Filed 12/29/23 P. v. Propps CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for 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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER ARMOND PROPPS,

Defendant and Appellant.

 B320370

 (Los Angeles County

 Super. Ct. No.

NA104701)

APPEAL from an order of the Superior Court of Los 

Angeles County, Chestopher L. Taylor, Judge. Affirmed in part, 

reversed in part, and remanded. 

Stanley Dale Radtke, under appointment by the Court of 

Appeal, for Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Scott A. Taryle, Supervising Deputy 

Attorney General, and Rene Judkiewicz, Deputy Attorney

General, for Plaintiff and Respondent.
2

A jury convicted defendant and appellant Christopher 

Propps (defendant) of second degree robbery in 2016. Defendant 

was sentenced to 35 years to life under the Three Strikes law. In 

a prior opinion on defendant’s appeal from the criminal 

judgment, we affirmed defendant’s conviction but held the matter 

must be remanded to give the trial court an opportunity to decide

if defendant was eligible for mental health diversion and to 

exercise newly conferred discretion to strike one or both of the 

prior serious felony conviction enhancements imposed under 

Penal Code section 667, subdivision (a).1 (People v. Propps (May 

8, 2019, No. B281522) [nonpub. opn.] (Propps).) On remand, 

defendant made an oral People v. Marsden (1970) 2 Cal.3d 118

motion to replace his trial counsel, which the trial court denied. 

The court exercised its discretion to strike defendant’s section 

667, subdivision (a) enhancements, but stated our remittitur 

precluded it from considering any other modifications to 

defendant’s sentence. We consider whether the trial court erred

in denying defendant’s Marsden motion and whether, as the 

Attorney General concedes, the court should have conducted a 

full resentencing. 

I. BACKGROUND

A. Defendant’s Trial and Initial Appeal 

Defendant stole a watch, a cellphone, and recyclable cans 

from victim Jayson Eugenio in July 2016. The Los Angeles 

County District Attorney subsequently charged him with second 

degree robbery in a single-count information. The information 

1 Undesignated statutory references that follow are to the 

Penal Code. 
3

additionally alleged defendant personally used a deadly and 

dangerous weapon (a knife) in the commission of the offense and 

had previously sustained two or more serious and/or violent 

felony convictions.

During trial, defendant admitted to having been convicted 

of three prior felonies. The jury convicted defendant of second 

degree robbery, but it found the allegation that defendant used a 

deadly weapon in the commission of the crime not true.

Before sentencing, defendant’s attorney filed a Romero2

motion asking the trial court to dismiss at least one of 

defendant’s prior “strike” convictions. The trial court denied the 

motion and imposed the aforementioned 35 years to life prison 

sentence, ten years of which was attributable to the impact of 

section 667, subdivision (a) enhancements for defendant’s prior 

serious felony convictions.

Defendant appealed and argued, among other things, that

he was entitled to a remand so the trial court could consider (1) 

whether to exercise newly-conferred discretion under Senate Bill 

No. 1393 (2017-2018 Reg. Sess.) to strike prior serious felony 

conviction enhancements under section 667, subdivision (a),

3

and

2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

3 When the trial court initially sentenced defendant, 

imposing a section 667, subdivision (a)(1) five-year enhancement 

for sustaining a prior serious felony conviction was mandatory. 

Subsequent legislation, which took effect before defendant’s 

conviction was final, deleted the provision of section 1385 that 

made the imposition of the enhancement mandatory (along with 

related language in section 667 itself), thereby permitting trial 

courts to strike such enhancements when found to be in the 
4

(2) whether defendant was eligible for mental health diversion 

pursuant to section 1001.36.

We affirmed defendant’s conviction but remanded the case 

to the trial court with directions to conduct a diversion eligibility 

hearing under section 1001.36 and to consider whether it wished

to exercise its discretion to strike defendant’s section 667, 

subdivision (a) enhancements under Senate Bill 1393. We 

further directed that if the trial court determined defendant was 

not eligible for diversion, then the court was to reinstate the 

judgment, with any modifications required as a result of any 

decision to exercise Senate Bill 1393 discretion.

B. Proceedings on Remand 

After our remand order, the trial court held an initial 

hearing in January 2022. During the hearing, and at defendant’s 

request, the court convened Marsden proceedings outside the 

presence of the People. After hearing from both defendant and 

his appointed attorney, the court denied defendant’s Marsden

motion. 

Proceeding to the issues before the court on remand,

defendant asked the court to dismiss his prior serious felony 

conviction enhancements and to dismiss at least one of his prior 

qualifying convictions under the Three Strikes law. Defendant 

maintained he was entitled to a full resentencing and the court 

had jurisdiction to modify any aspect of his sentence. The 

prosecutor opposed defendant’s requested relief, arguing the 

scope of the remand was limited and the court was not permitted 

interest of justice. (Sen. Bill No. 1393 (2017-2018 Reg. Sess.) 

§§ 1, 2.) 
5

to undertake a full resentencing. The court continued the 

hearing to a later date. 

When the parties were back before the court, the court 

noted defendant had not filed a request for mental health 

diversion and asked defendant to confirm he was not seeking any 

relief with respect to that issue. Defendant confirmed he was 

not. The court stated it had in any event considered the six 

requirements with respect to mental health diversion and found

defendant was not suitable for it. 

Regarding the defense request to hold a full resentencing, 

the trial court reviewed the remittitur from defendant’s initial 

appeal and understood it to require only an exercise of discretion 

on whether to strike the five-year prior serious felony conviction 

enhancements, not a full resentencing. The trial court struck the 

two five year priors, stating it thought 25 years to life was “more 

than enough” under the circumstances. The court imposed a 

prison sentence of 25 years to life, reinstated the judgment, and 

remarked there was “nothing else [it] can do.” 

II. DISCUSSION

The trial court did not abuse its discretion by denying 

defendant’s Marsden motion. The arguments defendant makes 

now regarding his trial attorney’s purported failure to submit a 

mental health report to the trial court were not presented as 

grounds for replacing counsel during the Marsden hearing and 

therefore cannot serve as a proper basis for reversal. 

Additionally, though defendant and counsel appear to have had 

some difficulties in their relationship, defendant did not establish 

they had an irreconcilable conflict likely to result in ineffective 

representation.
6

Additionally, and though the trial court conscientiously 

attempted to hew to the remand directions in our prior opinion, 

we accept the Attorney General’s concession that defendant is 

entitled to remand for a full resentencing. We shall remand the 

cause to permit the court to consider the appropriate sentence 

anew, with an understanding of the full extent of its discretion to 

fashion an appropriate sentence. 

A. Denial of the Marsden Motion Was Not an Abuse of 

Discretion

“‘When a defendant seeks to obtain a new court-appointed 

counsel on the basis of inadequate representation, the [trial] 

court must permit him . . . to explain the basis of [the] contention 

and to relate specific instances of inadequate performance. The 

court must appoint a new attorney if the record clearly shows the 

current attorney is not providing adequate representation or that 

the defendant and counsel have such an irreconcilable conflict 

that ineffective representation is likely to result. [Citations.] If[, 

as here,] the court holds an adequate hearing, its ruling is 

reviewed for abuse of discretion.’” (People v. Rices (2017) 4 

Cal.5th 49, 69.) Our review is necessarily based on the record 

before the court when it ruled, disregarding “subsequent 

matters.” (People v. Berryman (1993) 6 Cal.4th 1048, 1070, 

disapproved on another ground in People v. Hill (1998) 17 Cal.4th 

800.)

Defendant argues denial of his Marsden motion was an 

abuse of discretion because trial counsel did not have him 

assessed by a mental health professional and did not seek an 

additional continuance to obtain a report from such a 

professional. This argument lacks merit for two reasons. First, 
7

the issue of whether defendant would seek mental health 

diversion was still open at the time of his Marsden hearing in 

January 2022. The trial court did not deny mental health 

diversion until the May 2022 hearing. In the interim, defendant 

did not interpose another Marsden objection or ask for another 

Marsden hearing at that time. Accordingly, the trial court could 

not have granted the Marsden motion on the ground defendant 

argues now. Second, the record does not in fact establish trial 

counsel did not obtain a mental health assessment of defendant. 

It merely reflects defendant ultimately did not submit any 

additional evidence in support of eligibility. The record 

accordingly does not permit drawing a conclusion that counsel 

did not obtain a psychological evaluation of defendant—

particularly when counsel represented she was working to obtain 

such an evaluation and would file a motion for diversion if an 

expert evaluation provided a basis to do so. 

Defendant also argues denial of the motion was an abuse of 

discretion because he and his attorney were embroiled in such an 

irreconcilable conflict that ineffective representation was likely to 

result. A defendant’s assertion of lack of trust in the attorney 

does not constitute an irreconcilable conflict. (People v. Myles

(2012) 53 Cal.4th 1181, 1207 [“‘If a defendant’s claimed lack of 

trust in, or inability to get along with, an appointed attorney 

were sufficient to compel appointment of substitute counsel, 

defendants effectively would have a veto power over any 

appointment, and by a process of elimination could obtain 

appointment of their preferred attorneys, which is certainly not 

the law’”].) Nor is an irreconcilable conflict shown by “heated 

words . . . spoken between client and attorney,” without more, or 
8

conduct by a defendant that manufactures a conflict with his 

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

Defendant contends an irreconcilable conflict resulted from 

counsel’s failure to obtain a psychological evaluation of 

defendant, counsel’s refusal to investigate and file a motion for 

mental health diversion, counsel’s asserted untruthfulness with 

defendant, and the animus between counsel and defendant—

which interfered with their ability to meaningfully communicate 

with each other. The first two contentions are unpersuasive for 

reasons we have already discussed. As to defendant’s remaining 

arguments, we have reviewed the sealed Marsden transcript and 

we agree with the trial court that defendant did not establish the 

existence of an irreconcilable conflict. (Smith, supra, 6 Cal.4th at 

696 [“To the extent there was a credibility question between 

defendant and counsel at the hearing, the court was ‘entitled to 

accept counsel’s explanation’”].) We are also of the view, based on 

what we see in the Marsden hearing transcript, that the tension 

or animosity that defendant claimed existed was largely a 

product of defendant’s own conduct.4

B. Defendant Is Entitled to Remand for a Full 

Resentencing 

Defendant argues the trial court erred by finding he was 

not entitled to a full resentencing under our prior remand order. 

The People concede—partly relying on recent amendments to 

4 Our rejection of defendant’s claim of Marsden error resolves 

his Sixth Amendment contention. (People v. Roldan (2005) 35 

Cal.4th 646, 683, 683 [no Sixth Amendment violation where trial 

court did not abuse its discretion in denying a Marsden motion].)
9

Penal Code section 1172.1—that a full resentencing was 

required. We accept the concession. 

Our prior opinion remanded the cause to allow the trial 

court to determine whether defendant was eligible for mental 

health diversion and to determine whether it wished to exercise 

its discretion to strike defendant’s prior serious felony conviction 

enhancements. Resentencing was not required unless the court 

acted “favorably” by striking one or more of the priors. (People v. 

Buckhalter (2001) 26 Cal.4th 20, 34.) The trial court was thus 

correct, in a certain sense, that our remand instructions did not 

automatically require it to resentence defendant. However, the 

trial court ultimately decided to exercise its discretion and struck 

both of defendant’s five-year enhancements. When it did so, it 

triggered the “full resentencing rule” and had jurisdiction to 

modify every aspect of defendant’s sentence. (People v. Walker

(2021) 67 Cal.App.5th 198, 205 [where trial court corrects part of 

a sentence on remand, it is resentencing defendant and must look 

at the facts and law in effect at time of resentencing]; People v. 

Murphy (2001) 88 Cal.App.4th 392, 396-397 [limited remand did 

not require trial court to resentence defendant unless it first 

decided to vacate a strike finding]; see also People v. Buycks

(2018) 5 Cal.5th 857, 893 [explaining the “‘full resentencing 

rule’”].) 

The trial court stated it believed it lacked the authority to 

consider any other part of defendant’s sentence and its comments 

do not clearly indicate that it would not have exercised its 

discretion to modify any other aspect of defendant’s sentence. We 

shall therefore remand for the trial court to conduct a full 

resentencing, including consideration of any renewed Romero 
10

motion made by the defense. We express no view in this opinion 

on the sentence the trial court should impose on remand.

 

DISPOSITION

The cause is remanded for resentencing. In all other 

respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, Acting P. J.

We concur:

MOOR, J.

KIM, J.