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Filed 11/4/14 P. v. Valadez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Yolo)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

FELIPE VALADEZ,

Defendant and Appellant.

C075652

(Super. Ct. Nos. CRF124768, 

CRF133973)

Within a three-week period, defendant Felipe Valadez twice fled from police 

officers in his vehicle while intoxicated and while in possession of large amounts of 

marijuana. After both car chases, police had to use force to subdue defendant, and both 

times the car chases were recorded by patrol car dashboard camera (dash cam). Nine 

months later, defendant was arrested for shoplifting $224.95 worth of merchandise from 

Wal-Mart. 

As a result of the two car chases, defendant was charged with nine felony counts

and one misdemeanor. As a result of the shoplifting incident, defendant was charged 
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with one felony count of petty theft with a prior conviction. The charges surrounding 

defendant’s two car chases were combined into one case (case 1), and defendant’s 

shoplifting charge remained a separate case (case 2). 

Upset with how his appointed counsel was handling his defense in both cases, 

defendant filed a Marsden1 motion, which was denied. 

In a single plea agreement for both cases, defendant pled no contest to two counts 

of driving under the influence within 10 years of a prior felony driving under the 

influence and one misdemeanor count of resisting a peace officer; he also pled no contest 

to the felony count of petty theft with a prior conviction and admitted one prior 

conviction enhancement. 

Subsequently, defendant filed another Marsden motion and a motion to withdraw 

his no contest plea. Both motions were denied and defendant was sentenced to the 

stipulated term of six years and eight months in prison. On appeal, defendant challenges

the denial of both Marsden motions and the denial of his motion to withdraw his plea. 

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I

The First Car Chase

On November 19, 2012, defendant fled from police officers who attempted to pull 

him over for running a red light. While chasing defendant, the officers saw defendant 

throw a can of beer out of his window. Defendant drove onto a highway and exited 

toward a residential neighborhood, throwing another can of beer out of his window. 

Defendant briefly stopped and two uninvolved passengers fled from the car. He again 

 

1 People v. Marsden (1970) 2 Cal.3d 118.
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began to flee. Using a patrol car, officers spun defendant’s car 180 degrees until he was 

blocked by other patrol cars. 

Defendant got out of his car and raised his hands. The officers claim that 

defendant then yelled “shoot me,” while defendant contends he yelled “don’t shoot me.” 

The officers also say that defendant refused to get down on the ground, so they had to use 

force to subdue him, including striking him in the shins with a baton. Defendant claims 

he voluntarily submitted and the police officers hit him in the shins after he was already 

on the ground. The dash cam recording was unable to resolve these discrepancies 

because defendant and the officers were not in view. In the recording, an officer yells at 

defendant to stop resisting and then there are several thumps that presumably are the 

baton hitting defendant. Defendant was arrested; his car was searched, and police found 

approximately two pounds of marijuana in his trunk. 

The strikes to defendant’s shins fractured bones in both of his legs, and defendant 

had to be taken to the hospital to have his legs put in casts. Defendant was eventually 

released by hospital personnel. 

II

The Second Car Chase

Three weeks later, on December 9, 2012, defendant again did not stop for police 

officers while driving under the influence. Defendant veered around spike strips that 

were deployed in an attempt to stop him. He exited the freeway and ran a red light. 

More spike strips were deployed to stop defendant; this time, he ran over the spikes but 

still continued to flee. Defendant pulled into a parking lot, and police held him at 

gunpoint and ordered him out of the car. Defendant remained in the car, and police saw 

him casually drinking from a can of beer. Police attempted to get defendant out of the car 

with a Taser, a dog, and then a baton. When police got him out of the car, they 

discovered he had casts on both of his legs. Defendant was arrested; police searched his 

vehicle and found 145.3 grams of marijuana and a digital scale in his trunk. 
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III

The Charges Surrounding Both Car Chases (Case 1)

On December 12, 2012, defendant was charged with two felony counts of 

transporting marijuana, two felony counts of possessing marijuana, two felony counts of 

DUI within 10 years of a prior felony DUI, two felony counts of evading a peace officer 

with reckless driving, one felony count of resisting an executive officer (first car chase), 

and one misdemeanor count of resisting or obstructing a peace officer (second car chase). 

The complaint also alleged four conviction enhancements for prior felonies. At 

arraignment on December 12, 2012, defendant pled not guilty to all counts and denied the 

special allegations. 

IV

The First Marsden Hearing

On June 19, 2013, defendant moved to substitute counsel at a Marsden hearing. 

Defendant desired new counsel because he disagreed with defense counsel’s decision to 

negotiate a plea agreement instead of filing a Pitchess2 motion to obtain the police 

records of the officers who had broken his legs. In defendant’s opinion, either defense 

counsel should have filed a complaint against the officers for breaking his legs or the 

district attorney should have filed charges against the officers. 

Defense counsel told the court he would rather not file a Pitchess motion because 

that motion would be relevant to only one of the charges -- resisting an executive

officer --and favorable resolution of that charge would reduce defendant’s prison term by 

16 months at most. Negotiating a plea, on the other hand, could result in many charges 

being dismissed and his sentence being significantly lowered. More importantly, defense 

counsel believed that if he filed the Pitchess motion, the negotiations with the district 

 

2 Pitchess v. Superior Court (1974) 11 Cal.3d 531; Evidence Code sections 1043-

1045.
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attorney would stop and defendant would face 14 to 17 years in prison. Nevertheless, 

defense counsel said that he would file the Pitchess motion if defendant rejected the 

proposed plea agreement. The trial court, Judge Timothy Fall, denied defendant’s

Marsden motion, stating that defense counsel had not fallen below the standard of care. 

V

The Shoplifting Incident (Case 2)

On September 29, 2013, while out on bail, defendant entered Wal-Mart, put 

$224.95 worth of merchandise in his shopping cart, and left without paying. Defendant 

was arrested and charged with a felony count of petty theft with a prior conviction; the 

complaint also alleged five prior felonies.

VI

Defendant’s Plea

On November 8, 2013, pursuant to the terms of a plea agreement, for case 1 

defendant pled no contest to the misdemeanor count of resisting or obstructing a peace

officer (resulting from the second car chase) and two felony counts of DUI within 10

years of a prior felony DUI. In case 2, defendant pled no contest to a felony count of 

petty theft with a prior conviction. Defendant also admitted prior conviction

enhancement “a” in both cases. Pursuant to the plea agreement, four prior conviction 

enhancements were dropped and seven felony counts against defendant were dismissed 

(including the charge of resisting an executive officer following the first car chase.) 

Sentencing was postponed. 

VII

The Second Marsden Hearing

On January 7, 2014, defendant brought a second Marsden motion. When asked to 

provide specific instances of inadequate performance, defendant alleged that defense 

counsel: (1) failed to file a Pitchess motion; (2) cussed at and intimidated defendant;

(3) failed to argue that the dash cam videos had been edited; (4) failed to subpoena 
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defendant’s doctor who prescribed him medical marijuana; and (5) conspired with the 

district attorney and the West Sacramento Police Department to “railroad” him into 

accepting a plea for a crime he did not commit. The court, Judge Paul Richardson,

denied defendant’s Marsden motion, finding defense counsel adequately represented 

defendant, and the conflict was nothing more than tactical disagreements over how the 

case should proceed. 

VIII

The Motion To Withdraw The No Contest Plea

At defendant’s subsequent sentencing hearing, defendant asked to withdraw his 

plea. The court, Judge David Rosenberg, denied his request, finding the plea was freely, 

voluntarily, and intelligently given, and there was not sufficient cause to withdraw the 

plea. For both of his cases, the court sentenced defendant to a stipulated six years and 

eight months in prison. 

DISCUSSION

On appeal, defendant argues the trial court erred in denying both Marsden motions 

and his request to withdraw his plea. We disagree.

I

The Trial Court Properly Denied Defendant’s Marsden Motions

Defendant first contends the trial court erred in denying his Marsden motions 

because defendant and his counsel had become embroiled in such an irreconcilable 

conflict that ineffective representation was likely to result. We review the denial of a 

Marsden motion for abuse of discretion. (People v. Streeter (2012) 54 Cal.4th 205, 230). 

“Denial is not an abuse of discretion ‘unless the defendant has shown that a failure to 

replace counsel would substantially impair the defendant’s right to assistance of 

counsel.’ ” (People v. Taylor (2010) 48 Cal.4th 574, 599.)

On a Marsden motion, the defendant is entitled to substitute his appointed counsel 

“ ‘if the record clearly shows that the appointed counsel is not providing adequate 
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representation or that the defendant and counsel have become embroiled in such an 

irreconcilable conflict that ineffective representation is likely to result.’ ” (People v. 

Taylor, supra, 48 Cal.4th at p. 599.) An attorney’s representation is ineffective when it 

falls below an objective standard of reasonableness under prevailing professional norms. 

(Strickland v. Washington (1984) 466 U.S. 668, 688 [80 L.Ed.2d 674, 693].) Moreover, 

“tactical disagreements between a defendant and his attorney or a defendant’s frustration 

with counsel are not sufficient cause for substitution of counsel.” (People v. Streeter, 

supra, 54 Cal.4th at p. 231.) 

The trial court did not abuse its discretion in denying defendant’s Marsden

motions because defendant never showed that ineffective representation was likely to 

result. Assuming that defendant and his counsel did have an irreconcilable conflict, 

defendant never put forth any evidence to show that defense counsel’s representation was 

likely to fall (or had fallen) below the standard of care. 

At the first Marsden hearing defendant argued his counsel was not adequately 

representing him because his counsel had not filed a Pitchess motion despite defendant’s 

request to do so. Defendant’s eagerness to file a Pitchess motion was apparently due to 

his belief that the charges against him would be dropped or significantly reduced if he 

could show that the officers used excessive force and broke his legs unnecessarily. 

It is clear to us, as it was clear to defense counsel, that defendant’s punishment for 

driving under the influence and fleeing from police twice would not have been

significantly reduced by a showing that police used excessive force when they

apprehended him the first time. Defense counsel explained that filing a Pitchess motion 

would only dispute the resisting an executive officer charge, which would reduce his 

sentence by approximately 16 months at most. More importantly, defense counsel 

explained that filing the motion would halt plea negotiations with the district attorney and 

defendant would face approximately 17 years in prison if convicted. Defense counsel 

recognized that negotiating a plea for a term of six years and eight months benefited 
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defendant more than fighting for a 16-month reduction off of a 17-year sentence. 

Therefore, counsel’s tactical decision not to file the Pitchess motion was reasonable. 

At the second Marsden hearing (after defendant had pled no contest), defendant 

again argued his counsel failed to adequately represent him because he had not filed a 

Pitchess motion. Defense counsel explained that he did not file a Pitchess motion 

because the charge of resisting an executive officer from the first car chase had been 

dropped as part of the negotiated plea bargain. Defense counsel even said he did his best 

to preserve defendant’s civil lawsuit against the police officers by negotiating for the 

dismissal of the resisting charge. 

Defendant also told the court that his counsel “failed to call the prosecutor” on the 

dash cam videos from the first car chase, which he believes were edited and (in their 

supposed original form) prove he was not resisting. This again is irrelevant to his 

counsel’s representation since the resisting charge from the first car chase had been 

dismissed. 

Defendant also complained that his counsel failed to subpoena the doctor who

prescribed defendant his medical marijuana. Defense counsel did not subpoena the 

doctor as a witness because the marijuana charges were dropped in accordance with the 

plea agreement. It was therefore reasonable for counsel not to subpoena the doctor. 

Furthermore, all of these disagreements involved purely tactical decisions, and 

tactical disagreements between a defendant and his attorney are not by themselves 

sufficient cause for substitution of counsel. (People v. Streeter, supra, 54 Cal.4th at 

p. 231.) 

Defendant did make a few arguments of inadequate representation that did not 

involve tactical decisions. Defendant said his counsel did not like coming to the jail to 

visit him; he also said his counsel cussed at him, intimidated him, and made him afraid to 

talk to him. Defendant did not cite any dates or times when this occurred. Defense 

counsel explained that he had used profanity out of frustration, but it was not directed at 
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defendant. Furthermore, once defendant broached the issue, counsel became very careful 

not to use profanity around defendant. 

The court did not inquire into how many times counsel had visited defendant, but 

instead asked counsel what he had done so far for defendant in this case. This is likely 

because the “ ‘number of times one sees his attorney, and the way in which one relates 

with his attorney, does not sufficiently establish incompetence.’ ” (People v. Streeter, 

supra, 54 Cal.4th at p. 230.) The number of visits to prison and other disagreements with 

counsel do not warrant substitution of counsel unless defendant can show inadequate 

representation. (Ibid.)

Based on defendant’s successful plea negotiations, seven felony counts against 

defendant were dismissed and four prior conviction enhancements were dropped. The 

trial court found defense counsel had not fallen below the objective standard of 

reasonableness. We agree and conclude the trial court did not abuse its discretion in 

denying defendant’s Marsden motions. 

II

The Trial Court Properly Denied Defendant’s Motion To Withdraw His Plea

Defendant also argues the trial court erred in denying his motion to withdraw his 

plea because he asserts he did not enter his plea voluntarily. The withdrawal of a guilty 

plea rests in the sound discretion of the trial court and the trial court’s ruling may not be 

disturbed unless the trial court abused its discretion. (People v. Francis (1954) 42 Cal.2d 

335, 338.)

Penal Code section 1018 provides that “the court shall, for a good cause shown, 

permit the plea of guilty to be withdrawn and a plea of not guilty substituted.” (Italics 

added.) The burden of proof necessary to establish good cause in a motion to withdraw a 

guilty plea is by clear and convincing evidence. (People v. Cruz (1974) 12 Cal.3d 562, 

566.) Any factor overcoming the exercise of free judgment is good cause for withdrawal 

of a guilty plea. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) Such factors 
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include mistake, ignorance, inadvertence, fraud, or duress. (Ibid.) Conversely, a plea 

may not be withdrawn simply because the defendant has changed his mind. (People v. 

Nance (1991) 1 Cal.App.4th 1453, 1456.)

The trial court did not abuse its discretion in denying defendant’s motion to 

withdraw his plea because defendant did not prove with clear and convincing evidence 

that he was coerced into involuntarily accepting a plea. In defendant’s written request to 

withdraw his plea he stated a desire to withdraw his plea due to a conflict with his 

attorney. He stated his counsel participated in organized crime in an effort to convict him 

and intimidate him into taking a plea deal. He continued to reiterate all of his previous 

allegations made during his Marsden motion, most of which were irrelevant to his plea. 

These allegations included his belief that his counsel was in conspiracy with the district 

attorney and West Sacramento Police Department, and that his counsel, the district 

attorney, and the police officers all falsified evidence, committed perjury, and tampered 

with evidence. Defendant did not indicate how or when his counsel intimidated him into 

taking a plea agreement. He did not provide any evidence of any coercion or intimidation 

by counsel. 

On the contrary, defendant initialed and signed several statements in his plea 

agreement indicating that he understood the plea agreement, discussed it with his 

attorney, and freely and voluntarily chose to plead no contest. When the trial court 

accepted defendant’s plea agreement it asked defendant if the initials and signatures were 

his, and defendant confirmed they were. Defendant also confirmed he had enough time 

to review the plea and discuss it with his attorney; his attorney answered all of his 

questions; he understood the rights he was giving up; and he knew he would receive a 

six-year and eight-month prison sentence in exchange for the plea. The court asked 

defendant if anyone made any promise to him in exchange for the plea and defendant 

said, “No.” The court asked defendant if anyone threatened him or put pressure on him 
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to enter the plea and defendant said, “No.” Lastly, defendant said he had no questions for 

the court and he pled no contest.

The evidence suggests that defendant pled no contest freely, voluntarily, and

intelligently. Defendant asserts that “the record demonstrates that [he] was coerced into 

accepting the plea agreement without sufficient knowledge of the consequences of 

proceeding to hearing.” We find no evidence in the record that shows coercion or other 

good cause to withdraw the plea; therefore, we conclude the trial court acted within its 

discretion in denying defendant’s motion.

DISPOSITION

The judgment is affirmed. 

 ROBIE , Acting P. J.

We concur:

 MAURO , J.

 HOCH , J.