Filed 7/19/13 P. v. Agundez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E056435
v. (Super.Ct.No. RIF1104591)
JOEY ALEXANDER AGUNDEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Michele D. Levine,
Judge. Affirmed.
Michael Clough, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, James D. Dutton and Donald W.
Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant Joey Alexander Agundez (defendant) pled guilty,
pursuant to a negotiated plea agreement, to attempted murder (Pen. Code, §§ 664, 187,
subd. (a)) and admitted the criminal street gang special allegation (Pen. Code, § 186.22,
subd. (b)). The trial court, in turn, sentenced defendant to the agreed upon term of
17 years in state prison.
Defendant contends in this appeal that the trial court failed to conduct an adequate
inquiry into defendant‟s postplea request to appoint substitute counsel to represent him at
sentencing. We conclude defendant‟s claim is meritless, and therefore we will affirm the
judgment.
DISCUSSION
Our resolution of the issue defendant raises in this appeal does not depend on the
circumstances of defendant‟s crime, nor could it because the trial court denied
defendant‟s request for a certificate of probable cause. Only the procedural details of the
trial court proceeding are pertinent to defendant‟s claim on appeal and they reveal that on
the date originally set for his sentencing hearing, defendant requested a continuance so
his family could retain private counsel to explore the possibility of filing a motion to
withdraw his guilty plea. The trial court granted defendant‟s request, and continued the
sentencing hearing for 30 days.
At the continued sentencing hearing, defendant‟s court-appointed attorney
informed the trial court defendant wanted a different attorney appointed to represent him
in order to withdraw his plea based on incompetence of counsel, a motion counsel
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described as a Sanchez1 hearing or a quasi-Marsden2 hearing. The trial court set that
hearing for later that same day.
At the outset of the hearing, the trial court ordered the courtroom closed to the
prosecutor, explained the Marsden process to defendant, and then gave defendant an
opportunity to speak. Defendant responded that he wanted to go forward with
sentencing. When the trial court indicated she had not heard what defendant had said,
defendant repeated, “I think I want to just go forward with sentencing, with the
sentencing.” The trial court then asked defendant, “Are you indicating, sir, that you‟re
satisfied [your attorney] can continue in her representation of you and do so through the
sentencing in this matter?” Defendant answered, “Yes, your Honor.” The trial court then
confirmed that defendant did not “want to discuss with [the court] having another counsel
appointed.” Before sentencing defendant, the trial court said, “The . . . Court is satisfied
that based upon what has been said to the Court by [defendant], there‟s a withdrawal of
the request to have a Marsden slash Sanchez motion before the Court; that he otherwise
wishes to go forward with the sentencing today pursuant to the plea bargain that was
entered into with the People.”
Defendant now contends the trial court should have conducted a Marsden hearing
because the record suggests defendant‟s plea was not “„a voluntary and intelligent
choice,‟” which in turn suggests his decision to abandon his Marsden hearing also was
1 People v. Sanchez (2011) 53 Cal.4th 80 (Sanchez).
2 People v. Marsden (1970) 2 Cal.3d. 118 (Marsden).
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not a voluntary and intelligent choice. In other words, defendant contends the trial court
should have determined whether defendant knowingly and intelligently withdrew his
request for a Marsden hearing. We disagree.
“Marsden motions are subject to the following well-established rules. „“„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 explain the
basis of his contention and to relate specific instances of the attorney‟s inadequate
performance. [Citation.] A defendant is entitled to relief if the record clearly shows that
the first appointed attorney is not providing adequate representation [citation] or that
defendant and counsel have become embroiled in such an irreconcilable conflict that
ineffective representation is likely to result [citations].‟ [Citations.]”‟” (People v.
Barnett (1998) 17 Cal.4th 1044, 1085, 1086.)
The record in this case reflects clearly and unequivocally that defendant withdrew
his request for a Marsden hearing. Defendant does not claim otherwise. Instead,
defendant contends the trial court had an obligation to determine whether that withdrawal
was done knowingly and voluntarily. Defendant does not cite any authority to support
that claim. Moreover, even if he were able to establish such an obligation, the trial court
conducted the requisite inquiry. As set out above, the trial court first explained the
structure and purpose of a Marsden hearing to defendant. When defendant indicated he
did not want to proceed with that hearing, the trial court confirmed that defendant was
satisfied with his attorney and wanted that attorney to represent him at his sentencing
hearing.
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In short, and simply stated, defendant withdrew his request for a Marsden hearing
and therefore cannot complain that the trial court did not conduct that hearing.
Defendant‟s other arguments, although presented in the guise of supporting his Marsden
hearing claim, are actually directed at challenging the voluntariness of his guilty plea.
Defendant did not obtain a certificate of probable cause and therefore he is precluded
from raising that issue. (People v. Panizzon (1996) 13 Cal.4th 68, 76.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P.J.
We concur:
RICHLI
J.
KING
J.
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