Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Richard F. Toohey, Judge. Super. Ct. No. 08HF1560
Renee Rich, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
RYLAARSDAM, ACTING P. J.
In August 2008, a department store employee saw defendant Karim Tambousie Kidd walk out of the store rolling a suitcase full of merchandise behind him. The sensor still attached to the luggage triggered the store’s alarm. The employee did not believe defendant had paid for the merchandise but did not try to stop him because it was against company policy. She called her manager but defendant was no longer in sight.
Ten days later, the same employee saw defendant enter the store again and pull shoes out of their boxes before going to the luggage department. She told her manager and both watched as defendant placed merchandise into the luggage. When defendant started walking towards the exit with the luggage, the manager and other employees physically attempted to stop him. Defendant complained the manager was choking and killing him and bit the manager’s arm.
When police arrived, defendant was being held on the floor inside the store’s entrance with his legs bound together by tape. Defendant told police that store employees had attacked him and that he had never been to the store before. He also said he had left his money and credit cards at home but later claimed he had $600 to $700 in cash when he entered the store and lost it during the altercation. Police questioned the store’s loss prevention officer and witnesses, but no one reported finding money.
A jury convicted defendant of petty theft with a prior felony conviction (Pen. Code, §§ 484, subd. (a), 488, 666), commercial burglary (Pen. Code, §§ 459, 460, subd. (b)) and second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)). In a bifurcated proceeding, certified court documents and records were submitted to prove allegations defendant had six theft-related convictions and had served three prior prison terms. The prosecution and defense submitted the truthfulness of the priors based on that evidence. The court took the matter under submission and later that day, without either party present, issued true findings on all of the priors.
At the sentencing hearing, the court informed defendant it had received a letter from him but was “not in a position to accept ex parte communications” and returned it unopened to defense counsel. Defendant made a statement to the court complaining he had not received a fair trial and that his counsel had failed to subpoena certain witnesses. When defendant repeated himself after being asked if there was anything else he wanted to say, the court interrupted, stating, “It appears your life is just one unfair trial....” The court sentenced defendant to three years in prison on the commercial burglary count, plus three years for the prior prison term enhancements, and imposed concurrent three-year terms on the second degree robbery and petty theft counts.
We appointed counsel to represent defendant on appeal. Counsel filed a brief summarizing the facts and proceedings below. He did not argue against defendant but advised the court he had not found any issues to present on defendant’s behalf. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Pursuant to Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], counsel identified several possible, but not arguable, issues to aid us in our independent review of the record: (1) were defendant’s two motions under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), made respectively on February 23 and 26 when his case was called for jury trial and the day after it was assigned to a courtroom, correctly denied; (2) did the court violate defendant’s rights in issuing findings on the prior conviction allegations without defendant or his counsel being present; and (3) did the court err in not conducting a Marsden inquiry when defendant complained during the sentencing hearing and in cutting defendant’s statement off. Having reviewed the entire record, including the reporter’s transcript of the Marsden proceedings on February 23 and 26, we find no arguable error that would result in a disposition more favorable to defendant.
On the first issue raised by counsel, a trial court properly denies a request for substitution of appointed counsel where, as here, there is an insufficient showing that the right to the assistance of counsel would be substantially impaired if the request is not granted. (Marsden, supra, 2 Cal.3d at p. 123.) Regarding the second, a defendant has the right to be present only at proceedings that are “‘critical to [the] outcome’” and the defendant’s “‘presence would contribute to the fairness of the procedure’” or where it would “‘bear a “‘“reasonably substantial relation to the fullness of his opportunity to defend against the charge.”’”’ [Citations.]” (People v. Waidla (2000) 22 Cal.4th 690, 741-742.) Given defendant’s submission on the documentary evidence presented as proof of his priors and acknowledgement of their truthfulness, the court’s act of issuing its findings on those allegations was not such a proceeding.
Lastly, “‘“[a]lthough no formal [Marsden] motion is necessary, there must be ‘at least some clear indication by defendant that he wants a substitute attorney.’” [Citations.]’ [Citation.]” (People v. Dickey (2005) 35 Cal.4th 884, 920.) Here there was no such indication at the sentencing hearing. Moreover, defendant has not shown a Marsden motion would have been granted had it been heard, or that a more favorable result would have been achieved given that his statements were made after he had been convicted and did not affect his trial in any manner. (See People v. Washington (1994) 27 Cal.App.4th 940, 944.) And because defendant was merely reiterating assertions he had already made, the court did not err when it cut him off after asking if he had anything else he wanted to say.
We granted defendant 30 days to file written argument on his own behalf. More than 30 days elapsed, and we received no communication from defendant.
The judgment is affirmed.
WE CONCUR: ARONSON, J., IKOLA, J.