People v. Gabarrete CA1/4

Filed 9/29/22 P. v. Gabarrete CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A163500 v. CARLOS GABARRETE, (Del Norte County Super. Ct. No. CRPB 20-5057) Defendant and Appellant.

Defendant appeals a judgment convicting him of aggravated battery. He contends the trial court erred by denying his request to replace his appointed counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). We affirm. Background Defendant was charged by an information with one count of battery by gassing upon a peace officer and employee while confined in a state prison. (Pen. Code, § 4501.1, subd. (a).)1 The information also alleged that defendant had four prior strike convictions. (§§ 1170.12, 667, subds. (b)–(i).)

1 A second count of battery on a non-confined person by a prisoner (§ 4501.5) was alleged but dismissed prior to trial.

1

At his arraignment, defendant asked for the “form” to represent himself at trial. The court provided a “Farretta[2] form” for him to complete and indicated the matter would be revisited at his pretrial conference. At the pretrial conference, defendant reiterated his request to represent himself. Defendant, who had a Spanish translator available, stated, “I’m going to do my best in English . . . . [¶] I respect the court and I know there’s a lot of disagreement with my lawyer. I think he is not competent for representing me. He not even further for motion to dismiss the case for whatever the reason, the job, they are supposed to do that. And I want to replace, represent myself. But the only problem is I don’t know how to read English, but I can speak not real well, but I speak so-so English.” The court asked several questions with the assistance of the interpreter to determine defendant’s ability to read and write in English and Spanish and his understanding of the legal process and the pending charges. After considering defendant’s responses, the court denied defendant’s request to represent himself. The court explained, “It appears to me that he is not able to represent himself as he . . . doesn’t understand all the charges, doesn’t understand how to subpoena witnesses and procure evidence. [¶] So at this juncture on the day before trial, it is denied without prejudice.” Defendant then asked to have a new lawyer appointed. Defendant claimed that his attorney was biased against him because defendant had a prior sex offense conviction. The court asked the prosecutor to step out so that it could hold a Marsden hearing. Once the courtroom was clear, defendant explained that he wanted a new attorney because counsel had failed to give him certain photographic