Filed 4/23/14 P. v. Hall CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H040000
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1244710)

         v.

DOREMAN DAMAR HALL,

         Defendant and Appellant.


         Defendant Doreman Damar Hall pleaded no contest to two counts of first degree
burglary (Pen. Code, §§ 459, 460, subd. (a))1 and one count of buying, receiving,
concealing, or withholding stolen property (§ 496, subd. (a)). He also admitted one prior
strike conviction within the meaning of sections 667, subdivisions (b) through (i), and
1170.12. Prior to sentencing, Hall sought to withdraw his plea on the ground that he was
misled and coerced by his attorney, as well as to replace that attorney. Following a
combined Marsden2 and motion-to-withdraw hearing, the court denied Hall’s motions
and sentenced him to a term of eight years. Hall appealed, challenging the validity of his
plea. For the following reasons, we affirm.
I.       FACTUAL AND PROCEDURAL BACKGROUND
         This action arises out of four residential burglaries allegedly committed by Hall
and another individual on July 4, 2012. Two of those burglaries took place in San Jose

         1
             Further unspecified statutory references are to the Penal Code.
         2
             People v. Marsden (1970) 2 Cal.3d 118.
and the other two occurred in Fremont. Initially, Hall was charged in Santa Clara County
Superior Court with the San Jose burglaries. That case was set for trial when the
Alameda County District Attorney agreed to allow the Santa Clara County District
Attorney’s Office to prosecute the Fremont burglaries as well. Accordingly, the initial
case was dismissed so that all four burglaries could be tried in a single trial.
       A new felony complaint, charging Hall with four counts of first degree burglary
(§§ 459, 460, subd. (a)), was filed on November 13, 2012. On January 28, 2013, a
preliminary hearing was held at which Deputy Alternate Defender Jess Guy represented
Hall. At the start of the hearing, Hall asked to represent himself because he had never
met with Guy to discuss his case. The court initially denied Hall’s request because Guy
represented that he had met with Hall previously and was prepared to move forward,
civilian witnesses were present, and time had not been waived. However, after the first
witness had been questioned but before she was excused, the court gave Hall the
opportunity to question her himself. He refused, declining to represent himself as he had
previously requested.
       By March of 2013, Ralph Benitez of the alternate defender’s office had been
assigned to represent Hall. On March 20, 2013, the court held a Marsden hearing on
Hall’s request to replace Benitez. At the hearing, Hall informed the court that he wanted
new counsel because Benitez had refused to file a section 995 motion to dismiss the
charges on the ground that Hall had been denied a substantial right--the right to represent
himself--at the preliminary hearing. Hall further explained that he believed Benitez did
not have his best interests at heart.
       Benitez responded that he had researched section 995 at Hall’s request and had
agreed to file the motion, but that Hall had decided he wanted to represent himself before
Benitez finished drafting the motion. Accordingly, Benitez said, he had stopped work on




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the section 995 motion and instead scheduled a hearing on Hall’s Faretta3 motion to
represent himself for March 20, 2013. By the time of the hearing, Hall had changed his
mind about representing himself, and instead requested new counsel--hence, the Marsden
hearing. Hall confirmed Benitez’s account. The court denied Hall’s Marsden motion.
       A first amended information was filed on March 26, 2013, charging Hall with four
counts of first degree burglary (counts 1-4; §§ 459, 460, subd. (a)) and two counts of
buying, receiving, concealing, or withholding stolen property (counts 5 & 6; § 496, subd.
(a)). The amended information also alleged Hall had a prior strike conviction within the
meaning of sections 667, subdivisions (b) through (i), and 1170.12. Specifically, the
information alleged Hall had suffered a juvenile adjudication for robbery at the age of 16
or older.
       Also on March 26, 2013, Hall pleaded no contest to counts 1, 2, and 5 and
admitted the prior strike conviction. The plea agreement Hall signed called for a
sentence of eight years in state prison.
       Prior to sentencing, Hall again moved to replace his appointed counsel as well as
to withdraw his plea. The court held a second Marsden hearing on July 12, 2013. Hall
told the court he wanted to withdraw his plea on the grounds that his counsel provided
ineffective assistance in connection with the plea agreement. Hall claimed he had been
“misled about” and “coerced me into” the deal. Hall provided no details about how he
had been misled. With respect to coercion, he stated that Benitez “kept repeating that the
D.A. was pissed off, and at one point he said that I better take the deal because the time
was going to go up. So, at that point I felt trapped into the whole thing.” As in the first
Marsden hearing, Hall complained that Benitez had not filed a section 995 motion to




       3
           Faretta v. California (1975) 422 U.S. 806.


                                              3
dismiss the charges on his behalf. In addition, he stated that Benitez had refused to file a
Romero4 motion to strike his prior juvenile adjudication.
       In response, Benitez reiterated that he did not file a section 995 motion because
Hall had decided to represent himself before the motion was filed and then moved to
replace Benitez as appointed counsel. According to Benitez, after the first Marsden
hearing, Hall no longer wanted to file a section 995 motion and instead wanted to go to
trial. Benitez stated that he met with Hall and discussed issues related to the trial,
including Romero. During that meeting, Hall asked Benitez about a possible plea
agreement and instructed Benitez to accept the district attorney’s offer of an eight-year
term. Hall told the court that Benitez’s account was false.
       The court denied Hall’s motions, concluding that Benitez had “properly and
effectively represented” Hall. Immediately thereafter the court sentenced Hall to four
years on the count 1 first degree burglary charge; a consecutive term of 32 months on the
count 2 first degree burglary charge; and a consecutive term of 16 months on the count 5
buying, receiving, concealing, or withholding stolen property charge, for a total prison
term of eight years.
       Hall timely appealed and requested a certificate of probable cause. The trial court
granted that request. Appointed appellate counsel filed a brief under the authority of
People v. Wende (1979) 25 Cal.3d 436, stating the case and the facts but raising no issues
and requesting that this court review the record for error independently. Hall submitted a
letter brief urging that (1) his commitment to the trial court was illegal under section 995
because he was denied his right to represent himself at his preliminary hearing, (2) the
trial court erred in denying his March 2013 Marsden motion, (3) the trial court erred in
denying his July 2013 Marsden motion, (4) the trial court erred in denying his July 2013
request to withdraw his plea, (5) the trial court erred by not determining whether a factual

       4
           People v. Superior Court (Romero) (1996) 13 Cal.4th 497.


                                              4
basis existed for his plea as required by section 1192.5, and (6) the 32-month sentence on
the count 2 first degree burglary charge is illegal under the sentencing guidelines.
II.    DISCUSSION
       Hall’s brief does not raise any viable issues on appeal.
       First, Hall asserts that his commitment to the trial court was illegal because he was
denied the right to represent himself at his preliminary hearing. “Section 995 entitles a
defendant in a criminal case to a dismissal of an information on timely motion when,
because of a denial of a ‘substantial right at the preliminary examination,’ the ensuing
commitment is rendered illegal.” (People v. Draper (1996) 42 Cal.App.4th 1627, 1631.)
Hall waived this issue by failing to file a section 995 motion in the trial court. (See § 996
[“If the motion to set aside the indictment or information is not made, the defendant is
precluded from afterwards taking the objections mentioned in Section 995”]; People v.
Harris (1967) 67 Cal.2d 866, 870 [in the context of an alleged denial of the right to
counsel at preliminary examination, holding that “the failure to move to set aside the
information . . . bars the defense from questioning on appeal any irregularity in the
preliminary examination”].)5
       Second, Hall argues that the court erred by denying his March 2013 Marsden
motion. “We review a trial court’s decision declining to relieve appointed counsel under
the deferential abuse of discretion standard.” (People v. Jones, supra, 29 Cal.4th at p.
1245.) No abuse of discretion has been shown here. As the trial court explained at that
hearing, Hall failed to raise grounds sufficient to compel appointment of substitute
counsel. In particular, “ ‘[t]actical disagreements between the defendant and his attorney’
       5
         Benitez’s failure to file a section 995 motion does not constitute ineffective
assistance of counsel, as Hall appears to contend. As Hall confirmed at his March 2013
Marsden hearing, Benitez failed to file the motion because Hall decided he wanted to
represent himself. To the extent that Hall claims that he later urged Benitez to file the
motion, Benitez denied that, and the trial court was entitled to credit Benitez over Hall.
(People v. Jones (2003) 29 Cal.4th 1229, 1245.)


                                              5
”--such as whether to file particular motions--“ ‘do not by themselves constitute an
“irreconcilable conflict.” ’ ” (People v. Valdez (2004) 32 Cal.4th 73, 95.) Nor is “a
defendant’s claimed lack of trust in, or inability to get along with, an appointed attorney .
. . sufficient to compel appointment of substitute counsel.” (People v. Jones, supra, at p.
1246.)
         Third, Hall maintains that the court erred by denying his July 2013 Marsden
motion. To the extent that motion was premised on Benitez’s refusal to file certain
motions and similar disagreements between Benitez and Hall, Hall’s challenge fails for
the reasons set forth above with respect to the March 2013 Marsden motion. Moreover,
at the July 2013 Marsden hearing, Hall and Benitez gave differing accounts of their
discussions related to trial strategy and the plea agreement. “ ‘[T]he court was “entitled
to accept counsel’s explanation.” ’ ” (People v. Jones, supra, 29 Cal.4th at p. 1245.)
         Fourth, Hall argues that the court erred in denying his motion to withdraw his plea.
Section 1018 allows the trial court to grant a defendant’s request to withdraw his or her
plea of guilty or no contest “before judgment . . . for a good cause shown.” “Mistake,
ignorance or any other factor overcoming the exercise of free judgment is good cause for
withdrawal of a guilty plea. [Citations.] But good cause must be shown by clear and
convincing evidence.” (People v. Cruz (1974) 12 Cal.3d 562, 566.) “The decision
whether to allow a defendant to withdraw a guilty or no contest plea is discretionary, and
an appellate court will not disturb it absent a showing the trial court has abused its
discretion.” (People v. Mickens (1995) 38 Cal.App.4th 1557, 1561.)
         The thrust of Hall’s argument is that his plea was not knowing, voluntary, and
intelligent because Benitez failed to advise him fully of the consequences of that plea. In
particular, Hall claims he did not know the charges would run consecutively. While Hall
informed the trial court that he had been “misled” regarding the terms of the plea, he did
not raise this particular argument in the trial court, thereby waiving it. The argument fails
for the additional reason that Hall fails to establish prejudice--meaning that it is

                                              6
reasonably probable he would not have entered a no contest plea if properly advised that
the charges would run consecutively. (People v. Martinez (2013) 57 Cal.4th 555, 559.)
The plea agreement Hall signed explicitly provided for an eight-year term, which is
exactly the sentence he got. Because Hall received precisely the punishment he
bargained for, we conclude it is not reasonably likely that he would have refused to plead
no contest had he understood that the eight-year term consisted of consecutive terms.
       Hall also contends that he was coerced into the plea. That claim is refuted by
Benitez’s account that it was Hall who insisted on pleading. Again, the court was entitled
to believe Benitez over Hall.
       Finally, with respect to his motion to withdraw, Hall claims the “undue haste”
with which his plea was entered violated his constitutional right to a full defense under
People v. Avilez (1948) 86 Cal.App.2d 289, 296. We disagree, as this case is
distinguishable from Avilez. In Avilez, the defendant was arrested on 32 charges on a
Saturday morning and pleaded guilty the following Tuesday morning “immediately after
the appointment of the public defender.” (Id. at p. 293.) By contrast, here, Hall pleaded
no contest nearly two months after his second preliminary hearing and following at least
two in person meetings with Benitez, one of which lasted for three hours.
       Fifth, Hall urges that the trial court erred by not determining whether a factual
basis existed for his plea as required by section 1192.5. That provision of the Penal Code
requires the court to “cause an inquiry to be made of the defendant to satisfy itself that . .
. there is a factual basis for the plea.” (§ 1192.5.) As part of Hall’s written plea
agreement, defense counsel and the prosecutor stipulated to the existence of a factual
basis for Hall’s plea. The stipulation signed by Benitez does not reference a specific
document evidencing a factual basis.6 The California Supreme Court has held that “the

       6
         Benitez’s stipulation contains a space in which to specify such documents (i.e.,
the police report or preliminary hearing transcript), but we cannot decipher the notation in
(continued)

                                              7
trial court may satisfy its statutory duty by accepting a stipulation from counsel that a
factual basis for the plea exists without also requiring counsel to recite facts or refer to a
document in the record where . . . the plea colloquy reveals that the defendant has
discussed the elements of the crime and any defenses with his or her counsel and is
satisfied with counsel’s advice.” (People v. Palmer (2013) 58 Cal.4th 110, 118.) Here,
the court asked Hall whether he understood each of the charges, and Hall stated that he
did. The court also confirmed that Hall had discussed the advisement of rights, waiver
and plea form with his attorney and that he did not have any questions about it. On this
record, we conclude the court did not abuse its discretion by accepting defense counsel’s
stipulation to the existence of a factual basis for the plea.
       Finally, Hall claims that the 32-month sentence imposed on the count 2 first
degree burglary charge is illegal. As Hall notes, the Penal Code provides that first degree
burglary is punishable “by imprisonment in the state prison for two, four, or six years.”
(§ 461, subd. (a).) Pursuant to his plea agreement, Hall received a sentence of 32 months
(two years, eight months), representing one-third of the four-year mid-term sentence,
doubled as a result of the prior strike conviction. That sentence is consistent with
California law. (See § 1170.1, subd. (a).)
       In addition to considering the issues submitted by Hall, pursuant to Wende and
People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the whole record and have
concluded there is no arguable issue on appeal.




that blank. The prosecutor’s stipulation identified the police report and preliminary
hearing transcript as providing the requisite factual basis.


                                               8
III.   DISPOSITION
       The judgment is affirmed.




                                       Premo, J.




       WE CONCUR:




             Rushing, P.J.




             Márquez, J.




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