Opinion
F060576 Super. Ct. No. VCF230530
08-09-2011
THE PEOPLE, Plaintiff and Respondent, v. JOHNNIE ALBERT BENNETT, Defendant and Appellant.
David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari L. Ricci, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Hill, P.J., Cornell, J. and Detjen, J.
APPEAL from a judgment of the Superior Court of Tulare County. James W. Hollman, Judge.
David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari L. Ricci, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Johnnie Albert Bennett appeals from the judgment entered following his conviction by jury of first degree murder (Pen. Code, § 187, subd. (a)). Appellant's sole contention on appeal is that the matter must be remanded for a new hearing on his posttrial Marsden motion because the trial court's denial of the motion was based on a misunderstanding of the relevant facts. We reject appellant's contention and affirm the judgment.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
FACTUAL AND PROCEDURAL BACKGROUND
At trial, the prosecution presented evidence that appellant and his nephews, Charles and Ricky Peters, picked up the victim, Richard Hopper, ostensibly to take him somewhere to cash his social security check to repay money he owed appellant. Charles testified that, instead of taking Hopper to cash his check, they drove him to an orange grove. During the drive, appellant was angry and kept asking Hopper about the location of certain guns. Although appellant threatened they would beat him up if he did not reveal their location, Hopper maintained that he did not know where the guns were.
Charles testified against appellant pursuant to a plea agreement, under which he pled guilty to voluntary manslaughter and agreed to testify truthfully in all court proceedings.
When they reached the orange grove, Ricky, who had been driving, ordered Hopper to get out of the car. Appellant pulled Hopper down on the ground, and pulled his shirt over his head. While Hopper was on the ground, appellant kicked him multiple times in the face and head. Ricky also punched and kicked Hopper. Charles testified that he watched "in shock" as appellant and Ricky continued beating Hopper "[f]or a good 20 to 30 minutes." Later that evening, Hopper's body was discovered on the side of the dirt road next to the orange grove. The doctor who performed Hopper's autopsy determined that Hopper died as a result of blunt force trauma to the face and head.
A few weeks after the jury returned its guilty verdict, appellant wrote a letter to the trial court, requesting a new attorney and claiming defense counsel, Marcos Olmos, provided him with inadequate representation at trial. The trial court denied the motion after holding an in camera Marsden hearing.
During the Marsden hearing, among the several complaints appellant made against Mr. Olmos was that he failed to present evidence concerning appellant's health to show that he was physically incapable of participating in the attack that killed Hopper. In this regard, the trial court questioned appellant and Mr. Olmos as follows:
"THE COURT: Did you have witnesses to bring forth or --
"THE DEFENDANT: Yeah.
"THE COURT: Who else did you want to bring forth?
"THE DEFENDANT: I had a few people that I worked for to bring forward about my health.
"THE COURT: Your health?
"THE DEFENDANT: Yeah. And he has doctors' statements about the condition of my feet that he never presented.
"THE COURT: Mr. Olmos?
"MR. OLMOS: Well, I really -- we had talked about this once before. But to be quite honest with you, the way -- you know, he does have some agility. There was an issue as to whether he could have done any of the physical, you know, attack on the victim. But the reports that were presented only has to do with -- you know, he does have some medical problems. But the way he was in court at the time of the trial, I don't know, to me it just seemed like it was not a very good issue to bring up.
"THE COURT: So, you're saying it was a tactical decision--
"MR. OLMOS: Right.
"THE COURT: --not to particularly bring that up and go --
"MR. OLMOS: Correct. And I think we also had an in limine about this, if I remember correctly.
"THE COURT: And you wanted something about your health to be brought up or what?
"THE DEFENDANT: Yeah. I was 400 pounds at the time.
"THE COURT: All right. I think that came up, from what I remember, in the trial.
"MR. OLMOS: Yeah, it did.
"THE COURT: It did come up. And that was his argument, from what I recall.
"You argued that.
"MR. OLMOS: Yeah.
"THE COURT: So I'm not sure what else you wanted, Mr. Bennett It did come up. It was an issue in the trial. I remember Mr. Olmos argued it and the fact that you were incapable of doing the murder. The jury, I don't think, bought it.
"THE DEFENDANT: He just -- well, what about questioning the witnesses about their testimony to the police reports and what they stated? Why wouldn't he do that?
"THE COURT: Well, I'm not sure what you mean. He cross-examined each of the witnesses, from what I recall.
"THE DEFENDANT: But nothing to the benefit of my defense.
"THE COURT: Well, I think he did. I was in the trial, too. I think
he --"THE DEFENDANT: Yeah, and the way he was forgetting my name. Witnesses were having to correct him. He was not ready for this trial. [¶] ... [¶]
"THE COURT: All right. Okay. Yeah, I was in the trial, too, and I don't see that Mr. Olmos' representation of you, Mr. Bennett, was lower than the standard of any competent attorney, and he did hit the issues that
you indicated you wanted hit today. I'm going to deny your motion at this
time."
DISCUSSION
On appeal, appellant acknowledges the trial court "followed the proscribed procedure" in holding the Marsden hearing. Nonetheless, he contends the court abused its discretion in denying his Marsden motion because the denial was "based on a misunderstanding of the pertinent facts." Specifically, appellant claims the trial court improperly denied his motion based on the mistaken belief that defense counsel argued to the jury that appellant was physically incapable of committing the murder when, in fact, defense counsel did not argue this specific point during closing argument.
A. Applicable Legal Principles
"Marsden motions are subject to the following well-established rules. '"'When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].' [Citations.]"' [Citation.]" (People v. Barnett (1998) 17 Cal.4th 1044, 1085 (Barnett).)
"Denials of Marsden motions are reviewed under an abuse of discretion standard. [Citation.] Denial 'is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would "substantially impair" the defendant's right to assistance of counsel. [Citations.]' [Citation.]" (Barnett, supra, 17 Cal.4th at p. 1085.) A bare assertion of inadequate representation is insufficient to require appointment of new counsel. (People v. Crandell (1988) 46 Cal.3d 833, 859 [defendant must make a substantial showing], disapproved on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 365.)
Simply because a defendant does not like or think highly of his or her attorney does not compel a substitution of counsel. (People v. Memro (1995) 11 Cal.4th 786, 857.) In addition, a defendant's right to a competent and adequate defense does not mean that a defendant has the right to present the defense of the defendant's own choosing. (People v. Cole (2004) 33 Cal.4th 1158, 1192 (Cole).) Stated otherwise, a defendant does not have a right to an appointed attorney who will conduct the defense in accordance with the defendant's wishes. (People v. Lucky (1988) 45 Cal.3d 259, 281-282.) Furthermore, tactical decisions are made by counsel, and disagreements over those decisions, in themselves, do not constitute an "irreconcilable conflict" for purposes of Marsden. (Cole, supra, at p. 1192; People v. Welch (1999) 20 Cal.4th 701, 728-729 (Welch).)
B. Analysis
The trial court in this case did not abuse its discretion in denying appellant's Marsden motion. Once it received appellant's letter, the trial court properly held a hearing, at which it permitted appellant to articulate his complaints about defense counsel, inquired into the issues raised, and required defense counsel to respond. Through this inquiry, the court ascertained that defense counsel made a tactical decision not to call defense witnesses to testify concerning appellant's health. "We do not find Marsden error where complaints of counsel's inadequacy involve tactical disagreements." (People v. Dickey (2005) 35 Cal.4th 884, 922; accord Welch, supra, 20 Cal.4th at pp. 728-729.) The record thus belies appellant's suggestion that the trial court's denial of his Marsden motion was based solely on the mistaken belief that defense counsel argued in closing that appellant was physically incapable of committing the crime. The record demonstrates that one of the factors the court properly considered was that appellant's complaint involved a disagreement with counsel over trial tactics.
The record supports counsel's explanation that his decision was a tactical one, and appellant does not argue otherwise or directly address the court's consideration of this factor. As defense counsel correctly pointed out during the Marsden hearing, the issue of appellant's health arose during in limine motions, when the prosecutor informed the court that, if the defense presented evidence to suggest that appellant was so obese he could not possibly have kicked or hit the victim, she planned to call, as a rebuttal witness, a sheriff's deputy, who worked in the jail where appellant was housed and had observed him on a daily basis. Defense counsel responded that, at that time, he did not intend to present such evidence. He noted that appellant had lost weight since he had been in jail, and suggested that appellant's current "thinner" appearance could cast doubt on a theory that he was physically unable to commit the offense.
In any event, the trial court was substantially correct in its recollection that defense counsel developed, during the trial, the theme that appellant was physically incapable of committing the murder. Thus, in his opening statement, defense counsel asserted:
"But when this incident happened, it was not Mr. Bennett who was beating up on Richard Hopper. It was the two nephews. They were the ones that were doing it because they were younger, they had more they were more athletic, as opposed to Mr. Bennett over here who's overweight and probably would have had a hard time trying to do that. [¶] That's what we feel that the evidence will show. Thank you."Thereafter, defense counsel elicited testimony supporting this theme. For example, Charles testified on cross-examination that he and Ricky were both around six feet tall and weighed 200 pounds, and that, although appellant was shorter than they were, he weighed more than they did and also suffered from diabetes. A sheriff's detective testified that, at the time of his arrest, appellant was around "[f]ive-seven, five-eight" feet tall and weighed "in the neighborhood of 300, 350 pounds" and exhibited "labored" breathing when deputies moved him between vehicles. Additionally, appellant's live-in girlfriend testified that appellant had been diagnosed with sleep apnea, requiring him to sleep with an oxygen tank. Due to his sleep condition, there were times when appellant was unable to stay awake or she had difficulty waking him.
In light of the forgoing, we agree with respondent's assertion that "even though counsel did not expressly argue in closing that appellant was physically incapable of committing the offense, the inference was made for the jury in both counsel's opening statement and through the presentation of evidence of appellant's poor health and physical limitations." Thus, "the trial court properly recalled and understood the relevant facts when it denied appellant's Marsden motion."
For these reasons, we conclude the trial court properly exercised its discretion in denying appellant's posttrial Marsden motion and appellant has not shown he is entitled to a new hearing on remand.
DISPOSITION
The judgment is affirmed.