Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Robert J. Perry, Judge. Los Angeles County Super. Ct. No. BA333591
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
In an amended information filed by the Los Angeles District Attorney, defendant and appellant Pedrito Bustamante was charged with five counts of attempted second degree robbery (Pen. Code, §§ 664/211). It was further alleged as to count 1 that in the commission of the offense, appellant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). It was also alleged as to all counts that appellant (1) personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c); and (2) personally used a firearm within the meaning of section 12022.53, subdivision (b). Appellant pled not guilty to all counts.
Throughout the appellate record, Bustamante’s name is inconsistently spelled “Bustamante” and “Bustamente.” We use the spelling in the abstract of judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
Prior to trial, when jury selection was about to begin, appellant informed the trial court that he did not want his counsel to continue to represent him. Although his request was denied that day, the issue was revisited by the parties and the trial court the following day. Appellant’s Marsden motion was denied, and the matter proceeded to trial.
People v. Marsden (1970) 2 Cal.3d 118,123 (Marsden).
On June 23, 2008, the trial court dismissed counts 3 and 4 on the People’s motion based on insufficient evidence and in the furtherance of justice, pursuant to section 1385. The information was further amended to add counts 6 and 7 of assault with a firearm, in violation of section 245, subdivision (a)(1), subsection (2), and an additional special allegation pursuant to section 12022.5, subdivision (a).
The jury found appellant guilty on counts 1, 2, 5, 6, and 7, and found true the special allegations. Appellant was sentenced to 39 years and eight months in state prison. The trial court imposed a restitution fine of $200 and a court security assessment fee of $100. It stayed the $200 parole revocation fine.
Appellant timely filed a notice of appeal. He argues: (1) The trial court erred in denying his Marsden motion; and (2) insufficient evidence supports the jury’s finding that he intentionally discharged a firearm.
FACTUAL BACKGROUND
In accord with the usual rules of appellate review, we state the facts in the light most favorable to the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Pablo Magallon (Magallon) is a barber who worked at a barbershop located on Beverly Boulevard in the City of Los Angeles. The shop was owned by Roberto Nieves Aguero (Aguero), who was also a barber.
On December 12, 2007, Magallon, Alfredo Bugayona (Bugayona), and Aguero were working at the barbershop, and a total of three clients were in the shop, including John Velarde (Velarde) and Pasquale Grella (Grella). Between 9:30 and 10:00 a.m., appellant and another man entered the barbershop while the barbers were working on their clients. Appellant entered the shop first, looked around, and then left to tell the other man to go to the shop. Appellant walked back into the shop and approached Aguero. He was armed with a gun and said: “‘This is a holdup. I want everyone to go to the back.’” The other man stayed by the door.
Once everyone complied with appellant’s order, he further instructed them onto their knees. Appellant said to Aguero: “Hey, you, come here.” He grabbed Aguero’s arm, and tried to search his pockets. According to Grella, appellant told all of them to take out their money.
Appellant forced Magallon to turn around and pushed him. Magallon, who was kneeling, tried to grab appellant’s gun. He struggled with appellant, and appellant fired the gun. The bullet struck and broke a mirror in the shop. Appellant and Magallon continued to struggle. Bugayona and Velarde fell to the ground and crawled away to another room in the shop. Grella ran out of the shop to his nearby home where he called the police.
Aguero fought with the other man, who ran out of the shop. Aguero chased after him, but then returned to the shop. When he returned, Magallon tried to take the gun from appellant, and appellant dropped it. Magallon picked the gun up, and appellant grabbed him. They struggled again, and appellant hit Magallon. Magallon fired the gun twice, shooting himself in the right hand. Appellant yanked the gun away from Magallon. Bugayona and Velarde heard the shots. Velarde ran out of the shop and called the police.
Appellant then ran out of the shop. Magallon chased after him. Appellant was dragging one of his feet and limping. Aguero could see that appellant’s leg was bleeding and followed Magallon. Magallon was able to catch up to him. Magallon grabbed a wooden stick and hit appellant twice.
Aguero called the police, who arrived approximately five minutes later. Magallon returned to the shop. His hand was bleeding.
Officer Hector Beas and his partner, Officer Munoz, responded to a call regarding shots fired at the barbershop. Officer Beas observed a suspect who matched the description he received; that individual was appellant, who was dirty and had facial injuries. Officer Beas exited his patrol car and instructed appellant to get on his knees. Officer Beas put appellant’s hands behind his head and handcuffed him. Then Officer Beas searched appellant for weapons. He recovered a gun from appellant’s waistband and observed blood on the front on appellant’s pants.
Officer Carlos Carias and his partner, Detective Gonzalez, also responded to the call regarding shots fired at the barbershop. They went into the shop and retrieved a magazine with live rounds still inside of it. They also found one additional round next to the magazine. Officer Carias further recovered spent casings and a blood sample. Officer Carias observed the broken mirror and a blood trail from the barbershop.
Later, Aguero identified appellant as the man with the gun. He informed the police that appellant dropped a magazine from the gun in the barbershop. During a field show-up conducted by Sergeant Richard Lozano, Velarde also identified appellant as the gunman. He had no doubt about the identification. Grella was certain that appellant was the gunman.
Velarde was unable to identify appellant in court.
Michael Kelley, a forensic firearm examiner, analyzed the recovered evidence. He concluded that the recovered gun worked properly, and that the recovered magazine fit the gun. He further confirmed that the spent round came from that gun.
DISCUSSION
I. The Trial Court Properly Denied Appellant’s Marsden Motion
A. Procedural Background
On June 19, 2008, when jury selection was about to begin, appellant informed the trial court that he did not want the deputy public defender to represent him. He explained that he told the previous judge assigned to the case that there was a conflict of interest between him and his counsel. He stated: “She’s not helping me. She’s not doing nothing.” The trial court deemed the motion untimely and denied it.
Despite this comment, there is no record that any other judge had ruled on a prior Marsden motion.
The following day, appellant told the trial court that he was trying to retain private counsel. He claimed that his current attorney was not filing any motions on his behalf and had conducted no investigation. The trial court then asked whether appellant had anything else to say. Appellant reiterated that he wanted to retain private counsel. The trial court responded that it was too late, and acknowledged that appellant had brought more than one Marsden motion.
The trial court then inquired of appellant’s trial counsel if she had been investigating the charges leveled against appellant. She stated that an investigator had been appointed and that interviews had been conducted of the witnesses, a victim, and appellant. Appellant interjected that he had only seen his attorney on three occasions. The trial court then advised appellant that it was not going to hear anything further on the issue.
B. Analysis
“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.]”’” (People v. Barnett (1998) 17 Cal.4th 1044, 1085.)
“[W]hen the defendant in some manner moves to discharge his current counsel” (People v. Lucky (1988) 45 Cal.3d 259, 281), the trial court must “afford the defendant an opportunity to express the specific reasons why he believes he is not being adequately represented by his current counsel.” (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1400.) So long as the trial court conducts an adequate inquiry into the defendant’s dissatisfaction, it need not grant the request unless the defendant establishes substantial impairment of his right to counsel. (Marsden, supra, 2 Cal.3d at p. 123.)
“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.]” (People v. Barnett, supra, 17 Cal.4th at p. 1085.)
Here, the trial court did not abuse its discretion in denying appellant’s Marsden motion. It gave appellant ample opportunity to air his reasons for dissatisfaction with his appointed counsel, followed up on his complaints by questioning defense counsel, and then denied the motion.
On appeal, appellant relies upon People v. Roldan (2005) 35 Cal.4th 646, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 and argues that the trial court erred in denying his Marsden motion solely on the ground that it was untimely. He is mistaken. As set forth above, although the trial court noted that appellant’s motion was untimely, it nevertheless allowed appellant to identify specific instances of counsel’s alleged misconduct and reviewed those complaints. Under these circumstances, the trial court did not abuse its discretion in denying appellant’s Marsden motion.
In his reply brief, appellant asserts that the trial court’s error on June 19, 2008, (denying his Marsden motion solely on the ground of untimeliness) was not cured by the trial court’s inquiry into appellant’s complaints on June 20, 2008. We cannot agree. There is no indication that appellant made two separate Marsden motions. Rather, the trial court acted within its discretion in construing appellant’s objection as one complaint to defense counsel.
In any event, none of appellant’s concerns warranted the appointment of new counsel. Regarding appellant’s claim that counsel was not filing any motions, defense counsel, not appellant, was entitled to make tactical decisions regarding strategy for the case. (People v. Welch (1999) 20 Cal.4th 701, 728–729.) Likewise, appellant’s assertion of an inadequate investigation was vague and disputed by defense counsel; the trial court was free to disbelieve appellant and accept appellant’s counsel’s explanation. (People v. Jones (2003) 29 Cal.4th 1229, 1245.) Finally, the fact that counsel had only seen appellant on three occasions does not justify reversal. (See People v. Walker (1976) 18 Cal.3d 232, 237–238; People v. Terry (1962) 57 Cal.2d 538, 553.) These circumstances, coupled with the fact that appellant did not make his Marsden motion until jury selection was about to begin (People v. Whitt (1990) 51 Cal.3d 620, 659 [trial court retains discretion to deny Marsden motion as untimely]), demonstrate that the trial court’s order was not an abuse of discretion.
Finally, even if the trial court did commit Marsden error, that error does not compel reversal. As appellant concedes, Marsden error is generally not reversible per se. (People v. Chavez (1980) 26 Cal.3d 334, 348–349.) Because the appellate record is adequate, we can readily determine that appellant would not have obtained a more favorable result had his motion been granted. (Ibid.; see also People v. Washington (1994) 27 Cal.App.4th 940, 944.)
II. Sufficient Evidence Supports the Jury’s Finding that Appellant Intentionally Discharged a Firearm
Appellant argues that insufficient evidence supports the jury’s finding that he intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c).
Section 12022.53, subdivision (c), provides: “Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years.”
In calculating the sufficiency of the evidence, an appellate court reviews the whole record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find the enhancement true beyond a reasonable doubt. (People v. Thomas (1992) 2 Cal.4th 489, 514.) If the circumstances reasonably justify the trier of fact’s findings, reversal is not warranted merely because the circumstances might also be reasonable reconciled with a contrary finding. (Ibid.)
Although the jury could have possibly found that the gun accidentally discharged during the struggle between Magallon and appellant, it was not required to do so in the face of evidence to the contrary. Magallon expressly testified that appellant fired the gun during their struggle. He did not testify that the gun fired accidentally. No testimony was presented to the contrary. The jury was entitled to credit Magallon’s testimony, and we defer to the fact finder's credibility determination. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, Acting P. J. CHAVEZ, J.