Filed 7/23/13 P. v. Morales CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038311
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1114025)

         v.

ISRAEL SEBASTIAN MORALES,

         Defendant and Appellant.



         Defendant Israel Sebastian Morales pleaded no contest to second degree robbery
and admitted a prior conviction for a serious felony. (Pen. Code, § 212.5, subd. (c); Pen.
Code, § 667, subd. (a).) Before sentencing, defendant moved to withdraw his plea, and
moved for substitution of counsel under People v. Marsden (1970) 2 Cal.3d 118
(Marsden). The court denied both motions and sentenced him to six years in state prison
under the terms of his plea agreement.
         Defendant contends the trial court erred in denying his motions because, at the
Marsden hearing, defense counsel told the court defendant was “playing games,”
undermining defendant‟s credibility and causing a breakdown in the attorney-client
relationship. He argues that the court should have granted his motion to withdraw his
plea or should have postponed the case for a further hearing after appointing new
counsel. Respondent contends the trial court properly denied the defendant‟s motions.
We agree with respondent and affirm the decision below.
                                         FACTS1
       Defendant borrowed a teenager‟s cell phone but used it longer than he was
allowed. When the victim asked defendant to return the phone, defendant acted in a
threatening and menacing manner, and expressed his intent to keep the phone until he
was ready to return it. The victim then surrendered his phone out of fear.
                            PROCEDURAL BACKGROUND
       Defendant was charged by felony complaint with one count of robbery in the
second degree. The complaint further alleged that appellant had a prior strike for a
serious felony conviction and three prison priors.
       Defendant entered into a plea agreement. He pleaded no contest to second degree
robbery and admitted the prior strike. In exchange, defendant received a six-year
sentence, he was ordered to pay restitution, and the District Attorney dismissed the
remaining allegations.
       Before sentencing, defendant moved to withdraw his no contest plea and moved
for substitution of counsel under Marsden. The court held a Marsden hearing
and allowed defendant and his attorney to speak in regard to the motion.
       Defendant alleged counsel failed to obtain discovery, failed to contact witnesses,
failed to file a Romero motion, failed to show letters of recommendation to the court,
failed to communicate with him, and coerced him into pleading no contest. In response,
defense counsel offered tactical explanations for her decisions. She also recalled
describing to defendant the weight of the evidence and his options. And she stated that
she felt defendant was playing games because he was indecisive about pleading or



1
 Our summary of the facts is based on defense counsel‟s statements at the Marsden
hearing.
proceeding with the preliminary hearing. After defendant and counsel were heard, the
court found no deficiency in representation and denied both motions.
                                      DISCUSSION
       I.     Contentions
       Defendant contends that the Marsden motion should have been granted. He
claims his appointed counsel argued against his interest and undermined his credibility
when she stated defendant was “playing games.”
       Respondent contends that the trial court properly denied defendant's Marsden
motion. Respondent argues that the context of the interaction between the appellant and
defense counsel, a Marsden hearing, was an appropriate venue for defense counsel to
address defendant‟s complaints.
       II.    Standard of Review
       We review the denial of a Marsden motion for abuse of discretion. (People v.
Memro (1995) 11 Cal.4th 786, 857.) “Denial „is not an abuse of discretion unless the
defendant has shown that a failure to replace the appointed attorney would “substantially
impair” the defendant‟s right to assistance of counsel. [Citations.]‟ ” (People v. Barnett
(1998) 17 Cal.4th 1044, 1085.)

       III.   Defense Counsel Provided Relevant Information to the Court During the
              Marsden Hearing
       It is well established that Marsden hearings provide a forum for defendants to
present complaints about the effectiveness of their counsel and seek removal. (Marsden,
supra, 2 Cal.3d at p. 126.) Defendants can confidentially voice their concerns because
Marsden hearings are held in camera. (People v. Dennis (1986) 177 Cal.App.3d 863,
871.) Marsden hearings also afford defense counsel “the opportunity to address the
defendant‟s concerns with respect to the defendant‟s representation and to explain
counsel‟s performance.” (People v. Horton (1995) 11 Cal.4th 1068, 1123.) The parties
ultimately aid the court in determining whether the complaining party received adequate
representation or whether defendant and counsel “have become embroiled in such an
irreconcilable conflict that ineffective representation is likely to result.” (People v.
Memro, supra, 11 Cal.4th at p. 857.)
        In People v. Smith (1993) 6 Cal.4th 684, a defendant who pleaded guilty to felony
charges pursuant to a plea agreement sought to withdraw his plea prior to sentencing, and
claimed his court-appointed attorney provided ineffective assistance. (Id. at p. 687.) At a
Marsden hearing, defense counsel responded to each of defendant‟s complaints. (Id. at p.
688.) In addition, defense counsel admitted to arguing with the defendant on the day set
for trial. (Ibid.) He admitted to becoming “a little irritated” with the defendant, and
using foul language when he became “fed up with the accusations.” (Ibid.) The Supreme
Court of California upheld the denial of the Marsden motion and concluded that although
some “heated words” were expressed, substitution of counsel was not required. (Id. at p.
687.)
        Defendant argues that defense counsel‟s allegation that he was “playing games”
went beyond addressing particular claims, damaging his credibility and establishing a
breakdown in the attorney-client relationship sufficient to grant a Marsden motion.
Defense counsel, in fact, stated several times during the Marsden hearing that defendant
was “playing games.” Nevertheless, the statement‟s effect on defendant‟s credibility is
not a determining factor as to whether the court should grant a Marsden motion. Instead,
the court should remove counsel only if defendant is not adequately represented or if an
irreconcilable conflict between defendant and counsel is likely to result in ineffective
representation. (People v. Memro, supra, 11 Cal.4th at p. 857.) Here, counsel
investigated her client‟s case and presented defendant with his options. She was also
prepared to either accept the plea offer or move forward with the preliminary hearing.
The statements made by defense counsel during the Marsden hearing, as in Smith, “did
not have to do with the substance of the ability of [defense counsel] to properly
represent” the defendant, and therefore the trial court properly denied the Marsden
motion. (People v. Smith, supra, 6 Cal.4th at p. 689.)
         IV.    Forfeiture of Arguments Not Raised on Appeal
         At the Marsden hearing, defendant argued that his attorney failed to adequately
represent him for several reasons, such as failing to obtain certain discovery. But as
appellant, it was incumbent on defendant to discuss all of his contentions in his opening
brief, which he failed to do.2
         An appellant who fails “to advance any pertinent or intelligible legal argument”
abandons the claim. (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1117.) Thus, our
review is limited to those claims raised by defendant in his opening brief, accompanied
by meaningful legal analysis, and supported by citations to authority and facts. (In re
S.C. (2006) 138 Cal.App.4th 396, 408.) Accordingly, we disregard those contentions
made by defendant during the Marsden hearing that were not appropriately raised and
argued in his opening brief.

                                         DISPOSITION
         The judgment is affirmed.
         .




2
    Defendant also chose not to file a reply brief.
                            _________________________
                            MÁRQUEZ, J.

WE CONCUR:




_________________________
RUSHING, P.J.




_________________________
GROVER, J.
