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Filed 9/29/ 22 P. v. Gabarrete CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.
CARLOS GABARRETE,

Defendant and Appellant. A163500

(Del Norte County Super. Ct. No. CRPB 20

- 5057)

Defendant appeals a judgment convicting him of aggravated battery

. He contends the trial court erred by denying his request to replace his

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

We affirm.

Background

D efendant was charged by an information with one count of battery by

gassing upon a peace officer and employee while confined in a state prison

. (Pen. Code, § 4501.1, subd. (a)

. ) 1 The information also alleged that defendant

had f our prior strike convictions. (§§ 1170.12

, 667, subds

. (b)

– (i). )

1 A se cond count of battery on a non

- confined person by a prisoner (§ 4501.5) was alleged but dismissed prior to trial.2

At his arraignment, defe ndant asked for the “form” to represent himself

at trial. The court provided a “ Farretta [ 2 ] form ” for him to complete and

indicated the matter would be revisited at his pretrial conference

. At the pretrial conference, d efendant reiterated his request to

represent himself . Defendant , who had a Spanish translator available,

stated, “ I’m going to do my best in English

. . . . [¶] I respect the c ourt and I

know there’s a lot of disagreement with my lawyer. I think he is not

competen t for representing me. He not even further for motion to dismiss the

case for whatever the reason, the job, they are supposed to do that. And I

want to replace, represent myself. But the only problem is I don’t know how

to read English, but I can speak not real well, but I speak so

- so English. ” The

court asked several questions with the assistance of the interpreter to

determine defendant’s ability to read and write in English and Spanish and

his understanding of the legal process and the pending charges

. After

considering defendant’s responses, the court de nied defendant’s request to

represent him self. The court explained, “ It appears to me that he is not able

to represent himself as he

. . . doesn’t understand all the charges, doesn’t

understand how to subpoena witnesses and procure evidence. [¶] So at this

juncture on the day before trial, it is denied without prejudice. ”

Defendant then asked to have a new lawyer appointed . Defendant

claimed that his attorney was biased against him because defendant had a

prior sex offense conviction. T he court asked the prosecutor to step out so

that it could hold a Marsden hearing.

Once the courtroom was clear, defendant explained that he wanted a

new attorney because counsel had failed to give him certain photographic

2 See Faretta v. California (1975) 422 U.S. 806 , 819, recognizing a criminal d efendant ’s right to self

- represent ation

.3

evidence and had not answer ed his questions about the plea offer

. Defendant

acknowle dged that he was “guilty anyway” but wanted a trial continuance to

consider the plea offer.

In response, counsel explained that he believed defendant was

misplacing his unhappiness with prior counsel onto present counsel. The

attorney reported that he in formed defendant that he had previously

represented many people charged with sex offenses over the years and that

he had no “ shame or antipathy towards any of them. ” Counsel also explained

that he considered several pretrial motions , including a motion to dismiss,

but determined they would not be viable

. He noted that he forwarded the

plea offer to defendant previously and that “ it was sent to him again to the

back room where I thought for the first time he would be anticipating a pl ea

today before your Honor hit the bench

. ” C ounsel explained that a t

defendant’s request, an investigator had take n photographs of the cell where

the crime was committed, but that prison policies prohibited him from giving

defendant copies of the photo grap hs

. Under prison policies

, h e also was

unable to give defendant copies of photographs taken of defendant himself.

Finally, c ounsel in dicated that he had not requested a trial continuance

because he did not believe there were sufficient grounds

. Towards the end of the hearing, defendant again expressed his

frustration because he does not speak English well. Although counsel spoke

Spanish and he and defendant communicated verbally in both Spanish and

English, the plea offer had been presented in wr iting in English.

T he court denied defendant’s request for new counsel

, finding that

there was no ineffective assistance or breakdown in the attorney

- client

relationship.4

Trial commenced four days later. At trial, evidence was presented that

defendant, a prison inmate, spat on a guard’s face from six to 18 inches away

while being escorted to his cell

. Later that day, defendant told a different

guard that the victim was “lucky I spit [ sic ] on him because next time” he

would stab him. At t rial, defendant testified that he spat on the victim’s shirt,

not his face.

The jury found defendant guilty as charged and found true the prior

strike allegations.

Defendant was sentenced to an indeterminate term of 25 years to life,

and resentenced on a prior in

- custody battery under People v. McCart (1982)

32 Cal.3d 338 to a consecutive term of two years

. 3

Defendant timely filed a notice of appeal.

Discussion

Defendant does not challenge the denial of his motion to represent

himself. He contends the court erred in denying his motion for substitute

counsel.

In Marsden , the California Supreme Court recognized that a defendant

may be entitled to newly appointed counsel when the attorney

- client

relationship has broken down so completely as to impair a defendant ’ s right

to assistance of counsel. ( Marsden, supra , 2 Cal.3d at p. 123.) A defendant “ is

entitled to have appointed counsel discharged upon a showing that counsel is

not pro viding adequate representation or that counsel and defendant have

become embroiled in such an irreconcilable conflict that ineffective

representation is likely to result.” ( People v. Jones ( 2003 ) 29 Cal.4th 1229,

3 Section 1170.1, subdivision (c) requires courts to compute a single term of imprisonment for all convictions of felonies committed in prison

, even if committed years apart

, and the convictions are to be served consecutively

. ( People v. McCart

, supra , 32 Ca l.3d at p

. 343 .)5

1244

- 1245.) W hether to grant a requested su bstitution is within the

discretion of the trial court. ( People v. Smith (2003) 30 Cal.4th 581, 604.)

Reviewing courts will not find an abuse of that discretion unless the failure to

appoint replacement counsel would “substantially impair” the defendant's

right to effective assistance of counsel. ( Ibid .)

D efendant does not contend that the motion should have been granted

based on counsel’s ineffective assistance. He contends that the court “ erred in

denying the motion based only on counsel’s rebuttals to [ his ] complaints,

without consideration of the ongoing communication problems and the

breakdown of the attorney

- client relationship. ” Defendant faults the court for

failing to inquire into the “ extent of the communication problems ” counsel

and defendant were having and suggests that the attorney fail ed to

appreciate the validity of defendant’s conce rns regarding how others viewed

him, given his past sex offense. The record does not support defendant’s

characterization of the record . Counsel’s explanations offered in response to

each of defendant’s expressed concerns were entirely reasonable. Nor does

the record demonstrat e an irreconcilable conflict likely to result in ineffective

representation

.

T he trial court probed defendant’s ability to read and write in English

and was aware of the attorney’s ability to communicate in Spanish

. The court

also acknowledged that the written plea offer caused some confusion about

the length of the term being offered, but de fendant conceded that a s of the

morning of the hearing, he understood that the offer was for a minimum one

year, maximum two year term

. Defendant ’ s frustration seemed to stem not

from his inability to understand the offer, but from counsel’s refusal to

request a continuance to p rovide him with more time to consider the offer.6

Counsel’s advice to defendant that a continuance was not warranted and that

they were “probably going to trial” was undoubtedly sound.

T he record does not suggest that defendant was unable to understand

the information being presented to him by counsel, but that he did not like

the information being presented. ( People v. Smith

, supra , 30 Cal.4th at p. 606

[“trial court need not conclude that an irreconcilable conflict exists if the

defendant ha s not tried to work out any disagreements with counsel and has

not given counsel a fair opportunity to demonstrate trustworthiness ”]; People

v. Smith (1993) 6 Cal.4th 684, 696 [ “defendant may not force the substitution

of counsel by his own conduct that ma nufactures a conflict” ] .)

Likewise, defendant’s suggestion that counsel “seemed more focused on

the insult to his professionalism than on assuring his client that [ his prior

sex offense ] would not compromise counsel’s zealous representation” is not

suppo rted by the record. Counsel assured defendant and the court that he

held no bias towards his prior clients as a result of their prior conviction s ,

and nothing was presented to suggest that this assurance did not extend to

defendant

. Accordingly, the court did not abuse its discretion in denying

defendant’s Marsden motion.

Disposition

The judgment is affirmed.

POLLAK, P. J.

WE CONCUR:

BROWN, J. GOLDMAN, J.