P. v. Fox

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

            APPEAL from a judgment of the Superior Court of Kings County.  Lynn C. Atkinson, Judge.

            Linda Buchser, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stephen G. Herndon and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.

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            This is an appeal from a judgment of conviction.  On appeal, appellant Tommy Fox claims the trial court erred in failing to conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 after he expressed dissatisfaction with his appointed counsel's performance.  We disagree and will affirm the judgment.

Procedural and Factual Histories

            Fox was convicted of conspiracy to commit the crime of possessing a controlled substance in a state prison (Pen. Code,^[1] §§  182, subd.  (a)(1) & 4573.6) and with conspiracy to offer to sell, furnish, administer, or give heroin to a state prisoner (§§  182, subd.  (a)(1) & 4573.9).  The jury also found that Fox was confined in state prison when he committed the offenses.  (§  1170.1, sub.  (c).)  In a bifurcated proceeding, Fox admitted a prior strike (§  667, subds. (b)-(i); §  1170.12, subds.  (a)-(d)) and five status enhancements pursuant to section  667.5, subdivision  (b).  Fox was sentenced to a total term of 13 years, the middle term of four years doubled on count two, plus 5 one-year enhancements.  The sentence on count one was stayed pursuant to section  654. 

            The facts of the case are not particularly relevant to the issue on appeal.  In brief, Fox is married to Teresa Fox.  In 2003, Teresa was scheduled for a family visit with appellant.  Fox, in a telephone call to Teresa, told her she would be getting a package from someone and that she was to deliver the package to the prison.  Teresa knew this meant she was to bring drugs with her on the visit.  Another inmate, Eddie Pagoda, contacted his wife Patricia Hernandez and told her to deliver drugs to Teresa.  Patricia secreted the drugs inside a stuffed animal and sent it to Teresa.  The conversations were monitored and Teresa was detained when she arrived for her visit.  Pursuant to a warrant, she was searched and heroin was found secreted in her vaginal cavity. 

Discussion

            Fox claims the trial court was obligated under Marsden to conduct a hearing inquiring into the nature of his dissatisfaction with trial counsel.  He contends the error requires reversal.  Respondent counters that no duty under Marsden was invoked because Fox never asked that new counsel be appointed.

            After Teresa testified at trial, Fox asked if he could address the court.  Outside the presence of the jury, Fox said â€