P. v. Gould

Filed 9/7/07 P. v. Gould CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Lee P. Felice and Richard P. Oberholzer, Judges.^*

Law Office of William H. Slocumb and William H. Slocumb for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Bruce Jay Gould was arrested as part of an undercover operation when he was found in joint possession of over 200 grams of methamphetamine in his truck. A search warrant was subsequently issued for a residence he shared with his girlfriend, which revealed additional quantities of methamphetamine and marijuana, packaging materials, substantial amounts of cash, and several firearms. He was convicted of transportation, possession of methamphetamine and marijuana for sale, and being an ex-felon in possession of a firearm, with enhancements for prior strike and narcotics convictions, and sentenced to 16 years four months.

On appeal, appellant asserts the trial court improperly denied his pre- and posttrial motions to discharge his appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), because counsel was prejudicially ineffective in failing to raise Fourth Amendment challenges to his arrest and the search warrant. Appellant also contends the court improperly denied his posttrial motion to substitute his newly retained counsel in place of appointed defense counsel and for a continuance, in order for his retained counsel to file a motion for new trial based on appointed counsels alleged ineffectiveness. In the alternative, appellant argues appointed counsel was prejudicially ineffective for failing to challenge the validity of his arrest and certain aspects of the search.

We will find the court abused its discretion when it denied appellants posttrial motion for a continuance, and that it should have allowed his newly retained attorney to assume representation of him to prepare and file posttrial motions.

STATEMENT OF THE CASE

On March 8, 2006, an information was filed in the Superior Court of Kern County charging appellant and codefendant David Montecino with count I, transportation of methamphetamine (Health & Saf. Code,^[1] 11379) and count II, possession of methamphetamine for sale ( 11378). Appellant was separately charged with count III, possession of marijuana for sale ( 11359) and count IV, ex-felon in possession of a firearm (Pen. Code,  12021, subd. (a)(1)). As to counts I and II, it was alleged appellant suffered five prior narcotics offenses ( 11370.2, subd. (c)). As to counts II and III, it was alleged appellant was armed with a firearm (Pen. Code,  12022, subds. (a) & (c)). As to all counts, it was alleged appellant served two prior prison terms (Pen. Code,  667.5, subd. (b)). Appellant and Montecino pleaded not guilty and denied the special allegations.

On July 31, 2006, the court heard and denied appellants motion to discharge appointed counsel pursuant to Marsden, and the joint jury trial began for appellant and Montecino. On August 2, 2006, appellant was convicted of all counts, and the jury found the arming allegations true, except for the allegation attached to count III. Montecino was also convicted of all charged offenses. On August 3, 2006, the court found appellants prior conviction allegations were true.

On August 29, 2006, the court heard and denied appellants second Marsden motion.

On September 12, 2006, the court denied appellants motion to substitute retained counsel and for a continuance to file a new trial motion. Thereafter, the court sentenced appellant to an aggregate term of 16 years four months: count I, the upper term of four years, plus six years for the prior narcotics convictions and two years for the prior prison term enhancements; count II, a consecutive term of eight months (one-third the midterm) plus three years for the arming enhancement; count III, a consecutive term of eight months (one-third the midterm), and count IV, the upper term of three years, stayed pursuant to Penal Code section 654.

On the same day, appellant filed his timely notice of appeal. Codefendant Montecino is not a party to this appeal.

FACTS

Kern County Sheriffs Detective Robert Stevenson was assigned to the CALMNET team, a multi-jurisdictional drug task force. As part of his assignment, he assumed false identities and contacted individuals to arrange drugs purchases.

In the course of his work, Stevenson received information that Arvel Nye was involved in methamphetamine sales. Stevenson placed three telephone calls to Nye to arrange a methamphetamine transaction. The first call occurred on the evening of November 30, 2005, when Stevenson called Nyes residence in Kern County. Stevenson identified himself as Jimmy, and said he wanted to purchase $5,000 of methamphetamine. Nye thought Jimmy was a truck driver, and agreed to set up the deal. Nye told Jimmy that he was located too far out of town and asked him to drive closer to make the deal.

At trial, Nye testified that codefendant David Tokyo Montecino had been his friend for many years and often visited at his house. Nye testified that after he spoke with Jimmy, he spoke to Montecino about arranging a sale for $5,000 of methamphetamine. Stevenson again called Nye on the morning of December 1, 2005, again identified himself as Jimmy, and said he was going to meet him at a truck stop. Nye testified that Montecino was at his house when Jimmy called, and Montecino told Nye to have Jimmy meet them at a motel in town. A mutual friend was also at the house, and told Nye and Montecino not to do anything, but Montecino said he would take care of it. Montecino told Nye that [h]is friend would bring the methamphetamine to the motel, and he would be driving a pickup truck.

Stevensons third phone call occurred later in the morning of December 1, 2005, when he advised Nye that he was in town. Nye directed Stevenson to meet him at the Vagabond Inn on Olive Drive in Bakersfield.

Nye arrived at the Vagabond Inn sometime between 2:30 p.m. and 3:30 p.m. and approached a red big rig, with the belief that Jimmy was waiting for him inside the truck. Nye was immediately detained by officers, and he realized Jimmy was a police officer. Nye offered to give Deputy Stevenson information about the imminent drug deal. Nye was released and not charged in this case.

Deputy Stevenson testified that Nye said Bruce, a white male, was going to pick up Tokyo at a liquor store located at Lincoln and Oildale Drive, Tokyo was a Mexican male with a long ponytail and shades, Bruce was driving a work truck because he was in construction, Bruce was bringing the methamphetamine, Tokyo would direct Bruce to the motel, and they would be at the motel in 20 minutes.

In the meantime, Nyes residence was being watched by officers in an unmarked car, and they observed a Hispanic male with a ponytail walk out of the house. The man was subsequently identified as Montecino. The officers followed Montecino as he walked from Nyes house to a liquor store on Oildale Drive. Montecino went inside the store and emerged with a dark plastic bag which seemed to contain a small object, about 12 inches high and the size of a small soft drink bottle. Montecino waited outside the liquor store and held the dark bag, which contained the small object. Montecino was eventually picked up by a while male who was driving a beat-up looking maroon pickup truck.

The surveillance officers followed the maroon pickup truck as it headed for the Vagabond Inn. When the truck arrived in the motels parking lot, the officers immediately approached the vehicle, ordered the occupants to step out of the truck, and placed them in handcuffs.

Appellant Bruce Gould was the driver, and codefendant Montecino was sitting in the front passenger seat. Appellant was found in possession of a cell phone, $188, and about 1.3 grams of marijuana, which was the equivalent of one or two cigarettes. A large plastic McDonalds drinking cup was in the cup holder of the trucks center console, located directly between the driver and passenger seats. A black plastic bag was stuffed into the cup, such that the majority of the bag was above the lip of the cup. Both the large cup and the black plastic bag were clearly visible through the vehicles windows. The officers opened the plastic bag, and discovered that it contained a large quantity of methamphetamine, later determined to weigh 218 grams. There was another black plastic bag on the passenger-side floorboard, apparently wrapped around some type of bottle; the top of the bottle was visible above the plastic bag.

The Search Warrant

When appellant and Montecino were arrested, Deputy Stevenson determined the maroon truck was registered to appellant at an address on Curtis Street. On the same day, Stevenson went to that residence and determined appellants brother lived there. Appellants brother was very cooperative, and said that appellant was staying at a house on East Belle. He did not know the address but described the location, and said that appellant drove a green Kia.

Stevenson went to that house, located at 105 East Belle, and observed a green Kia parked on the street in front of the house. Stevenson knocked on the front door and contacted Mikeal Mathis. Mathis advised Stevenson that he lived in the house, but appellant and his girlfriend lived in the residence located behind his house.

At trial, Stevenson described the rear residence as 105^[2]East Belle, although he was not sure if it was actually known by that street number. Stevenson had the key chain which was removed from the maroon trucks ignition. He tried the other keys on the chain, and determined they unlocked the deadbolts to the girlfriends rooms and the garage on East Belle.

Later on December 1, 2005, Deputy Stevenson compiled an affidavit for a search warrant of the premises at 105.5 East Belle in Bakersfield.^[3] In the affidavit, Deputy Stevenson stated appellant was arrested while in possession of approximately one-half pound of suspected methamphetamine. Appellant was asked where he lived, and he replied that he was homeless. The affidavit described Stevensons investigation using the maroon trucks registration, which led to appellants brother, who said appellant lived behind a Chevron Oil Lube business off of North Chester Avenue in Bakersfield California, in a white house, and that he drove a green Kia.

Stevenson declared the officers located the Chevron oil lube business at the corner of North Chester and East Belle Avenue, and observed a green Kia parked in front of 105 East Belle. Mathis answered the door and said that appellant lived in the back portion of the residence with a female named Evette and showed officers the front door of 105.5 East Bell[e] Avenue. Mathis also said the other cars parked near the residence belonged to appellant, and Stevenson determined a truck at the house was registered to appellant at his brothers address. The affidavit described the key chain seized from the maroon truck, and that the keys unlocked the residence and the garage. Stevenson further declared the officers made entry to the rooms to prevent any destruction of evidence by subjects that might be inside the residence, they secured the interior of the residence and found no one was home, and they exited the residence ... but maintained control of it pending the issuance of this search warrant.

Stevenson declared that based on his training and experience, subjects involved in the sales of illegal drugs often will not use their actual residence, listed on their vehicle registration, to prevent law enforcement from uncovering their illegal activities, and will use different vehicles to stash and deliver drugs.

Stevensons affidavit sought a search warrant as follows:

The premises described at 105.5 E. Bell[e] Avenue Bakersfield ..., further described as a single story residence, white with wood siding, white trim and a grey composition roof. The numbers 105 are in black number affixed to the front of the residence next to the front door. To enter the residence a[t] 105.5 you must walk south in the west alley and enter a chain link fence, then a white lattice gate and the front door faces east ....

The affidavit requested a warrant for the premises, the garage, all outbuildings, and the surrounding grounds, along with four specific vehicles, including the green Kia, for methamphetamine, associated paraphernalia, currency, and other indicia of sales activities. A judge issued and signed the warrant at 4:50 p.m. that same day, December 1, 2005.

Search of the House

Still later on December 1, 2005, the officers executed the search warrant on the rooms which Mathis said were used by appellant and his girlfriend, and were unlocked with the keys on the chain removed from appellants maroon truck. The officers recovered the following amounts of methamphetamine, in separate packages: 0.15 grams, 13.9 grams, 0.54 grams, 1.91 grams, 0.19 grams. 0.80 grams, and 52 grams. The officers also found a large digital pound electronic scale, two smaller pocket-size digital gram scales, $3,000, $700, and packaging materials. All the scales were operational. There was mail addressed to appellant found in the same area as the drugs, but the mail was not directed to the East Belle address. The residence also contained a gun cabinet with two .12 gauge Remington shotguns, another shotgun, and ammunition.

The officers also used the keys on the chain to unlock the garage, which contained a washer and dryer, and found a plastic container in the rafters which contained packaging materials and over 300 grams of marijuana. There was also a bank statement in appellants name in the garage; the statement was not directed to the East Belle address. The area next to the garage contained a lot of junk covered with tarp. A narcotics dog alerted to a barrel, which contained eight baggies of marijuana and weighed 3,606 grams. A Smith & Wesson .38-caliber six-shot revolver and ammunition were found near the barrel.

Additional Trial Evidence

Appellant and Montecino were tried together for various narcotics and weapons offenses. At trial, Nye described himself as the number one man who set up the methamphetamine deal.^[4] Nye testified that Tokyo Montecino had been his friend a long time, and Nye told Jimmy that Tokyo was a Mexican with long hair. However, Nye testified he never met appellant and did not know anything about him before Nye appeared at the preliminary hearing in this case. Nye testified he told Stevenson that Montecino was going to the liquor store to wait for a friend, and Montecino never mentioned appellants name when they were arranging the transaction. Nye testified he never told Stevenson that Bruce was bringing the drugs, he only described the other person as Tokyos friend, and he did not know appellant or his name until he testified in this case.

Nye testified he suffered from paranoid schizophrenia, and suffered migraines and panic attacks. He did not suffer from delusions. Nye testified the schizophrenia made him crazy.

Q. Do you hear voices or anything like that?

A. Not really.

Q. So what is the

A. But everybody hears voices. All youve got to do is think and you hear voices. You dont actually hear them.

Nye testified he had taken several prescribed psychiatric medications for over 10 years. Nye was taking these medications at the time of the drug deal, but did not take the medications on the day of his testimony because he did not want to pass out. Nye testified he did not use illegal narcotics. Nye admitted he suffered a misdemeanor conviction for receiving stolen property 25 years ago.

Nye was upset because he was forced to testify in this case when the court granted him immunity, he had trouble remembering things, and he wanted to be right because of the guys that are in trouble. You know, Ive giving it my best shot.

Also at trial, Officer Christina Abshire testified about her surveillance of Montecino as he walked from Nyes house to the liquor store, and emerged from the liquor store with a small object inside a black plastic bag. Officer Abshire examined photographs of the interior of appellants truck and the plastic cup in the center console which contained the methamphetamine, and testified the cup with the narcotics did not appear to be the same object as the one Montecino held at the liquor store. Abshire also examined the photograph of the black plastic bag on the passenger-side floorboard, which apparently contained some type of bottle. Abshire testified she could not determine if it was the same size as the bag which Montecino held outside the liquor store.

Mikeal Mathis lived at the house on 105 East Belle in Oildale. He testified that he allowed Evette to live in the separate residence located behind his house, and she did not pay any rent. Appellant was Evettes boyfriend. Mathis knew appellant for several years, he frequently saw appellant at Evettes residence, but appellant wasnt there all the time. Mathis testified he did not use drugs, and he had never seen appellant or Evette in possession of any drugs. Mathis had been arrested for trespassing 15 years ago.

The prosecution introduced photographs of Mathiss house, which depicted a single front entrance on the street with the number 105. The house is located on a corner, and the garage is located on the side street and immediately adjacent to the house. A photograph of the rear of the house showed there were two separate back doors into the same structure. The first back door led into Mathiss living area. The second backdoor, located to the side of the first one, led into the area described as Evettes living area. Evettes living area was thus attached to Mathiss house and was not a separate outbuilding.

Mathis testified he did not share any common areas of the residence with Evette. Evette kept her doors locked, but she could enter Mathiss house if she wanted to because his side was not locked. Mathis did not have access to Evettes area unless he felt like picking a lock.

Q. Now, in terms of that layout of your house, where Evette was living in your house, and where you live in the house, its one building. Is that correct?

A. Yeah. Yeah.

Mathis testified Evette also kept a deadbolt on the garage door, and he did not have the key. Mathis testified appellant and Evette drove a green Kia, a Mercedes, and a champagne-colored pickup truck, and they parked the vehicles in front of the East Belle house.

Defense Evidence

Neither appellant nor Montecino testified. It was stipulated as to count IV, ex-felon in possession of a firearm, that appellant previously suffered a felony conviction in December 2005.

Appellant called one defense witnessDavid Evers, an attorney who had represented appellant for over 16 years, and who initially represented appellant in this case. Evers appeared for appellant at the pre-preliminary hearing and subsequently withdrew because of a conflict. Evers testified that prior to that hearing, he was sitting outside the courtroom with appellant, and Montecino approached and wanted to talk to him. Evers advised Montecino that he should talk to his own attorney. Evers testified Montecino was frustrated because his own attorney was not there yet and he had not been able to speak with him. Evers testified that Montecino said he had brought the drugs that was found in the cup inside of the truck into the truck. Evers testified appellant did not show any reaction to Montecinos statement.

On appeal, appellant contends the court should have granted his Marsden motions because appointed counsel failed to challenge the validity of the detention of his truck at the motel, the officers illegally entered the living area prior to obtaining the search warrant, the warrant contained an invalid address for the area that was searched, and the warrant was based on tainted evidence. In the alternative, appellant argues appointed counsel was prejudicially ineffective for failing to raise these issues. Appellant also argues the court should have granted his posttrial motion to continue the sentencing hearing so that his newly-retained attorney could file a motion for new trial based on the same ineffective assistance issues.

DISCUSSION

I.

DENIAL OF PRETRIAL MARSDEN MOTION

Appellant raises a series of issues based upon the courts denial of pre- and posttrial Marsden motions. Appellant asserts the court should have granted his Marsden motions because his appointed counsel, Brian McNamara, failed to raise certain issues when he filed a pretrial suppression motion. We will review the procedural history of the suppression and Marsden motions.

A. The Pretrial Suppression Motion

When appellant appeared for arraignment, he requested appointment of counsel and the court appointed Roger Lampkin. Appellant was released on bail, and remained out of custody during the pendency of trial. At the pre-preliminary hearing, the court appointed Dave Evers of the Indigent Defense Program to represent appellant. Evers represented appellant at the preliminary hearing.

On April 28, 2006, appellant appeared with Evers for a readiness hearing. Evers advised the court there was a conflict and he needed to be relieved as counsel. The court granted the motion and appointed Brian McNamara of the Indigent Defense Program to represent appellant, and McNamara represented appellant for the rest of the trial. Appellant rejected a plea bargain offer and wanted to go to trial. Shortly after his appointment, the court granted Mr. McNamaras motion for a continuance so he could prepare and file a motion to quash and traverse the search warrant.

On July 5, 2006, appellant filed a motion to suppress the evidence seized from the East Belle Street residence (Pen. Code,  1538.5) and, in the alternative, to quash or traverse the search warrant. The motion, prepared by Mr. McNamara, asserted the officers arrested appellant in possession of approximately one half pound of suspected methamphetamine in the truck. As a result, the officers followed up the investigation and sought a search warrant for [appellants] alleged residence. The motion argued the affidavit failed to state that the second suspectMontecinowas in the truck when the drugs were found, and the affidavit infers the drugs were on appellants person. The defense had just obtained discovery that Nye, the informant used in this case, did not know appellant but had known Montecino for many years.

In short, the probable cause to issue the warrant is that one half pound of suspected methamphetamine was found in the possession of [appellant]. Firstly this statement is factually incorrect. The magistrate was given a false statement on which to base their issuance of the search warrant. Moreover, the magistrate was not given the whole story on which to make an evaluation. Secondly, everything else which followed this incorrect statement is a conclusion based on no facts.

Appellant argued the affidavit lacked sufficient probable cause to support the issuance of the warrant for the East Belle residence.

On July 17, 2006, the prosecution filed opposition and argued the affidavit established probable cause that appellant lived at 105.5 East Belle, including his possession of a key which opened the premises. The prosecution further argued any omissions in the affidavit did not affect the probable cause analysis and were not material because two or more persons may share possession of large amounts of narcotics possessed for sale, and the additional information cited by appellant would only support issuance of a search warrant for Montecinos residence rather than negate probable cause for the warrant that was issued. The prosecution also noted the officers relied upon the issuance of the warrant in good faith.

On July 20, 2006, Judge Lewis conducted a hearing on appellants suppression motion. Appellant was represented by McNamara, who called Deputy Stevenson to testify, and asked him if his affidavit contained any omissions. Stevenson testified the statements in the affidavit were true and accurate. McNamara asked if anyone else was in the truck when appellant was arrested. Stevenson testified David Tokyo Montecino was the passenger. McNamara asked where the methamphetamine was found, and Stevenson testified it was sitting in the center console of the truck. Stevenson conceded neither appellant nor Montecino possessed any methamphetamine on their persons.

McNamara argued Stevensons affidavit strongly inferred that appellant possessed the large amount of methamphetamine on his person, and completely failed to state that Montecino was present or that the drugs were found between them. The affidavit was too conclusionary and failed to develop the factual background for why the presence of the drugs between the two parties meant that appellants residence should be searched. The prosecutor argued the location of the drugs between appellant and Montecino meant that they jointly possessed the methamphetamine, and the omission was not material.

The court found the issuing magistrate had probable cause based upon the facts contained in the affidavit, and denied the motion to quash the warrant. As for the motion to traverse, the court found that the magistrate would have been interested to know another person was in the truck and the drugs were found between them. The court found Stevensons failure to mention these facts constituted an omission of relevant material, but did not find it was a false statement with a reckless disregard for the truth. The court also found that even if the affidavit contained false statements, and the entirety of the situation was considered, it certainly would not affect the courts determination that the search warrant contains sufficient ... material to support a finding of probable cause by the magistrate that issued the search warrant. [] So in short, even if the inaccuracies were corrected, it would not affect the courts examination of the determination that there was sufficient probable cause.

B. The Pretrial Marsden Motion

On July 31, 2006, the parties appeared before Judge Felice for the case to be assigned to trial. Appellant appeared with McNamara and requested a Marsden hearing. The court cleared the room and conducted the Marsden hearing.

Appellant informed the court that McNamara did not believe in his innocence, he rejected all of appellants suggestions about motions and trial tactics, he never explained why he rejected those suggestions, and appellant never got his opinions through. Appellant said he wanted to file a suppression motion because the wrong address is on the search warrant, and there were witnesses who said the officers searched the house before they obtained the warrant. Appellant complained McNamara did not think such people were sufficient witnesses to prove anything.

The court asked McNamara about the suppression motion. McNamara explained he filed a motion to suppress and traverse the warrant and the court conducted an evidentiary hearing. McNamara explained they did not know the informants identity at that time, but argued the warrant lacked probable cause. The court asked whether the warrant contained the wrong address, and McNamara replied [i]ts the address in the front and the back, and suggested appellant explain the residence. Appellant said there was only one house, and the post office had never delivered any mail to 105 East Belle. McNamara added there was a front and back part to the house, the defense interviewed the owner, and the owner said appellant lived in the separate place.

McNamara also explained he had a private investigator on the case from the beginning of his assignment, the investigator interviewed every witness suggested by appellant, and what they tell [appellant] is not what theyre telling my investigator. The investigator advised McNamara not to call the witnesses because bottom line, to tell the truth, you do not want to hear what they want to say. McNamara stated he filed a motion to quash and traverse the warrant, but it was not based on appellants opinions or beliefs as to what witnesses would say.

Appellant said he had talked to other attorneys, including Michael Dellostritto, about how the case should be handled. The court asked whether the conversation was in the context of trying to hire Dellostritto, and appellant said yes. The court replied that sometimes lawyers say many things when theyre in the process of convincing someone to pay them thousands of dollars to represent them.

McNamara further explained appellants first attorney, David Evers, failed to challenge the search because he believed the problems with the warrant fell within the good faith exception and the actual description of the house is the exact. McNamara said he had talked with appellant many times. The court asked whether the rear residence was searched. Appellant said [i]ts all one house, it isnt divided. You stand in the hallway and theres a bedroom to the right, bedroom to the left, and a bathroom. The court replied that was even worse.

Appellant also complained that McNamara found an attorney for the informant, Nye, and that attorney convinced Nye not to testify at the suppression motion. McNamara replied Nye was never charged in the case, but McNamara tried to call Nye as a witness at the suppression hearing. In the interests of judicial economy, however McNamara called IDP and said it may be under judicial economy to have an attorney present to talk to him prior to going to testimony. Thats all I said. At that point when an attorney did talk to him, he did invoke his rights.

The court denied the Marsden motion and assigned the matter for trial. Appellant complained that he should have another choice. The court explained the Marsden motion was denied and he was going to trial with McNamara, and assigned the matter to Judge Oberholzers courtroom. Thereafter, McNamara represented appellant at trial and appellant did not object to his representation during the trial.

C. Marsden

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 attorneys 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; People v. Valdez (2004) 32 Cal.4th 73, 95 (Valdez).) [S]ubstitution is a matter of judicial discretion. Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would substantially impair the defendants right to assistance of counsel. [Citations.] (People v. Hart (1999) 20 Cal.4th 546, 603 (Hart); Valdez, supra, 32 Cal.4th at p. 95.)

A defendants right to appointed counsel does not include the right to demand appointment of more than one counsel. (People v. Ortiz (1990) 51 Cal.3d 975, 980, fn. 1 (Ortiz).) A defendant cannot substitute counsel as a matter of right because to permit unlimited substitutions of counsel would delay trials and prohibit effective prosecution of a case. (People v. Williams (1970) 2 Cal.3d 894, 906.) A defendant may not force the substitution of counsel by his own conduct that manufactures a conflict. (People v. Smith (1993) 6 Cal.4th 684, 696.) [T]he number of times one sees his attorney, and the way in which one relates with his attorney, does not sufficiently establish incompetence for purposes of Marsden. (People v. Silva (1988) 45 Cal.3d 604, 622; Hart, supra, 20 Cal.4th at p. 604.)

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. [Citation.] Tactical disagreements between the defendant and his attorney do not by themselves constitute an irreconcilable conflict. (People v. Welch (1999) 20 Cal.4th 701, 728-729 (Welch); Valdez, supra, 32 Cal.4th at p. 95.) The defendant is not entitled to claim that an irreconcilable conflict has arisen merely because of a disagreement with counsel over reasonable tactical decisions. (People v. Memro, supra, 11 Cal.4th at p. 858.)

There is no constitutional right to an attorney who would conduct the defense of the case in accord with the whims of an indigent defendant. [Citations.] Nor does a disagreement between defendant and appointed counsel concerning trial tactics necessarily compel the appointment of another attorney. [Citations.] (People v. Lucky (1988) 45 Cal.3d 259, 281-282.)

[A] conflict regarding tactical matters neither justifies substitution of counsel nor signals a fundamental breakdown in the attorney-client relationship. [Citations.] (People v. Nakahara (2003) 30 Cal.4th 705, 719.) 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.] (Welch, supra, 20 Cal.4th at p. 729.) Such a disagreement is insufficient to compel discharge of appointed counsel unless it signals a complete breakdown in the attorney-client relationship. (Hart, supra, 20 Cal.4th at p. 604.)

Although a defendant has the right to have a viable defense presented, and defense counsel cannot override a defendants position, there is no right to present a nonviable defense. (People v. Carter (2005) 36 Cal.4th 1114, 1197.) Indeed, attorneys are not expected to pursue futile or meritless motions or objections. (People v. Anderson (2001) 25 Cal.4th 543, 587; People v. Prieto (2003) 30 Cal.4th 226, 261; People v. Constancio (1974) 42 Cal.App.3d 533, 546 [It is not incumbent upon trial counsel to advance meritless arguments or to undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel].)

On appeal, we review a trial courts decision denying a Marsden motion to relieve appointed counsel under the deferential abuse of discretion standard. (People v. Earp (1999) 20 Cal.4th 826, 876.) To the extent there was a credibility question between defendant and counsel at the hearing, the court was entitled to accept counsels explanation. [Citation]. (People v. Smith, supra, 6 Cal.4th at p. 696.) [T]he inquiry is forward-looking in the sense that counsel would be substituted in order to provide effective assistance in the future. But the decision must always be based on what has happened in the past. The further one is in the process, the more counsel has done in the past that can be challenged, but that is a difference of degree, not kind. (Id. at p. 695.)

D. Analysis

Appellant contends the court improperly denied his pretrial Marsden motion and failed to consider appellants complaints that McNamara should have raised other Fourth Amendment issues in the suppression motion. Appellant raised several specific issues at the Marsden hearing and, based on our review of these issues, the court properly denied appellants pretrial Marsden motion.

First, appellant complained at the pretrial Marsden hearing that McNamaras suppression motion should have challenged the accuracy of the address on the affidavit and search warrant, the warrant was issued for 105.5 East Belle, no such address existed, and the court should have discharged McNamara because he was ineffective for failing to raise this issue. McNamara explained he thought such an issue was not meritorious.

McNamaras apparent tactical decision not to challenge the correctness of the address on the warrant was most likely based on People v. Amador (2000) 24 Cal.4th 387 (Amador). In Amador, an officer prepared an affidavit to request a warrant for the defendants house in the course of a narcotics investigation. The affidavit described the residence as follows:

10817 Leland, Santa Fe Springs, County of Los Angeles, State of California, further described as a brown stucco, two story single family residence with a two car, attached garage. It is brown with beige trim. The house is located on the west side of the street, south of Sundance. (Amador, supra, 24 Cal.4th at p. 391.)

The search revealed narcotics and blank credit cards. The defendant filed a suppression motion and introduced evidence that the actual residence searched was a one story, single family residence, located at 10811 Leland. (Amador, supra, 24 Cal.4th at p. 391.) The officer who prepared the affidavit and conducted the search testified that he did not realize it was a single-story residence until he was inside, and relied on another detectives notes for that particular fact. The officer testified that an informant showed him the house, and he located the house based on his personal knowledge of that house being identified by the informant, and then that information used as a basis for [the] search warrant. (Ibid.) The trial court denied the suppression motion, but the appellate court held the motion should have been granted because the errors betray a sloppiness that goes beyond mere drafting errors .... You cant have good faith when you are so careless that you get just about everything wrong. (Id. at p. 392.)

Amador held the trial court properly denied the suppression motion. In doing so, the California Supreme Court explained that [a] search warrant must particularly describ[e] the place to be searched but [c]omplete precision in describing the place to be searched is not required. It is enough if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended. [Citation.] (Amador, supra, 24 Cal.4th at p. 392.) The manifest purpose of this particularity requirement was to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit. [Citation.] This purposeto limit the search authorization to things and areas for which probable cause exists and avoid exploratory searchesmust be kept in mind in determining the validity of a warrant containing an inaccurate description of the place to be searched. [T]he purpose of the exclusionary rule is ... to deter illegal police conduct, not deficient police draftsmanship .... [Citation.] (Id. at p. 392.)

Many cases have upheld warrant searches despite errors in the description of the place to be searched. (E.g., People v. Superior Court (Fish), supra, 101 Cal.App.3d 218 [wrong lot number, wrong roof color]; United States v. Turner (9th Cir. 1985) 770 F.2d 1508 [wrong street address]; United States v. Gitcho (8th Cir. 1979) 601 F.2d 369 [wrong address].) Where one part of the description of the premises to be searched is inaccurate, but the description has other parts which identify the place to be searched with particularity, searches pursuant to such warrants have been routinely upheld. (United States v. Gitcho, supra, 601 F.2d at p. 371.) When the warrant contains an inaccurate description, [t]he test for determining the sufficiency of the description of the place to be searched is whether the place to be searched is described with sufficient particularity as to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched. (Ibid.) In applying this test, we are mindful of the general rule that affidavits for search warrants must be tested and interpreted in a common sense and realistic, rather than a hypertechnical, manner. (United States v. Turner, supra, 770 F.2d at p. 1510.) (Amador, supra, 24 Cal.4th at pp. 392-393.)

Amador held that, aside from the errors about the street number and house being a single story, the warrant correctly described the house in several other particulars. (Amador, supra, 24 Cal.4th at pp. 394-395.) Moreover, the officer who sought the warrant and provided the description also executed the warrant, and personally observed the house which was the subject of the warrant. Amador held an executing officers personal knowledge may not cure all deficiencies or completely substitute for a description in the warrant, but it is a factor to consider. (Id. at p. 395) Here, the warrants description was sufficient even if partially erroneous. The court may rely on the officers knowledge for assurance that the errors could not have caused a search of the wrong premises. The warrant and the officers knowledge together leave no doubt that the magistrate found probable cause to search one particular house to the exclusion of all others, i.e., the house actually searched. (Ibid.)

As in Amador, the alleged mistaken address contained in Deputy Stevensons affidavit and the search warrant would not have required suppression of the evidence seized from East Belle. The affidavit described the premises to be searched with great particularity. Appellants brother said he lived behind a Chevron Oil Lube business off of North Chester Avenue in Bakersfield California, in a white house, and that he drove a green Kia; the officers located the Chevon oil lube business at the corner of North Chester and East Belle Avenue, and a green Kia was parked in front of 105 East Belle; Mathis answered the door at 105 East Belle; Mathis said appellant lived in the back portion of the residence with a female named Evette and showed officers the front door of 105.5 East Bell[e] Avenue; Mathis said the other cars belonged to appellant; and Stevenson determined a truck parked at the house was registered to appellant. The affidavit sought a warrant for:

The premises described at 105.5 E. Bell[e] Avenue Bakersfield ..., further described as a single story residence, white with wood siding, white trim and a grey composition roof. The numbers 105 are in black number affixed to the front of the residence next to the front door. To enter the residence a[t] 105.5 you must walk south in the west alley and enter a chain link fence, then a white lattice gate and the front door faces east ....

McNamaras explanation for not challenging the accuracy of the address represented a valid tactical decision based on existing case law and the specificity in the affidavit and warrant. As explained ante, an attorney is not expected to engage in tactics or file motions which are futile or frivolous. (People v. Anderson, supra, 25 Cal.4th at p. 587; People v. Prieto, supra, 30 Cal.4th at p. 261.)

Appellants next complaint was that McNamara failed to call certain witnesses who would testify the premises at East Belle were searched before the warrant was issued. McNamara explained he had a private investigator on the case from the beginning of his assignment, the investigator interviewed every witness suggested by appellant, and what they tell [appellant] is not what theyre telling my investigator. The investigator advised McNamara not to call the witnesses because bottom line, to tell the truth, you do not want to hear what they want to say. Such a disagreement did not support granting a Marsden motion, and instead represented McNamaras tactical decision that appellants proposed witnesses would not help his defense, based upon the investigators interviews and evaluations of the witnesses expected testimony.

Appellant also complained McNamara found an attorney for Nye, the informant, such that Nye refused to testify at the suppression hearing. While Nye was not charged in this case, he potentially faced criminal culpability for his participation as the self-described number one man who arranged a major narcotics deal, and was apprehended as he tried to meet Jimmy in the motels parking lot. As an officer of the court, McNamara simply advised the court and parties about Nyes status and that it would be expeditious to have conflict counsel available. (See, e.g., Holloway v. Arkansas (1978) 435 U.S. 475, 486; People v. Mroczko (1983) 35 Cal.3d 86, 112; People v. Guzman (1988) 45 Cal.3d 915, 945-946, overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Such conduct did not undermine his representation of appellant or require the granting of the Marsden motion.

Appellant also complained that other attorneys told him the case should be handled differently, and McNamara refused to meet with him and discuss the case. McNamara refuted appellants complaints and said they met and talked about the case. Again, these complaints addressed tactical disagreements, there was no evidence of an irrevocable breakdown in relations, and did not support granting appellants Marsden motion.

We thus conclude the court provided appellant with the appropriate opportunity to voice his concerns, considered the specific issues he raised, and properly found the concerns insufficient to warrant relieving appointed counsel. The court did not abuse its discretion in denying appellants pretrial Marsden motion. (See, e.g., Hart, supra, 20 Cal.4th at p. 604.)

II.

DENIAL OF POSTTRIAL MARSDEN MOTION

Appellant next contends the court should have granted his posttrial Marsden motion, again based on McNamaras alleged ineffectiveness for failing to challenge various aspects of the searches in this case. We begin with the procedural background to the second Marsden motion.

A. Background

As set forth ante, on July 31, 2006, Judge Felice denied appellants first Marsden motion and assigned the matter to Judge Oberholzer for trial. On August 2, 2006, appellant was convicted of all counts and he was remanded into custody. On August 3, 2006, Judge Oberholzer found the prior conviction allegations were true, and set the sentencing hearing for August 22, 2006. The sentencing hearing was subsequently continued to August 29, 2006.

On August 25, 2006, appellant filed a motion for bail pending appeal. The motion, filed by McNamara, asserted appellant had a valid issue on appeal based on the validity of the search warrant because [i]nformation became available during trial which contested the validity of the search of [appellants] residence, this information needed to be fully investigated, and possibly would support a habeas writ.

On August 29, 2006, Judge Oberholzer convened the sentencing hearing. McNamara requested to continue the sentencing hearing. The court asked appellant if he agreed to the continuance, and appellant said yes. The court continued the sentencing hearing to September 12, 2006.

Appellant interrupted and said McNamara had denied his right to a fair trial. McNamara advised the court that appellant wanted to make a Marsden motion and request appointment of another attorney. Appellant informed the court he had a list of 30 valid reasons for the court to look into the case.

Appellant stated McNamara refused to file a suppression motion on various reasons he suggested: that the warrant stated the wrong address; multiple people, including Mathis and Evette, had access to the area that was searched; appellant was not present when the areas were searched; other people were present but were not arrested; his brother never said he lived at that residence; and there were witnesses who said the officers searched the areas before they obtained the search warrant. Appellant stated that 105 and a half East Belle was a nonexistent address but McNamara refused to challenge the search warrant on that basis.

Appellant also complained McNamara refused to file a pretrial motion to challenge whether there was probable cause to stop his truck and arrest him at the motel, and that the informant failed to give sufficient information to support the stop. McNamara refused to subpoena telephone records between the police and the informant (Nye), and appellant declared the telephone conversations were recorded and counsel never tried to get them. Appellant also complained counsel failed to subpoena his landlord to show appellant actually lived somewhere else, challenge the informants reliability and credibility, or challenge the informants credibility because of his mental illness and medications. Appellant complained he gave the names of several witnesses to McNamara, he recited those names to the court, and said one person even arrived to testify but McNamara refused to call any of his suggested witnesses.

Appellant stated he was denied a fair trial because McNamara refused to schedule meetings, discuss or consider these issues, refused to subpoena witnesses and file his requested motions, failed to appear at hearings, and allowed the prosecutor to appear on his behalf at a readiness hearing.

The court asked McNamara to respond. McNamara stated that Bob Wall, the defense investigator, talked to every single one of these witnesses more than once and each one of these witnesses pointed to the guilt of [appellant], so in terms of subpoenaing them it would have been stupid from that standpoint, and soand hes playing a double-edge sword here where he knew this. [] And it was our trial tactic not to call these people because they would have hung it out to dry quick on cross-examination by the District [Attorney] and it all pointed to [appellants] guilt in this respect.

Next, McNamara explained he extensively attacked Nyes credibility, including the fact that Nye never even knew appellant.

McNamara also explained he filed a motion to suppress evidence and traverse the search warrant, the court conducted a full hearing, appellant met the first burden to challenge the affidavit, but the court denied the motion. McNamara explained he did not challenge the address because the warrant itself was a good warrant. That was my reading of it.... I discussed it with [appellant] and he would only hear what he wanted to. Hear and in terms of that, we went out on wild goose chases with every witness we interviewed.

McNamara stated his defense investigator did an excellent job, and it would have been incompetent for me to subpoena witnesses based upon whats testified to .... McNamara said he was never too busy to discuss the case because personally I took the case to heart in many respects, but I certainly put a lot [of] time into that. McNamara said he fully discussed the case with appellant on several occasions, he forced himself to return all telephone calls, and he always called clients before hearings to let them know what was going on.

Appellant also complained McNamara failed to appear at a hearing and had the prosecutor make the appearance for him. McNamara explained the attorney for codefendant Montecino appeared on appellants behalf at a readiness hearing simply to confirm a trial date, and the prosecutor never appeared for appellant.

It didnt work out at trial and certainly we had our tactics coming in and we werehad to control the evidence to some extent so it didnt get out of the box in terms of that. We had to be careful, and I believe we did that. The jury took it down and they deliberated quite a long time in the case.... [] The fact it didnt go our way, I cannot control, and [appellant] was aware I could never guarantee 100 percent. I knew [appellant] was shopping around for attorneys, and in talking with his attorneys because they called me each and recommended that he should take a deal prior to the trial based on the evidence presented, and that was the situation. ... [Appellant] was adamant form [sic] day one he would not accept anything in this case, and thats why we went to trial.

Appellant acknowledged McNamara warned him that certain witnesses would make him look guilty of being some known drug dealer because of my reputation or my past, but appellant did not care what those witnesses thought about him, or whether they liked him, and Im fighting for my freedom and the police still needed to legally search his property. Appellant argued his witnesses would testify the premises were searched illegally, so it did not matter what they thought about him.

The court agreed with McNamara that appellant only heard what he wanted to hear. If somebody comes in before a jury and starts talking about you being a drug dealer, the jury will convict you of anything youre charged about thats what happens. [] Mr. McNamara is an experienced trial attorney. He knows what can happen when you get somebodyyou dont care about it because youre focusing on some issue and failing to see the whole picture.

Appellant replied that McNamara did not interview any of the proposed witnesses and improperly relied on the recommendations of an investigator, somebody that was not here. The court said it was appropriate for the defense attorney to use an investigator, just as the prosecution uses law enforcement officers. Appellant again complained McNamara failed to file several pretrial motions. The court asked why he did not complain sooner. Appellant said he filed a pretrial Marsden motion but the court would not let him talk about the case.^[5]

Judge Oberholzer denied appellants Marsden motion:

Ive heard the matters that you wish to bring to the attention of the Court and heard rebuttal or explanation by Mr. McNamara, and you have the burden to convince the Court he should be relieved and a new attorney appointed and you failed to meet the burden.

Thereafter, the court reconfirmed the sentencing hearing woul