P. v. Jurcoane

Filed 8/17/06 P. v. Jurcoane CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County. Shari K. Silver, Judge. Affirmed.

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Josif Jurcoane, in pro. per.; Cheryl Barnes Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

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This is the second appeal in this case, in which a jury acquitted Josif Jurcoane of two counts of first-degree murder but convicted him of two counts of second-degree murder, and found that he used a shotgun against both victims and inflicted great bodily injury on one person at least 60 years old. (Pen. Code, §§ 187, subd. (a), 189; 12022.5, subd. (a); 1203.09; all further section references are to the Penal Code.)^[1] In an earlier opinion, we rejected Jurcoane's contentions that the trial court erred in discharging a juror and in instructing the jury, but concluded that the court erred in summarily denying his motion for new appointed counsel made at his sentencing hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118. We vacated the judgment, remanded for the court to conduct a new Marsden hearing, and if the court found Jurcoane failed to show good cause for appointing new counsel, instructed it to reinstate the judgment. (People v. Jurcoane (Nov. 3, 2003, B162541) [non-pub. opn.] (Jurcoane I).) The trial court conducted the hearing, found that Jurcoane had failed to show good cause, and reinstated the judgment.

Jurcoane appeals, contending that the trial court again failed to conduct an adequate inquiry into his complaints against his trial counsel. He asks us to remand for another Marsden hearing. We reject the contention and affirm the judgment. ^[2]

BACKGROUND

Jurcoane I detailed the facts supporting Jurcoane's two murder convictions, which we briefly summarize to give context to his appellate claim. On July 4, 1984, Jurcoane shot and killed Lloyd Bryden, his former employer, and Alice McCannel, Bryden's girlfriend. Abandoning his wife and young children, Jurcoane immediately fled to Mexico, where he lived illegally with another woman for the next 17 years under an assumed name. In April 2001, he was arrested and, after California authorities agreed not to seek the death penalty, deported to California for trial. At the expulsion hearing, Jurcoane claimed he had seen another man kill the two victims and fled because he thought he would be wrongly accused of the crimes.

The murder weapon was found in a pickup truck Jurcoane was seen driving shortly after the shootings. A veterinarian who had treated Bryden's animals testified that a few months before the killings, Jurcoane threatened to kill Bryden. Jurcoane's daughter, then four years old, testified that shortly before the shootings, Jurcoane drove the pickup truck from their home toward Bryden's nearby property. She heard gunshots, after which Jurcoane returned, grabbed clothes, argued with her mother, and drove off. Police arrived shortly thereafter.

In defense, Jurcoane's son testified that his sister never told him of her observations on the day of the murders, and a psychologist testified about the unreliability of early childhood memories. Jurcoane testified that he was not present during the shootings, denied so stating during his deportation hearing, and fled when he learned of the killings because, based on an earlier dispute with Bryden, he feared that he would be blamed for the crimes.

THE SECOND MARSDEN HEARING

The renewed Marsden hearing began on March 19, 2004. The court stated it had been unable to obtain its file despite a month-long search, but, without objection, proceeded by relying on the written opinion in Jurcoane I. At the original sentencing hearing, the court had considered a letter from Jurcoane containing 10 points in 10 sentences describing reasons for his need to fire appointed trial counsel. Quoting from Jurcoane I, the court read the letter into the record. Outlining â€