1

Filed 10/13/23 P. v. Estrada CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent,

v. MARK ANTHONY ESTRADA, Defendant and Appellant. A165383
(Alameda County Super. Ct. No. 464391)

Defendant Mark Estrada killed a Hayward police officer during a 2015 traffic stop

. Sev eral years later, Estrada pleaded no contest to one count of first degree murder and an accompanyin g firearm enhancement

. Before judgment was entered , he unsuccessfully moved to withdraw the plea, and
the trial court sentenced him to the stipulated term of 50 years to life in prison

. On appeal, Estrada claims that his trial counsel rendered ineffective
assistance of counsel by not supporting or arguing his m otion to withdraw the plea, thereby “abandon[ing] his defense at a critical portion of the case .” He
also claims that the trial court erred by not fulfilling its promise to appoint
anothe r attorney to assist him with th at motion or, alternatively, by failing to
hold a Marsden hearing

. 1 Finally, he claims that he made a prima facie

1 People v. Marsden (1970) 2 Cal.3d 118 ( Marsden ).2

showing that the plea was coercive, based on his declaration that defense
counsel pressured him to take the plea deal

. We affirm.
I. F ACTUAL AND P ROCEDURAL B ACKGROUND The underlying facts are not relevant to the issues on appeal. Briefly, early on the morning of July 22, 2015, Hayward P olice S ergeant Scott Lung er stopped a truck , later identified as Estrada’s father’s , that had been “swerving all over the road.” 2 A second police officer arrived in time to see Sergeant Lunger approach the truck

. After Sergeant Lunger said, “[W]hoa, whoa, whoa,” t he second officer heard a gunshot and saw the sergeant fall to the ground. Meanwhile, the truck drove away as the second officer chased after it on foot, shooting at it. Sergeant Lunger died from a gunshot wound to the face

. Estrada , who was 21 years old and had also been shot , was soon apprehended. The gun used to kill Sergeant Lunger was recovered near the scene, and f ive cartridge casings fired from it were found in Estrada’s home

. Two years later, the Alameda County District Attorney filed an information charging Estrada with one count of murder , with an accompanying allegation that he personally and inte ntionally discharged a firearm causing death. 3 Several special circumstances rendering Est rada eligible for the death penalty and/or a sentence of life without the possibility

2 The underlying facts are drawn from the preliminary hearing transcript, to which Estrada stipulated as the factual basis for the plea.

3 The murder count was brought under Penal Code section 187, subdivision (a), and the firearm enhancement was alleged under Penal Code section 12022.53, subdivision (d). All further statutory references are to the Penal Code unless otherwise noted

.3

of parole (LWOP) based on the murder were also alleged. 4 Finally, Estrada was charged with two felony counts related to his possession of the firearm. 5
After significan t delay s , including a mistrial declared in March 2020
due to the COVID

- 19 pandemic , jury selection began in December 2021

. 6 On February 1, 2022, the parties notified the trial court that they had reached a plea agreemen t . Under th e agreement, Estrada th en plead ed no contest to one count of first degree murder and admit ted the accompanying firearm allegation in exchange for a sentence of 50 years to life in prison , and the special circumstances and remaining charges were dismissed.
On March 2, 2022 , a few weeks before sentencing was to occur, the trial court placed the matter on calendar at the request of Estrada’s trial counsel (March 2 hearing)

. At the hearing, t he court stated that it understood Estrada wanted to speak to it, and his counse l added, “And I think that he was also going to request through me that if the Court would possibly appoint

a person

— I don’t see grounds to withdraw the plea, but I would may be

4 The s pecial circumstances rendering Estrada death

- eligible were alleged under section 190.2, subdivision (a)(7) ( murder of on

- duty peace officer ), (15) (murder by lying in wa it) , and (21) (drive

- by murder)

. He was also alleged to be eligible for an LWOP sentence under section 190, subdivision (c), which applies to a defendant who commits second degree murder of a peace officer under specified circumstances.

5 The first charg e was carrying a concealed firearm in a vehicle under section 25400, subdivision (a)(1), with an allegation under subdivision (c)(6) of t he statute that the firearm was unregistered and loaded

. The second charge was carrying a loaded firearm in public und er section 25850, subdivision (a), with an allegation under subdivision (c)(6) of th e statute that the firearm was unregistered

.

6 The People initially sought the death penalty, and i n 2020, E strada filed two unsuccessful petitions for a writ of mandate in this court based on selection of a death

- eligible jury for the trial that ended in a mistrial

. ( Estrada v. Superior Court of Alameda (Jun. 18, 2020, A160148) ; Estrada v. Superior Court of Alameda ( Jan. 30, 2020, A159445 ).)4

request that somebody be appointed in an abundance of caution to see if there’s grounds to withdraw the plea.” After Estrada confirmed that he “want[ed] the Court to appoint [him] a lawyer to look at the plea transcript to
determine whether or not there’s sufficient grounds to set aside th is plea,” the court agreed to “make an appoi ntment . We’ll find out how we go about [it] to get someone from the bar to take a look at the plea transcript as well as
talk to Mr. Estrada.”
The record does not indicate that another attorney was appointed or
otherwise became involved in helping Estr ada move to withdraw the plea. Instead, about two weeks after the possibility of appointing another attorney was raised, Estrada’s trial counsel filed a motion to withdraw the plea

. The
motion ’s argument section stated only that a guilty plea could be set aside upon a showing of good cause, which exists “when the defendant demonstrates that he was operating under duress, to the extent that it overcame the exercise of his free judgment,” and asked the trial court to
consider E strada’s accompanying declaration giving “his reasons for entering the plea and allowing him to withdraw his plea.” In his declaration, Estrada stated that he always intended “to take the case to trial,” but he “felt pressured to take the deal” and “rus hed” because his trial counsel gave him only a day to make the decision. He claimed that
while he was deciding whether to take the deal, counsel “tried to get [him] to feel guilty about taking the case to trial, by talking about putting the victim’s
famil y through a trial and having them look at pictures of the victim shot.”
Estrada also averred that counsel “had an angry outburst” and threatened to “call [his] family and tell them that they were committing a criminal action by telling [him] not to take t he plea.” After this, Estrada and his family were “afraid” of counsel, and he “felt pressured to take the plea.” Finally, he5

“feared that [counsel] was not giving [him] the best defense” and “was not really going to do her best to defend [him],” based on certain evidentiary issues she identified and her statement “that she would [not] get paid more if [they] took the case to [trial] than if [they] entered the no contest plea.”
On March 28, 2022, the trial court held a hearing on Estrada’s motion
to with draw the plea (March 28 hearing)

. The hearing primarily consisted of

t he court’s “voir diring [Estrada]” about the plea and his declaration. The court began by giving Estrada a copy of his plea form and confirming that he had reviewed it with trial counsel, initialed it, and signed it. Estrada answered affirmatively when asked whether he “understood that form at the time [he] signed it.” The court also asked whether there was “anything [Estrada] want [ ed ] to add to [his] declaration,” and he responded, “No. Basically everything I wanted

. . . to put is in [it].” Next, t he trial court discussed at length the plea hearing and the history of the case, including the progress on jury selection made before the parties reached the plea agreement. In particular, Estrada agreed that he knew that because of his trial counsel’s advocacy, the punishment he faced had gone from the death penalty to LWOP to an indeterminate sentence with
the possibility of being granted parole after 2 5 years

. (See § 3051, subd. (b) [parole for youthful offenders] .) Estrada also confirmed that at the plea hearing he “accepted [his] responsibility and said what [he] did, and [he] said that [he] wanted to enter this plea under these circumstances and [h e] was doing it without threats and without fear and free[ly] and voluntarily.”
T he trial court then addressed Estrada as follows: “I understand and I accept what you say in

. . . your declaration

. . . . I appreciate what you said, but I don’t think

— when I look at the paragraph about the issue of whether or not [ defense counsel] was going to do the best job possible, she did the best job possible. There is no question in my mind. Under all the6

factual circumstances of this case and all the cases I’ve done as a judge and as a lawyer, there’s no question that she worked hard for you and did everything she could to get you to this point and it was because of her work we got here.

“And so

. . . the allega tions

. . . if she went to trial, she wouldn’t make any more money. That’s not ever a consideration, I think, with her. That’s not what she did. She’s here to do the best job possible, and she knows the consequences and the facts.
“So I say to you in terms of payments and the lack of commitment, she has always been committed to you, and I think by her good work

— and I think you have to admit and acknowledge that the quality of her work and what she’s done in this case is tremendous. [¶] Would you not sa y that?” Estrada agreed, stating that he “appreciate[d]

. . . everything [his trial counsel had] done” on his behalf. Reiterating parts of his declaration, he
stated that he wanted to go to trial “from the very beginning ,” had “less than
24 hours” to thi nk about the plea deal after counsel informed him of it, and felt that counsel “pour[ed] guilt into [him]” by referring to the v ictim’s family in encouraging him to avoid trial. The trial court responded that it would not have accepted Estrada’s plea if it “had felt any reluctance on [his] behalf. ” T hough there were numerous jurors “very eager to serve,” the court “did what was required” and took his plea “based upon what was represented to [it], that this was a fair and negotiated disposition and that

. . . it was done freely and voluntarily.” Addressing Estrada, the court concluded , “ [L]ooking at you, your

manner ism [s]

. . . during the process, .

. . there was nothing in this remotely
that I felt under the circumstances [showed] that you were o peratin g under any type of threat or fear or any factors that would

. . . make me find that there was good cause with clear and convincing force that, in fact, your judgment was not free and voluntar[y] and that you’d done this by mistake or7

fear.” Thus, the cou rt denied the motion to withdraw the plea for lack of good

cause. In mid

- April 2022, the trial court sentenced Estrada to 50 years to life in prison, composed of a term of 25 years to life for the murder and a consecutive term of 25 years to life for the firearm enhancement. This appeal
followed. 7
II. D ISCUSSION
A. Estrada Was Not Completely Denied the Assistance of Counsel for Purposes of His Motion to Withdraw the Plea.
Estrada claims that his trial counsel rendered ineffective assistance by stating at the March 2 hearing that she did not see grounds for a motion to
withdraw the plea and “fail[ing] to argue the motion” at the March 28 hearing

. (Boldfa ce omitted.) He contends that this amounted to “a complete
denial of the assistance of counsel at a critical stage of the proceeding and is reversible per se.” We are not persuaded. A criminal defendant has the right to effective assistance of counsel

u nder the Sixth Amendment of the United States Constitution and article I, section 15 of the California Constitution. ( Strickland v. Washington (1984)
466 U.S. 668, 687 ( Strickland ); In re Long (2020) 10 Cal.5th 764, 773.) Normally, to prevail on a claim of ineffective assistance of counsel, a defendant must show “that counsel’s performance was deficient,” such that “counsel was not functioning as the ‘counsel’ [constitutionally] guaranteed,”

7 The trial court ori ginally denied Estrada’s request for a certificate of probable cause to challenge the plea’s legality. Estrada responded by fil ing a petition for a writ of mandate in this court, which we d ismissed as moot after the trial court reversed course and granted the certificate request

. ( Estrada v. S uperior Court of Alameda ( Sept. 7, 2022, A165625).)8

and “the deficient performance prejudiced the defense.” ( Strickland , at

p. 687; People v. Centeno (2014) 60 Cal.4th 659, 674.)
In People v. Cronic (1984) 466 U.S. 648 ( Cronic ) , the United States Supreme Court “ ‘recognized a narrow exception to’ the rule that a defendant claiming ineffective assistance of cou nsel must show prejudice. ” ( People v. Rices (2017) 4 Cal.5th 49, 91 .) Under Cronic , prejudice is presumed if the
defendant was completely denied counsel “ ‘at a critical stage of the proceedings’ ” or if “ ‘counsel entirely failed to subject the prosecution’s case to meaningful adversarial testing. [Citations.]’ [Citation.] Otherwise, ‘specific errors and omissions’ by trial counsel must generally be litigated as
ineffective assistance of counsel claims u nder Strickland

. ” ( People v. Banks (2014) 59 Cal.4th 1113, 1169

– 1170.) Estrada attempts to analogize this case to United States v. Swanson (9th Cir. 1991) 943 F.2d 1070, in which the Ni nth Circuit Court of Appeal s held that “defense counsel’s concession, during closing argument, that no reasonable doubt exist[ed] regarding the only factual issues in dispute” was reversible per se under Cronic . ( Swanson , at pp. 1071, 1074.) Although recognizing that his trial counsel “didn’t abandon [his] entire defense, ” Estrada claims she “abandoned his defense at a critical portion of the case.” We disagree that defense counsel’s conduct amounted to a complete denial of counsel for purposes of the motion to withdraw the plea. Defense

c ounsel not only requested a he aring once Estrada expressed his desire to
withdraw the plea, she also filed a formal motion to withdraw the plea that
contained his position

. And contrary to Estrada’s claim otherwise, she did not “decline[] to argue [the] motion” at the March 28 hearing. In fact, the
trial court did not ask either her or the prosecutor to argue, instead focusing the hearing on its own questioning of Estrada. Thus, counsel aided Estrada9

in presenting his position to the cou rt , and her performance hardly amounted

to a complete denial of counsel.
H aving failed to show that prejudice should be presumed under Cronic , Estrada does not argue th at his trial counsel’s performance was deficient or prejudicial under Strickland . Accordingly, his claim of ineffective assistance
of counsel fails. (See People v. Banks , supra , 59 Cal.4th at p. 1170.)
B. The Trial Court Did Not Err by Not Appointing Substitute Counsel for a Limited Purpose, and Any Error in the Failure to Hold a Marsden Hearing Was Harmless

. Estrada also argues that the trial court committed reversible error by failing to appoint another attorney to assist him with his motion to withdraw the plea. Alternatively, he argues that he is entitled to a remand for a
Marsden hearing. Neither contention is persuasive.
In Marsden , our state Supreme Court held that the constitutional right
to effe ctive assistance of counsel “encompasses the right to have

. . . court

appointed counsel discharged and replaced by another one when the

‘ “ ‘failure to do so would substantially impair or deny the right ’ ” ’ to assistance of counsel.” ( People v. Armijo ( 2017) 10 Cal.App.5th 1171, 1178.)
A defendant who w ants new counsel is not required to make a formal motion,
but “ need only clearly indicate to the trial court ‘in some manner’ ” that “the discharge and replacement of the appointed counsel” is desired. ( Ibid. ) If a
defendant seeks new counsel under Marsden , “ ‘the trial court must permit the defendant to explain the basis of [the] contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the

r ecord clearly shows that the appointed counsel is not providing adequate 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 (2010) 48 Cal.4th 574, 599.)10

Particularly relevant here is People v. Sanchez (2011) 53 Cal.4th 80 ( Sanchez ) , which addressed when “a trial court is obligated to conduct a hearing on whether to discharge counsel and appoint new counsel when a
criminal defe ndant indicates a desire to withdraw a guilty or no contest plea on the ground that current counsel has provided ineffective assistance.” ( Id. at pp. 83

– 84.) In Sanchez , after the defendant pleaded guilty , his public defender “told the trial court that [the] defendant ‘wishe [ d ] to have the Public Defender explore having his plea withdrawn.’ ” ( Id. at pp. 84

– 85.) The court asked whether the public defender could do that or whether the court needed to appoint conflict counsel, and the public defende r asked for more time “ ‘to check out any issues for possible withdrawal.’ ” ( Id. at p. 85. ) At the next hearing, another public defender told the court “that conflict counsel needed to be appointed,” and the court responded by “ ‘appoint[ing] conflict c ounsel for the sole purpose of looking into the motion to withdraw [the defendant’s] plea.’ ” ( Ibid. ) Conflict counsel concluded there was no basis for withdrawing the plea , and sentencing proceeded with the defendant’s original counsel representing him. ( Id. at pp. 85

– 86. )
Sanchez held that a trial court must hold a Marsden hearing in response to a defendant’s desire to w ithdraw a plea based on ineffective assistance of counsel “ only when there is at least some clear indication by the defendant, eith er personally or through counsel, that the defendant wants a substitute attorney.” ( Sanchez , supra , 53 Cal.4th at p. 84.) The Supreme
Court determined that the defendant before it satisfied this standard because “through counsel, [he] requested that a ‘conflict’ or substitute attorney be appointed immediately, and the obvious implicit ground for that request was the incompetency of [his] currently appointed counsel.” ( Id. at p. 91.) In turn, the trial c ourt erred by “appoint[ing] substitute counsel to represent11

[the] defendant on a motion to withdraw his plea in lieu of conducting a
Marsden hearing

— in effect, granting [his] Marsden motion without conducting the required hearing.” ( Id. at p. 92.) The Su preme Court “specifically disapprove[d] of the procedure of appointing substitute or ‘conflict’ counsel solely to evaluate a defendant’s complaint that [the defendant’s] attorney acted incompetently with respect to advice regarding the entry of a

. . . ple a,” emphasizing that “substitute counsel must be appointed as attorney of record for all purposes.” ( Id. at p. 84. ) The Court
concluded that the failure to hold a Marsden hearing was prejudicial and a remand for such a hearing was required

. ( Sanchez , at pp. 92

– 93.)
In his opening brief, Estrada argued that the trial court erred by failing

to appoint a new attorney to represent him for purposes of filing and arguing

a motion to withdraw the plea

. He did not cite Sanchez , which the Attorney
General raised for the first time in the respondent’s brief. As that decision makes clear, courts should not appoint substitute counsel solely “ ‘to investigate or evaluate [a] defendant’s proposed

. . . plea withdrawal motion.’ ” ( S anchez , supra , 53 Cal.4th at p. 89.) Thus, although the trial court indicated it would appoint new counsel to assist Estrada with a motion to withdraw the plea , it did not err by failing to do so. In his reply brief, Estrada argues that it is “irrelevant ” whether the trial court had “authority [under Sanchez ] to make a limited appointment”
because the court did not intend to appoint substitute counsel “for the limited purpose[] of determining whether there were grounds to withdraw the plea.”
Estrada appears to claim that the proposed appointment was not for a
limited purpose because the court indicate d that substitute counsel would not only evaluate potential grounds for a motion to withdraw the plea but also argue the motion on his behalf

. B ut under Sanchez , “substitute counsel must12

be appointed as attorney of record for all purposes .” ( Sanchez , supra , 53 Cal.4th at p

. 84 , italics added.) The record contains no evidence that the

court contemplated that Estrada’s trial counsel would be disch arged and new counsel would represent him for all purposes going forward. Indeed, as Estrada recognizes elsewhere in his brief, the court specifically stated at the March 2 hearing that it was “not going to appoint a [substitute] lawyer for the sentencing in this matter.” The question then becomes whether the trial court erred by failing to
hold a Marsden hearing in response to a “clear indication ” by Estrada that he
wanted a substitute attorney. ( Sanchez , supra , 53 Cal.4th at p. 84.) Sanchez concluded that the defendant clearly indicated his desire for a substitute attorney because his public defender asked that conflict counsel be appointed to evaluate a motion to withdraw the plea. ( Id. at pp. 84

– 85, 91.) Likewise,

a t the March 2 hearing , Estrada’s trial counsel requested the appointment of
conflict counsel to evaluate a motion to withdraw the plea

. Under Sanchez , this was sufficient to trigger a Marsden hearing

. Nonetheless, we disagree with Estrada that a remand for a Marsden hearing i s required

. Unlike in Sanchez , here the trial court did not follow through on its promise to appoint substitute counsel f or a limited purpose, and Estrada’s trial counsel ultimately filed the motion to withdraw the plea
on his behalf. But E strada never objected to the court’s failure to appoint a substitute attorney or suggested he was dissatisfied with counsel’s assistance in filing the motion

. Indeed, at the March 28 hearing he agreed that her
work had been “tremendous,” and he said he “a ppreciate[d]

. . . everything she ha[d] done for [him].” Thus, e ven if he wanted substitute counsel on March 2 , by March 28 h e had abandoned that position. As a result, his

current request for a Marsden hearing is forfeited

.13

In any case , w e agree with the Attorney General that any error in the
failure to hold a Marsden hearing was harmless beyond a reasonable doubt , because the trial court would have denied Estrada’s motion to withdraw the plea even if substitute coun sel was appointed . (See Chapma n v. California (1967) 386 U.S. 18, 24; Marsden , supra , 2 Cal.3d at p. 126; People v. Winn (2020) 44 Cal.App.5th 859, 871.) Through his declaration, which contained “everything” he wanted to say, Estrada had a full opportunity to present his reasons for wanting to withdraw the plea

. T he court did not find the
declaration credibl e , however, and it denied the motion based on its observations of Estrada at the plea hearing and knowledge of his trial counsel’s pe rformance. There is no indication that the outcome would have changed had Estrada been represented by a different attorney, and he does not argue otherwise. In short, h e is not entitled to relief based on the fact
that substitute counsel was never appoin ted

. C. The Trial Court Was Not Required to Credit Estrada’s Declaration. Finally, Estrada c ontends that his declaration “state [d] a prima facie case” that he was coerced into entering the plea , based on his claim that his
trial counsel threatened to accuse his family members of a crime if he did not
take the plea deal. He argues that because counsel did not deny ma king this threat, his statement was “uncontradicted and the trial court had to accept it as true.” This claim is meritless. Although Estrada does not frame it as such, his claim is effectively that the trial court erred by denying his motion to withdraw the plea. Under section 1018, a trial court may permit a defendant to withdraw a plea before judgment “for a good cause sho wn.” For good cause to exist, there must be “clear and convincing evidence that [the defendant] was operating under mistake, ignorance, or any other factor overcoming the exercise of

. . . free14

judgment, including inadvertence, fraud, or duress.” ( People v. Breslin (2012)
205 Cal.App.4th 1409, 1416 .) We review the denial of a motion to withdraw a plea for an abuse of discretion, and we “ must adopt the trial court’s factual findings if substantial evidence supports them.” ( People v. Fairbank (1997)
16 Cal.4th 1223, 1254.)
Even if the alleged threats to Estrada’s family otherwise establish ed good cause to withdraw the plea, the trial court was not required to credit Estrada’s declaration

. “It is up to the trial court to determine whether [a] defendant’s assertion is credible, and the court may reject an assertion that is not supported by an explanation or other corroborating circumstances.” ( People v. Martinez (2013) 57 Cal.4th 555, 565.) In other words,

u ncontradicted evidence is not neces sarily credible evidence. 8 In any case, Estrada’s declaration was contradicted

— by his own

statements before entering the plea. As the Attorney General points out , “[s]olemn declarations in open court carry a strong presumption of verity,” meaning that Estrada’s representations at the plea hearing are “a formidable
barrier” to obtaining relief . ( Blackledge v. Allison (1977) 431 U.S. 63, 74.) At that hearing, Estrad a agreed that he was “entering this plea free[ly] and voluntarily,” and he denied that “anybody threatened [him] to get [him] to enter this plea today.” Moreover, in denying Estrada’s motion to withdraw the plea , the trial court relied on its own observat ions of Estrada , noting that

8 In his reply brief, Estrada claims that his declaration was corroborated because by filing it, his trial counsel implicitly certified that it had “evidentiary support ” under Code of Civil Procedure section 128.7, subdivision (b)(3). He also claims that counsel’s certification under that statute triggered an “affirmative duty” on the Attorney General ’s part to disclose evidence supporting his declaration. Since Estrada did not raise these arguments in his opening brief, we decline to consider them. (See People v. Wilson (2023) 14 Cal.5th 839, 872, fn. 11.)15

his demeanor did not “remotely” suggest that he was “operating under any type of threat or fear.” C ombined with Estrada’s statements at the plea hearing, these observations constituted substantial evidence that the plea

was no t entered under duress. The court did not err by denying the motion to withdraw the plea.
III. D ISPOSITION The judgment is affirmed.16 _________________________ Humes, P.J.

WE CONCUR:

_________________________ Margulies, J.

_________________________ Bowen, J.*

*Judge of the Superior Court of the County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

People v. Estrada A 165383