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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

Defendant 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 four prior strike convictions. (§§ 1170.12, 667, subds. (b)–(i).) 

1 A second count of battery on a non-confined person by a prisoner 

(§ 4501.5) was alleged but dismissed prior to trial.
2

At his arraignment, defendant 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, defendant 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 court and I

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

competent 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 denied defendant’s request to 

represent himself. 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. The 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 defendant’s right to self-representation.
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evidence and had not answered his questions about the plea offer. Defendant

acknowledged 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 informed 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 plea 

today before your Honor hit the bench.” Counsel explained that at

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

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

defendant copies of the photographs. Under prison policies, he also was 

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

Finally, counsel indicated 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 writing in English.

The 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 trial, 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 providing 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 Cal.3d at p. 343.)
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1244-1245.) Whether to grant a requested substitution 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.) 

Defendant 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 failed to 

appreciate the validity of defendant’s concerns 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 demonstrate an irreconcilable conflict likely to result in ineffective 

representation.

The 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 defendant conceded that as 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 provide him with more time to consider the offer.
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Counsel’s advice to defendant that a continuance was not warranted and that 

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

The 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 has 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 manufactures 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 

supported by the record. Counsel assured defendant and the court that he 

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

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.