P. v. Tappin

Filed 7/25/06 P. v. Tappin CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 Kern County. Kenneth C. Twisselman II, Judge.

Phillip I. Bronson, 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, Louis M. Vasquez and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant appeals from his conviction and sentencing for two counts of secondary burglary following his plea of guilty by reason of insanity and his subsequent court trial in which he was found to be sane at the time of the commission of the charged offenses. The sole ground for his appeal is that the trial court erred in denying his postconviction Marsden motion for substitution of counsel.^[1] We affirm.

Defendant pled guilty by reason of insanity to two counts of secondary burglary in violation of Penal Code section 460, subdivision (b).^[2] He admitted he had been convicted of a robbery within the meaning of Penal Code section 667 and section 1170.12. Following a waiver of trial by jury the court found appellant was sane at the time of the commission of the charged crimes. Several weeks later and before final sentencing, defendant filed a Marsden motion which the court denied. Thereafter, defendant was sentenced to 7 years 4 months in state prison. Five days later he filed a motion for a new trial based on inadequate representation of counsel. The court denied the motion as untimely. This appeal followed.

In the sanity trial the court considered medical reports from Dr. Middleton, Dr. Couture and Dr. Velosa as well as live testimony from Dr. Middleton.

Dr. Middleton, a licensed psychologist, examined Defendant on three different occasions and administered a battery of tests. As a result of the interview, the test results, and defendant's medical records, Dr. Middleton testified that defendant was legally insane at the time of these offenses.

Dr. Velosa and Dr. Couture were appointed to examine the defendant. Both examined him and concluded that he was sane at the time the offenses were committed.

Defendant's appeal is based on the trial court's denial of his posttrial Marsden motion. In Marsden the California Supreme Court held that a trial court must give a defendant the opportunity to explain the reasons for desiring a new attorney. Once the reasons are presented, it is a matter of judicial discretion whether substitution of counsel should be ordered. Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would â€