People v. Diaz CA2/7 ( 2021 )

Filed 4/14/21 P. v. Diaz CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B301372
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA040340)
v.
ORDER MODIFYING
JOSE DIAZ, OPINION
(NO CHANGE IN
Defendant and Appellant. APPELLATE JUDGMENT)
THE COURT:
It is ordered that the opinion filed herein on April 12, 2021
be modified as follows:
On page 1, Michael D. Abzug, Judge is changed to Alan B.
Honeycutt, Judge.
There is no change in the appellate judgment.
PERLUSS, P. J. SEGAL, J. FEUER, J.
Filed 4/12/21 P. v. Diaz CA2/7 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B301372
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA040340)
v.
JOSE DIAZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Michael D. Abzug, Judge. Affirmed.
Christine M. Aros, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
___________
Jose Diaz appeals from the superior court’s order denying
his motion to replace appointed counsel prior to the
commencement of a postjudgment hearing being held pursuant to
People v. Franklin (2016) 63 Cal.4th 261 (Franklin). No arguable
issues were identified by Diaz’s appointed appellate counsel after
her review of the record. We also have identified no arguable
issues after our own independent review of the record and
analysis of the contentions presented by Diaz in his handwritten
supplemental brief. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Diaz was convicted following a jury trial in July 2000 of
first degree murder. (Pen. Code, § 187, subd. (a).) Diaz was
22 years old at the time of the murder.
The trial court sentenced Diaz to an indeterminate state
prison term of 25 years to life, plus 25 years to life for his use of a
firearm to commit the offense (Pen. Code, § 12022.53, subd. (d)).
The court imposed and stayed several other related firearm
enhancements.
On December 27, 2017 Diaz petitioned for a writ of habeas
corpus seeking a hearing to make a record of youth-related
mitigating information as authorized by the Supreme Court in
Franklin, supra, 63 Cal.4th 261.1 In February 2018 the superior
court issued an order to show cause, appointed counsel for Diaz
and directed the People to file a return within 30 days.
On January 29, 2019 Diaz moved pursuant to People v.
Marsden (1970) 2 Cal.3d 118 (Marsden) to replace his appointed
counsel. During the closed hearing on the motion, Diaz
1 Diaz will be eligible for release on parole at a youth
offender parole hearing during his 25th year of incarceration.
(Pen. Code, § 3051, subd. (b)(3).)
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complained his appointed counsel was not exploring all available
options, including a transfer of the case to juvenile court.
Because appointed counsel’s representation was limited to the
Franklin hearing, the superior court ruled there had been no
breakdown in the attorney-client relationship and denied the
motion. The court explained to Diaz, if there were “other grounds
that you would like to seek relief on . . . you do need to file
additional paperwork. So if you have a writ or otherwise want
this court to consider any other motions—right now,
Mr. Atherton is appointed on the Franklin matter.”
On February 8, 2019 Diaz filed a supplemental letter brief
asking the superior court to reconsider his sentence, strike the
firearm enhancement that had been imposed and sentence him
“to a determinate sentence providing a truly meaningful
opportunity at parole.” On February 28, 2019 the superior court
noted that “Defendant’s supplement letter brief is filed.”
On March 3, 2019 Diaz wrote the superior court asking for
a letter of recommendation. Diaz explained, “I realized that
under Penal Code section 1170, [subdivision] (d) that your
honorable court no longer has jurisdiction to do a recall of
commitment. Instead I would greatly appreciate a positive letter
expressing your willingness to entertain such a letter which I can
use to convince the Board of Parole Hearings and or the
Secretary of Correction to consider my case for recall.” The
superior court denied the request on April 19, 2019.
Counsel for Diaz submitted a Franklin package on June 4,
2019. The filing contained background information about Diaz,
letters of support, certificates of participation in prison programs,
school records, inmate request forms, work supervisor reports, a
psychiatric report, external movement reports and post-parole
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plans. The Franklin hearing was held July 24, 2019. The People
indicated no opposition would be filed, and the court accepted the
Franklin brief submitted by Diaz’s counsel. The superior court
ruled the brief “will be transported along with Mr. Diaz, back to
the Department of Corrections and become part of his record with
the Department of Corrections and the sentencing portion of this
case.”
On September 4, 2019 Diaz filed a notice of appeal from the
“Franklin hearing/Marsden hearing.”
DISCUSSION
We appointed counsel to represent Diaz on appeal. After
reviewing the record, counsel filed a brief raising no issues.
Appointed counsel advised Diaz on July 10, 2020 that he may
personally submit any contentions or issue he wishes the court to
consider.
On August 4, 2020 we received a three-page handwritten
supplemental brief in which Diaz challenges the denial of his
Marsden motion. Diaz contends the superior court “should have
recognized petitioner was there for what the court stipulated was
a possible resentencing . . . . [¶] In stating that my attorney . . .
would only handle the Franklin hearing . . . while setting hearing
dates for possible modification of sentence the trial court violated
petitioner’s right to counsel. [¶] The trial court effectively
suggested petitioner represent himself.” Diaz also requests his
court appointed appellate counsel be replaced “with hope that
another attorney will properly investigate and address all due
process violations petitioner has raised.”
“When a defendant seeks to discharge his appointed
counsel and substitute another attorney, and asserts inadequate
representation, the trial court must permit the defendant to
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explain the basis of his contention and to relate specific instances
of the attorney’s inadequate performance.” (People v. Johnson
(2018) 6 Cal.5th 541, 572, internal quotation marks omitted;
accord, People v. Winn (2020) 44 Cal.App.5th 859, 870.) “A
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. [Citation.] A trial court should grant a defendant’s
Marsden motion only when the defendant has made a substantial
showing that failure to order substitution is likely to result in
constitutionally inadequate representation.” (People v. Streeter
(2012) 54 Cal.4th 205, 230, internal quotation marks omitted;
accord, People v. Loya (2016) 1 Cal.App.5th 932, 945.) “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.” (Streeter, at p. 230, internal quotation marks omitted;
accord, Loya, at p. 944.)
The superior court did not abuse its discretion in denying
the Marsden motion. Although Diaz argues his appointed trial
counsel should have pursued other forms of relief beyond the
Franklin hearing, including the possibility of a transfer to
juvenile court, that suggested activity was beyond the scope of
appointed counsel’s representation. (See Cal. Rules of Court,
rule 4.551(c)(2) [counsel to be appointed in habeas proceedings for
issue presented by order to show cause]; cf. In re Barnett (2003)
31 Cal.4th 466, 479 [explaining pro se habeas petitions can be
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“matters falling outside the scope of appointed counsel's
representation”].)
There is no merit to Diaz’s additional argument he was
denied the right to counsel for his motion for resentencing. A
right to counsel does not attach until a defendant is found eligible
for resentencing. (People v. Rouse (2016) 245 Cal.App.4th 292,
299-300 [defendant has a right to counsel in the post-conviction
context only if he or she has been found eligible for
resentencing].)
With respect to any other issues concerning the Marsden
motion and Franklin hearing, we have examined the record and
are satisfied Diaz’s appointed appellate counsel has fully
complied with the responsibilities of counsel and no arguable
issue exists. (Smith v. Robbins (2000) 528 U.S. 259, 277-284;
People v. Kelly (2006) 40 Cal.4th 106, 118-119; People v. Wende
(1979) 25 Cal.3d 436, 441-442.)
DISPOSITION
The judgment is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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