waiver form with petitioner, and petitioner
acknowledged that he had read and understood the form. Defendant admitted each prior
prison term allegation individually, by date, at the time his plea was taken. The record
provides no basis to doubt that defendant understood that he was admitting to having
served four prior prison terms.
       Although defendant states in his petition that the “evidence in this case consists of
documents which, without dispute, demonstrate that petitioner had not on four separate
occasions been sentenced to and completed prison terms,” the record does not establish
conclusively that defendant did not serve four prison terms. Rather, the record establishes
that he did serve at least two prior prison terms. Defendant does not make a sworn
statement in his declaration that he only served two prior prison terms or explain why he
agreed to admit two additional terms he had not previously served.
       More importantly, even if we assume that counsel was in some way deficient in
failing to identify the lack of evidence in the record to support two of the prior prison
terms, defendant has not alleged that he would have rejected the offered plea bargain had
he been advised of this alleged lack of evidence. While defendant makes a general
allegation that he would like to withdraw his plea, he does not claim that he would not
have entered the plea had he known there was a basis to challenge the additional two
years imposed by the enhancements.




                                              9
       c. Counsel did not provide prejudicially deficient advice regarding defendant’s
          appellate rights.
       Defendant contends counsel rendered ineffective assistance when he failed to
object to the court’s allegedly unauthorized promise that “We’re not going to be asking
you to waive any appellate issues.” Defendant argues that the court did not have
jurisdiction to waive the statutory requirement of a certificate of probable cause and, in
fact, the court later denied that request. We do not, however, understand the court’s
comments as a promise to waive the certificate of probable cause requirement. To the
contrary, the court was indicating that defendant would not be waiving his right to seek a
certificate of probable cause. There was no guarantee that his request would be granted.
       Both the court and counsel provided an explanation of a defendant’s appellate
rights following entry of a plea. At the Marsden hearing the court stated, “I realize that
you were thrown for a loop when this issue of the appellate waiver came up and . . . I’m
just going to explain a little bit about that. So . . . when people plead out as opposed to
going to trial, generally speaking you don’t have a right to appeal because you take a plea
bargain. . . . You go through a process where you petition the court that took your plea for
what we call a certificate of probable cause and the judge would have to decide whether
there’s any possible merit to any appealable issue and only if the judge agreed and signed
that certificate of probable cause could you even file anything. So you don’t have a right
to appeal when you take a plea bargain anyway. But the District Attorney’s office in this
county has a general policy in every case . . . where this person is pleading out, of taking
an appellate waiver on the record. In a lot of respects it’s kind of meaningless because
you don’t have a right to appeal when you plead, but that’s the DA’s policy here with
every case.” Later, defense counsel added, “with the whole waiving your right to appeal,
. . . in no way is Mr. Blocker waiving his right to file any kind of collateral attack based
on, for example, ineffective assistance of counsel which he has an absolute right to do.
You cannot waive that so I’m just pointing that out. He has an absolute right to do that or
any other issue that might properly be separate from the statutory right to appeal.”
Defendant was not asked to waive his right to seek a certificate of probable cause.


                                              10
       Moreover, we note briefly that any confusion defendant may have had in this
regard was harmless. Defendant’s notice of appeal sought a certificate of probable cause
as to issues involving the court’s ruling on the Marsden motion and the adequacy of his
representation in the trial court. Neither issue required a certificate of probable cause and
both of which have been considered by this court.
                                        Disposition
       The judgment is affirmed. The petition for a writ of habeas corpus is summarily
denied. (See People v. Romero (1994) 8 Cal.4th 728, 737.)



                                                  _________________________
                                                  Pollak, Acting P.J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




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