Filed 6/23/16 P. v. Johnson CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. EMARI LITRELL JOHNSON, Defendant and Appellant. G052987 (Super. Ct. No. 15CF1469)

O P I N I O N

Appeal from post

judgment orders of the Superior Court of Orange County,
Gassia Apkarian and Kathleen Roberts, Judges. Affirmed.

Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *2 Defendant Emari Litrell Johnson pled guilty to attempted human trafficking and attempted pimping, and was sentenced to three years two months in state prison. Defendant sought to withdraw his guilty plea, but his appointed trial counsel refused to
file a motion on the ground there was n o legal basis for doing so. A hearing was
conducted pursuant to People v. Marsden (1970) 2 Cal.3d 118 ( Marsden ) , and defendant’s request for new appointed trial counsel was denied.

We appointed counsel to represent defendant on appeal. Appointed counse l filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 ( Wende ) and Anders v. California (1967) 386 U.S. 738 ( Anders ) , setting forth the facts of the case, raising no issues, and requesting that we independently review the entire record. We provi ded defendant 30 days to file written argument on his own behalf; that time has passed and no supplemental brief has been filed

.

We have examined the entire record and appointed appellate counsel’s
Wende/Anders brief; we find no reasonably arguable issue. ( Wende , supra , 25 Cal.3d 436.) We therefore affirm.

B ACKGROUND

Defendant was charged in a felony complai nt with human trafficking (Pen. Code, § 2 36.1, subd. (b)), pimping ( id. , § 266h, subd. (a)), pandering by procuring ( id. , § 266i, subd. (a)(1)), attempted human trafficking ( id. , §§ 664, subd. (a), 236.1,
subd. (a)) , and attempted pimping ( id. , §§ 664, subd. (a), 266h, subd. (a)). In November 2015, defendant agreed to plead guilty to the charges of attempted human trafficking and attempted pimping ; the remaining charges were dismissed. Defendant made the following factual statement a s the basis for his guilty plea : “ In Orange County, California, on or abou t and between 5/1/15

- 7/1/15 I willfully, unlawfully and intentionally attempted to deprive the personal liberty of Jane Doe with intent to obtain3

forced labor services and I attempted to derive monetary support from Jane Doe ’ s acts of prostitution, knowing she was a prostitute. ”

The trial court sen tenced defendant to three years two months i n state prison, with credit for 284 days ’ time served.

In December 2015, defendant and his appointed trial counsel appeared in court. Defense counsel informed the court that defendant wanted to withdraw his guilty plea. Defense counsel further informed the court that he did not believe there was a legal basis for withdrawing the plea, and asked the court to hold a Marsden hearing. The court conducted the hearing and allowed defendant to explain the grievances he had with appointed defense counsel. The trial court denied defendant ’ s request for a new attorney.

Defendant timely filed a notice of appeal. The trial court issued a certificate of probable cause.

A NALYSIS OF P OTENTIAL I SSUES Appellate counsel suggests three potential issues for our review. First, we
consider whe ther defendant ’ s guilty plea was constitutionally valid. Our review of the
record shows that defendant entered his guilty plea, and waived his constitutional rights, voluntarily and intelligently . ( Boykin v. Alabama (1969) 395 U.S. 238, 242

- 243; In re
Tahl (1969) 1 Cal.3d 122, 131

- 133.)

Second, we consider whether the trial court erred by conducting a Marsden hearing before appointing new counsel to represent defendant in his request to withdraw his guilty plea. In People v. Smith (1993) 6 Cal.4th 684, 696, the California Supreme Court held that new counsel should be appointed only after the court finds “ the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of cou nsel [citation] , or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that4

ineffectiv e representation is likely to result [citation]. ” That holding was recently
reaffirmed in People v. Sanchez (2011) 53 Cal.4th 80.

Third and finally , we consider whether the trial court erred in failing to grant defendant ’ s request for a new attorney. Defendant was given a full and fair opportunity to identify any instances of inadequate representation or misconduct by his appointed trial counsel. The court conducted a hearing pursuant to Marsden , and gave
defendant a chance to explain to the court w hy he believed defense counsel had not performed adequately. The trial court also heard from defense counsel, who respon ded to defendant ’ s statements. Whether to grant a request for new appointed counsel is a matter
left to the discretion of the trial co urt. ( People v. Smith , supra , 6 Cal.4th at p. 696.) Finding no abuse of that discretion, we affirm the trial court ’ s decision that defendant failed to make the required showing.

Our review of the record pursuant to Wende , supra , 25 Cal.3d 436, and
Ande rs , supra , 386 U.S. 738, including the possible issues suggested by defendant ’s appellate counsel , has disclosed no reasonably arguable appellate issue. Competent counsel has represented defendant in this appeal.

D ISPOSITION The post judgment orders are affirmed.

FYBEL, J.

WE CONCUR:

O’LEARY, P. J.

IKOLA, J.