P. v. George

Filed 7/23/07 P. v. George CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Sam Ohta, Judge. Affirmed.

Barbara Michel, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Keenan George appeals from his conviction of attempted murder and assault with a firearm. He contends: (1) he was denied due process as the result of the denial of his Marsden motion;^[1] and (2) imposition of the high term violated Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856] (Cunningham). We affirm.

FACTUAL AND PROCEDURAL HISTORY

Viewed in accordance with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053), on the evening of September 18, 2004, a group of friends were home watching television. Sometime before 8:00 p.m., defendant was driven to that location. Porsha Sipert was one of several other people in the car with defendant. On the way over, Sipert heard someone say that the reason for going there had to do with money, the occupants of the house were gay men and defendant could get paid for what he was going to do. When they arrived at the house, several men were outside on the porch. Two of the women in the car, not Sipert, walked up to the porch and started arguing with one of the men. Defendant walked over to the argument. Victim Sandro Gutierrez came out on the porch to confront defendant because Gutierrez was told that defendant had come to rob them and Gutierrez felt protective of his friends, some of whom were gay. Gutierrez and defendant had words. When victim, Christopher Alexander, tried to pull Gutierrez away, defendant pulled a handgun out of his sweatshirt pocket, announced, Im four Deuce Gangsters and This is on Four Deuce, and shot Gutierrez twice in the neck. Gutierrez was permanently paralyzed as a result of his injuries. If Alexander had not ducked, he would have been shot, too.

Detective John Radtke interviewed Alexander, Sipert and victim Derrick James shortly after the shooting; when Gutierrez was well enough, Radtke interviewed him, too. Radtke prepared a photographic lineup (six-pack), which included defendants photograph; from the six-pack, Gutierrez, Alexander, Sipert and James each identified defendant as the person who shot Gutierrez.

Defendant was charged with the attempted murders of Gutierrez and Alexander, and assault with a firearm upon Alexander. Enhancements for personal infliction of great bodily harm, personal firearm use and commission of the offense for the benefit of a criminal street gang were also alleged.^[2]

At trial, Gutierrez, Alexander, Sipert and James each testified that they did not know who shot Gutierrez, they did not recognize defendant as the shooter, they could generally not recall what they said to the police about the shooting, but they had been truthful when they spoke to police.

A jury found defendant guilty of the attempted murder of Gutierrez and assault with a firearm upon Alexander, but not guilty of the attempted murder of Alexander; it also found true the alleged enhancements.

Defendant was sentenced to 44 years to life in prison, comprised of the nine year high term for attempted murder, plus a consecutive 25 years for discharging a firearm causing great bodily injury, plus a consecutive 10 years for committing the offense for the benefit of a criminal street gang. Sentence on the remaining counts and enhancements was imposed but stayed pursuant to Penal Code section 654.

DISCUSSION

1. The Marsden Motion

Defendant contends the trial court prejudicially erred in denying his motion to discharge his appointed counsel after both sides rested but before the jury was instructed.^[3] He argues that he and appointed counsel were embroiled in an irreconcilable conflict arising from counsels refusal to accede to defendants desire to present a mistaken identity defense. We disagree.

Under the Sixth Amendment right to assistance of counsel, a defendant is entitled to substitute one appointed counsel for another if the record clearly shows that the defendant and appointed counsel    have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.    (People v. Welch (1999) 20 Cal.4th 701, 728.) But the right to an adequate and competent defense does not mean that a defendant has the right to present any defense of his own choosing; on the contrary, [t]actical disagreements between the defendant and his attorney do not by themselves constitute an irreconcilable conflict. 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. [Citation.] (Id. at p. 728-729.)

In Welch, the defendant was charged with multiple counts of first degree murder and attempted murder all arising out of a single incident; the defendant himself wanted to assert his actual innocence and even testified that he did not commit the murders; nevertheless, the thrust of the defense presented by appointed counsel was that the defendant was so mentally impaired by drugs, alcohol and sleep deprivation at the time of the incident he lacked premeditation and deliberation. Our Supreme Court held that, in light of the overwhelming evidence against the defendant, which included identification by the attempted murder victims, appointed counsels tactical choice of defenses did not constitute ineffective representation. (People v. Welch, supra, 20 Cal.4th at p. 729.) The court explained, Counsel likely  was trying to enhance his credibility with the jury by [all but] conceding his client's guilt of the offense of which the evidence was overwhelming, and to focus his efforts on the weakest link in the states case  [citation]. That tactical choice was not ineffective representation on counsels part. (Id. at p. 729.)

Here, during a discussion of jury instructions, defendant indicated that he was dissatisfied with his appointed counsel. At the Marsden hearing that followed, defendant complained that defense counsel wants me to go in there -- he told me theres no other way but self-defense. Thats not what Im shooting for. Im shooting for a totally different thing than what hes shooting for. [] Hes my lawyer. Hes supposed to do what I tell him or ask him to do for me. He wants to do it his way, not my way. I feel that its in my best interest -- the way I want to do is the way it should be done because Im the one who is here for time, not him. [] Im not trying to plead self-defense. My best theory is, Your Honor, that, since the evidence that has been brought to the table, theres no basis of evidence saying that Im at this crime. Theres no fingerprints. Theres no gun. Theres no blood. Theres no nothing saying Im at the crime other than this female lady [Sipert] who says it was me. Then shes not a credible witness based on the fact that throughout the prelim and throughout the trial she doesnt mention that there was a fifth person in the car. Defense counsel explained that, based on his 20 years of experience, I think to make this an identification case would be an absolute mistake, and I wont argue it. I refuse to argue it. The trial court concluded that defendant disagreed with appointed counsels trial tactics, which was not a sufficient ground to grant his Marsden motion. We find no error.

As in Welch, the conflict here between defendant and his appointed counsel was over whether to present a mistaken identity defense in the face of evidence that multiple witnesses, including the victims, had identified defendant as the shooter, albeit before trial. Like in Welch, defense counsels decision to focus his efforts on the weakest link in the states case Siperts testimony that she saw victim Gutierrez move in such a way as to make her believe he was pulling a gun, thus rendering the shooting either self-defense or, at a minimum, imperfect self-defense manslaughter was a reasonable tactical choice. As such, under Welch, defendant and appointed counsel were not embroiled in such an irreconcilable conflict that ineffective representation was likely to result. (People v. Welch, supra, 20 Cal.4th at p. 728.)

We are not persuaded otherwise by defendants argument that this case is distinguishable from Welch because here the mistaken identity defense is stronger than in Welch. That the witnesses in this case identified defendant to the police but professed to be unable to recognize defendant at trial was obviously not beneficial to the prosecutions case, but it was not as harmful as defendant posits inasmuch as the eyewitnesses testified that they had been truthful when they were interviewed by the police and their reluctance to name defendant at trial was readily explained by the gang expert. Thus, as in Welch, the dispute here came down to a disagreement about trial tactics, which is not a sufficient reason to grant a Marsden motion.

Defendants reliance on U.S. v. Gonzalez-Lopez (2006) ___ U.S. ___ [126 S.Ct. 2557], for the proposition that the Sixth Amendment gives him the right to be represented by appointed counsel he believes to be best, is misplaced. That case concerned the Sixth Amendment right of a defendant who does not require appointed counsel to choose who will represent him. (126 S.Ct. at p. 2561, italics added.) It is not applicable here because the right to discharge retained counsel is governed by the standards announced in People v. Ortiz (1990) 51 Cal.3d 975, and its progeny, whereas substitution of appointed counsel is governed by the standards announced in Marsden and its progeny. (See Ortiz, supra, 51 Cal.3d at p. 980, fn. 1 [a defendant's right to appointed counsel does not include the right to demand appointment of more than one counsel].) Here, the trial court properly applied the Marsden standard.

2. Cunningham

Defendant contends he was denied his Sixth Amendment right to a jury trial on the aggravating factors relied upon by the trial court to select the high term. We disagree.

Cunningham v. California (2007) ___ U.S. ___, 127 S.Ct. 856, 166 L.Ed.2d 856, held that Californias determinate sentencing law violates the Sixth Amendment to the United States Constitution because it authorizes the judge, not the jury, to find the facts permitting an upper term sentence . . . . [Citation.] As the Supreme Court explained, the Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.  (People v. Yim (2007) ___ Cal.App.4th ___ [60 Cal.Rptr.3d 887, 889], italics added.) [T]he exception to the jury trial right for prior convictions, is not limited simply to the bare fact of a defendant's prior conviction, but extends as well to the nature of that conviction, thereby permitting sentencing courts to determine whether the prior conviction is the type of conviction (for example, a conviction of a violent felony) that renders the defendant subject to an enhanced sentence. [Citation.] (Id. at p. 890 [reliance on factors of defendants status as parolee and unsatisfactory performance on parole to impose high term did not violate Cunningham].) A single aggravating factor may support a sentencing choice. (People v. Hall (1994) 8 Cal.4th 950, 963-964.)

Here, the trial court considered the following aggravating factors in selecting the nine year high term on count 1 (attempted murder of Gutierrez), the four year high term on count 3 (assault upon Alexander), and the 10 year high term on the Penal Code section 12022.5 enhancement:

        The number and increasing seriousness of defendants prior convictions. (California Rules of Court, rule 4.421(b)(2).)^[4]

        Defendant had served prior prison terms. (Rule 4.421(b)(3).)

        Defendant was on probation or parole when he committed the charged offenses. (Rule 4.421(b)(4).)

        Defendants prior unsatisfactory performance on probation or parole. (Rule 4.421(b)(5).)

Since each factor relied upon by the trial court is related to defendants recidivism, reliance on these factors to select the high term did not violate Cunningham.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, ACTING P. J.

WE CONCUR:

BOLAND, J.

FLIER, J.

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

^[2] Prior conviction enhancements were also alleged, but later dismissed by the prosecution.

^[3] Although defendant initially stated that he wished to represent himself, it was clear that defendants true goal was not to exercise his right to self-representation, but to obtain new counsel who would adopt defendants defense strategy. Thus, defendant did not make an unequivocal Faretta motion (Faretta v. California (1975) 422 U.S. 806) and the trial court properly treated it as a Marsden motion. (See People v. Tena (2007) 151 Cal.App.4th 720, 730; People v. Scott (2001) 91 Cal.App.4th 1197, 1204.)

^[4] All undesignated rule references are to the California Rules of Court.