P. v. Henderson

Filed 8/1/07 P. v. Henderson CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County,

Arthur H. Jean, Judge. Affirmed.

Solomon Wollack, 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, Robin Davis and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Dwayne Miguel Henderson appeals from the judgment entered following his convictions by jury on count one - kidnapping to commit carjacking (Pen. Code,  209.5, subd. (a)), count two - kidnapping to commit robbery (Pen. Code,  209, subd. (b)(1)), count three second degree robbery (Pen. Code,  211), and count four - carjacking (Pen. Code,  215, subd. (a)), each with firearm use (Pen. Code,  12022.53, subd. (b)). The court sentenced appellant to prison for life with the possibility of parole, plus 10 years. Appellant claims various trial errors occurred. We affirm the judgment.[1]

FACTUAL SUMMARY

1. Peoples Evidence.

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that sometime after 8:00 p.m. on December 27, 2003, appellant and a female accomplice committed the above offenses against Imran Ashiq, a cab driver, in Los Angeles County. During the offenses, Ashiqs money, wallet, his two cell phones, and ATM card were taken. The female tried to use the ATM card to withdraw money. Ashiq, later driving his cab, saw a sheriffs deputys patrol car and fled from the cab. Appellant, who was then in the cabs front passenger seat, also fled.

Police recovered an unloaded rifle from the cabs front passenger seat. Police also recovered a gym bag from the cab. The bag contained Ashiqs wallet, a cell phone belonging to him, and his ATM card. The cell phone that had been in the bag was displaying a phone number of an outgoing call. The bag also contained a dry cleaning receipt with appellants name on it. Ashiq identified appellant during a photographic lineup and at trial as the male who committed the above offenses.

2. Defense Evidence.

Appellant, through the testimony of his mother, presented an alibi defense. She lived in Long Beach, and testified as to what her home phone number was. Her phone number and the phone number of the previously mentioned outgoing call were the same. Appellants mother had never heard of Ashiq and there was no reason he should have called her.

CONTENTIONS

Appellant contends the trial court violated his federal right to due process when the trial court (1) without bringing appellant out of lockup, appointed appellants previously retained counsel to represent appellant at his retrial; (2) refused to grant appellants request for a continuance to permit appellant to retain new counsel; (3) removed appellant from the courtroom during jury selection; and (4) denied a Marsden motion, and later refused to conduct a Marsden hearing after appellant claimed his counsel used a racial epithet towards appellant.

DISCUSSION

1. The Trial Court Did Not Deny Appellant His Right to be Present or Right to Counsel of His Choice.

a. Pertinent Facts.

Attorney Matt Cooper was appellants retained counsel during the first trial. The decision in appellants previous appeal (see fn. 1), was filed on June 30, 2005, and the remittitur was filed in the trial court in September 2005. Later, on September 15, 2005, the trial court called the case for trial setting. Appellant was in the lockup and the September 15, 2005 minute order states he was not represented by counsel. The matter was continued to September 20, 2005.

On September 20, 2005, the court called the case for trial setting. By a signed order effective on that date, the court appointed Matt Cooper as counsel for appellant. Appellant was in lockup. The court continued the matter to October 12, 2005.

On October 12, 2005, the court called the case for trial setting. After the court and counsel for the parties discussed various matters, including setting a trial date, the court caused appellant to be brought into the courtroom. The court continued the matter to November 18, 2005, as 59 of 60 days. The record does not reflect that the court stated in appellants presence that November 18, 2005, was the trial date.

The record of the proceedings that occurred once the court indicated appellant was present in the courtroom with Cooper takes up little more than one-half of a page in the reporters transcript. On November 18, 2005, appellant was present in the courtroom and represented by Cooper. At all times above mentioned, appellant was in custody. We will present additional facts below where pertinent.

b. Analysis.

Appellant claims the trial court, by failing to secure his presence in the courtroom at the trial setting conferences on September 15, September 20, and October 12, 2005, denied him his constitutional right to be present at all critical stages of the proceedings. For the reasons discussed below, we reject appellants claim, which we will address separately as to each of the three trial setting conferences.

(1) The September 15, 2005 Conference.

(a) Appellants Right to Be Present Was Not Violated.

[U]nder the Fourteenth Amendments due process clause, a criminal defendant does not have a right to be personally present at a particular proceeding unless he finds himself at a stage . . . that is critical to [the] outcome and his presence would contribute to the fairness of the procedure. [Citations.] [] Under article I, section 15 of the California Constitution, a criminal defendant does not have a right to be personally present either in chambers or at bench discussions that occur outside of the jurys presence on questions of law or other matters as to which [his] presence does not bear a reasonably substantial relation to the fullness of his opportunity to defend against the charge. [Citations.] [Citations.] (People v. Cole (2004) 33 Cal.4th 1158, 1231.)

Appellant argues in his opening brief that his presence at the three pretrial conferences, including the September 15, 2005 conference, was necessary for three reasons: (1) his presence would have kept him informed about such things as the trial date and the judge assigned to the case; (2) the court appointed Cooper to represent appellant even though he had developed an acrimonious relationship with Cooper; and (3) the court appointed Cooper while appellant was in lockup, and then continu[ed] the case past the time limit.

However, as to the first reason, appellants presence in court during the September 15, 2005 conference would not have informed him about the trial date because no trial date was scheduled at that conference. Appellant was not entitled to the assignment of a particular judge to his case, and has failed to demonstrate how knowledge of the particular judge supports appellants claim.

As to the second reason, the court did not appoint Cooper on September 15, 2005, but on September 20, 2005. Moreover, the record fails to demonstrate that an acrimonious or otherwise difficult relationship existed between appellant and Cooper at any time on or before October 12, 2005, the date of the third trial setting conference. As to the third reason, again, the court did not appoint Cooper on September 15, 2005. Moreover, there is no dispute that November 18, 2005, was the first day of the retrial, and 59 of 60 days for purposes of the 60-day period within which a case must be brought to trial pursuant to Penal Code section 1382, subdivision (2). If, therefore, by the phrase time limit, appellant is referring to the time limit specified in that subdivision, the continuance from September 15, 2005, to September 20, 2005, for trial setting was well within the 60-day period. Appellant has failed to demonstrate that his absence from the courtroom during the September 15, 2005 trial setting conference violated his constitutional rights to be present at a criminal proceeding. (Cf. People v. Cole,supra, 33 Cal.4th at pp. 1230-1232.)

(b) Any Violation Was Not Prejudicial.

Appellant argues While the right violated was appellants Fourteenth Amendment right to be present at all critical stages, the prejudicial effect of this error is inextricably intertwined with a second constitutional right: the Sixth Amendment right to discharge a privately retained attorney. Appellant urges that as of September 15, 2005, Cooper was appellants retained counsel and if appellant had been present in the courtroom on that date, he could have discharged Cooper as a matter of right, without a Marsden motion, and could have retained new counsel or sought court-appointed counsel.

We agree that if Cooper was appellants retained counsel as of September 15, 2005, appellants argument might have merit. [W]hen a criminal defendant makes a timely motion to discharge his retained attorney he should not be required to demonstrate the latters incompetence, as long as the discharge will not result in prejudice to the defendant or in an unreasonable disruption of the orderly processes of justice. (People v. Ortiz (1990) 51 Cal.3d 975, 979.)

However, although Cooper was appellants retained counsel during the first trial, the record fails to demonstrate that Cooper was appellants counsel, retained or otherwise, on September 15, 2005. In fact, the September 15, 2005 minute order reflects that, on that date, appellant was not represented by counsel. (Italics added; capitalization omitted.) The record does not contain any retainer agreement between appellant and Cooper reflecting that Cooper agreed to continue as retained counsel during any retrial(s). The court did not violate appellants right to discharge retained counsel.

Cooper represented appellant on and after September 20, 2005. As discussed in part 2 of our Discussion, appellant effectively admitted wrongdoing concerning the present charges. In particular, on November 18, 2005, after the alleged Marsden motion discussed post, appellant, while requesting a lenient sentence, told the court that he was a young man who did make a mistake. There was additional overwhelming evidence of appellants guilt. Even if the trial court erred as claimed by appellant, the error was harmless beyond a reasonable doubt. (Cf. People v. Perry (2006) 38 Cal.4th 302, 312; Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].)

(2) The September 20, 2005 Conference.

Appellant argues that his presence at the September 20, 2005 conference was necessary for the three previously enumerated reasons. We addressed the first reason in connection with the September 15, 2005 conference, and the analysis there, modified to refer to September 20, 2005, instead of September 15, 2005, is equally applicable here.

As to the second reason, the court did appoint Cooper counsel on September 20, 2005;[2] otherwise our analysis of this issue in connection with the September 15, 2005 conference is equally applicable here. Moreover, appellant was not entitled to appointment of any particular attorney. (Drumgo v. Superior Court (1973) 8 Cal.3d 930, 934.) Further, appointment of counsel is properly in the discretion of the court [citations], and frequently, . . . it may be a more efficient use of both time and money to appoint the attorney who represented the defendant in an earlier proceeding than to begin again with a new attorney. (People v. Ortiz, supra, 51 Cal.3d at p. 989.) Further still, although appellant did personally address the court on November 18, 2005, he did not state that if he had been present on September 20, 2005, he would have made a Marsden motion. (See People v. Ortiz, at p. 990.)

As to the third reason, the court did appoint Cooper on September 20, 2005. However, October 12, 2005, the date to which the matter was continued, was well before November 18, 2005, which was 59 of 60 days. Appellant has failed to demonstrate the claimed constitutional error occurred on September 20, 2005. (Cf. People v. Cole, supra, 33 Cal.4th at pp. 1230-1232.)

As to prejudice, appellant argues that on September 20, 2005, Cooper was appellants retained counsel; therefore, if appellant had been in court on that date, he could have discharged Cooper as a matter of right. However, effective September 20, 2005, by the trial courts signed order, Cooper was appellants appointed counsel. The court did not violate appellants right to discharge retained counsel. Moreover, as late as November 18, 2005, at the alleged Marsden motion discussed post, appellant at one point suggested he was merely consider[ing] new counsel. Appellant effectively admitted, on November 18, 2005, wrongdoing concerning the present charges. There was other overwhelming evidence of appellants guilt. The alleged error on September 20, 2005, was harmless beyond a reasonable doubt. (Cf. People v. Perry, supra, 38 Cal.4th at p. 312.)

(3) The October 12, 2005 Conference.

Appellant argues in his opening brief that his presence at the October 12, 2005 conference was necessary for the three previously enumerated reasons. However, as to the first reason, appellant had Cooper to advise appellant of the trial date, and the trial court indicated it believed Cooper had so advised him. Appellant was not entitled to the assignment of a particular judge and, in any event, at one point on October 12, 2005, appellant was present in court and saw the judge who ultimately tried appellants case.

As to the second reason, the court appointed Cooper on September 20, 2005, not October 12, 2005. Otherwise, our analysis of this issue in connection with the September 15, 2005 conference is equally applicable here. Further, on October 12, 2005, when appellant was personally present in court, he did not make a Marsden motion. Similarly, on November 18, 2005, when he was personally present in court, he did not state that he had wanted to make a Marsden motion on October 12, 2005. (See People v. Ortiz, supra, 51 Cal.3d at p. 990.)

As to the third reason, again, the court appointed Cooper on September 20, 2005, not October 12, 2005. Moreover, November 18, 2005, the date to which the matter was continued, was 59 of 60 days.[3]

Finally, as to prejudice, our analysis of that issue as to the September 20, 2005 conference is equally applicable here. The alleged error on October 12, 2005, was harmless beyond a reasonable doubt. (Cf. People v. Perry, supra, 38 Cal.4th at p. 312.) To the extent appellant argues as independent error that his right to counsel of his choice was violated, we reject the argument for the reasons previously discussed.

2. The Court Did Not Err By Denying Appellants Renewed Continuance Motion.

Appellant claims that, after the court denied his Marsden motion, he moved for a continuance to permit him to retain counsel and the court erred by denying the latter motion. However, as shown below, the alleged Marsden motion was actually not a Marsden motion but appellants first motion for a continuance to permit him to retain new counsel, and the court properly denied that motion. The continuance motion to which appellant refers was merely a renewed continuance motion to permit him to retain counsel, and the court properly denied that motion as well.

a. Pertinent Facts.

(1) The AllegedNovember 18, 2005 Marsden Motion.

On November 18, 2005, appellant and counsel for both parties were present in the courtroom and the court called the case. Cooper said it [s]ounds like appellant was going by way of Marsden.[4] After the prosecutor left the courtroom, appellant said, I need to seek new counsel. The court asked appellant what he had been doing for the last six months. Appellant indicated this was the second time he had been in the courtroom.

The court indicated as follows. Appellant knew the case had been reversed and was going to be retried. Cooper had been appointed as appellants counsel. The court then asked appellant, Whats [Cooper] doing wrong. Anything?

Appellant replied, I have an appeal attorney. And he told me he was saying that I should consider seeking new counsel. [Sic.] And thats what I would like to do. The court replied, Your motion to continue is denied. We are going to go forward with trial today. This is an untimely request for a continuance.

Appellant then complained as follows. He never had a chance to speak to the court because the case was repeatedly continued without consultation with appellant, and he had never entered the courtroom. The bailiff would merely come upstairs to appellant and tell him that he had a new court date. Appellant had not known what was happening.

The court indicated as follows. On October 12, 2005, appellant was in court with Cooper, and the matter was continued at Coopers request. Appellant had not said anything. Appellant replied to the court, I dont even know what the request was to put it over, (sic) and the court responded, I think you do. [] Your request for a continuance is denied.

(2) Subsequent Proceedings and the Renewed Continuance Motion.

Later on November 18, 2005, and outside the presence of prospective jurors, the court and Cooper discussed plea negotiations that had occurred. The court noted that if it sentenced appellant to prison for life with the possibility of parole, it was unclear whether appellant would in fact be released on parole. Appellant, personally addressing the court, indicated he was a young man who did make a mistake but he could not deal with a first-time sentence of life in prison when he had suffered no prior convictions. The court indicated appellant should try the case.

Appellant later personally said, I need time to seek new counsel. The court did not address the request. The People announced they were ready for trial, and the court indicated prospective jurors were coming.

Cooper then told the court that appellant told Cooper that appellant was incompetent to stand trial and might refuse to appear in the courtroom. The court indicated that if appellant did not want to be present it was up to him, but the court believed it was important for appellant to be present.

Appellant later said, I dont see why I cant seek new counsel and why it is denied. The court replied, The answer is because it is not timely. This is the day of trial. Appellant said, It was timely for the court to waive time on me and bring [sic] four court days without letting me know what was going on.

The court said, You were here in court when it was continued. I didnt hear a no from you. I would never continue a case without you being present. Appellant indicated he had no knowledge, and Cooper had not told appellant, that his next court date, November 18, 2005, would be the trial date. The court replied, I think he did. Your request for a continuance is denied.

A prosecutor indicated appellant appeared to be very lucid and very competent in answering the courts questions. The court stated, I have no question but that he is competent. If I had a doubt, I would declare it and move under 1368. Later, appellant stated, I dont see why I cant waive time so I can seek new counsel. The court replied, I have already told you why. I have ruled on that. Lets move on.

b. Analysis.

(1) The Alleged Marsden Motion Was Not A Marsden Motion but Appellants First Continuance Motion to Permit Him to Retain New Counsel.

In People v. Marsden (1970) 2 Cal.3d 118, we held that a defendant is deprived of his constitutional right to the effective assistance of counsel when a trial court denies his motion to substitute one appointed counsel for another without giving him an opportunity to state the reasons for his request. (People v. Ortiz, supra, 51 Cal.3d at p. 980, fn. 1, italics added.)[5] A trial judge should not be obligated to take steps toward appointing new counsel where defendant does not even seek such relief. (People v. Gay (1990) 221 Cal.App.3d 1065, 1070, italics added.)

In Marsden, . . . we held that where a judge denies a motion for the substitution of attorneys solely on the basis of his courtroom observations, despite a defendants offer to relate specific instances of misconduct, the judge abuses his or her discretion to determine the competency of the attorney. (2 Cal.3d at p. 124.) We have further held that a defendant must be permitted to state the reasons why he believes that a court-appointed attorney should be discharged. [Citations.] (People v. Lucky (1988) 45 Cal.3d 259, 281, italics added.)

The trial courts duty to conduct the [Marsden] inquiry arises only when the defendant asserts directly or by implication that hiscounsels performance has been so inadequate as to deny him his constitutional right to effective counsel. [Citations.] (People v. Lara (2001) 86 Cal.App.4th 139, 151, italics added.) Requests under . . . Marsden . . . must be clear and unequivocal; . . . [Citations.] (People v. Rivers (1993) 20 Cal.App.4th 1040, 1051.) In order to make a Marsden motion, there must be a clear indication by defendant that he wants a substitute attorney. (People v. Lucky,supra, 45 Cal.3d at p. 281, fn. 8, italics added.)

During the alleged Marsden hearing, appellant said, I need to seek new counsel. Appellant did not assert he wanted new appointed counsel. Appellant did not assert Cooper had engaged in misconduct or that his performance had been so inadequate as to deny appellant his right to effective counsel. Nor did appellant assert that he wanted presently to discharge Cooper. The trial court concluded, not that appellant had made a Marsden motion, but that he had moved for a continuance.

We note appellant argues here that when he said I need to seek new counsel, this was part of a Marsden motion, but he later argues that when, after the alleged Marsden motion was denied, he said in open court, I need time to seek new counsel, this was a motion for a continuance to permit him to retain counsel. We see no meaningful distinction between the two statements. Neither statement was a Marsden motion. Both statements were part of motions for continuances to permit appellant to retain counsel. We conclude that what the parties have characterized as a Marsden motion was not a Marsden motion at all (People v. Lucky, supra, 45 Cal.3d at pp. 280-281, 283), but appellants first motion for a continuance to permit him to retain new counsel.

(2) The Trial Court Properly Denied Appellants First Continuance Motion To Permit Appellant to Retain New Counsel.

A trial court has broad discretion to grant or deny a continuance motion (People v.Frye (1998) 18 Cal.4th 894, 1012-1013) and appellant has the burden of demonstrating that a denial of such a motion was an abuse of discretion. (People v. Beeler (1995) 9 Cal.4th 953, 1003.)

During the first continuance motion above noted, appellant indicated his appeal attorney told him that he should consider seeking new counsel. As the trial court suggested, five months had elapsed from the time of the decision in appellants previous appeal (see fn. 1) to the November 18, 2005 hearing. Nothing in the record suggests appellant made a good faith effort to retain counsel before the trial date. Appellant made no showing he was financially unable to retain counsel earlier, but financially able on November 18, 2005. Indeed, appellant concedes there is nothing in the record to show that he was actively trying to procure new counsel or that he had the ability to do so. Appellant made no showing that Cooper was unprepared or otherwise unable to adequately represent him. Participation of retained counsel was speculative and appellant suggested that he would only eventually be able to retain counsel. Denial of appellants first continuance motion to permit him to retain new counsel was well within the discretion of the court. (Cf. People v. Jeffers (1987) 188 Cal.App.3d 840, 850-851.) (3) The Renewed Continuance Motion Was Properly Denied.

Appellants present contention, that the trial court erroneously denied his motion for a continuance to permit him to retain new counsel, is essentially based on appellants statement, after the first continuance motion was denied, that I need time to seek new counsel. However, by this statement, appellant was effectively renewing his first continuance motion. Even appellant later said, I dont see why I cant seek new counsel and why it is denied. (Italics added.) The court heard appellants arguments and rejected them. Our analysis concluding the trial court properly denied appellants first continuance motion is largely applicable here. The trial court did not abuse its discretion by denying the renewed continuance motion. (Cf. People v. Jeffers, supra, 188 Cal.App.3d at pp. 850-851; People v. Doebke (1969) 1 Cal.App.3d 931, 938-940.) Finally, in court, appellant admitted wrongdoing concerning the present offenses. There was other overwhelming evidence of appellants guilt. Even if the trial court erred as urged by appellant, the error was harmless under any conceivable standard. (Cf. People

v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California, supra, 386 U.S. at p. 24.)[6]

3. The Trial Court Properly Removed Appellant From the Courtroom.

a. Pertinent Facts.

Shortly after the commencement of voir dire of prospective jurors, the following occurred: [] The Defendant: Hell, no. He just called me a nigger. [] The Court: No, he didnt. [] The Defendant: Yes, he did. [] The Court: Sit down, Mr. Henderson. [] The Defendant: He just called me a nigger. [] The Court: Sit down, Mr. Henderson. [] The Defendant: Oh, man. [] Thats how you feeling at me after all that money you took from my family and you want to call me a nigger? [] The Court: Mr. Henderson, behave or I will remove you from the courtroom. One more outburst, Mr. Henderson, I will remove you from this courtroom. [] Mr. Cooper: Take a five minute recess, your Honor. [] The Court: Not yet. [] The Defendant: He just called me a nigger, man. [] The Court: He did not. I am sitting here listening and he did not. [] The Defendant: You couldnt hear what we were just talking about. [] The Court: Yes, I can, Mr. Henderson. He did not. [] The Defendant: Yes, he did. [] The Court: You are a liar.

The following then occurred: [] [The Court:] Keep in mind, ladies and gentlemen, that if you are not sitting on this case, you might be chosen to sit on some other judges case. I am the most efficient [] The Defendant: You expect me to go to trial with this man here? [] The Court: Mr. Henderson, one more outburst and you will be removed from the courtroom. [] The Defendant: You expect me to go to trial with this man after what he told me? [] The Court: Remove Mr. Henderson from the courtroom, please. Appellant was escorted from the courtroom. Appellant remained absent from the courtroom during only the remaining voir dire, and was present in court during the rest of the trial.

After appellant was removed from the courtroom, and during voir dire of the prospective jurors, the following occurred at sidebar. Cooper indicated he was upset about, inter alia, what appellant did. The court commented it had known Cooper since 1984, Cooper did not have a biased bone in [his] body, and he would never speak to a client or anyone else as alleged by appellant. The court added, I could hear thats one of my few remaining senses that are still sharp you did not call him that name. The prosecutor observed, I would just like to add, while I was not listening, if I had heard anything remotely like that, it would have rung out like a huge bell. And I didnt hear anything remotely similar to that.

Cooper represented the following. He was very upset, and it was for that reason that he had asked for a recess for a few minutes. Cooper added, . . . I understand why he did what he did. The court replied, I know exactly why he did what he did. Cooper indicated he wanted to put on record what happened, and noted I hate to let [appellant] get away with this kind of tactic.

Cooper later explained what had happened. According to Cooper, during voir dire, appellant had asked Cooper why he had not filed a peremptory challenge against the court under Code of Civil Procedure section 170.6. Cooper replied that this was the first time appellant had raised the issue, the request would have been untimely, and Cooper did not intend to file such a challenge. Cooper told appellant that they were presently selecting a jury but, if appellant wished, Cooper would talk with appellant during the noon break and further explain the matter. Appellants outburst then occurred. Cooper denied that he had used the racial epithet and denied that he had been angry. Cooper later indicated he had regained his composure and was ready to proceed. Voir dire continued.

b. Analysis.

Appellant claims the trial court violated his due process right to be present at all critical stages of trial by ordering appellants removal from the courtroom during the entirety of jury selection. We disagree.

As a matter of federal constitutional law, a defendant may validly waive his or her presence at critical stages of trial. (Cf. People v. Welch (1999) 20 Cal.4th 701, 773.) Such waiver may occur when a defendant is disruptive at trial, and appellate courts give considerable deference to the trial courts judgment as to when disruption has occurred or may reasonably be anticipated. (Ibid.)

In the present case, and during voir dire of the prospective jurors, appellant used profanity, then claimed Cooper had used a racial epithet towards appellant. There is no evidence in the record that, before or after this alleged usage, Cooper had used a racial epithet towards appellant or otherwise engaged in misconduct. Appellant never asked the court to permit appellant to address the issue absent the prospective jurors. The court denied Cooper had used a racial epithet. Although appellant claims Cooper did, we give considerable deference to the trial courts judgment as to when disruption has occurred. (People v. Welch, supra, 20 Cal.4th at p. 773.)

The court ordered appellant twice to sit down. Although, at the time, Cooper was appointed counsel, appellant complained, in the presence of prospective jurors, that Cooper had taken appellants familys money. Throughout this time, appellant was repeating before prospective jurors the racial epithet and his claim that Cooper had used it.

Cooper later asked for a recess (and later explained he had done so because he was upset and wanted a chance to regain his composure). Appellant repeated his charge in the presence of prospective jurors. Despite repeated admonitions from the court, appellant continued his outbursts. Appellant was eventually removed.

We give considerable deference to the trial courts judgment as to when disruption reasonably may be anticipated (People v. Welch, supra, 20 Cal.4th at p. 773) and, under the above circumstances, the trial court reasonably might have anticipated that appellants actions would continue at least through jury selection, and, therefore, reasonably could have concluded that removal of appellant during jury selection was appropriate. Although the court was not obligated to take steps less drastic than removing appellant from the courtroom, the court did in fact take such steps through its orders and admonitions. (Cf. People v. Pena (1992) 7 Cal.App.4th 1294, 1310.) We conclude the trial court did not err as claimed by appellant. (Cf. People v. Welch, supra, 20 Cal.4th at pp. 773-774.)

4. No Marsden Error Occurred.

a. The Alleged Marsden Motion Was Not A Marsden Motion and, Even if It Was, Denial of the Motion Would Have Been Proper.

Appellant claims the trial court erroneously denied his November 18, 2005 Marsden motion as untimely. We disagree. We have discussed that alleged Marsden motion in part 2 of our Discussion. We concluded there, inter alia, that the alleged Marsden motion was not a Marsden motion at all. That conclusion is equally applicable here.

Even if appellant made a Marsden motion as appellant claims, the record fails to demonstrate error. Once the defendant is afforded an opportunity to state the reasons for discharging an appointed attorney, the decision to allow a substitution of attorney is within the discretion of the trial judge unless defendant has made a substantial showing that failure to order substitution is likely to result in constitutionally inadequate representation. [Citations.] (People v. Crandell (1988) 46 Cal.3d 833, 859, italics added.)

In the present case, the court asked appellant if Cooper had done anything wrong, and the court gave appellant an opportunity to explain the basis for any dissatisfaction he had with counsel. Appellant indicated only that his appeal attorney had told appellant that he should consider seeking new counsel.

Moreover, as the trial court suggested, five months had elapsed from the time of the decision in appellants previous appeal (see fn. 1) to the November 18, 2005 hearing. However, appellant had expressed no dissatisfaction with Cooper in the interim or on October 12, 2005, when appellant was briefly in court. Appellant did not, on November 18, 2005, make a showing that Cooper had provided inadequate representation or that he and Cooper had become embroiled in an irreconcilable conflict that was likely to cause ineffective representation. Even if appellant had made a Marsden motion, denial of the motion would have been proper. (Cf. People v. Webster (1991) 54 Cal.3d 411, 435-436; People v. Crandell, supra, 46 Cal.3d at p. 859.)

b. The Court Did Not Err By Failing to Conduct a Marsden Hearing in Connection with the Alleged Racial Epithet.

Appellant claims the trial court should have held a Marsden hearing after appellant accused Cooper of using the racial epithet. We disagree.

This is not a case in which appellant presented the accusation in a nondisruptive manner. He did so in what the trial court reasonably could have concluded was a continually disruptive manner, thereby continually presenting the issue of whether he would be deemed to have waived his right to be present in the courtroom at all. The trial court ultimately removed appellant from the courtroom because he was disruptive and, as mentioned, we grant considerable deference to the trial courts determination that appellant was disruptive. (People v. Welch, supra, 20 Cal.4th at p. 773.) The fact appellant was disruptive constituted a waiver of his right to be present in the courtroom at all. (Ibid.) Having waived his right to be present in the courtroom by the disruptive conduct attending his accusation, appellant cannot be heard to complain that he was entitled to be in the courtroom and participate in a Marsden hearing concerning the accusation.[7]

Moreover, even assuming appellants accusation that Cooper used a racial epithet toward appellant created a duty on the part of the trial court to conduct a Marsden inquiry (see People v. Lara, supra, 86 Cal.App.4th at pp. 150-151), the sole basis for any Marsden hearing was appellants statement that Cooper had used a racial epithet towards appellant. This conduct was alleged to have occurred in the courtroom while court was in session. The court denied Cooper had used a racial epithet. The prosecutor similarly rejected appellants claim. No further inquiry was required.

Finally, we assume appellants accusation stated a reason for wanting Cooper discharged. Nonetheless, the above mentioned substantial showing (People v. Crandell, supra, 46 Cal.3d at p. 859) was not made, and even if appellant had made a Marsden motion based on the alleged racial epithet, the trial court would not have erred by denying the motion.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

CROSKEY, J

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[1] This is appellants second appeal. His first resulted in our unpublished decision in People v. Henderson (June 30, 2005, B177625), in which we reversed the judgment due to instructional error.

[2] We realize the September 20, 2005 minute order reflects appellant was represented by Matt Cooper private counsel. (Italics added; some capitalization omitted.) However, this conflicts with the trial courts signed order appointing Cooper as counsel, effective September 20, 2005. We conclude the signed order controls. (See People v.Smith (1983) 33 Cal.3d 596, 599.)

[3] In his reply brief, appellant denies he is suggesting that on October 12, 2005, he would have asserted his speedy trial rights and demanded a trial date within the statutory time limit, and denies suggesting he could show prejudice from the violation.

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

[5] We note that appellant, in the context of his argument concerning the fifth contention in his brief, concedes Marsden sets forth proper procedures when a defendant seeks to discharge his appointed attorney and replace him with another appointed attorney. (Italics added.)

[6] Appellants third separate argument in his opening brief was that the trial court committed reversible error by denying his oral motion to disqualify the court under Code of Civil Procedure section 170.6. On March 12, 2007, appellant filed with this court a motion to strike the argument. We grant the motion and express no opinion concerning that argument.

[7] We note that after appellant returned to the courtroom and agreed to behave, he did not make a Marsden motion on the ground of the alleged racial epithet.