Filed 9/8/14 P. v. Valle 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067347
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. 11CM8990)
                   v.

JOSE LUIS VALLE,                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kings County. Donna Tarter,
Judge.
         Susan K. Shaler, under appointment by the Court of Appeal, Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari
Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Levy, Acting P.J., Cornell, J. and Gomes, J.
       Defendant José Luis Valle pled guilty to first degree murder (Pen. Code, §§ 187,
subd. (a), 189) and admitted various allegations in exchange for a 50-year-to-life
sentence. On appeal, he contends the trial court erred by failing to hold a Marsden1
hearing after he expressed dissatisfaction with his appointed defense counsel at the
sentencing hearing. We conclude defendant never clearly indicated that he wanted
substitute counsel. Accordingly, we affirm.
                                    BACKGROUND
       At the sentencing hearing on March 22, 2013, the following occurred:

             “[THE COURT:] [Defense counsel], how would you like to
       proceed?

              “[DEFENSE COUNSEL]: Your Honor, I know the family of the
       victim is here and this is the second time they have appeared. My client has
       informed me that on the date the plea was taken that he was under the
       influence of alcohol to the point he really was not capable of making a
       proper decision, and that’s where we are.

               “THE COURT: All right. [Defendant], you’re requesting—well,
       first of all, [defendant], what exactly are you requesting?

                “THE DEFENDANT: To withdraw my plea and for me to go to
       trial.

                “THE COURT: And based on what, [defendant]?

             “THE DEFENDANT: I feel my—my judgment was hindered due to
       me drinking.

                “THE COURT: Okay.

               “THE DEFENDANT: And I didn’t have adequate time to make my
       decision. I believe—I believe if I would have been given at least a couple
       days or a week and come back to take the plea I would be giving you the
       same answer as I am giving you now which is a no. I have denied previous
       offers from the D.A. time and time again because I want to go to trial, that’s
       something I want to do. And I haven’t tooken any other pleas. I feel I—
       you know, that’s just the way I feel that I wouldn’t have gave you that

1      People v. Marsden (1970) 2 Cal.3d 118.


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       decision—I wouldn’t have gave you that answer if I weren’t under the
       influence that day. [Sic.]

              “THE COURT: All right. Anything further, [defendant]? Anything
       further, [defendant]?

              “THE DEFENDANT: No, ma’am.

              “THE COURT: All right. The Court has had an opportunity to
       review the entry of plea by [defendant], also the Court remembers
       [defendant’s] entering that plea. This was the day of trial. And it’s the
       Court’s impression of the conduct of [defendant] during that hearing, also
       the responses that he was giving to the questions, that he was not under the
       influence of alcohol. He was clear. He was not slurring his words. He
       indicated—he gave appropriate responses to the Court. The Court is going
       to deny his request to withdraw his plea.

             “[Defendant], or excuse me, [defense counsel], are you prepared to
       proceed to sentencing this morning?

              “[DEFENSE COUNSEL]: Yes, your Honor.”
       At this point, family members of the victim gave victim impact statements.
Defendant spoke out after the final statement, but the court informed him he was not
permitted to speak then and he would have an opportunity to speak later. The prosecutor
then argued for the court’s imposition of the stipulated sentence of 50 years to life.
       After a short recess, the following occurred:

              “THE COURT: Is the matter submitted?

             “[DEFENSE COUNSEL]: It is, your Honor. You did tell
       [defendant] you were going to give him an opportunity to say something.

              “THE COURT: Yes, [defendant], if you would like to address the
       Court you may do so. [Defendant], did you want to—oh, you do, okay, go
       ahead.

              “THE DEFENDANT: I don’t know if there is any point to it now.
       This has to do with some of the reasons why I wanted to take my plea back.

              “THE COURT: [Defendant], you do have a right to make a
       statement at the sentencing hearing, so if you would like to do that, go
       ahead.


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            “THE DEFENDANT: Good morning, my name is Jose Luis Valle,
    Jr., I am currently held in custody for Case 11CM8990. On January 14th,
    2013, I took a plea for 50 years to life in prison and now I am here to notify
    you today, the Supreme [sic] Court, that I wish to withdraw my plea, my
    verbal plea agreement.

            “I will now proceed with my reasons and motives why I seek a
    withdrawal. The main reason I wish to withdraw my plea is due to the fact
    that I was under the influence of alcohol at the time. I was also not
    coherent and thinking very clearly. I felt very nervous and jittery at the
    time knowing I was to begin trial and its processes.

           “I had consumed about two jars of pruno the night before, on the
    given date of January 13, 2013.[2] I also had consumed two jars of pruno
    the very morning of my trial in order to kind of get me through the
    emotions I was feeling at the time—

           “THE COURT: [Defendant], I’m going to interrupt you. The
    Court’s already ruled on your motion to withdraw your plea and the
    circumstances that you are relying on that. The Court made a finding based
    on the transcript and the Court’s actually remembering your demeanor
    when you entered that plea that you were not under the influence. So the
    Court’s already made that finding. So you can address the sentencing if
    you would like. So why—if you would like to do that, go ahead.

            “THE DEFENDANT: I have evidence to support the fact that I
    was—pruno was found in my cell that very—the very day before, and I had
    asked my lawyer to subpoena certain officers in order to support me and the
    facts, but I don’t know what happened, if he did or didn’t do so. I haven’t
    had contact with my lawyer for the longest time. I feel he dropped the ball
    on my case long ago, and I was pressured [into] taking the deal. You know,
    I wasn’t—I wasn’t—I wasn’t—you asked me if I was threatened, I said no,
    I wasn’t, but I felt very pressured, you know, to take this deal.

           “THE COURT: [Defendant], again, we’ve already gone over your
    motion to withdraw your plea. I asked you during that motion whether you
    had anything else to say. I gave you an opportunity to do that. You
    presented it, I ruled. If you would like to comment on the sentencing, you
    may go ahead and do that. This is your opportunity, I’m not going to limit
    you in that regard.



2   Pruno is an illicit alcoholic beverage made in prison.


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              “THE DEFENDANT: Thank you, your Honor. I have nothing
       further to say.”
                                      DISCUSSION
       Based on this record, defendant contends the trial court erred in failing to conduct
a Marsden hearing. He concedes that he did not expressly request substitute counsel, but
he argues there was some clear indication that he wanted substitute counsel because he
explained to the court that counsel had not been in contact with him, had “dropped the
ball on [his] case,” and possibly had not subpoenaed the witnesses he requested. Further,
he points out that the court observed defense counsel sit silently, failing to provide
assistance, while defendant personally argued his motion to withdraw the plea.
       In People v. Sanchez (2011) 53 Cal.4th 80 (Sanchez), the Supreme Court held that
“a trial court is obligated to conduct a Marsden hearing on whether to discharge counsel
for all purposes and appoint new counsel when a criminal defendant indicates after
conviction a desire to withdraw his plea on the ground that his current counsel provided
ineffective assistance only when there is ‘at least some clear indication by defendant,’
either personally or through his current counsel, that defendant ‘wants a substitute
attorney.’” (Id. at pp. 89-90, italics added.) In so holding, Sanchez disapproved cases in
which appellate courts had “incorrectly implied that a Marsden motion can be triggered
with something less than a clear indication by a defendant, either personally or through
current counsel, that the defendant ‘wants a substitute attorney.’” (Sanchez, at p. 90,
fn. 3.) In these disapproved cases, the courts had concluded that a defendant’s expressed
desire to make a new trial motion or a motion to withdraw a plea on the basis of
ineffective assistance of counsel, without more, should be treated as triggering the duty to
hold a Marsden hearing. (E.g., People v. Mejía (2008) 159 Cal.App.4th 1081, 1086
[although defendant made no request for substitute counsel, he made a Marsden motion
because he instructed his counsel to move for a new trial largely on the basis of his
counsel’s performance at trial, and his counsel so informed the trial court].)



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       Thus, under current law, no “‘proper and formal legal [Marsden] motion’” is
required, but the defendant “must express ‘at least some clear indication … that he wants
a substitution of attorney.’” (People v. Lee (2002) 95 Cal.App.4th 772, 780, fn. omitted;
Sanchez, supra, 53 Cal.4th at pp. 89-90.) A trial court “is not obliged to initiate a
Marsden inquiry sua sponte. [Citation.] The court’s duty to conduct the inquiry arises
‘only when the defendant asserts directly or by implication that his counsel’s
performance has been so inadequate as to deny him his constitutional right to effective
counsel.’” (People v. Lara (2001) 86 Cal.App.4th 139, 150-151.) “The mere fact that
there appears to be a difference of opinion between a defendant and his attorney over trial
tactics does not place a court under a duty to hold a Marsden hearing.” (People v. Lucky
(1988) 45 Cal.3d 259, 281.) Moreover, “mere grumbling” about counsel’s failures is
insufficient. (People v. Lee, at p. 780.) But if a defendant makes an unequivocal
indication that he wants a new attorney, a trial court must hear the reasons for the
defendant’s belief that his attorney has not afforded adequate representation. (Marsden,
supra, 2 Cal.3d at pp. 123-124.)
       In this case, when the trial court asked defendant exactly what he was requesting,
he replied that he wanted to withdraw his plea. He did not then, or ever, mention wanting
a new attorney. Defendant’s argument that his “disgruntlement with counsel” constituted
a claim of ineffective assistance under Sanchez and required a Marsden hearing is not
supported by Sanchez and is not in accord with the current state of the law.
                                      DISPOSITION
       The judgment is affirmed.




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