P. v. Morales CA6

Filed 7/23/13 P. v. Morales CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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