P. v. Turner

Filed 10/11/06 P. v. Turner CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Sacramento)

A jury convicted defendant Marshall Devon Turner of possession of cocaine base for sale (Health & Saf. Code,

§ 11351.5). In bifurcated proceedings, defendant admitted

two prior convictions for the same (Health & Saf. Code,

§ 11370.2, subd. (a)).

Sentenced to state prison [for an aggregate term of 10 years], defendant appeals, contending the trial court erroneously denied his pretrial motion for new counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). We conclude that the trial court did not abuse its discretion in denying defendant’s Marsden motion.

FACTS

On December 13, 2004, officers approached an abandoned house known for narcotics trafficking and found defendant in the backyard. A search of defendant revealed marijuana, two packages of .2 grams of cocaine base and $63. Defendant told an officer that he was selling drugs to buy Christmas presents, denied the cocaine was for his use and requested that the officer put the two packages into one package so defendant would be charged with possession, not sales.

Defendant testified at trial. He admitted possessing the drugs but claimed it was for personal use. He also claimed he was near the abandoned house to buy crack. He denied telling an officer that he was there to sell cocaine but admitted asking the officer to put the two packages into one because of his experience in a prior case where the narcotics were individually wrapped.

In rebuttal, another officer testified that he heard defendant admit to the other officer that he had been selling cocaine base.

DISCUSSION

Defendant contends the trial court erroneously denied his Marsden motion. He argues new counsel would have filed a motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531^[1] which his attorney had refused to do. We find no abuse of discretion.

Background

About two weeks before trial, defendant sought new counsel. Defendant complained that defense counsel had failed to file a discovery motion, told defendant that he was going to lose in trial, and refused to file a Pitchess motion. With respect to the latter, defendant stated, “there was a statement that was tooken [sic] by me, and I feel the statement has been fabricated in some forms; and I wanted to find out whether this officer has any past history of this being found out. I mean, of this being displayed by this officer . . . .”

With respect to the Pitchess motion, defense counsel (Jerry Shapiro) explained that he had considered it but decided there was no basis for bringing such a motion in that there were no “fact[s] on which to believe that there was a fabrication of [defendant’s] statement. I have been over [defendant’s] statement with him previously. We went through it literally line by line, in a page-and-a-quarter statement; and on December 30, I went over it with him line by line and found that there are -- and I have literally counted up how many things I found in it, how many different items we have gone over. More than half of them, he either says yes, I said those things, or I don’t recall that thing as to four of them. And for other items, the ones that are the most inculpatory, he says no, I didn’t say that; but I have no basis to extricate those and say, oh, those are fabricated because so many of the statements are information that only -- could only be known from the defendant, that officers in the field wouldn’t know those things. And so there is nothing about the statement that says, oh, this looks like fabrication or that I believe that the officers -- I have no fact on which to believe that there was a fabrication.” Defense counsel believed that the officer who testified at the preliminary hearing had six years on the force. Defense counsel noted that there were other officers involved.

Defense counsel had been an attorney for 15 years, 11 of which he had practiced criminal defense and had represented clients faced with the same charges as defendant.

Defendant stated that he had searched through the preliminary hearing transcript and believed there were contradictions between the officer’s report and his testimony and thus a Pitchess motion should be filed. Defendant later stated that he was not satisfied with counsel because he should file the motions requested “regardless of whether they are dismissed or granted.”

In denying defendant’s Marsden motion, the trial court determined with respect to defendant’s demand that counsel file the Pitchess motion that defense counsel was “satisfied that there is no proper basis,” had “thoroughly explored whether there are grounds that exist,” had been an attorney long enough “to understand whether a Pitchess motion is appropriate” and “can’t be faulted for” deciding such motion was not appropriate in this case.

Analysis

When a defendant seeks substitution of appointed counsel on the ground of ineffective representation, the trial court must allow the defendant to explain in detail. If defendant shows appointed counsel is providing inadequate representation or that counsel and the defendant “‘have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result,’” the defendant is entitled to substitute counsel. (People v. Fierro (1991) 1 Cal.4th 173, 204.) “[S]ubstitute counsel should be appointed when, and only when, necessary under the Marsden standard, that is whenever, in the

exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel [citation], . . . .” (People v. Smith (1993) 6 Cal.4th 684, 696.) A trial court’s ruling denying a Marsden motion will not be disturbed absent a showing of abuse of discretion. (People v. Earp (1999) 20 Cal.4th 826, 876.)

We find no abuse of discretion. The trial court allowed defendant the opportunity to explain in detail counsel’s inadequate representation. Counsel responded to each claim. (People v. Silva (2001) 25 Cal.4th 345, 367; People v. Hart (1999) 20 Cal.4th 546, 603-604.)

Defendant complained about counsel’s decision not to file

a Pitchess motion, a tactical matter over which a disagreement was insufficient to compel substitution of counsel, unless it signaled the complete breakdown in the attorney-client relationship. (Hart, supra, 20 Cal.4th at p. 604; People v. Crandell (1988) 46 Cal.3d 833, 859-860.) Defendant failed to demonstrate a complete breakdown of the relationship.

DISPOSITION

The judgment is affirmed.

BLEASE , Acting P. J.

We concur:

MORRISON , J.

ROBIE , J.

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^[1] Pitchess “established that a criminal defendant could ‘compel discovery’ of certain relevant information in the personnel files of police officers by making ‘general allegations which establish some cause for discovery’ of that information and by showing how it would support a defense to the charge against him.” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1018-1019; Pen. Code, §§ 832.7, 832.8; Evid. Code, §§ 1043-1045.)