Filed 5/2/16 P. v. Jimenez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Appellant,

v.

RICHARD JIMENEZ,

Defendant and Appellant.

F069887

(Fresno Super. Ct. No. F11901771)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Houry A. 

Sanderson, Judge.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and 

Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

 

* Before Gomes, Acting P.J., Detjen, J. and Peña, J.
2.

Defendant Richard Jimenez was convicted by no contest plea of petty theft with a 

prior (Pen. Code, § 666).1 He admitted a prior strike conviction allegation and a prior 

prison term allegation (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b)). 

The trial court sentenced him to 11 years in prison. On appeal, he contends the trial court 

abused its discretion by denying his post-plea Marsden2 motion for substitute appointed 

counsel.3 We affirm.

BACKGROUND

At the July 29, 2014 Marsden hearing, the Marsden court asked defendant why he 

believed counsel had not properly represented him. Defendant explained that counsel did 

not let him finish watching a video of himself, and then misrepresented to a court that 

defendant had watched the entire video. When the Marsden court inquired, defendant 

agreed this video was part of a case against him that had since been dismissed. 

Defendant explained that he had been having problems with counsel for a long 

time. Defendant said he had been granted pro per status in September 2011, but counsel 

entered the courtroom anyway and initiated competency proceedings against him. The 

Marsden court examined the relevant minute orders and informed defendant that in fact 

he had not been granted pro per status in September 2011 when counsel initiated 

competency proceedings; thereafter defendant was found incompetent and was 

committed to the mental hospital to regain his competency. 

Defendant next explained that upon his return to court after regaining his 

competency, he requested a Marsden hearing. He believed counsel was working with the 

district attorney and Home Depot, the store from which defendant was accused of 

 

1 All statutory references are to the Penal Code unless otherwise noted.

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

3 To differentiate between courts in which defendant appeared, we will refer to the 

court that heard the current Marsden motion as the Marsden court.
3.

stealing.4 Competency proceedings were instituted against him again. The Marsden 

court explained, however, that defendant’s previous Marsden motion was denied, as was 

his subsequent Faretta5 motion to represent himself; that defendant later raised another 

Faretta motion, which was denied; that eventually competency proceedings were 

instituted; that two more Marsden motions were denied; and that defendant was then 

found incompetent again. Defendant explained that one of the examining psychiatrists 

told him he would find defendant competent if he agreed to get along with his attorney, 

but then the psychiatrist found him incompetent instead. Defendant knew counsel had 

done it again: he had convinced the psychiatrist to find defendant incompetent so they 

could send him back to the mental hospital. Defendant told the Marsden court, “My 

point is that I am competent, and they keep sending me. This guy does it right here.” 

Defendant then explained that counsel lied to him when he told him his exposure 

was 52 years to life. The Marsden court explained that when all the counts and 

enhancements were added up, his exposure was in fact 55 years to life; his plea was to 

only one count and the court had struck all his priors but one, agreeing to sentence him to 

only 11 years. 

Defendant explained that although he still wanted to pursue a jury trial on his 

dismissed case, counsel was conspiring to make sure he did not win the case. Counsel 

would not come to see him, lied to him constantly, knew nothing about his case, and 

refused to file motions on his Fourth Amendment rights. Defendant did not trust counsel 

and could not work with him. Defendant believed counsel was working for Home Depot. 

In fact, he believed the whole courthouse was working for Home Depot. Defendant 

insisted he would go to trial even if he was stuck with counsel. Defendant would inform 

 

4 Home Depot alleged that defendant fraudulently exchanged paint when he 

returned a partially used can and replaced it with a full can. 

5 Faretta v. California (1975) 422 U.S. 806 (Faretta ).
4.

the jury of the troubles he was having with counsel. The Marsden court explained to 

defendant that counsel had successfully convinced the prosecutor to dismiss charges 

without the right to comment on the case. 

The Marsden court then turned to counsel, who explained that he had never lied to 

defendant. Defendant had become fixated on a conspiracy theory and a video in another 

case, which defendant did watch in its entirety. Counsel investigated and interviewed the 

witnesses defendant told him about. Counsel was going to subpoena one of those 

witnesses, but his number was disconnected and he was homeless. The other witness 

refused to testify. Counsel saw defendant numerous times and went over his case with 

him. Counsel did not see a basis for a suppression motion. Counsel had never worked 

for Home Depot and was not involved in a conspiracy. 

The Marsden court concluded defendant had not made an adequate showing that 

counsel was providing ineffective representation, and it denied the motion for substitute 

counsel. 

DISCUSSION

Defendant contends the Marsden court should have granted his Marsden motion 

because the attorney-client relationship had irretrievably broken down such that 

defendant and counsel could not work together effectively. Defendant argues he lost trust 

in counsel and his dissatisfaction with him was deeply rooted and long standing, as 

shown by his numerous Marsden motions.

“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.” (People v. Crandell (1988) 46 Cal.3d 
5.

833, 854, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-

365.) “ ‘A trial court should grant a defendant’s Marsden motion only when the 

defendant has made “a substantial showing that failure to order substitution is likely to 

result in constitutionally inadequate representation.” ’ ” (People v. Streeter (2012) 54 

Cal.4th 205, 230.) “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.” (People v. Bills (1995) 38 Cal.App.4th 953, 961.) A 

defendant who does not make this showing is not entitled to substitute counsel. (People 

v. Smith (1993) 6 Cal.4th 684, 696.) 

We conclude the Marsden court did not abuse its discretion when it denied 

defendant’s Marsden motion. The court was exceedingly solicitous and patient in 

allowing defendant to thoroughly and repeatedly voice his concerns regarding counsel’s 

representation and alleged failings. The court pursued and investigated defendant’s 

accusations and concerns thoroughly, finding ultimately that there were no grounds to 

support ineffective assistance. In our opinion, the record overwhelmingly supports the 

trial court’s conclusion. The court was entitled to make a credibility determination and 

accept counsel’s explanations that defendant’s accusations were not true or simply did 

not amount to ineffective representation. (People v. Smith, supra, 6 Cal.4th at p. 696.) In 

sum, defendant did not make “ ‘ “a substantial showing that failure to order substitution 

[was] likely to result in constitutionally inadequate representation.” ’ ” (People v. 

Streeter, supra, 54 Cal.4th at p. 230.) The trial court did not abuse its discretion in 

denying defendant’s motion for substitute counsel.
6.

DISPOSITION

The trial court’s order is affirmed.