Filed 3/6/18 P. v. Daniels CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Yolo)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

LANDRY LEMELL DANIELS, JR.,

Defendant and Appellant.
C075194

(Super. Ct. No. CRF132018 )





Defendant Landry Lemell Daniels, Jr., (defendant) appeals after a jury found him guilty of two counts of resisting an executive officer by force or violence in violation of Penal Code section 69 (unless otherwise set forth, statutory section references that follow are to the Penal Code) and the trial court found two prior strike allegations and two prior prison term allegations to be true. Defendant was sentenced to 27 years to life in prison.
Defendant argues the trial court erred in (1) conditioning defendant’s waiver of his right to be present at trial on his waiver of his right to testify; (2) denying defendant’s fourth Marsden motion despite irreconcilable conflicts with his attorney; (3) failing to order a competency hearing pursuant to section 1368 after he had been removed from psychotropic medications and refused to work with his attorney; and (4) refusing to exercise its discretion, as authorized by People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), to disregard for purposes of sentencing “one or more” of defendant’s prior strike convictions and refusing to exercise its discretion to reduce defendant’s felony section 69 convictions to misdemeanors as authorized by section 17, subdivision (b).
We affirm the judgment.
FACTS AND PROCEEDINGS
On May 17, 2013, defendant, in custody on an unrelated case, refused to cooperate in getting ready to go to court, first ignoring officers and staying in his bunk and then pulling and kicking at the officers when they began to remove him from his cell. As a result of this resistance, he was transported in a T-shirt and boxer underwear.
At the courthouse, defendant was placed in a holding cell so that he could change into a jumpsuit for his court appearance. He complied when ordered to face the wall and his leg shackles were removed. But, after one hand was freed from the handcuffs, defendant raised his arm aggressively, shouted, “motherfuckers,” and turned to face Deputy Garcia, cocking his arm like he was going to punch Garcia. Garcia grabbed defendant’s T-shirt, which tore as defendant lunged at Garcia. Simultaneously, Deputy Torres tried to restrain defendant by placing his arm around defendant’s neck and pulling him to the ground. Defendant continued to kick violently, and Garcia tried to hold defendant’s legs down. A third deputy came into the cell and successfully restrained defendant’s legs. Defendant then said he was “done fighting.”
As a result of the fight, Torres had a bleeding four-inch cut on his left forearm and an inch and a half puncture wound at the end of that cut. Torres could not say how he was injured. He was left with a permanent scar on his forearm.
On June 11, 2013, the People filed an information against defendant charging him with two counts of resisting an executive officer by means of threat, force or violence in violation of section 69. The information also alleged status enhancements under the Three Strikes Law; specifically, prior strike convictions for forcible rape in violation of section 261, subdivision (2) in 1987, lewd act on a child under the age of 14 in violation of section 288, subdivision (a) in 2008, and four separate prior prison terms as defined by section 667.5, subdivision (b).
Defendant pleaded not guilty and denied the enhancements. The trial court granted defendant’s request to bifurcate a trial on the enhancements. Defendant’s first trial ended in a hung jury.
Tried a second time, defendant was found guilty of both counts of resisting an executive officer. Thereafter, the court tried the defendant on the enhancement allegations, and found true the two prior strike convictions under section 667, subdivision (e)(2) and two prior prison term allegations. On the People’s motion, the court dismissed the remaining prison prior allegations.
On November 14, 2013, defendant waived his right to be sentenced by the judge who presided over his trial. The sentencing judge denied defendant’s Romero request to strike the strike priors and sentenced defendant to 25 years to life on counts 1 and 2, staying the imposition of sentence on count 2 pursuant to section 654. Pursuant to section 667.5, subdivision (b), the court imposed two consecutive one-year sentences for a total sentence of 27 years to life.
DISCUSSION
I
The Court Did Not Force Defendant to Forego His Constitutional Rights
Defendant argues that the trial court violated the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution by forcing defendant to choose between his right to be present at trial and his right to testify.
A review of the record demonstrates the trial court did not force defendant to choose between constitutional rights; it merely required him to answer the trial court’s question of whether he wished to testify on his own behalf when, during trial, he made a request to leave the courtroom for the balance of the trial.
Midway through the People’s case in chief and after a Marsden hearing wherein the court refused defendant’s request for new counsel, defendant requested to be absent for the remainder of his trial. The trial court granted that request.
Before defendant left the courtroom, his attorney noted they were nearing time for the defense case in chief, and in response, the trial court asked defendant whether he wished to testify. The following exchange between the defendant and the court then took place:
“THE DEFENDANT: Thank you, your Honor. I will be at the holding - - I’ll be at the jail.
“THE COURT: So you are giving up your right to testify?
“THE DEFENDANT: Thank you, your Honor. I’ll be at the jail.
“THE COURT: You’re going to have to answer my question.
“THE DEFENDANT: Your Honor, I said I’ll be at the jail waiting for whatever decision’s [sic] made after this Court’s finished doing –
“THE COURT: If you don’t want to waive your right to testify –
“THE DEFENDANT: Your Honor –
“THE COURT: Sir, Sir –
“THE DEFENDANT: Your Honor, your Honor, your Honor, your Honor, your Honor.
“THE COURT: Would you like to be in court with a gag? I can accommodate that if you want to act this way.
“THE DEFENDANT: Like I said –
“THE COURT: Do you give up your right to testify?
“THE DEFENDANT: You can send me back now.
“THE COURT: I’m not sending you back until you answer my question.
“THE DEFENDANT: What did I say the first time?
“THE COURT: I didn’t understand what you said because you’ve been saying a lot of things. I want to make sure the record is clear. If you’re –
“THE DEFENDANT: The record was clear the first time. I said you could send me back. Yes, I waive my right. Is there a problem with your hearing?
“THE COURT: You waive your right to testify as well as your right to be present; is that correct?
“THE DEFENDANT: That’s correct.
“THE COURT: I’m not sending you back until you answer me.
“THE DEFENDANT: I said that’s correct.” (Italics added.)
As can plainly be seen from this exchange between defendant and the court, defendant was not required to choose between testifying and absenting himself from the trial proceedings. The court did not say or imply that defendant could only testify if he stayed in the courtroom for the other proceedings or that if he left the courtroom he could not return and testify on his own behalf. Defendant made a request to leave the courtroom but before he left he was asked if he wanted to testify which right he, eventually, waived. We have no doubt that the trial court, had defendant refused to waive his right to testify, would have allowed him to return to the courtroom to do so or would have allowed him to return to the courtroom whenever, if ever, he wished to do so.
Defendant’s authorities are inapposite, including Simmons v. United States (1968) 390 U.S. 377 [19 L.Ed.2d 1247] [defendant’s testimony in support of fourth amendment motion cannot be used against defendant in violation of the fifth amendment right against self-incrimination] and People v. Collins (2001) 26 Cal.4th 297 [impermissible offer of unspecified benefit if defendant waived a jury trial] are inapposite.
There was no error.
II
The Court Did Not Abuse Its Discretion in Denying Defendant’s Fourth Marsden Motion
Defendant argues the trial court abused its discretion in denying his fourth motion made pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) “because an irreconcilable conflict between [defendant] and his appointed attorney violated [defendant’s] Sixth Amendment right to the effective assistance of counsel.”
Here, defendant points to four signs of an irreconcilable conflict: (1) a complete breakdown in communication; (2) a breakdown in trust leading to a breakdown in the attorney-client relationship; (3) the conflict between defendant and his counsel grew toxic; and (4) the conflict gutted his constitutional rights. A review of the complaints underlying the asserted conflicts show the trial court’s denial was well within its discretion.
The U.S. Constitution recognizes criminal defendants are entitled to court-appointed counsel if they are unable to employ private counsel. (People v. Williams (1970) 2 Cal.3d 894, 904.) However, this is not an unlimited right. The trial court retains discretion whether to allow a defendant to substitute appointed counsel, which need only be granted if “the record clearly shows that the first appointed counsel is not adequately representing the accused.” (Ibid.) These motions are referred to as Marsden motions and will only be overturned on appeal if the defendant shows the trial court abused its discretion because the “ ‘failure to replace counsel would substantially impair the defendant’s right to assistance of counsel.’ ” (People v. Streeter (2012) 54 Cal.4th 205, 230.) “Substantial impairment of the right to counsel can occur when the appointed counsel is providing inadequate representation or when ‘the defendant and attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.’ ” (People v. Clark (2011) 52 Cal.4th 856, 912 (Clark) [citations omitted].)
Notably, dissatisfaction arising from defense counsel’s tactical decisions, including investigation and case strategy, does not necessarily require substitution. (See People v. Dickey (2005) 35 Cal.4th 884, 922; People v. Williams, supra, 2 Cal.3d at pp. 903-906 [disagreement over whether to call certain witnesses did not require appointment of different counsel]; People v. Robles (1970) 2 Cal.3d 205, 215 [disagreement over whether defendant should testify was a factor for consideration in the Marsden motion].) Nor is substitution required because of conflict arising from defendant’s own behavior or unfounded beliefs regarding counsel’s competency. (Clark, supra, 52 Cal.4th at p. 918 [defendant cannot refuse to cooperate with otherwise competent counsel and demand substitution]; People v. Smith (2003) 30 Cal.4th 581, 606 [acknowledged breakdown caused by defendant’s refusal to follow advice or cooperate with counsel]; People v. Smith (1993) 6 Cal.4th 684, 688-689, 696-697 [lack of confidence in counsel and not relating to counsel did not warrant substitution].) This is true even where defendant’s apparent paranoia has led to impaired communication between client and counsel. (Clark, at pp. 913-914 [there is no rule requiring substitution where defendant’s paranoia concerning defense counsel has impaired communication].) To the extent there is a credibility determination between defendant’s complaints and counsel’s statements or explanations at a Marsden hearing, the court is entitled to accept defense counsel’s explanation. (People v. Jones (2003) 29 Cal.4th 1229, 1245; People v. Webster (1991) 54 Cal.3d 411, 436.)
Here, defendant requested Marsden substitutions on four separate occasions. As noted above, defendant has attacked the trial court’s denial of the last Marsden motion only, but does so on the basis that review of all four Marsden hearings shows “an ongoing and irreconcilable conflict between [defendant] and his appointed attorney.” Review of the factual bases for defendant’s complaints in all four hearings is necessary to our decision because of the overlap found therein, but we limit our abuse of discretion determination to the trial court’s denial of the fourth motion.
A. Defendant’s First Marsden Motion
During the first Marsden hearing held on June 20, 2013, defendant identified the following complaints about his counsel: (1) the lack of communication with counsel; (2) the lack of trust in and by counsel who wanted him to take a deal and would only visit him with a glass barrier between them; (3) defendant’s inability to get along with counsel; (4) that counsel was representing him on a number of cases; (5) that counsel had failed to contact potential witnesses; (6) that counsel was working with the DA; and (7) counsel’s refusal to request a bail reduction or move for the recusal of a judge in another case.
The trial court asked defendant’s attorney about defendant’s stated concerns after which defense counsel explained he had extensive criminal experience and had been practicing for over 20 years, that he met with defendant and provided him the written discovery in his cases, that there was no legal basis to seek the recusal of the other judge, that any bail reduction motion would have been frivolous, that defendant had threatened defense counsel causing defense counsel to conduct his visits with defendant on the other side of protective glass, that defense counsel had sent defendant numerous letters in addition to visiting him, that he had refused some of defendant’s requests because they would violate ethical duties and/or the law such as providing contact information of potential witnesses, that he had followed up with one of defendant’s proposed witnesses and had previously reported the outcome of those investigatory efforts, that he had interviewed another of defendant’s proposed witnesses but was not calling her due to problems with her credibility and her lack of importance to the trial, and that he had issued other subpoenas requested by defendant for medical records and police video.
Defense counsel also stated his belief that he had “been more than adequately representing [defendant] in both of his matters, and [was] doing so with the most utmost professionalism.” Defendant continued to complain that he did not believe his counsel would fight adequately for him because he had advised defendant to take any deals that were better than life in prison. He also complained that his counsel yelled at him.
Ultimately, the trial court denied the motion, finding that the Court’s observation had been that defense counsel competently represented defendant, that any conflict between them appeared to be caused by defendant’s own attitude towards his counsel, and that there was good reason to have visits separated by safety glass. Defense counsel’s “representation is competent. He’s an experienced lawyer, he’s a respected lawyer in the Yolo County Courts, and it is clear to me he has and he will continue to competently represent” defendant.
B. Defendant’s Second Marsden Motion
Defendant’s second Marsden hearing occurred on August 14, 2013. Defendant complained that: (1) counsel was communicating through letters and not communicating daily; (2) he disagreed with counsel’s tactics, including whether he should testify; (3) counsel was representing him in more than one matter and had too many cases; (4) counsel failed to keep his family informed of case and medical developments; (5) defense counsel talked to the DA; (6) counsel failed to assist him with his medical issues; and (7) counsel failed to further investigate all the witnesses to the incident giving rise to the charges in the case currently being tried.
In response, defense counsel explained that the conflict arose from defendant’s belief that counsel should do exactly what defendant requested, as opposed to defense counsel’s duty to do everything he could to represent defendant’s best interests. Counsel further stated that the conflict was one-sided and being created by defendant’s behavior such as threatening counsel, knocking papers on the floor, etc. Defense counsel swore he had been properly advising defendant, including the risks associated with defendant’s desire to testify. He confirmed that he had been working to obtain an offer from the DA that did not involve a life term, but had been unsuccessful and that these efforts had upset defendant.
Counsel also said he was working on defendant’s behalf with regard to his medical issues and that defendant’s medication had been stopped because it was not needed and the jail believed he was either selling the drugs or giving them away to other inmates. Finally, counsel attested to working diligently and after hours in the preparation of defendant’s case, which included the preparation of a brief concerning lesser included offenses in an effort to avoid application of the Three Strikes Law.
In denying the second motion, the court found defense counsel’s manner of communication reasonable given the circumstances, it reiterated that defense counsel had the right to make tactical decisions, that it was not counsel’s job to communicate with defendant’s family, and that the court had observed defense counsel advocating for something less than a life sentence, but that these efforts were unsuccessful and the case was headed for trial. The court found defendant had not shown “an irremediable breakdown of the relationship[,]” and defense counsel was competently representing him, by, in part, filing motions in limine and jury instructions.
C. Defendant’s Third Marsden Motion
The court held defendant’s third Marsden hearing on October 7, 2013. Defendant complained that counsel (1) was holding himself out as a qualified psychologist and (2) had allowed him to urinate on himself during the first trial. The trial court explained that defense counsel answered the court’s question about whether counsel had a doubt about defendant’s competency, which was not counsel acting as a psychologist, but was relevant to whether a competency hearing should be held. Defendant then repeated his previous concern that counsel was representing him on more than one case, which the court explained was normal. Further, defendant complained that he did not like defense counsel and did not know that his attorney would do his best in representing him.
In response, the court noted that it had been unaware of the urgency of defendant’s need to immediately use the restroom and that efforts would be made in the future to prevent that from occurring again. The court continued that counsel had done an excellent job representing defendant in the first trial and the preliminary hearing for the second. Defense counsel reiterated that he had been competently representing defendant.
In denying the motion, the court noted “feeling uncomfortable” or believing an attorney was not “acting in his best interest” were not grounds to grant a Marsden motion. It went on noting, “I’ve observed [defense counsel’s] performance in his cases and he has competently represented [defendant].”
D. Defendant’s Fourth Marsden Motion
The court held defendant’s final Marsden hearing on October 8, 2013, wherein defendant complained that he was uncomfortable with his attorney who continued to refuse to abide by his wishes regarding witnesses, giving the example of his refusal to call a witness who had blocked defendant’s escape from the holding cell, and but for his blocking the way, the incident with the officers would not have occurred. Defendant again said: “my attorney wishes to use his own tactics and feels that mine are irrelevant at this time.” Defense counsel explained that even if the witness testified along the lines explained by defendant, that testimony would hurt, not help the case. Counsel testified defendant was receiving “probably the best representation he could possibly ever receive.”
In denying the motion, the court reiterated that defense counsel has the right to make tactical decisions and any other grounds raised are duplicative to the previous Marsden motions.
It is clear on this record that the trial court acted within its discretion in denying defendant’s fourth Marsden motion. The trial court made numerous well supported findings that defendant had received competent representation. Any conflicts arising from defendant’s own behavior, including his distrust of counsel and dislike of counsel’s tactical decisions did not support an irreconcilable conflict. (See, e.g., Clark, supra, 52 Cal.4th at pp. 913-914 [no rule requiring substitution where defendant’s paranoia concerning defense counsel has impaired the representation].)
Moreover, we note, defendant’s fourth Marsden motion was, at its essence, duplicative of his first three and we note he does not challenge here the trial court’s rulings on his first three motions.
There was no error.
III
The Court Did Not Abuse its Discretion in Refusing to Order a Competency Hearing
Defendant asserts the trial court erred when it did not order a competency hearing pursuant to section 1368.
Penal Code section 1367, subdivision (a) states in pertinent part:
“A person cannot be tried or adjudged to punishment . . . while that person is mentally incompetent. A defendant is mentally incompetent for purposes of this chapter if, as a result of [a] mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.”
Section 1368 recognizes that if the court doubts the defendant’s mental competence, it shall ask defense counsel’s opinion on defendant’s competency. (§ 1368, subd. (a).)
In the absence of an “expert opinion from a qualified and informed mental health expert, stating under oath and with particularity that the defendant is incompetent . . . counsel[, if he doubts defendant’s competency,] must make some other substantial showing of incompetence that supplements and supports counsel’s own opinion” of incompetency. (People v. Sattiewhite (2014) 59 Cal.4th 446, 465 (Sattiewhite).) Only upon such a showing “does the trial court have a nondiscretionary obligation to suspend proceedings and hold a competency trial. [Citation.] Otherwise, we give great deference to the trial court’s decision not to hold a competency trial.” (Ibid.)
Notwithstanding counsel’s view of the matter, if the court has a doubt about defendant’s competency, proceedings are suspended until a determination of competency is made. (§ 1368, subds. (b)-(c).) But, whatever the trial court’s view on the question of defendant’s competence to stand trial may be, once a defendant has shown “substantial evidence of incompetence to stand trial, due process requires that a full competency hearing be held.” (People v. Stankewitz (1982) 32 Cal.3d 80, 92 [citing Pate v. Robinson (1966) 383 U.S. 375 [15 L.Ed.2d 815]].) “ ‘Evidence of incompetence may emanate from several sources, including the defendant’s demeanor, irrational behavior, and prior mental evaluations.’ ” (Sattiewhite, supra, 59 Cal.4th at p. 464.) “ ‘But to be entitled to “a competency hearing, a defendant must exhibit more than bizarre . . . behavior, strange words, or a preexisting psychiatric condition that has little bearing on the question of whether the defendant can assist his defense counsel.” ’ ” (Id. at pp. 464-465 [citations omitted].)
Here, although defendant had been taken off his medication, was depressed, and unable to focus, the People, in order to protect the record, asked whether the court or defense counsel had any questions about defendant’s competency. Defense counsel stated his belief that defendant was competent, and the Court concurred based upon its discussions with defendant. Neither the court nor defense counsel had any doubt as to defendant’s competency. Defendant’s refusal to work with his attorney, whom he had not been allowed to replace, does not change this analysis. Unlike the Stankewitz case, here defense counsel believed defendant was competent and there was no determination by a qualified mental health expert, offered under oath that defendant was not competent. As such, defendant has failed to show substantial evidence of incompetence, and the trial court was within its discretion not to order a competency hearing.
IV
The Court Did Not Abuse Its Discretion in Sentencing defendant
Defendant argues the sentencing court abused its discretion by failing to strike one of defendant’s prior strikes under Romero and/or by not reducing his felony convictions to misdemeanors under section 17, subdivision (b). We find the trial court acted well within its discretion in sentencing defendant.
A. The Romero motion
First, defendant argues that this court should engage in a de novo review of the propriety of striking a strike under Romero, supra, 13 Cal.4th 497, which is normally reviewed for an abuse of discretion. (See People v. Carmony (2004) 33 Cal.4th 367, 374-77 (Carmony).)
Defendant urges that we should do so here because the sentencing judge, not having heard defendant’s two trials or his Marsden motions was not sufficiently aware of the facts underlying the request.
Defendant has provided us no authority for his request and, in any event, defendant specifically waived his right to be sentenced by the judge who presided over his trials by insisting in front of the sentencing judge that he wanted to be sentenced “right now” or words to that effect no less than 11 times on the day set for sentencing. He cannot now complain of his decision or use it to alter the standard of appellate review.
The trial court has wide discretion in determining whether to strike a strike under Romero and must decide whether “in light of the nature and circumstances of his present felonies and prior serious and/or violent convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [Three Strikes] scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
The refusal to strike a strike is only an abuse of discretion in extraordinary cases such as the trial court being unaware of its discretion or if it considers impermissible factors. (Carmony, supra, 33 Cal.4th at p. 378.)
We may not substitute our judgment for that of the sentencing court which, having reviewed the criminal history found in the probation report, the supplemental probation report, the brief in mitigation filed by defense counsel, and after argument concerning the nature of the present crime, found defendant did not fall outside the spirit of the three strikes law and thus followed the probation department’s recommendation and denied defendant’s Romero motion. We think it unnecessary to burden this opinion with what would be a long recitation of defendant’s experience with the criminal justice system beginning with a conviction for rape in 1987, followed by other offenses leading up to his conviction for lewd acts with a child under the age of 14 in 2008 (followed then by no less than three violations of parole), which history is fully set forth in the probation report which accompanies this record of trial. All things considered, defendant’s personal history makes inescapable the conclusion that he has committed most of his adult years to a life of crime. The trial court did not abuse its discretion by denying his request.
B. Penal Code Section 17(b)
Defendant finally contends that the sentencing court abused its discretion in not reducing defendant’s section 69 felony convictions to misdemeanors under section 17, subdivision (b).
We recognize the sentencing judge did not expressly rule on the section 17, subdivision (b) motion, but find he did so impliedly when he sentenced defendant to 27 years to life in prison. And we need not linger long here. For the same reasons the trial court did not abuse its discretion in denying defendant’s request for Romero relief, its rejection of defendant’s motion to reduce the felonies to misdemeanors was neither arbitrary nor capricious. (See, People v. Warner (1978) 20 Cal.3d 678.)
DISPOSITION
The judgment is affirmed.



HULL , J.



We concur:



RAYE , P. J.



BUTZ , J.