People v. Bigger CA3

Filed 3/1/21 P. v. Bigger CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Calaveras) ----

THE PEOPLE, C089748

Plaintiff and Respondent, (Super. Ct. No. 18F7276)

v.

JOSEPH RILEY BIGGER,

Defendant and Appellant.

A jury found defendant Joseph Riley Bigger guilty of 14 counts of molesting his daughter. The court sentenced defendant to 44 years in prison and ordered him to pay statutory fines, fees, and assessments. Defendant contends the trial court erred by failing to hold a hearing on his right to substitute counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) when defendant complained of his counsel’s purported deficiencies. Defendant further contends the court violated his constitutional right to due process by imposing fines and fees without first inquiring into his ability to pay, pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). We conclude that (1) the

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trial court had no duty to hold a hearing on defendant’s right to substitute counsel under Marsden because defendant did not clearly indicate he wanted substitute counsel and (2) defendant forfeited his Dueñas argument by failing to object in the trial court. We affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND Due to the limited nature of the claims on appeal, we need not recite the facts of defendant’s crimes in any detail. It suffices to say a jury convicted defendant of regularly sexually abusing his 12-year-old daughter from August 2017 to February 2018. Prior to the sentencing hearing, defendant submitted a 12-page letter to the trial court in which he maintains his innocence and expresses his “concern for the mental and physical well being” of his three children. The letter also sets forth a variety of evidence that he contends should have been presented at trial. Defendant states in his letter, “I do believe if my council [sic] would have presented the issues . . . at trial then things would have been at least seen differently.” The letter concludes, “So I plead with you to investigate and evaluate what I have presented in this report so as to find a proper way to handle the welfare of my 3 kids.” At the sentencing hearing, the judge stated that he had read defendant’s letter in full and asked if defendant had anything to add beyond what was written in the letter. Defendant responded there was “a lot” that he “need[ed] to address now” and then stated again that he was wrongfully convicted and that he wrote the letter out of concern for his children. He then again noted the evidence he contends should have been presented at trial and complained that he was a “guinea pig” for his purportedly inexperienced counsel. At that point, the judge interrupted defendant because he was not addressing the issues of sentencing, and he explained that many defendants are unhappy with their counsel after a conviction. Defendant tried again to speak, but the judge warned him to be quiet, and reminded defendant that he had received the opportunity to be represented by two counsel. Defendant responded that both were “defective.” The judge instructed