Filed 8/28/17 P. v. Demers CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. COREY ALLEN DEMERS, Defendant and Appellant.

H044164 (Santa Cruz County Super. Ct. No. F28100)

STATEMENT OF THE CASE

An information, filed on January 30, 2015, charged defendant Corey Allen Demers with first degree burglary (Pen. Code, § 459).[1] The information alleged a prior strike conviction (§ 667, subds. (b)-(i)), a prior serious felony conviction (§ 667, subd. (a)(1)), and four prior prison terms (§ 667.5, subd. (b)).

On March 8, 2016, defendant requested appointment of substitute counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). The following day, the trial court held a hearing on defendant’s Marsden motion, and it denied the motion. On April 13, 2016, defendant filed another Marsden motion seeking appointment of substitute counsel. The trial court held a hearing on that Marsden motion on April 21, 2016, and it denied the motion at the end of the hearing.

On August 8, 2016, defendant pleaded no contest to first degree burglary (§ 459). Defendant admitted a prior strike conviction (§ 667, subds. (b)-(i)) and a prior serious felony conviction (§ 667, subd. (a)(1)), which were both based on his 1992 conviction for lewd conduct with a child (§ 288). The prosecutor struck all remaining allegations in the information.

On October 17, 2016, defendant filed a Romero[2] motion seeking dismissal of his prior strike conviction. The trial court granted the Romero motion and dismissed defendant’s prior strike conviction.

At the sentencing hearing on November 9, 2016, the trial court sentenced defendant to seven years in prison, calculated as follows: a two-year term for the burglary conviction and a consecutive five-year term for the prior serious felony conviction.

Defendant now appeals from the judgment of conviction. He contends that we must reverse the judgment of conviction because the trial court erroneously denied his Marsden motions. As set forth below, we affirm.

STATEMENT OF THE FACTS

At approximately 6:30 a.m. on January 7, 2015, defendant entered Tina Edwards’s home through a sliding glass door. Edwards heard the door open, but she thought the person entering was her ex-husband, who lived at the house. Later that morning, Edwards saw defendant sitting on a couch on her deck. She took her children into a bedroom and called 911. She watched defendant through a window, and she saw that he was reading a magazine on the couch. After a few minutes, defendant stood up and looked into the house through the sliding glass door.

Police arrived at Edwards’s house around 7:40 a.m., and they found defendant sitting on the couch on the deck. Police searched defendant, and they found a sewing kit, a headpiece, and a pink costume tucked in his clothes. Those items had previously been inside Edwards’s home. Police later searched a campsite behind Edwards’s home, and they found stuffed animals that had previously been inside Edwards’s home.

DISCUSSION

Defendant contends that we must reverse the judgment of conviction because the trial court abused its discretion in denying his Marsden motions. Specifically, defendant contends that the trial court should have granted the Marsden motions because his attorney “provided inadequate representation” by refusing “to investigate the validity of” the 1992 prior conviction. Defendant emphasizes that “the validity of the prior conviction is an important issue because its existence detrimentally increased his sentence.” As explained below, defendant has failed to show an abuse of discretion.

Background

The First Marsden Motion

Defendant requested appointment of substitute counsel on March 8, 2016. The trial court held a Marsden hearing the following day.

At the beginning of the hearing, defendant stated that his “complaint is not that [defense counsel] is incompetent.” Rather, defendant expressed frustration that defense counsel was only pursuing “a mental health strategy.” Defendant also expressed frustration that defense counsel refused to “file [the] writs” for his 1992 prior conviction. Defendant explained that “there is actually evidence” that proves he is “innocent in that original case.” He requested a new attorney who would “file the writs” and “address the new case with different strategies other than just some NGI plea.”

Defense counsel informed the trial court that she was “focused on the current case” because defendant faced a “significant” sentence of 21 years in prison. She also explained that she intended to use defendant’s mental health issues “as part of his defense” because she believed that was the “best” strategy.

The trial court denied defendant’s Marsden motion. In issuing its ruling, the trial court explained: “Well, the law allows me to relieve an attorney for certain reasons, and I can’t do it just because you don’t agree with the strategy on a particular case.” The trial court further explained: “Your attorney needs to decide how to defend you. You don’t get to do that, because she’s the one that’s trained and she needs to be able to look at the law and the facts and see what she can do to try to keep you out of a long prison sentence. She has to make that call as the trained lawyer.”

The Second Marsden Motion

On April 13, 2016, defendant filed a written Marsden motion seeking appointment of substitute counsel. In that motion, defendant complained that defense counsel refused to perform investigations that were “critical and necessary to the defense.” The trial court held a hearing on the motion on April 21, 2016.

At the hearing, defendant explained that defense counsel needed to investigate the 1992 prior conviction because “there were four other people there” when that offense occurred. Defendant also complained that defense counsel ignored his request to “file a habeas corpus on [the] original case.” Defendant explained that defense counsel needed to file “a writ” because “in the original case there has been new evidence.” Defendant stated that “using only a mental health defense is incomplete because there were other suspects there.”

Defense counsel advised the trial court that she was working to “fashion a defense that’s not just a mental health defense.” She also explained that she would not “do a writ of habeas corpus” because she was focused on providing a “valid defense” for “the case at hand.”

The trial court denied the Marsden motion. In issuing its ruling, the trial court explained that defendant was getting “good legal counsel.” The trial court also advised defendant that “the fact that there were four other people there” when the 1992 offense occurred was “not a defense.”

Legal Principles and the Standard of Review

“The seminal case regarding the appointment of substitute counsel is Marsden, supra, 2 Cal.3d 118, which gave birth to the term of art, a ‘Marsden motion.’ ” (People v. Smith (1993) 6 Cal.4th 684, 690.) Marsden held that a defendant has a right to substitute counsel on a proper showing that the constitutional right to counsel would otherwise be substantially impaired. (Marsden, supra, at p. 123; see also People v. Nakahara (2003) 30 Cal.4th 705, 718.)

“The legal principles governing a Marsden motion are well settled.” (People v. Lara (2001) 86 Cal.App.4th 139, 150.) When a defendant seeks substitution of appointed counsel pursuant to Marsden, supra, 2 Cal.3d 118, “ ‘the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.’ ” (People v. Taylor (2010) 48 Cal.4th 574, 599 (Taylor).) “A trial court should grant a defendant’s Marsden motion only when the defendant has made ‘a substantial showing that failure to order substitution is likely to result in constitutionally inadequate representation.’ ” (People v. Hines (1997) 15 Cal.4th 997, 1025.)

“A defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense.” (People v. Welch (1999) 20 Cal.4th 701, 728 (Welch).) “Tactical disagreements between the defendant and his attorney do not by themselves constitute an ‘irreconcilable conflict.’ ” (Id. at pp. 728-729.) “ ‘When a defendant chooses to be represented by professional counsel, that counsel is “captain of the ship” and can make all but a few fundamental decisions for the defendant.’ ” (Id. at p. 729.)

“We review the denial of a Marsden motion for abuse of discretion.” (Taylor, supra, 48 Cal.4th at p. 599.) “Denial is not an abuse of discretion ‘unless the defendant has shown that a failure to replace counsel would substantially impair the defendant’s right to assistance of counsel.’ ” (Ibid.)

The Trial Court Did Not Abuse its Discretion

Defendant contends that the trial court abused its discretion in denying his Marsden motions because defense counsel provided inadequate representation by refusing to investigate the validity of the 1992 prior conviction. Contrary to defendant’s assertion, the record does not show inadequate representation, and there was thus no abuse of discretion in the denial of the Marsden motions.

At the Marsden hearings, defendant complained that defense counsel failed to investigate the validity of his 1992 prior conviction. Defendant asserted that such an investigation was necessary because there was “new evidence” and “there were four other people there” at the time of the 1992 offense. Defendant’s rationale for the investigation was not compelling. Defendant never described the “new evidence” that purportedly necessitated investigation of the prior conviction. Moreover, as the trial court advised defendant, the fact that four other people were present when the 1992 offense occurred did not suggest that the conviction for that offense was invalid. Given that defendant never provided a persuasive reason to doubt the validity of the 1992 prior conviction, defense counsel reasonably determined that investigation of the prior conviction was unnecessary. (See Strickland v. Washington (1984) 466 U.S. 668, 691 [defense counsel complies with the duty to investigate if she makes a “a reasonable decision that makes particular investigations unnecessary”].) Defense counsel’s refusal to investigate the prior conviction did not constitute inadequate representation, and it thus was not grounds for appointment of substitute counsel.

The record shows that defendant’s major complaint against defense counsel involved tactics. He did not want his mental health issues to be part of his defense, and he preferred a defense that would attack the validity of the 1992 prior conviction. Defendant did “not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense.” (Welch, supra, 20 Cal.4th at p. 728.) As we explained above, defense counsel reasonably rejected a defense that attacked the validity of the prior conviction. Defense counsel instead fashioned a defense that focused on defendant’s mental health issues, a strategy that she determined was the “best” approach in defendant’s case. Defendant’s tactical disagreement with defense counsel did not necessitate appointment of substitute counsel. (Id. at pp. 728-729.)

In sum, defendant’s Marsden motions failed to show that defense counsel was providing inadequate representation. The trial court therefore properly determined that substitution of appointed counsel was unnecessary, and it did not abuse its discretion in denying defendant’s Marsden motions.

DISPOSITION

The judgment is affirmed.

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