P. v. Sutton

Filed 7/25/07 P. v. Sutton 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 COURT:*

Michael Howard Sutton (defendant) appeals from the judgment entered following a jury trial resulting in his conviction of first degree residential burglary (Pen. Code,  459)[1] with admissions that he had a prior serious felony conviction that also qualified him for sentencing pursuant to the Three Strikes law ( 667, 1170.12) and that he had served separate prison terms after three prior felony convictions ( 667.5, subd. (b)). The trial court sentenced him to an aggregate term of 13 years in state prison, consisting of a doubled middle term of four years, or eight years, for the burglary and a consecutive five-year term for the prior serious felony conviction.

After examination of the record, counsel filed an Appellants Opening Brief in which no issues were raised.

On April 6, 2007, we advised defendant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. Defendant was granted an extension to June 6, 2007, to file his response. In a hand-printed response dated May 30, 2007, filed on June 4, 2007, defendant contends that his letter, received by the trial court on August 25, 2006, should have triggered a Marsden hearing. (People v.Marsden (1970) 2 Cal.3d 118 (Marsden).) He asserts that the jurys finding on the element of his specific intent was baseless, and his trial counsel never dug into his defense that he mistakenly believed he was authorized to enter the apartment. Defendant claims that the trial courts failure to order a Marsden hearing demonstrates that he was denied his Sixth Amendment right to counsel.

FACTS

I. The Trial Evidence

Jae Chang Kwon (Kwon), age 76, lived in or next to the apartment house located on West 7th Street in Los Angeles. At noon on December 17, 2005, Kwon saw defendant enter Young Jin Chois (Choi) ground floor apartment by climbing in a window. Kwon contacted the apartment manager, Paul Chung (Chung). They knocked on Chois door. After a while, defendant answered the door. Defendant claimed that he was a friend of Chois and said that he would telephone Choi on his cellular telephone. Defendant then shut the apartment door. A police officer arrived, and defendant was arrested. The officer found Chois cellular telephone in defendants back pocket.

Choi testified that he did not know defendant and that he had not given defendant permission to enter his apartment. Choi said that at the time of the burglary, he had no houseguests. When Choi arrived home after the burglary, he found human feces on the bedroom carpet.

II. The Pretrial Proceedings

On March 20, 2006, defendants case was set for trial. On that date, trial counsel declared a doubt as to defendants competence, and the trial court suspended proceedings pursuant to section 1368. Defendant had a history of mental illness, and the trial court observed that defendants demeanor suggested that he might be out of touch with reality. On April 29, 2006, the trial court received a doctors report indicating that defendant was competent. It ordered criminal proceedings resumed.

On August 25, 2006, the trial court received a letter from defendant. In the letter, defendant said that this was the second letter he had written to the trial court regarding my attorneys diligence and that the trial court had not addressed his similar concerns previously on August 15, 2006, in the calendar court. Defendant complained that his trial counsel, who was appointed, had not complied with his request that the apartment manager, Chung, be interviewed and that an investigator find and interview the person who had given him permission to enter Chois apartment. Defendant asserted that upon his request, trial counsel did not send him copies of the discovery. In preparing the case, trial counsel had not spent more than 10 minutes with him and had instructed defendant to take a deal, when defendant wanted a trial as he was innocent.

The trial commenced on September 20, 2006.

III. The Contents of Defendants Hand-Printed Response on Appeal

In defendants handwritten response filed June 4, 2007, defendant explains that he was previously represented by a deputy public defender, Gail Bristo. Bristo discussed the case with defendant. She indicated that it was imperative that an investigator interview the apartment manager and the person who sent defendant a letter supporting defendants claim of innocence. After Bristo declared a conflict of interest and trial counsel was appointed to represent defendant, Bristo sent a FAX of a letter to trial counsel that purported to be from a William Bradley (Bradley), a letter which defendant apparently is contending was an invitation to stay with Bradley at Chois apartment. Defendant claims that despite his request, trial counsel failed to locate Bradley as a trial witness, and trial counsel engaged in no efforts to discover Bradleys whereabouts and failed to subpoena Bradley. Defendant explains that prior to trial, his trial counsel explained to him that Bradleys letter itself could not be admitted into evidence; Bradley would have to be a trial witness in order to put Bradleys letter into evidence.

Defendant attached the letter purporting to be Bradleys to his response on appeal: 5-16-05 [] Michael [] Hey there! How is life treating you! Are you still planning on being back in LA. in December? I think about you offen. [sic] [] Dont forget that you are welcome to stay with me until you get yourself established. My address is included. My telephone number is a pay as you go so Ill just give you my address [] Hope to Here [sic] from you soon [] William Bradley [] 3847 W. 7th Street #3.

DISCUSSION

I. Marsden Error

We find defendants claim of Marsden error to be unpersuasive. A criminal defendant has a right to substitute counsel on a proper showing that his constitutional right to counsel would otherwise be substantially impaired. (Marsden, supra, 2 Cal.3d at p. 123.) Before a trial court has a duty to hold a Marsden hearing, a defendant must communicate to the trial court a clear indication . . . that he wants [new trial counsel appointed to represent him]. (People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8.) The content of defendants letter amounts to nothing more than grumblings about counsels performance and a disclosure that defendant and his counsel had a difference of opinion over trial tactics. These grumblings about trial counsel did not trigger a duty in the trial court to hold a Marsden hearing. (Ibid.) As the defendants letter to the trial court failed to contain a request for new counsel based on specific facts showing a deterioration in the attorney-client relationship, we decline to reverse the judgment. (See People v. Nakahara (2003) 30 Cal.4th 705, 719; People v. Padilla (1995) 11 Cal.4th 891, 926-927; People v. Lucky, supra, 45 Cal.3d at pp. 281-283.)

II. Ineffective Trial Counsel

Insofar as defendant is contending on appeal that he was denied constitutionally effective trial counsel because trial counsel failed to adequately investigate his defense, this contention is also meritless.

In People v. Kipp (1998) 18 Cal.4th 349, 366-367, the court explained: To establish a violation of the constitutional right to effective assistance of counsel, a defendant must show both that his counsels performance was deficient when measured against the standard of a reasonably competent attorney and that counsels deficient performance resulted in prejudice to defendant in the sense that it so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. (Strickland v. Washington (1984) 466 U.S. 668, 686 . . . .) If a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsels performance was deficient. (Strickland v. Washington, supra, 466 U.S. at p. 697.) If the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. [Citation.])

The record fails to disclose professional errors. [C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsels judgments. [Citation.] (In re Visciotti (1996) 14 Cal.4th 325, 348.) Declining to have the apartment manager interviewed was a tactical decision. It is well known that interviewing certain prosecution witnesses can prove to be counterproductive or useless. Trial counsel may well have concluded that interviewing the apartment manager before the trial would be nonproductive. In the trial court, there was no discussion about whether trial counsel attempted to find potential defense witness Bradley. However, the conversations between trial counsel, the prosecutor, and the trial court about defendants mental condition suggest that trial counsel may have refrained from looking for Bradley as trial counsel reasonably concluded that Bradley was a figment of defendants imagination. In any event, the Bradley letter only asked defendant to visit. It did not authorize defendant to enter Bradleys apartment in Bradleys absence through a window. Consequently, we conclude that without an inquiry of trial counsel as to whether he looked for Bradley, and if he did not, his reasons for failing to find the witness, defendant has not established that professional errors undermined the reliability of the judgment. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

We have examined the entire record and are satisfied that appellants attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

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* BOREN, P. J., DOI TODD, J., ASHMANN-GERST, J.

[1] All further statutory references are to the Penal Code unless otherwise indicated.