People v. Jimenez CA5

California Court of Appeal May 2, 2016 No. F069887Unpublished

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Holding. The trial court did not abuse its discretion in denying the defendant's Marsden motion because the defendant failed to make a substantial showing that his appointed counsel was providing ineffective representation or that an irreconcilable conflict existed.

Issues

Did the trial court abuse its discretion by denying the defendant's post-plea Marsden motion for substitute appointed counsel?

Disposition. affirmed

Quotations verified verbatim against the opinion

“The Marsden court concluded defendant had not made an adequate showing that counsel was providing ineffective representation, and it denied the motion for substitute counsel.”

“We conclude the Marsden court did not abuse its discretion when it denied defendant’s Marsden motion.”

Filed 5/2/16 P. v. Jimenez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F069887 Plaintiff and Appellant, (Fresno Super. Ct. No. F11901771) v.

RICHARD JIMENEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Houry A. Sanderson, Judge. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Gomes, Acting P.J., Detjen, J. and Peña, J.

Defendant Richard Jimenez was convicted by no contest plea of petty theft with a prior (Pen. Code, § 666).1 He admitted a prior strike conviction allegation and a prior prison term allegation (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b)). The trial court sentenced him to 11 years in prison. On appeal, he contends the trial court abused its discretion by denying his post-plea Marsden2 motion for substitute appointed counsel.3 We affirm. BACKGROUND At the July 29, 2014 Marsden hearing, the Marsden court asked defendant why he believed counsel had not properly represented him. Defendant explained that counsel did not let him finish watching a video of himself, and then misrepresented to a court that defendant had watched the entire video. When the Marsden court inquired, defendant agreed this video was part of a case against him that had since been dismissed. Defendant explained that he had been having problems with counsel for a long time. Defendant said he had been granted pro per status in September 2011, but counsel entered the courtroom anyway and initiated competency proceedings against him. The Marsden court examined the relevant minute orders and informed defendant that in fact he had not been granted pro per status in September 2011 when counsel initiated competency proceedings; thereafter defendant was found incompetent and was committed to the mental hospital to regain his competency. Defendant next explained that upon his return to court after regaining his competency, he requested a Marsden hearing. He believed counsel was working with the district attorney and Home Depot, the store from which defendant was accused of

People v. Jimenez CA5

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