P. v. Jones
Filed 5/9/13 P. v. Jones CA2/2
NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSHUA EMMANUEL JONES,
Defendant and Appellant.
B242178
(Los Angeles
County
Super. Ct.
No. NA090906)
APPEAL from
a judgment of the Superior Court
of
County. Richard R.
Romero, Judge. Affirmed.
David Cohen, under appointment by
the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Michael R. Johnsen and Jonathan M. Krauss, Deputy
Attorneys General, for Plaintiff and Respondent.
* * * * * *
Appellant
Joshua Emmanuel Jones was charged with one count of grand theft (Pen. Code, §
487, subd. (a)),
title="">[1] one count of
five prior felony convictions within the meaning of section 1203,
subdivision (e)(4). Appellant was
charged with having committed a prior serious felony for the purpose of being
committed to state prison, if convicted in the instant case. (§ 1170, subd. (h)(3).) He was charged pursuant to
section 667.5, subdivision (b) with having committed two felonies and with
not remaining free of prison custody during a period of five years subsequent
to the conclusion of these terms. He was
also charged pursuant to section 1170.12, subdivisions (a) through (d) and
section 667, subdivisions (b) through (i), with one prior strike
conviction.
A jury convicted
appellant of attempted grand theft but deadlocked on the grand theft
charge. The court declared a mistrial on
this charge. The information was amended
to allege a petty theft, a misdemeanor.
Appellant entered a plea of nolo contendere to this charge.
In a
that appellant had committed a prior serious felony for purposes of section
1170, subdivision (h)(3). The court
found true that appellant had suffered a prior strike conviction and that he
had not remained free of custody during a period of five years after serving a
term of conviction.
Appellant
was sentenced to a term of four years in state prison for the attempted grand
theft, composed of the high term of three years for attempted grand theft and
one year under section 667.5, subdivision (b).
Appellant was sentenced to a concurrent term of six months in county
jail on the misdemeanor conviction.
FACTS
The sole
issue on appeal is the denial of appellant’s motion made pursuant to
appellant’s Marsden motion do not
implicate the facts of the offenses of which he was convicted. Accordingly, we set forth only the salient
facts.
December 13, 2011 Incident
Albert T. Medina (Medina)
placed an ad on Craigslist to sell a silver necklace with a white gold diamond
pendant cross. He had purchased the
necklace for $1,200 and was offering to sell it for $1,500. Medina
received a telephone call from appellant.
Medina and appellant agreed
that appellant would trade a laptop for the necklace and an iPod. Medina
and appellant agreed to meet at a location at 1531
Cowles Street in Long Beach. Appellant said his father worked there and
would be able to test the metal to see if the diamonds were real.
On December 13, 2011, Medina,
accompanied by this mother, went to the location. Medina’s mother took a picture of appellant
wearing the necklace. Appellant told
Medina that he needed to go inside the shop so that his father could examine
the necklace to ensure it was real.
Appellant told Medina to wait outside because his father did not want
anyone else to enter the store since he had been robbed previously. After appellant entered the store, Medina
never saw him again.
December 19, 2011 Incident
Salvador Mendoza, Jr. (Mendoza) put
an ad on Craigslist to sell a gold chain which he had purchased for
$6,200. Appellant contacted him and,
after some negotiation over the telephone, agreed to buy it for $6,000. Appellant told Mendoza to meet him at 1531
Cowles Street in Long Beach. He told
Mendoza that his father had a jewelry shop at that location and that his father
could test the gold.
On December 19, 2011, Mendoza met
appellant outside the shop. Appellant
looked at the chain and said it would be 15-30 minutes before his father would
be ready to test the gold. While they
were waiting outside the shop, the police arrived and arrested appellant. The officer had the photograph of appellant,
which had been taken by Medina’s mother on December 13, 2011.
The police searched appellant’s
apartment and found a pawnshop receipt for Medina’s necklace.
The Marsden Hearings
There were
four Marsden hearings in this
case. Appellant challenges only the ruling
denying his fourth and last Marsden
motion. Because the complaint that
appellant raised in the fourth Marsden
hearing was presented in the prior hearings, we summarize the first three
hearings.
The first
23, 2012, a little less than two months before the trial commenced. The disagreement between appellant and deputy
public defender Celine Bonillo was whether appellant should waive his
preliminary hearing, as Ms. Bonillo had recommended. Appellant’s complaint about Ms. Bonillo was
that it was not as if Ms. Bonillo had done “anything wrong†but he was confused
by the chaos in the courtroom and by his lawyer’s advice. Once Ms. Bonillo explained her position about
the preliminary hearing, and the court added its own observations, appellant
stated that he understood, and the hearing was ended.
At the
second Marsden hearing, which was
held on February 28, 2012, appellant said that he wanted to be released on his
own recognizance (O.R.) or have his bail dropped but Ms. Bonilla had not done
anything about it. The trial court
responded by pointing out that there were no changed circumstances justifying
an O.R. release. The trial court asked defense
counsel whether she had done any investigation.
She said she had started to request interviews of the victims but had
abandoned that after appellant told her he would retain private counsel. Defense counsel went on to state that
appellant did not want to go to trial, he wanted a deal, but he did not seem to
understand that the recent strike prior had doubled his sentence; she had tried
to strike the prior conviction without success.
Appellant complained that defense counsel had done nothing; she had
filed no motions. The trial court
explained that the case was actually a simple one, that defense counsel would
talk to the victims to see if she could “poke a hole†in the case, but that
there was nothing more anybody could do.
Appellant then asked why he was not being released O.R. After the trial court once again explained that
no one, including this court, would grant an O.R. release to appellant, the
hearing concluded with appellant’s remark that “[s]he’s not trying to help me.â€
The third
19, 2012, five days prior to trial.
Appellant said that he had receipts and bank statements which would show
that he had a falling out with the auto shop employee who would testify that
the employee did not know appellant.
was still time to hand the receipts and statements over to counsel, appellant
said the materials were in his car but that defense counsel had done nothing to
get them. He added that “later on that
evening†he had been at Hustler’s Casino but counsel had not obtained
videotapes that would show that. Ms.
Bonillo stated that this was the first time she had heard about evidence that
the auto shop employee knew appellant and about Hustler’s Casino. Appellant then complained about the deal that
had been offered. The trial court stated
that Ms. Bonillo was doing a “very good job on your behalf†and thought
that appellant was trying to postpone the trial with these last minute
complaints.
The fourth
2012, in the midst of jury selection. We
set forth the entire hearing:
“THE
COURT: And, Mr. Jones, the D.A. has
left. So what’s the conflict of
interest?
“[APELLANT]: All right.
Mr.—Your Honor Romero, for one, everything has been short notice with
this whole allegation of what’s going on with me. And the—as far as getting it dropped to petty
theft, it was because of the value or whatever, that right there was—basically
made me think that it was going to be lesser charges without the priors—with
the petty theft priors. So I think that
the D.A. should have gave [sic] us
enough time to get more on our behalf as far as the defense. I mean, I don’t see why I couldn’t get more
time as far as short notice with her where—dropping it to petty theft with a
prior with the conviction if I was to get, you know, convicted. And I feel like that’s a conflict of interest
that me and my attorney—we just—she’s saying we gonna [sic] get—I’m gonna [sic]
get sentenced to the max. I mean, I
don’t see that she’s gonna [sic]
fight for me. I don’t know. I want a state-appointed.
“THE
COURT: Mr. Jones, lawyers are told to
fight for their clients, whether it’s prosecution or defense, regardless of
what the lawyer thinks about the case.
And it’s her job to defend you, and she is doing a good job. She will continue to do a good job whether
you accept the offer or not. Even if she
were to think you were guilty, that doesn’t affect the way she defends the case
because it doesn’t matter what the lawyers think. Her job is to put up the best defense, and
she will do that for you. She has so
far. She’s been making vigorous
motions. So there is no basis to change
counsel. The court determines there is
no basis for the Marsden motion. The reporter’s notes are sealed pending
further order of the court.
“[APPELLANT]: I wasn’t done.
“THE
COURT: You’re done.
“[APPELLANT]: I wasn’t done.
“THE
COURT: Yes, you are.
“[APELLANT]: One more thing.
“THE
COURT: No.â€
DISCUSSION
defendant sought to give specific instances that caused him to be dissatisfied
with his defense counsel. The trial court, however, specifically
foreclosed the defendant from stating the specific reasons that defense
counsel’s performance was unsatisfactory.
(Marsden, supra, 2 Cal.3d at
pp. 121–122.) The court held: “Thus, a judge who
denies a motion for substitution of attorneys solely on the basis of his
courtroom observations, despite a defendant’s offer to relate specific
instances of misconduct, abuses the exercise of his discretion to determine the
competency of the attorney. A judicial
decision made without giving a party an opportunity to present argument or
evidence in support of his contention ‘is lacking in all the attributes of a judicial
determination.’ [Citation.]†(Id.
at p. 124.)
“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].†(People
v. Crandell (1988) 46 Cal.3d 833, 854.)
The decision
whether to grant a Marsden motion is
within the discretion of the trial court; on appeal, the question is whether
that discretion was abused. (
488.)
Appellant
contends the trial court did not allow him to explain the conflict between
counsel and himself. As the record
shows, the trial court terminated the hearing despite appellant’s efforts to
continue to address the court. Appellant
claims the “trial court had no way of knowing what appellant had intended to
assert, and hence had no way of knowing that it lacked merit.†Appellant contends he was treated just as the
defendant in Marsden was treated by
the trial court.
The record
shows that appellant was given an opportunity to state what the conflict of
interest was and that he availed himself of that opportunity. His complaint was that defense counsel was
not going to “fight†for him. The issue
therefore is not as the issue was in Marsden
where the trial court did not allow the defendant to give any specific reasons
why he was dissatisfied with his lawyer.
The issue in this case is whether the trial court abused its discretion
in terminating the hearing.
We begin
with the observation that the trial court must be given some latitude in
conducting a Marsden hearing. The trial court had some knowledge of the
defendant and also had the defendant under observation as he was making the
defendant’s seriousness of purpose that were apparent to the trial court but
that do not appear in the written record.
Appellant had already made three prior Marsden motions, so the trial court was well acquainted with
appellant, at least from the perspective of a Marsden hearing. The trial
court was in a good position to judge whether appellant had anything further to
say that was likely to be relevant.
We cannot say that the trial court
abused its discretion or erred in terminating the hearing. It is the judge and not the defendant who has
the responsibility of running his or her courtroom. Appellant made no showing that counsel was
ineffective or that there was, in fact, a serious and irreconcilable conflict,
which are the touchstones of a Marsden
motion. (People
v. Crandell, supra, 46 Cal.3d at p. 854.)
The trial court can therefore not be faulted for deciding to move the
case along by ending the hearing.
While it is clear
that the trial court must give the defendant an opportunity to state why he is
dissatisfied with counsel, it is also true that it is the defendant’s
responsibility to give cogent reasons for a change in representation. Appellant was given an opportunity to state
why he wanted his lawyer discharged but the record reflects that there were no
valid reasons to do so. And while the
denial of the fourth Marsden motion
must stand or fall on its own merits, “. . . a defendant is not
entitled to keep repeating and renewing complaints that the court has already
heard.†(People v. Vera (2004) 122 Cal.App.4th 970, 980.) Each of the complaints raised by appellant in
his fourth Marsden hearing was
essentially duplicative of complaints he had raised at the three earlier
hearings. As in People v. Clark (2011) 52 Cal.4th 856, 918, appellant cannot
demonstrate that the trial court abused its discretion because his fourth
request “was based primarily on points raised in the previous
previously, the trial court acted within the exercise of its sound discretion
in terminating the fourth hearing.
Appellant
did not think that defense counsel would “fight†for him. We construe that to mean that he did not
trust her to conduct his defense. It has
been held, however, that a defendant’s lack of trust in defense counsel is not
grounds to relieve counsel. (
1048, 1070, overruled on other grounds in People
v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
We conclude
that the trial court did not abuse its discretion in the way it conducted the
fourth Marsden hearing and therefore
find there was no error.
DISPOSITION
The
judgment is affirmed.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
_____________________, J.
FERNS
We concur:
____________________________,
P. J.
BOREN
____________________________,
J.
ASHMANN-GERST
name="_ftn1" title="">[1] All statutory references are to the Penal Code unless
otherwise indicated.
testified that he did not know appellant.
