People v. Spencer CA5 ( 2015 )


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  • Filed 12/21/15 P. v. Spencer 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    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIFTH APPELLATE DISTRICT
    THE PEOPLE,
    F069368
    Plaintiff and Respondent,
    (Super. Ct. No. BF151653A)
    v.
    JOVAUN MONAY SPENCER,                                                                    OPINION
    Defendant and Appellant.
    THE COURT*
    APPEAL from a judgment of the Superior Court of Kern County. Colette M.
    Humphrey, Judge.
    Rachel Varnell, under appointment by the Court of Appeal, for Defendant and
    Appellant.
    Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
    General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff
    and Respondent.
    -ooOoo-
    *        Before Kane, Acting P.J., Poochigian, J. and Smith, J.
    INTRODUCTION
    On April 4, 2014, defendant pled no contest to one count of unlawful possession
    of a firearm by a convicted felon and, pursuant to his plea agreement, was subsequently
    sentenced to a term of eight years in prison. Following the entry of his plea, defendant
    made a Marsden1 motion seeking the substitution of his appointed counsel. After a
    hearing on the matter, the superior court denied defendant’s motion. On appeal,
    defendant argues the superior court failed to sufficiently inquire into the specifics of
    defendant’s complaints concerning his trial counsel. We affirm.
    FACTS
    On December 4, 2103, an information was filed charging defendant with unlawful
    possession of a firearm (Pen. Code,2 § 29800, subd. (a)(1); count 1), carrying a loaded
    firearm in public (§ 25850, subd. (c)(3); count 2), carrying a concealed firearm (§ 25400,
    subd. (c)(3); count (3), participating in a criminal street gang (§ 186.22(a); count 4), and
    resisting a police officer (§ 148, subd. (a)(1); count 5). The information also alleged that
    defendant committed the firearm charges in furtherance of criminal street gang, and that
    defendant had a prior strike conviction, a prior serious felony conviction, and two prior
    prison terms. On April 4, 2014, defendant pled no contest to the unlawful possession
    charge—as well as the gang and prior strike allegations—in exchange for an eight-year
    prison sentence and the dismissal of the remaining charges and allegations
    Prior to sentencing, defendant filed a Marsden motion seeking the substitution of
    his appointed counsel. At a hearing on defendant’s motion, defendant informed the trial
    court that his counsel “didn’t help [him] at all,” and failed to file motions on his behalf.
    Specifically, defendant alleged he had gone to the law library and researched a motion to
    dismiss his charge for participation in a criminal street gang, but defense counsel had
    1      People v. Marsden (1970) 
    2 Cal.3d 118
     (Marsden).
    2      All further statutory references are to the Penal Code, unless otherwise indicated.
    2.
    filed no such motion. Defendant also alleged that his counsel had failed to negotiate a
    more favorable plea deal, and had merely presented defendant with the People’s offer. In
    response, defense counsel stated he had reviewed defendant’s case and determined there
    were no meritorious motions to be filed.
    After defendant and defense counsel were given the opportunity to speak, the trial
    court asked if defendant had further complaints about his counsel, and defendant stated
    he did not. The trial court then denied defendant’s motion, finding that, under People v.
    Valdez (2004) 
    32 Cal.4th 73
    , counsel’s failure to file specific motions and conduct the
    defense in the way defendant would have liked were insufficient grounds to grant a
    Marsden motion. This appeal followed.
    DISCUSSION
    Defendant argues the superior court erred by denying his Marsden motion, as the
    court failed to sufficiently inquire into the specifics of defendant’s complaints concerning
    his trial counsel. We disagree.
    Under Marsden, a trial court may not deny an indigent defendant’s request for a
    new attorney without first providing the defendant the opportunity to present argument or
    evidence in support of the request. (Marsden, supra, 2 Cal.3d at p. 123.) “[A] Marsden
    hearing is not a full-blown adversarial proceeding, but an informal hearing in which the
    court ascertains the nature of the defendant’s allegations regarding the defects in
    counsel’s representation and decides whether the allegations have sufficient substance to
    warrant counsel’s replacement.” (People v. Hines (1997) 
    15 Cal.4th 997
    , 1025.)
    Replacement of counsel is a matter of judicial discretion, and denial of a Marsden motion
    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. (People v. Hart (1999) 
    20 Cal.4th 546
    , 603.)
    Here, the trial court provided defendant ample opportunity to relate specific
    instances of his attorney’s alleged inadequate performance, asked follow-up questions to
    3.
    clarify the nature of defendant’s complaints, and even verified that defendant had no
    further complaints before rendering its decision. Given those facts, it must be concluded
    that the trial court sufficiently inquired into defendant’s allegations of ineffective
    assistance prior to denying his Marsden motion.
    Nevertheless, defendant claims the trial court erred by concluding that complaints
    concerning unfiled motions were legally insufficient to warrant the replacement of
    counsel. According to defendant, the trial court’s decision represented a general rejection
    of unfiled motions as grounds for granting a Marsden motion, and prevented the trial
    court from considering the specific merits of defendant’s complaints.
    This claim, however, oversimplifies the trial court’s ruling. The trial court did not
    conclude that counsel’s failure to file motions never merits the granting of a Marsden
    motion, but rather that counsel’s failure to file specific motions defendant would have
    liked was not a sufficient basis to grant such a motion. We find this to be an accurate
    statement of the law. “When a defendant chooses to be represented by professional
    counsel, that counsel is ‘captain of the ship’ and can make all but a few fundamental
    decisions for the defendant.” (People v. Carpenter (1997) 
    15 Cal.4th 312
    , 376.) While
    failure to file dispositive motions could certainly form the basis for a successful Marsden
    motion, “defense counsel’s decision not to file a motion he believes will be futile does
    not ‘“‘substantially impair’ ... defendant’s right to effective assistance of counsel.”’
    [Citations.]” (People v. Guitierrez (2009) 
    45 Cal.4th 789
    , 804.)
    Here, defendant described a motion he felt should have been filed by defense
    counsel and, upon questioning, defense counsel stated that defendant’s file presented no
    opportunities for a meritorious motion of any kind. “To the extent there was a credibility
    question between defendant and counsel at the hearing, the court was ‘entitled to accept
    counsel’s explanation.’” (People v. Smith (1993) 
    6 Cal.4th 684
    , 696.) Accordingly, we
    conclude the trial court did not abuse its discretion by denying defendant’s Marsden
    motion.
    4.
    DISPOSITION
    The judgment is affirmed.
    5.
    

Document Info

Docket Number: F069368

Filed Date: 12/21/2015

Precedential Status: Non-Precedential

Modified Date: 12/21/2015