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Filed 3/4/15 P. v. Jorgenson 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NOT TO BE PUBLISHED 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 This opinion has not been certified for publication 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 

(Placer) 

---- 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

BA'SHAY EDWARD JORGENSON, 

 Defendant and Appellant. 

C076311 

(Super. Ct. Nos. 62118774, 

62123706) 

 Appointed counsel for defendant Ba’Shay Edward Jorgenson has filed an opening 

brief that sets forth the facts of the case and requests this court to review the record and 

determine whether there are any arguable issues on appeal. (People v. Wende (1979) 

25 Cal.3d 436.) Defendant has filed a supplemental brief and an amendment thereto, 

loosely claiming that (1) his pretrial Marsden motions (People v. Marsden (1970) 

2 Cal.3d 118) seeking new counsel were wrongfully denied; (2) he did not knowingly and 

willingly waive his attorney’s conflict of interest with respect to a prosecution witness; 

(3) he was not given the opportunity to testify at trial; and, (4) the trial court improperly 
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denied his motion for new trial, erroneously basing it on his failure to request new 

counsel before trial. As we explain, we find defendant’s claims unpersuasive and fail to 

find any arguable error that would result in a disposition more favorable to him. 

Accordingly, we affirm. 

FACTUAL AND PROCEDURAL BACKGROUND 

 Current Offense 

 On July 29, 2013, at about 12:00 a.m., Melvin Chapman went to sleep in a 

sleeping bag by a truck center on Highway 49 in Auburn. Just before going to sleep, he 

had given defendant some tobacco rolling papers, after which defendant thanked him and 

left. Chapman had known defendant for approximately six years. Chapman awoke when 

defendant struck him in the ear with an object Chapman believed to be a tire iron. 

Defendant then put his hand on Chapman’s face, struck him with the object twice more 

on the back of the head, and walked away. 

 Chapman made a report from the hospital to the police at around 8:00 a.m. By the 

time Chapman reported the assault, defendant was in jail; he had been arrested around 

6:30 a.m. that morning for being drunk in public. The arresting officer had come upon 

defendant acting strangely and punching a metal light pole approximately 120 yards from 

where Chapman was assaulted. Later, when defendant was asked why he had assaulted 

Chapman, he neither admitted nor denied committing the assault. 

 On July 31, 2013, defendant was charged with assault and corresponding 

(personal) use of a deadly weapon (§ 245, subd. (a)(1)), in connection with the assault on 

Chapman a few days before. 

 Probation Offenses 

 At the time of the assault, defendant was on probation for his plea to an assault 

with force likely to produce great bodily injury (§ 245, subd. (a)) committed in 2012, and 

also for misdemeanor resisting a peace officer (§ 148, subd. (a)). 
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 First Marsden Motion 

 Within a few days of his arraignment and the appointment of attorney Erik 

Beauchamp, defendant brought his first Marsden motion, claiming he did not agree with 

Beauchamp that defendant’s girlfriend (apparently a friend of the victim’s) should be 

investigated. Defendant also seemed to believe he was not going to get a preliminary 

hearing. The court (Curry, J.) explained the severity of the charges to defendant and that 

counsel could not be faulted for wanting to perform a thorough investigation. The court 

also assured defendant that the court would be setting the preliminary hearing date that 

day. Finding no grounds for substitution of counsel, the court denied the Marsden

motion. 

 Second Marsden Motion 

 The preliminary hearing was held on September 4, 2013. Defendant was held to 

answer and an information was filed on September 6, 2013, charging him with assault 

with personal use of a deadly weapon (§ 245, subd. (a)(1)), and battery resulting in 

serious bodily injury (§§ 243, subd. (d), 12022.7, subd. (a)). 

 On September 12, 2013, defendant brought a second Marsden motion. Defendant 

complained generally that Beauchamp was being “argumentative,” “pressuring” him to 

enter into a plea agreement, and was “neglecting” his case. Defendant, however, was 

unable to provide any specific examples concerning any of his complaints. The trial 

court (Curry, J.) again denied his motion and set his case for trial. 

 New Trial Motions 

 The jury trial proceeded on October 29, 2013 (Jones, J., presiding). On 

October 31, 2013, the jury found defendant guilty on all counts. Based on his conviction 

in the instant case, defendant was also found in violation of his probation in both cases 

described ante. 
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 At the November 18, 2013, sentencing hearing, Beauchamp informed the court 

that defendant was seeking a new trial. Beauchamp indicated he did not believe there 

were any grounds for a new trial and suggested the court, in the absence of having 

observed ineffective assistance of counsel at trial, hold a closed hearing to determine 

whether there was a colorable claim of ineffective assistance of counsel alleged. 

 At the closed hearing, defendant stated that Beauchamp had “manipulated” and 

lied to him, and “neglected” his case. Defendant then provided documents evidencing 

formal complaints made by defendant about an unnamed judge and attorney. Upon 

receipt of these documents, the trial court (Jones, J.) recused himself, although defendant 

told him: “I didn’t complain about you.” The parties were scheduled to appear before a 

different judge for a determination as to how to proceed with the matter, including 

Beauchamp’s continued representation of defendant. 

 The following day, defendant appeared with Beauchamp, requesting a new trial 

based on ineffective assistance of counsel. The matter was transferred to another judge 

(Curry, J.). The court held a closed hearing to determine whether there was a colorable 

claim of ineffective assistance of counsel alleged. At the hearing, defendant complained 

about a witness he felt should have been called, Beauchamp’s potential conflict with a 

prosecution witness who was not called, and that he was not given the opportunity to 

testify. Beauchamp countered that, after discussion regarding the pros and cons, 

defendant chose not to testify--which Beauchamp felt was the better choice. 

 Initially, the court found no colorable claim of ineffective assistance of counsel 

had been alleged to warrant appointment of new counsel. However, when defendant 

added Beauchamp had told him sometimes innocent people go to prison and threatened 

him to “sit there and shut up,” the court, “err[ing] on the side of caution,” decided to 

relieve Beauchamp and the public defender’s office and appoint conflict counsel. 
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 On March 5, 2014, attorney Samuel Berns filed a motion for new trial on behalf of 

defendant. The motion alleged defendant was denied a fair trial in two ways: (1) the 

original trial court (Jones, J.) should have recused himself sooner; and (2) trial counsel 

did not effectively advise defendant on his right to testify. Judge Curry found it was clear 

from the record that Judge Jones had recused himself because of the complaint against 

him as soon as he found out about it, thus there was no evidence to suggest Judge Jones 

was biased at any time while he was presiding or did not afford defendant a fair trial. 

The trial court also found Beauchamp to be credible during the earlier Marsden hearing 

when he stated that he had explained the pros and cons of defendant’s testifying on his 

own behalf and had left the decision to defendant, who decided not to testify. The trial 

court concluded, comparing the relative credibility of defendant and Beauchamp, that 

defendant was not coerced or threatened into not testifying. Accordingly, the motion for 

new trial was denied. 

 Sentencing 

 Thereafter, the trial court sentenced defendant to the upper term of four years for 

the assault and a consecutive three years for the great bodily injury enhancement in the 

2013 case. The court imposed and stayed (§ 654) the upper term of four years for the 

battery. The court also imposed a consecutive one year (one-third the midterm) for the 

assault in the felony probation case, for an aggregate term of eight years in state prison. 

The court ordered various fines and fees and awarded defendant 478 days of custody 

credit on the instant case and 184 days of custody credit on the assault in the felony 

probation case. Defendant appeals. 

DISCUSSION 

I 

Pretrial Marsden Motions 

 Defendant contends his pretrial Marsden motions seeking new counsel were 

wrongfully denied. We find no error. 
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 Preliminarily, we find that the trial court made adequate inquiries into defendant’s 

complaints at each of the hearings. “[A] criminal defendant who seeks to substitute 

counsel must be allowed to state the specific reasons for his dissatisfaction with counsel.” 

(People v. Clemons (2008) 160 Cal.App.4th 1243, 1250.) Defendant does not contend 

that he was denied this opportunity. 

 Once the trial court provides defendant an opportunity to state specific reasons for 

dissatisfaction with counsel, “it is within the trial court’s discretion whether the 

circumstances justify a substitution of counsel. Substitution is required if the record 

clearly shows defense counsel is not providing adequate representation or that there is 

such a conflict between the defendant and counsel that ineffective assistance of counsel is 

likely to result. The trial court’s determination will not be disturbed on appeal absent a 

showing that denial of the motion substantially impaired the defendant’s right to the 

effective assistance of counsel.” (People v. Clemons, supra, 160 Cal.App.4th at p. 1250.) 

 Here, defendant did not provide any substantial basis to justify substitution of 

counsel at either of the pretrial hearings. Although defendant appears to complain in his 

supplemental brief on appeal that his pretrial Marsden motions should have been granted 

based on his allegation that Beauchamp was “threatening” him, defendant did not make 

that complaint at either hearing. When he finally did complain of threats, at his new trial 

motion, the trial court granted his motion and relieved counsel. 

 At the first Marsden hearing, defendant simply stated that he did not agree that 

Beauchamp needed to investigate his girlfriend and appeared concerned about getting a 

preliminary hearing. Performing a thorough investigation does not form the basis of a 

claim of incompetent counsel. And, as the trial court assured defendant, he received a 

preliminary hearing. At the second Marsden hearing, defendant made only vague and 

general complaints about Beauchamp, as we have described ante. When asked by the 

trial court, defendant was unable to provide any specific examples concerning any of his 

complaints. 
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 “A Marsden motion is addressed to the discretion of the trial court, and a 

defendant bears a very heavy burden to prevail on such a motion. The defendant must 

show that appointed counsel is not adequately representing him, and that the deficiency in 

representation is so great as to substantially impair the defendant’s right to the effective 

assistance of counsel. [Citation.] The defendant must give specific examples of 

counsel’s inadequacies, and cannot rest upon mere failure to get along with or have 

confidence in counsel. [Citations.]” (People v. Bills (1995) 38 Cal.App.4th 953, 961.) 

Defendant failed to meet his burden. There was no abuse of discretion. 

II 

Potential Conflict of Interest 

 Defendant also contends he did not knowingly and willingly waive his attorney’s 

conflict of interest with respect to a prosecution witness. The day before trial, 

Beauchamp discovered that one of the prosecution’s potential witnesses was the 

girlfriend of Beauchamp’s supervisor. Beauchamp explained to the trial court that he and 

his supervisor did not think there was an actual conflict of interest, but there could be an 

appearance of impropriety. After a short recess to allow Beauchamp to explain the 

situation to defendant, Beauchamp represented that defendant did not wish to address the 

court and was ready to proceed. 

 Ultimately, however, this witness did not testify at trial. Thus, whether defendant 

waived any potential conflict of interest is of no consequence. 

III 

Defendant’s Desire to Testify 

 Defendant also contends he was not given the opportunity to testify at trial on his 

own behalf. This contention was raised in connection with defendant’s motion for new 

trial and was expressly rejected by the trial court, based upon its evaluation of the 

credibility of Beauchamp and defendant. 
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 “On appeal, all presumptions favor the trial court’s exercise of its power to judge 

the credibility of witnesses, resolve any conflicts in testimony, weigh the evidence, and 

draw factual inferences.” (People v. Taylor (1984) 162 Cal.App.3d 720, 724.) The trial 

court’s findings of fact, express or implied, will be upheld on appeal if supported by 

substantial evidence. (Ibid.) The trial court’s finding that Beauchamp explained the pros 

and cons of defendant’s testifying on his own behalf and defendant chose not to testify is 

supported by Beauchamp’s statements at the post-trial closed hearing. Thus it is 

supported by substantial evidence, as we accept the trial court’s credibility determinations 

and findings.1 

IV 

New Trial Motion 

 Finally, defendant contends the trial court improperly denied his motion for new 

trial, claiming the court disregarded defendant’s pretrial Marsden motions. 

 As set forth ante, the court denied defendant’s motion for new trial because there 

was no evidence to suggest the trial judge (Jones, J.) was biased at any time or did not 

afford defendant a fair trial, and because it found Beauchamp to be credible regarding 

advising defendant of his right to testify at trial. At no time did the court (Curry, J.) even 

suggest that defendant had failed to request new counsel before trial. Nor would it, as 

that same judge (Curry, J.) had presided over both of defendant’s pretrial Marsden

motions. 

 

1 A brief on-the-record inquiry of the defendant by the trial court as to his or her decision 

not to testify, held at the close of the People’s case and out of the presence of the jury, 

would obviate the need for a subsequent credibility determination as to whether the 

defendant was properly advised by counsel. 
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DISPOSITION 

 The judgment is affirmed. 

 DUARTE , Acting P. J. 

We concur: 

 BLEASE , J. 

 BUTZ , J.