P. v. Alexander

Filed 10/30/07 P. v. Alexander CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. John G. Whiteside, Judge.

Curt R. Zimansky, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Connie Broussard Proctor, Deputy Attorneys General, for Plaintiff and Respondent.

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On June 29, 2004, a jury convicted appellant Kerry Lewis Alexander of transportation of methamphetamine (count one/Health & Saf. Code, 11379), possession of methamphetamine (count two/Health & Saf. Code, 11377), evading a police officer (count three/Veh.. Code, 2800.2), resisting or delaying a police officer (count four/Pen. Code, 148, subd. (a)), and possession of a hypodermic needle and syringe (count five/Bus. &. Prof. Code, 4140). In a separate proceeding, the jury found true a prior prison term enhancement (Pen. Code, 667.5, subd. (b)). Thereafter, the court sentenced Alexander to prison for an aggregate term of four years, the middle term of three years on the transportation offense, a one year prior prison term enhancement, a stayed term on count two, a concurrent two-year term on count three, and concurrent term of 60 days on counts four and five.

Following a timely appeal, in an unpublished opinion, this court found that the trial court erred in not staying the term it imposed on count four pursuant to Penal Code section 654 and by its failure to conduct a Marsden^[1]hearing. We remanded the matter to the trial court so that it could conduct this hearing.

On May 15, 2006, pursuant to our remand, the trial court held a Marsden hearing and denied Alexanders Marsden motion. On appeal, Alexander contends the trial court abused its discretion when it denied his Marsden motion. We will affirm.

FACTS

The Trial Testimony

Stanislaus Sheriff Deputy Jonathan Howard testified that on February 27, 2004, at approximately 11:00 p.m., he observed a Mazda RX7 with no taillights traveling northbound on Eighth Street in Keyes. As Howard activated his red lights and siren and pulled up behind the car, it took off at a high rate of speed. The Mazda turned west onto Martha Avenue, north on Seventh Street and continued on Rhode Road where Seventh Street turned into Rhode Road. As the car attempted to turn east into Lucinda, it slid around the corner and smashed into a chain link fence.

Howard drew his weapon and ordered Alexander, the driver, out of the car at gunpoint. Alexander got out through the drivers door window because the door was pinned against the fence and began running northbound into a field. Alexander ran 15 to 100 yards with Howard five feet behind him. Howard again ordered him to stop and Alexander fell to the ground just behind a residence. Howard lifted Alexander up as he took him into custody. He shined a flashlight on the ground and found a red pack of Marlboro cigarettes and a black electrical chord where Alexander had laid. The pack was clean and did not appear to have been outdoors long.

Howard searched Alexander and found an unloaded, unused syringe in Alexanders front pocket. In another pocket, he found an empty, clear plastic baggie approximately one inch by one inch. In the Marlboro pack, he found three baggies containing a white powder that later tested positive for methamphetamine, and four empty baggies.

Alexander told Howard his brakes may have gone out. During the pursuit of his car, Alexander drove 40 miles per hour in an area where the speed limit was 25 miles per hour.

Bradley Sather testified his wife sold the Mazda to Alexander on February 26, 2004. The car had several mechanical problems including brakes that were going out, fuel leaks, and a battery that would not hold a charge. Sather had recently seen the car in an auto wrecking yard.

Shanlon Leque testified she was Alexanders fiance. Leque was in her Pontiac with Tommy Avis in the front passengers seat and Debbie Ridgley seated in the rear^[2]when she saw Alexanders Mazda traveling south on Seventh Street. Leque turned south onto Seventh Street and pulled over in front of the Mazda. She saw Alexander drive by with a police car behind him with its white lights flashing and its siren off. She could tell something was wrong because Alexander looked worried. She saw Alexanders brake lights light up as he attempted to stop. Leque drove down Seventh Street to Rhode Road and then up Rhode to Warda Road. When she arrived at the site of the wreck, Alexander was already in the backseat of a patrol car. Leque was impeached with several felony convictions.

Avis testified that as he sat in the backseat of the car driven by Leque, he saw Alexanders Mazda after Leque turned south onto Eighth Street and pulled over. Alexander was yelling and looked like he was trying to stop the car. The Mazda turned right at the next street. Avis did not see a car with flashing lights pass by. Avis was impeached with a conviction for arson.

The Marsden Hearing

On May 15, 2006, the trial court conducted a Marsden hearing. During this hearing, Alexander made the following complaints: his defense counsel failed to interview and subpoena Debbie Ridgley, Randall Jones, and his parole officer; he failed to subpoena two other witnesses; counsel reported to the district attorney statements Shanlon Leque made during a defense interview allowing her to be impeached; he spoke with the prosecutor too much; over Alexanders objections, he volunteered to proceed out of order; counsel had him take photographs rather than hire an investigator; he allowed evidence to be destroyed that should have been investigated; and he did not have a licensed mechanic check his brakes to see if they had gone out.

Defense counsel responded that he worked in the public defenders office for over 17 years and had handled over 150 felony jury trials. Alexander volunteered to subpoena two witnesses and, even though he was unable to do so, the witnesses showed up for the trial anyway. Defense counsel also stated he did not subpoena Alexanders parole officer to vouch for Alexanders credibility because, in his experience, having a parole officer testify is very dangerous for the defense. He did not, however, remember anything about Ridgley or Jones.

The court recessed to allow defense counsel to search for the case file in this matter to determine whether he attempted to contact Ridgley and Jones. After the hearing reconvened later that day, Alexander stated Ridgley was in the car with Leque and Avis and would have testified that the underlying incident occurred in a different side of the city than where Deputy Howard testified it happened. She also would have testified how he came into possession of the syringe. Jones would testify that the syringe found in Alexanders pocket was for him.

Defense counsel recalled Alexander telling him the syringe was for Jones, but he did not remember why he was unable to contact Jones. Defense counsel attempted to contact the witnesses provided by Alexander. He disclosed the statements of defense witnesses to the prosecutor because he had an obligation to do so. Defense counsel denied being overly friendly with the prosecutor explaining that he did not have a confrontational style. Defense counsel noted that the police did not check the brakes and that its registered owner had the car destroyed prior to defense counsel being appointed at the preliminary hearing to represent Alexander.

In denying Alexanders Marsden motion, the court made the following findings: the vehicle was destroyed before defense counsel was appointed to represent Alexander; asking a defendant to do things for his defense, taking evidence out of order, and conversing with the district attorney, were not uncommon; and the defense properly acted under an obligation to turn over evidence it was expecting to present including statements of witnesses they intend to call. The court also noted that Joness testimony was not relevant because it is illegal to possess syringes, a parole officer is not the type of character witness a defendant would want to put on, and that Ridgleys testimony would not have made any difference in the trial.

DISCUSSION

Alexander contends his defense counsel provided ineffective assistance of counsel because he failed to interview two key witnesses and investigate whether the Mazdas brakes were functional during the pursuit. According to Alexander, Ridgley would have undermined Deputy Howards testimony by corroborating the defense version of where the chase occurred. Additionally, Jones and Ridgley would both have testified Alexander was holding the syringe found on him for Jones. This, according to Alexander, would have precluded the jury from reasoning that if he possessed the syringe he must also have possessed the methamphetamine found in the pack of Marlboro. He further contends that an examination of the Mazda would have disclosed that its brakes went out. Thus, according to Alexander, since he showed he was prejudiced by his defense counsels deficient performance, the court abused its discretion when it denied his Marsden motion. We will reject these contentions.

[T]he decision whether to permit a defendant to discharge his appointed counsel and substitute another attorney during the trial is within the discretion of the trial court, and a defendant has no absolute right to more than one appointed attorney. [Citation.] (People v. Leonard (2000) 78 Cal.App.4th 776, 786.) A defendant may be entitled to an order substituting appointed counsel if he shows that, in its absence, his Sixth Amendment right to the assistance of counsel would be denied or substantially impaired. [Citations] The law governing a Marsden motion is well settled. 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 [citations]. [Citations.] [Citation.] (People v. Memro (1995) 11 Cal.4th 786, 857.) The denial of a Marsden motion is reviewed under the abuse of discretion standard. (Ibid.)

Here, Ridgleys testimony concerning where the chase occurred was cumulative because both Leque and Avis testified regarding this issue. In any event, Leque testified she first saw Howard pursing Alexander on Seventh Street whereas Avis testified he first saw the pursuit on Eighth Street. Alexander did not specify where Ridgley would testify she saw the pursuit occur other than to say she would testify it occurred in a different side of the city than where Deputy Howard testified it occurred. The defense case was already hampered by the two versions of where the pursuit of Alexander began and by the impeachment of Leque and Avis with one or more felony convictions. Further, instead of corroborating either Leques or Aviss testimony, Ridgley would have further undermined the defense case by providing a third defense version of where the pursuit occurred.

Moreover, testimony by Jones and Ridgley that Alexander possessed the syringe for Jones would not have assisted Alexander with respect to the possession of a syringe charge because it is illegal to possess a syringe regardless whether it is possessed for someone else. Nor would the proposed testimony have prevented the jury from inferring that if Alexander possessed the syringe he must also have possessed the methamphetamine found on the ground. In light of the quantity of the separately packaged methamphetamine found under Alexander in a pack Marlboro and the empty zip-lock bag found in Alexanders pocket, it was just as likely that the jury would infer that Alexander intended to provide Jones the methamphetamine, as well as the syringe.

We also reject Alexanders claim that defense counsel provided ineffective representation in not investigating whether the brakes on his Mazda failed. The record disclosed that the former owner of the car apparently sold the Mazda for junk prior to defense counsel being appointed to represent him. Although at trial Sather testified he had recently seen the car at a wrecking yard, no evidence was presented, nor offer of proof made, showing that after defense counsel began representing Alexander, the car was still available for inspection.

In any event, defense counsel could reasonably conclude that brake failure was not a viable defense because Alexanders conduct during the pursuit was inconsistent with the Mazda experiencing brake trouble: instead of slowing down and stopping, he accelerated when Deputy Howard activated his lights and siren, he traveled approximately 15 miles over the speed limit during most of the pursuit and made three sharp turns, and he did not coast to a stop at the earliest opportunity as would be expected from a motorist involved in a traffic stop whose brakes had gone out. Defense counsel could reasonably conclude from these circumstances that either the Mazdas brakes did not fail, or if they did, they were not the cause of Alexanders unlawful, evasive conduct. Accordingly, we find the record supports the trial courts implicit finding that defense counsel did not provide ineffective representation. Thus we conclude that the trial court did not abuse its discretion when it denied Alexanders Marsden motion.

DISPOSITION

The judgment is affirmed.

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^*Before Vartabedian, Acting P.J., Cornell J., Gomes, J.

^[1]People v. Marsden (1970) 2 Cal.3d 118.

^[2]Debbie Ridgley was referred to as Debbie Beardsley by some of the witnesses who testified.