P. v. Woodard

Filed 9/19/07 P. v. Woodard CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge. Affirmed.

Patrick J. Hennessey, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Andrew Mestman, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Charles Ray Woodard challenges the sufficiency of the evidence supporting his conviction for armed robbery and claims judicial error in the trial courts order denying his Marsden^[1]motion. We find no error and will affirm.

Facts and Procedural History

On Sunday afternoon, May 15, 2005, defendant and an accomplice robbed two female restaurant employees, Johnstone and Retchless, at gunpoint as they were trying to make a deposit of the cash receipts at a Bank of America drop box in San Bernardino. Defendant held a gun inches from the face of Johnstone, who was holding the money in a bag inside her purse and said, Give me the bag. Give me the bag. He then grabbed Johnstones purse and ran away. Because it was broad daylight, both women got a good look at the robbers faces.

Six weeks later Detective Pritchett of the San Bernardino Police Department identified defendant as a possible suspect in the robbery and placed his photograph in a group of six photographs of similar-looking people he showed to the two restaurant employees. On July 26 and 28, respectively, Johnstone and Retchless each identified defendants picture in the photo lineup as that of the person who robbed Johnstone. In live lineups on January 18, 2006, both women again chose defendant as the person who had committed the robbery, although each was less certain of her live lineup identification in January than she had been of the photo lineup identification the previous July. Johnstone chose three possibilities out of the six persons in the live lineup, but was pretty sure that the robber was number 3 (defendant). Retchless at first could not make an identification at the live lineup, but as she was leaving told Detective Pritchett that she thought it was number 3.

At trial on October 25, 2006, both witnesses testified that they had been less certain of the live identifications than they had been of the photographic identifications because of the length of time that had passed since the robbery and because they did not want to misidentify a suspect and send the wrong person to jail. Both positively identified defendant in the courtroom. Defendant and his grandmother testified that they were home together all afternoon on the day of the crime.

On October 27, the jury found defendant guilty of second degree robbery (Pen. Code,  211, count 1, a felony)^[2]and found true an allegation that he personally used a handgun in the commission of the crime ( 12022.53, subd. (b)).

On December 28, defendant told the court in a Marsden hearing that he felt he had been misrepresented by his attorney (Public Defender Kyung Kim). He said he had hired a new attorney and wanted to file for a retrial. Kim, defendant said, had told him he did not have grounds for a retrial and defendant had replied, I want a retrial for misrepresented [sic] me then. The court explained that defendants dissatisfaction with the outcome of his trial did not provide grounds for relieving Mr. Kim who, the court thought, had done a very professional job in representing you. The quality of counsels representation, the court suggested, was a matter that could be considered on appeal. The court denied the Marsden request but did grant a one-week continuance for the purpose of allowing defendant to hire a new lawyer to represent him during sentencing.

At sentencing on January 4, 2006, no new attorney appeared and Public Defender Kim continued to represent defendant. Counsel disagreed with the recommendation in the probation report and argued vigorously that the court consider defendants very young age 16 at the time the crime was committed in mitigation and sentence him to the midterm of three years rather than the aggravated term of five years. After hearing argument from both sides and indicating that it in fact disagreed with the probation report in some respects, the court nonetheless sentenced defendant to the upper term of five years for the robbery and a consecutive 10 years for the personal firearm use allegation. ( 211, 12022.53, subd. (b).) Defendants total initial sentence was 15 years.^[3]

Discussion

Defendant argues first that his conviction is based on insufficient evidence, then that his Marsden motion was improperly denied.

Standard of Review and Substantial Evidence

When a criminal defendant contends that the evidence was insufficient to support his conviction, the reviewing court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319 [99 S.Ct. 2781, 61 L.Ed.2d 560]; People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.) An appellate court examines the entire record, not just isolated bits of evidence, to determine whether it discloses substantial evidence to support the verdict and we examine that evidence in the light most favorable to the judgment below, presuming every fact the lower court could reasonably have deduced in support of its judgment. (People v. Killebrew (2002) 103 Cal.App.4th 644, 660 (Killebrew).) If the verdict is supported by substantial evidence, we will not substitute our own evaluations of the witnesses credibility for that of the trier of fact. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.) Substantial evidence is evidence that is reasonable, credible, and of solid value. (Killebrew, supra, at p. 660.)

In this case, the prosecutions most persuasive evidence consisted of the testimony of the two eyewitness victims of the armed robbery and the fact that they had identified defendant as the perpetrator on three different occasions: in the photo lineups, at the live lineups, and in open court. The women admitted that they had been frightened at the time of the crime, but both said that it was daylight when the robbery occurred and they saw defendant clearly. Both also expressed their concern about misidentification, but both were certain as to defendants identification in court. As the People point out, both were cross-examined extensively by defense counsel and both were consistent in their accounts of the crime and the identification of defendant. It is true that defendants grandmother testified that he was with her at the time the crime was committed, but the jury obviously found her testimony less credible than that of Johnstone and Retchless. Looking at the entire record in a light most favorable to the judgment below, we cannot say that their conclusion was not based on evidence that was reasonable, credible, and of solid value. (Killebrew, supra, 103 Cal.App.4th at p. 660.)

Standard of Review and Marsden

We review a trial courts rulings on a defendants Marsden motion for abuse of discretion. (People v. Memro (1995) 11 Cal.4th 786, 856-857.) When a defendant moves to replace an appointed attorney, the court must give the defendant an opportunity to explain the reasons for the request. (Marsden, supra, 2 Cal.3d at pp. 123-125.) [T]he court must consider any specific examples of counsels inadequate representation that the defendant wishes to enumerate. Thereafter, substitution is a matter of judicial discretion. Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would substantially impair the defendants right to assistance of counsel. (People v. Webster (1991) 54 Cal.3d 411, 435.) A trial court fully performs its duties under Marsden when it gives the defendant an opportunity to state his reasons, and then exercises judicial discretion. (People v. Salazar (1977) 74 Cal.App.3d 875, 887.) A Marsden motion is addressed to the discretion of the trial court, and a defendant bears a very heavy burden to prevail on such a motion. . . .  The defendant . . . cannot rest upon mere failure to get along with or have confidence in counsel. [Citations.] (People v. Bills (1995) 38 Cal.App.4th 953, 961.)

Here it appears that defendant made, or tried to make, a Marsden motion on the grounds that he doubted the competance of his counsel. Despite his claim to the contrary, our review shows that the court gave him adequate opportunity to air his complaint and explain why he wished to have a new attorney. Although the hearing was not long, the court opened it by inviting defendant to speak first: What is the problem? Defendant explained that he felt he had been misrepresented and had hired a paid lawyer because, I want to file for a retrial. Thats my main objective. So I wouldnt have to go to state prison. The court understood defendants aversion to the disposition, but stated its evaluation: that defense counsel had in fact done a good job of representing defendant at trial. It appeared to the court that defendants sole reason for requesting a new attorney was that he was unhappy with the outcome, but it nonetheless granted him a one-week continuance to get his new lawyer to court. And at sentencing, although no new attorney had appeared, the court gave defendant another opportunity to speak. This time defendant made what appears to be his only specific complaint about his counsels performance, telling the court that he felt his attorney should have objected to the robbery charge because I did not rob anybody. Defendant did not seem to realize that the very fact that his attorney had filed a not guilty plea and taken the matter to trial constituted an objection to the robbery charge.

Similarly, defendant asserts on appeal that the trial court erred by not appointing independent counsel to handle his Marsden claim and investigate his ineffective assistance of counsel (IAC) claim. As the California Supreme Court has explained however, there is no authority requiring such an appointment and the rule is to the contrary: What our decisions have consistently required is that the court listen to and evaluate a defendants claim that counsel are failing to perform adequately. The court did so, and defendant was entitled to no more. (People v. Memro, supra, 11 Cal.4th at pp. 858-859.) The trial court in this case did so too and defendant was entitled to no more.

Further, we note that appellate counsel apparently decided not to argue IAC in this appeal. We find this decision appropriate because our own review of the record reveals no basis for such a claim. Counsels performance was not deficient nor did any alleged deficiencies prejudice the outcome of defendants case. (Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052, 80 L.Ed.2d 674].) This is because, as we have discussed, substantial evidence supported the jurys verdict that defendant was guilty of the crimes with which he was charged.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

HOLLENHORST

J.

MILLER

J.

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^[1]People v. Marsden (1970) 2 Cal.3d 118.

^[2] All further statutory references are to the Penal Code unless otherwise indicated.

^[3] Although there is no minute order for the date in this record, we are informed by footnote 1 of Appellants Opening Brief that on February 28, 2007, the trial court reduced defendants sentence for the robbery to the midterm of three years and reimposed the firearm use enhancement for a new total of 13 years.