P. v. Chatman
Filed 9/3/13 P. v. Chatman CA2/8
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
EIGHT
THE PEOPLE,
Plaintiff
and Respondent,
v.
DARRYL CHATMAN,
Defendant
and Appellant.
B238237
(Los Angeles
County
Super. Ct.
No. NA087422)
APPEAL
from the judgment of the Superior Court
of
County. Richard R.
Romero, Judge. Affirmed.
Michael
Allen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback
II and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
* *
* * * * * * * *
Defendant
and appellant Darryl Chatman was convicted by jury of one count of
in denying his request for substitute counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118, 123-125 (
effective assistance of counsel. We
affirm.
Sometime
shortly before 5:00 on the morning of November 23, 2010, three individuals
called 911 and reported a car accident involving a black Chevy Silverado truck
in the vicinity of 7th Street and Atlantic Boulevard in the City of Long
Beach. The individuals reported the
sound of tires “burning†rubber, and of the truck hitting several parked
cars. Police officers were dispatched to
the scene.
Esther Gale lived
near the site of the accident and awoke to the sound of screeching tires. She stepped outside, smelled the distinct
odor of burning rubber, and saw a black truck careening down the street,
hitting parked cars, a fence, at least one tree and ultimately coming to a stop
near an alley. She saw an individual get
out of the truck, wearing a plaid shirt.
He had a cell phone to his ear, and he looked right at her as he walked
past and turned the corner.
James Richardson,
a patrol officer with the Long Beach Police Department, reported to the scene
in response to the dispatch call. He saw
a black truck crashed on the sidewalk of 7th Street, near Lime Street. Several bystanders told him they saw
individuals running down Lime Street. As
Officer Richardson drove down Lime Street, he saw a Hispanic male waving his
arms at him “frantically†and trying to get his attention.
Mario Reyes was
the man who flagged down Officer Richardson.
Mr. Reyes had been driving his truck near 8th Street on his way to his
job loading fruit. While stopped at an
intersection, a man he did not know (but later identified as defendant) walked
up to the passenger side of his truck.
The window was rolled down and defendant asked if Mr. Reyes had any
change. He said no, at which point
defendant tried to yank open the passenger door, yelling at Mr. Reyes to give
him the keys to the truck and leave.
Defendant also pointed to some sort of identification badge on his shirt
and claimed to be a police officer.
Defendant opened
the passenger side door, climbed into the truck and tried to position himself
between Mr. Reyes and the steering wheel.
The two fought to control the steering wheel. Mr. Reyes pressed his foot on the brake
pedal, but defendant stepped on the gas, causing the tires to burn rubber. Defendant eventually was able to commandeer
the truck down the street a short way toward 7th Street, veering onto the
sidewalk, hitting three parked cars and eventually crashing to a stop. The air bag deployed, hitting Mr. Reyes. Defendant fled the vehicle and ran down an
alley.
Mr. Reyes followed
defendant and then saw Officer Richardson’s patrol car and flagged him
down. Mr. Reyes pointed out defendant,
who was still in the alleyway. Officer
Richardson told defendant to stand by the front of the patrol car. He noticed defendant was breathing heavily
and smelled of alcohol. He performed a
patdown search of defendant and found several items in his front pants pocket,
including three cell phones. Officer
Richardson showed the phones to Mr. Reyes, and Mr. Reyes identified two of the
phones as his. Both of his phones had
been set to Spanish and had been in his truck before the incident.
Ms. Gale
identified defendant in a field identification as the man she saw get out of
the truck and walk past her on the sidewalk.
Defendant was
charged with one count of carjacking (Pen. Code, § 215, subd. (a))
(b)). It was also specially alleged
defendant had suffered a prior qualifying strike within the meaning of the
Three Strikes law. (§ 1170.12, subds.
(a)-(d).) Defendant pled not
guilty.
Defendant
made his first Marsden motion on
February 24, 2011. Defendant advised the
court he felt his court-appointed attorney, Mr. Russ, was not keeping in touch
with him, had not tried to present a defense at the preliminary hearing, and
was not following through on inconsistencies in the statements made by the
victim, Mr. Reyes. Defendant contended
there had been no carjacking and that his version of the incident would have
been bolstered by showing that Mr. Reyes had given testimony at the preliminary
hearing that differed from his statements to the police as reflected in the
police report.
The court explained
the purpose of a preliminary hearing and that the defense often chooses not to
“show [its] hand†to the prosecution, and that it is unlikely for a case to be
dismissed at that stage in the proceedings.
The court allowed defendant to clarify and be more specific about his
concerns and then offered Mr. Russ an opportunity to respond. Mr. Russ explained he had spoken with
defendant numerous times and was taking his claimed defense seriously. He was attempting to investigate defendant’s
assertion that Mr. Reyes was in fact not a victim but part of a drug-selling
operation, and that there had been no carjacking, but only a drug sale that
went badly. Mr. Russ said time waivers
were necessary to perform a complete investigation because individuals were
hesitant to speak honestly about something that could incriminate them.
At the conclusion
of the lengthy discussion with the court and counsel, defendant said he would
continue with Mr. Russ as his lawyer.
The motion was denied.
Thereafter, defendant waived time for several months to allow
Mr. Russ the opportunity to investigate and prepare his defense.
On the eve of
trial, defendant made a second Marsden
motion. Defendant complained he had been
expected to waive time for trial for some 10 months and yet Mr. Russ had
apparently not completed the investigation into defendant’s defense. He expressed his concern that Mr. Russ did
not believe or understand the importance of the three cell phones found on him
by the police and what the records for those phones could reveal about the
parties’ relationship in drug dealing.
Defendant claimed Mr. Russ was defending the credibility of Mr. Reyes
and he was very uncomfortable with him.
The court again allowed Mr. Russ to respond and allowed defendant to
reply and clarify his concerns.
Mr. Russ said he
told defendant he had reservations about presenting a defense that relied
solely on claiming the victim was lying about the incident, particularly when
he felt Mr. Reyes did not appear to lack credibility during his testimony at
the preliminary hearing. He said he
never told defendant he would not present that defense, or attempt to highlight
the inconsistencies in Mr. Reyes’s statements.
He merely explained his concern about hinging the entire defense on
showing Mr. Reyes to be a liar. Mr. Russ
explained that phone records he had subpoenaed for the three cell phones had
not shown the call activity defendant had hoped they would. His attempt to speak with possible witnesses
had not been successful either, which he indicated was not surprising “given
that we’re trying to say that they were involved in drug selling.†Mr. Russ sought to assure defendant that he
was diligently working on the defense and that he would present his defense to
the jury as best he could under the circumstances.
After a discussion
off the record with Mr. Russ, defendant advised the court that he’ll “keep him
on.†The motion was denied.
Trial
by jury started on September 26, 2011.
Defendant made a third Marsden
motion on the morning of the first day of trial. Defendant informed the court he was
frustrated, that Mr. Russ failed to properly appreciate his defense, and had
failed to timely and thoroughly investigate the defense to uncover supporting
evidence to bolster his version of events. Defendant asserted in particular that, despite
claiming to do so, Mr. Russ had not obtained all of the relevant records
for the three cell phones. He also
asserted the victim of the alleged carjacking, Mr. Reyes, was not a victim, but
an intermediary for a drug dealer, “Maria,†and that he was supposed to deliver
drugs to defendant for sale. Defendant
explained the phone records were crucial because they would show Mr. Reyes had
had telephone contact with Maria or “Greg†(another individual involved in the
sales), supporting defendant’s claim that Mr. Reyes was part of the drug
sale operation and that he fabricated the carjacking story to protect himself
from criminal liability.
The court sought
to clarify defendant’s position. “THE
COURT: Okay. [¶] So
you’re hoping that getting the phone records of number X, that number X is
going to show a call to number Y, and number Y belongs to the victim? [¶]
THE DEFENDANT: Yes, sir.â€
Mr.
Russ then explained he had indeed subpoenaed the records for all three cell
phones, but had not received a return as to one of the phones. He said the records received for two of the
phones did not show the call activity defendant had hoped. He described pursuing the missing records for
the third phone as a “moot†point “because I was able to get the records of the
two other parties that [defendant] was hoping we would be able to show were
called by the alleged victim in this case, and one of those parties, in
particular . . . Maria – she is the one who is allegedly a drug dealer. I have all her phone records. I have gone through them carefully, and she
has no phone calls during that period of time to . . . the victim in this case,
which is what [defendant] was saying was happening. And that was quite an exhaustive effort to
get those phone records.†Mr. Russ
also indicated there were no relevant calls for Greg.
When
asked by the court if he had any other concerns with Mr. Russ’s representation,
defendant said Mr. Russ had threatened him that he “better watch it†because
“there is a fine line between attorney/client privilege.†The court expressed its confusion about what
defendant was trying to relate, and defendant said he understood Mr. Russ to be
threatening to tell the prosecutor about their privileged communications or
“something to that effect.†Mr. Russ
said he was not certain what defendant could possibly be referencing and that
he would never threaten a client, and did not threaten defendant in any way.
The
court then said: “Mr. Chatman, my sense
is that you’re frustrated with the case, and Mr. Russ is a good target for that
frustration. Perhaps, also, you know
what’s going to happen at trial and you’re trying to avoid that. So that’s my suspicion, sir, that this is all
intended to delay things. [¶] I want to make sure you get a fair trial, and
Mr. Russ is a great lawyer. You’re
lucky to have him. There is no basis to
excuse him. So I find that there is no
violation here and Mr. Russ is doing an excellent job of defending Mr.
Chatman.†The court denied defendant’s
motion.
Defendant then
exercised his right to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806. The court questioned defendant on the record
about his request to represent himself at trial, and found defendant to have
made a knowing and voluntary decision to waive his right to counsel and
represent himself. Mr. Russ was relieved
of his appointment.
During
trial, defendant presented his defense that Mr. Reyes had fabricated the
carjacking story and was part of a drug-selling operation, making reference to
that theory in both his opening statement and closing argument, and attempting
to develop it during his cross-examination of the prosecution’s witnesses. Mr. Reyes denied being a drug dealer and of
knowing defendant, Maria or Greg. Mr.
Reyes identified two of the cell phones recovered from defendant as belonging
to him, and that he had set both to the Spanish language. He said his cell phone was a Samsung with a
phone number ending in 7719,
name="_ftnref2" title="">[2] and that the other phone did not work.
Officer
James Craig testified about his review of the electronic contents of the three
phones recovered from defendant. He
explained that two of the phones were Samsung models, and the other was a
Motorola. One of the Samsung models had
the phone number ending in 7719. There
was no call activity at all on that phone on November 23, 2010, the date of
defendant’s arrest on the carjacking charge.
The last incoming call on November 22 was at 5:10 p.m., and the
last outgoing call was at 11:37 p.m.
None of the calls indicated a “Maria†as the identified contact. Defendant specifically asked Officer Craig if
any of the incoming or outgoing calls for that phone referenced the phone
number ending in 9182.
name="_ftnref3" title="">[3] Officer Craig said no.
Ms. Gale testified
at trial and identified defendant as the man she saw getting out of the truck,
who then walked past her talking on a cell phone. At the conclusion of the prosecution’s case,
defendant exercised his right not to testify in his own defense and did not
call any defense witnesses.
While
the jury was deliberating, the prosecution moved to amend the information to
include an omitted allegation identifying defendant’s prior qualifying strike
under section 667, subdivision (a)(1) (mandatory five-year enhancement for
prior strike qualifying as serious felony).
The court granted the prosecutor’s motion.
The
jury found defendant guilty of carjacking, but was unable to reach a verdict on
count 2, impersonating an officer. On
the prosecution’s motion, count 2 was dismissed. Defendant waived his right to a jury trial on
the bifurcated prior allegations.
Defendant subsequently admitted his prior conviction for robbery (§
211). The court found it true and
continued the matter for sentencing. Defendant was sentenced to 23 years in state
prison. This timely appeal
followed.
1.
The
It
is well-established that a criminal defendant has the right to timely seek
substitution of appointed counsel based upon a showing of inadequate
representation or an irreconcilable conflict.
(Marsden, supra, 2 Cal.3d at pp. 123-125; accord, People v. Ortiz (1990) 51 Cal.3d 975, 984.) But, the right is not absolute. “ ‘A defendant is entitled to have
appointed counsel discharged upon a showing that counsel is not providing
adequate representation or that counsel and defendant have become embroiled in
such an irreconcilable conflict that ineffective representation is likely to
result.’ [Citation.] When the defendant seeks to remove appointed
counsel ‘the trial court must permit the defendant to explain the basis of his
contention and to relate specific instances of counsel’s inadequacy.’ [Citation.]
The trial court’s ruling is reviewed for abuse of discretion.†(People
v. Panah (2005) 35 Cal.4th 395, 431.)
No abuse of discretion will be found, unless the court’s failure to
grant the defendant’s request to substitute counsel results in the substantial
impairment of the defendant’s right to effective assistance of counsel. (People
v. Gutierrez (2009) 45 Cal.4th 789, 803.)
As
to defendant’s first two Marsden
motions, defendant can claim no error because the record plainly shows that,
after detailed discussions with the court as to the bases for his concerns,
defendant voluntarily agreed to maintain the attorney-client relationship with
his appointed lawyer, Mr. Russ.
In
his third Marsden motion on September
26, 2011, defendant reiterated the same concern he raised in his first two
motions, i.e., counsel did not obtain all the records for all three cell phones
to show a preexisting relationship between the parties that would support
defendant’s story there had been no carjacking, only a drug deal that went
awry.
As
with the first two motions, the court allowed defendant to fully articulate his
concerns on the record and asked Mr. Russ to respond and address defendant’s
reservations about his representation in reasonable compliance with the court’s
obligations under Marsden. We find the court’s inquiry into the grounds
for defendant’s discontent with Mr. Russ was more than adequate. (People
v. Abilez (2007) 41 Cal.4th 472, 490-491.)
The
record reflects Mr. Russ investigated the defense that a connection could be
shown to exist between the parties through phone records. He explained that records for two of the
phones subpoenaed did not show any connection.
Mr. Russ
acknowledged he did not obtain records in response to the subpoena for the
third phone. But he was able to separately obtain the phone records of
Maria and Greg, the two people who defendant believed had made drug-related
calls to, or received calls from, Mr. Reyes, and the phone records of Maria and
Greg showed no such calls to or from Mr. Reyes’s cell phone. Mr. Russ’s representation of
defendant and preparation for trial cannot be characterized as incompetent or
deficient simply because he did not pursue the records for the third phone,
when other evidence he was able to obtain during the course of his
investigation negated the proof defendant thought might be contained in those
records.
The
evidence at trial appears to have supported the absence of any call activity of
the type defendant had hoped would be shown to have occurred. For instance, defendant specifically asked
about whether phone number ending in 9182 was reflected on the contents of Mr.
Reyes’s phone. Officer Craig confirmed
that it was not, and also stated there was nothing on Mr. Reyes’s phone showing
a contact named Maria. This evidence
supports Mr. Russ’s explanation during the third Marsden hearing that he had not found any relevant call activity on
the phone records he obtained regarding Maria and Greg and the victim, Mr.
Reyes.
There
is no showing of an abuse of discretion by the court in denying defendant’s
September 26, 2011 Marsden
motion.
2.
Ineffective
Assistance of Counsel
The burden is on
defendant to establish ineffective assistance by a preponderance of the
evidence. (People v. Ledesma (1987) 43 Cal.3d 171, 218 (Ledesma).) There are two
elements to an ineffective assistance claim.
“[A] defendant seeking relief on the basis of ineffective assistance
must show both that trial counsel failed to act in a manner to be expected of
reasonably competent attorneys acting as diligent advocates, and that it is
reasonably probable a more favorable determination would have resulted in the
absence of counsel’s failings.†(
623, citing Strickland v. Washington
(1984) 466 U.S. 668, 687-696 (Strickland).)
On direct appeal,
this burden can be stringent. When the
record on appeal “ ‘ “sheds no light on why counsel acted or failed
to act in the manner challenged[,] . . . unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no
satisfactory explanation,†the claim on
appeal must be rejected.’
[Citation.] A claim of
ineffective assistance in such a case is more appropriately decided in a habeas
corpus proceeding.†(
Cal.4th 264, 266-267, italics added; People
v. Jones (2003) 29 Cal.4th 1229, 1254 [ineffective assistance claim
properly resolved on direct appeal only where record affirmatively discloses no
rational tactical purpose for counsel’s actions].)
To the extent
defendant raises an ineffective assistance of counsel claim, it is based on the
same conduct of which defendant complained during the Marsden hearings. There is a
“strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’
[Citation.]†(
As explained above, Mr. Russ’s investigative efforts and
explanation for not further pursuing the records of the third cell phone
reflect competent, reasoned representation of defendant. Nothing defendant has presented overcomes the
presumption that Mr. Russ’s conduct in preparing for trial was anything other
than “sound trial strategy†or the result of reasoned choices within his
discretion as to the best course of action to pursue in that regard.
Moreover,
“prejudice must be affirmatively proved.
[Citations.] ‘It is not enough
for the defendant to show that the errors had some conceivable effect on the
outcome of the proceeding. . . .
The defendant must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have
been different. . . .
[Citations.] Specifically,
‘[w]hen a defendant challenges a conviction, the question is whether there is a
reasonable probability that, absent the errors, the factfinder would have had a
reasonable doubt respecting guilt. . . .’ [Citation.]â€
(Ledesma, supra, 43 Cal.3d at pp. 217-218.)
Defendant
has not shown a reasonable probability the jury would have entertained a
reasonable doubt as to his guilt in the absence of the alleged errors by Mr.
Russ. Ineffective assistance of counsel
has not been affirmatively established.
The
judgment of conviction is affirmed.
GRIMES,
J.
We concur:
RUBIN,
Acting P. J.
FLIER,
J.
name="_ftn1" title="">[1] All
further undesignated statutory references are to the Penal Code.
name="_ftn2" title="">[2] For
privacy reasons, we have not included the full telephone number set forth in
the record.
