P. v. Johnson

Filed 6/26/08 P. v. Johnson CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, John Fisher, Judge. Affirmed.

Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.

_________________

Christopher Johnson appeals from the judgment entered following his negotiated pleas of no contest to count 3 receiving stolen property (Pen. Code,  496, subd. (a)), count 4 identity theft (Pen. Code,  530.5, subd. (a)), and count 7 theft (Pen. Code,  484e, subd. (d)). The court sentenced appellant to prison for four years four months. He claims the trial court erred. We affirm the judgment.

FACTUAL SUMMARY

The record reflects that on or about January 16, 2006, appellant committed the above offenses in connection with using stolen credit card information to rent a hotel room.

CONTENTION

Appellant claims the trial court erroneously failed to conduct a Marsden hearing.

DISCUSSION

The Trial Court Did Not Erroneously Fail to Conduct a Marsden Hearing.

1. Pertinent Facts.

On October 24, 2006, the trial court called appellants case. Appellant was represented by court-appointed counsel. The trial court stated that appellant had indicated that he wished to have another lawyer appointed or at least not have his current lawyer handling his case. The court referred to Marsden and indicated the prosecutor had to leave the courtroom. During the subsequent ex parte hearing, appellant indicated he wanted another attorney. Appellant at one point indicated that he had asked to review all police reports and documents, but they had not been provided.

Appellants counsel indicated that he and appellants investigator had gone over almost every document in counsels file except for items concerning which the investigator was still conducting follow-up investigations. Counsel indicated appellant was asking for some irrelevant items. Counsel commented that attorneys will try and do certain things, you know, but at some point theres a line where its kind of getting beyond the defense of the case and more into some personal issues or personal affairs.

Counsel indicated appellant had been given redacted police reports, and an opportunity to read them. Appellant made reference to a property report. Counsel indicated that appellant had a substantial amount of appellants file, and that counsel and the defense investigator had gone over each page of the file with appellant. Appellant personally said he had never read the arrest report. The court, appellant, and his counsel discussed appellants concerns. At one point, appellant indicated he had no confidence in his present counsel, and appellant wanted to represent himself. The court later denied what it characterized as appellants motion to get a new lawyer.

On January 8, 2007, appellant expressed dissatisfaction with his trial counsel. The court indicated it would conduct a Marsden hearing. During the hearing, the court, appellant, and his counsel discussed appellants concerns. The court subsequently denied what it suggested was a Marsden motion. The case was ultimately continued to January 10, 2007, on which date appellant entered the above mentioned no contest pleas.

On May 17, 2007, the court called the case for sentencing and noted that appellant personally had sent correspondence to the court.^[1] After the court denied appellants motion to continue sentencing, appellants counsel indicated that appellant personally had sent to the court a letter pertaining to a police report.^[2] Appellants counsel also indicated that the issue had been discussed with the prosecutor numerous times prior to appellants plea.

Appellants counsel then commented, Basically, if its any report or reference number its whatever I had in my file. [Sic.] [] The District Attorney didnt have anything different than what I have in my file. We went over it, . . . three times. [] In fact, I did get some copies of reports that I didnt have prior to the trial. I gave copies of that to my client.

Counsel also commented that appellant had one other request, namely, that appellant wanted to talk with the district attorney about information which appellant had which might result in a reduction of his sentence. Counsel represented that, as to that matter, he had advised appellant to talk with detectives. Counsel noted he had unsuccessfully talked with the district attorney about the issue.

The following then occurred: The Court: All right. [] I think he also sent me a letter^[[3]] saying he wanted a new lawyer too. [] So I read that and thats going to be denied as frivolous. [] The Defendant: Your Honor -- [] The Court: All right. Time out.

The court asked if appellant waived arraignment for judgment and if there was no legal cause. Appellants counsel replied yes. The court then stated, All right. This was a case settlement. It was a free and voluntary settlement. Were not going to mess around anymore. The court then sentenced appellant as previously indicated.

b. Analysis.

Appellant claims the trial court erroneously failed, on May 17, 2007, to conduct a Marsden hearing. We disagree. In People v. Marsden (1970) 2 Cal.3d 118, we held that a defendant is deprived of his constitutional right to the effective assistance of counsel when a trial court denies his motion to substitute one appointed counsel for another without giving him an opportunity to state the reasons for his request. (People v. Ortiz (1990) 51 Cal.3d 975 at p. 980, fn. 1, italics added.) A trial judge should not be obligated to take steps toward appointingnew counsel where defendant does not even seek such relief. (People v. Gay (1990) 221 Cal.App.3d 1065, 1070, italics added.)

The courts duty to conduct the [Marsden] inquiry arises only when the defendant asserts directly or by implication that hiscounsels performance has been so inadequate as to deny him his constitutional right to effective counsel. [Citations.] (People v. Lara (2001) 86 Cal.App.4th 139, 151, italics added.) Requests under . . . Marsden . . . must be clear and unequivocal. . . . [Citations.] (People v. Rivers (1993) 20 Cal.App.4th 1040, 1051, fn. 7.) In order to make a Marsden motion, there must be a clear indication by defendant that he wants a substitute attorney. (People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8, italics added.)

On May 17, 2007, appellant himself never orally asserted, directly or by implication, that his counsels performance had been so inadequate as to deny appellant his constitutional right to effective counsel. Nor did appellant orally request substitute counsel or a Marsden hearing.

Instead, on May 17, 2007, appellants counsel referred to a letter which appellant had sent to the court, but the letter is not part of the record on appeal. Counsels subsequent comments suggest the letter may have referred to a police report, along with certain information appellant may have wished to give to the People in return for a lenient sentence. However, nothing in counsels comments indicates that appellant, in the letter, asserted directly or by implication that his counsels performance had been so inadequate as to deny appellant his constitutional right to effective counsel, or that appellant wanted substitute counsel or a Marsden hearing.

Later on May 17, 2007, the trial court stated appellant had sent the court a letter saying he wanted a new lawyer too.^[4]It is this letter that appellant claims was a Marsden motion. However, the letter is not part of the record on appeal. The burden is on appellant to demonstrate error from the record; error will not be presumed. (In re Kathy P. (1979) 25 Cal.3d 91, 102; People v. Garcia (1987) 195 Cal.App.3d 191, 198.) In any event, even assuming a Marsden motion may be made merely by a letter which is not made part of the record, the trial court did not indicate whether, in the letter, appellant asserted that his trial counsels performance had been so inadequate as to deny appellant his constitutional right to effective counsel. The court merely indicated the letter said appellant wanted new counsel.

Moreover, the trial court did not state whether, in the letter, appellant requested substitute counsel. The fact that, in the letter, appellant said he wanted a new lawyer did not indicate whether appellant wanted new substitute counsel or new retained counsel. The record fails to demonstrate that appellant, in the letter referred to by the court, made an unequivocal request that clearly indicated he wanted substitute counsel.

Appellant argues his request for a new attorney implied a complaint that his trial counsel had failed to adequately represent him. We disagree. Moreover, the trial court conducted two hearings, that is, on October 24, 2006, and January 8, 2007, respectively. The trial courts rulings as to those hearings are not in dispute in this appeal.^[5] Even if those hearings were Marsden hearings and the letter referred to by the court was a Marsden motion, to the extent the letter merely raised issues addressed in those hearings (e.g., matters pertaining to the police report(s)), the trial court was not required to afford a hearing each time defendant made the same accusations. (People v. Clark (1992) 3 Cal.4th 41, 104.) Appellants suggestion that when he said Your Honor, he intended to further explain his letter is speculative.

The trial court had no duty to conduct a Marsden hearing, and did not err by failing to conduct one, because appellant made no Marsden motion. Finally, even if appellant on May 17, 2007, made a Marsden motion, he has failed to demonstrate how he

suffered prejudice from any such post-conviction motion. (Cf. People v.Washington (1994) 27 Cal.App.4th 940, 944.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

KITCHING, J.

We concur:

CROSKEY, Acting P.J.

ALDRICH, J

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^[1] The correspondence is not part of the record on appeal, and the record does not reflect that appellant or his counsel asked the trial court to lodge or file the correspondence in the superior court file.

^[2] See footnote 1.

^[3] See footnote 1.

^[4] To the extent this letter was the same letter to which counsel referred, the analysis applicable to the former letter applies here.

^[5] Appellant concedes that, by pleading no contest, he waived any claim of preconviction Marsden error.