Opinion
E050566
09-29-2011
THE PEOPLE, Plaintiff and Respondent, v. DERWIN LEE BUTLER, JR., Defendant and Appellant.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting, Andrew Mestman, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIF151243)
OPINION
APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting, Andrew Mestman, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Arguing that the trial court improperly denied his posttrial Marsden motion, Derwin Lee Butler, Jr., (defendant) seeks reversal of the judgment and appointment of new counsel for the purpose of filing a motion for a new trial. We will affirm.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
FACTS AND PROCEDURAL HISTORY
Sometime between 10:00 and 10:30 p.m. on May 25, 2009, the victim saw two men attempting to remove the tires and/or the wheels from a car parked in front of his apartment in Moreno Valley. When he asked the men what they were doing, they became upset. When he tried to go next door to ask his neighbor if the car belonged to him, a group of seven or eight men, including defendant and the two men who had been removing the tires, began beating him. Defendant held a gun pointed at the victim while three other members of the group knocked him down and hit and kicked him. Defendant also hit him—seven or eight times—possibly with the gun. The victim's face was severely bruised and battered, one of his teeth was knocked out, and his wallet was stolen.
The neighbor the victim had tried to ask about ownership of the car told the men to stop hitting the victim; when they left, the neighbor helped the victim up and took him into his house to render first aid. Three or four minutes later, the group of men returned and began breaking the windows of the neighbor's home. Shots were fired into the living room. The neighbor's wife and eight-year-old son ran into a closet for protection, while the neighbor and the victim ran into a bedroom and held the door shut. Five or six shots were fired through the bedroom door. Another neighbor, who had also seen the beating, called 911 to summon police; this second neighbor's windows were also broken. After the attackers ran away, the first neighbor found that his cell phone was missing.
Defendant was arrested and charged by information with seven felonies: robbery (Pen. Code § 211, counts 1 & 3); robbery in concert in an inhabited dwelling (§§ 211, 213, subd. (a)(1)(A), count 2); assault with a firearm (§ 245, subd. (a)(2), counts 4 & 7); burglary (§ 459, count 5); and child endangerment (§ 273a, subd. (a), count 6). The information further alleged, as to count 1, that defendant personally used a firearm (§§ 12022.53, subd. (b), 1192.7, subd. (c)(8)); as to counts 2 and 3, that he personally and intentionally discharged a firearm (§§ 12022.53, subd. (c), 1192.7, subd. (c)(8)); and as to counts 4 through 7 that he personally used a semiautomatic handgun (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)).
All further statutory references are to the Penal Code unless otherwise indicated.
--------
At trial, the victim, the two neighbors, and various other witnesses testified to the details of the event as recited above. During his testimony, the victim had trouble identifying defendant as his assailant. He first identified a Black juror as the person who had held the gun on him; then, apparently realizing his mistake, he focused on defendant, who is also Black. Three witnesses testified that they had seen defendant beating the victim or had seen him with a gun; one had seen defendant pointing the gun at the victim; another testified that defendant pointed the gun at him too and had been told by one of defendant's accomplices that he would be stabbed if he did not go back inside his apartment. The defense called no witnesses.
On March 3, 2010, a jury convicted defendant of all the charges and found all the related allegations true.
Following trial, but before sentencing on March 30, 2010, defendant submitted a letter to the trial court requesting a Marsden hearing and a new attorney for the purpose of filing a motion for a new trial. As grounds for his request, defendant complained that, despite repeated requests, counsel had refused to allow him to testify; that counsel had refused to call a witness who would have provided him with an alibi for the time period during which the crime had been committed; that counsel had also refused to call three other witnesses, all of whom would have provided testimony about the gun used in the crimes; and finally, that counsel had refused to call one other witness who would have testified that she knew the person who had pointed the gun at one of the other witnesses. After an extended hearing, during which it questioned the trial attorney about his decisions related to each of defendant's complaints, the trial court denied defendant's motion.
On April 2, 2010, the trial court sentenced defendant to 35 years four months in state prison. This appeal followed.
DISCUSSION
Defendant's sole argument on appeal is that the trial court abused its discretion by denying his Marsden motion and thereby denied him of his constitutional right to counsel.
Standard of Review
We review a trial court's ruling on a Marsden motion for abuse of discretion. (People v. Memro (1995) 11 Cal.4th 786, 856-857 (Memro).) When a defendant complains about the adequacy of appointed counsel, the trial court must permit the defendant to articulate the basis for his or her concerns so that the trial court can determine if they have merit and, if necessary, appoint new counsel. (Marsden, supra, 2 Cal.3d at pp. 123-124.) "[T]he court must consider any specific examples of counsel's inadequate representation that the defendant wishes to enumerate. Thereafter, substitution is a matter of judicial discretion. Denial of the motion 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." (People v. Webster (1991) 54 Cal.3d 411, 435.) A trial court fully performs its duties under Marsden when it gives the defendant an opportunity to state his reasons, and then exercises judicial discretion. (People v. Salazar (1977) 74 Cal.App.3d 875, 887.) "A Marsden motion is addressed to the discretion of the trial court, and a defendant bears a very heavy burden to prevail on such a motion. . . . The defendant . . . cannot rest upon mere failure to get along with or have confidence in counsel. [Citations.]" (People v. Bills (1995) 38 Cal.App.4th 953, 961.)
The Hearing
Here, the trial court held an extended Marsden hearing, carefully addressing each of defendant's enumerated examples of his attorney's putative inadequacies. The trial court also listened to defense counsel's explanation of his strategic reasoning for each decision and why he believed that there were insufficient grounds to support a motion for a new trial.
First, defendant complained that his attorney had refused to put him on the stand when he had said, repeatedly, that he wanted to testify. But counsel explained that he had not put his client on the stand because defendant had a history of convictions for crimes of moral turpitude and possible gang connections that would have become available for impeachment had he testified. Under these circumstances, the risk of a prejudicial effect was so great that "it was not worth the risk of him testifying." The trial court agreed, explaining to defendant that while it had initially excluded evidence of defendant's gang involvement, had he testified, it was powerless to prevent the prosecution from bringing that evidence before the jury, where it was likely to be very harmful to his case.
Next, defendant said he believed that one of his proposed witnesses, whom defense counsel had also refused to call, would have provided him with an alibi by testifying that he lived with her and had been with her at home at the time the crimes were committed. When the trial court asked defense counsel why he had not called that witness, counsel explained that her testimony would have undermined his client's position because at the time of his arrest, he told police he was homeless. Counsel thought the strongest defense lay in the victim's in-court misidentification of a juror as his assailant. Further, counsel noted that the witness in question would herself have been subject to impeachment based on evidence—that came out in recorded evidence played at trial—that she was transporting marijuana.
Defendant also believed that the testimony of two other proposed witnesses would have shown that the gun allegedly used in the crimes was recovered from someone else the day after the crimes had occurred. When the trial court asked defense counsel to explain why he had not called the deputy who recovered the gun or the person from the Department of Justice who had had custody of the gun, counsel again explained his reasons. First, the information that the gun had been recovered in someone else's possession had come in via a stipulation with the prosecutor. Second, from a discussion with the prosecutor, counsel knew that testimony by defendant's proposed witnesses would have opened the door to the introduction of prosecution "rebuttal experts" who would talk about the phenomenon of "gang guns." Counsel wanted to keep any information about defendant's possible gang membership and the concept of a gang gun away from the jury.
Defendant had also urged his counsel to call someone who had not witnessed any of the events related to the crime, but who would have testified that she knew the person who had pointed the gun at another witness and was unable to identify that person from photographs she was shown. Defense counsel stated his belief that her testimony would not have passed a hearsay objection.
Finally, the trial court questioned counsel about defendant's assertion that he should have filed a sentencing brief addressing section 654 issues, and counsel explained that he intended to address these issues in an oral motion. The trial court assured defendant that he did indeed have section 654 issues that would be taken into consideration at sentencing.
At the close of the Marsden hearing, the trial court found that "[defense counsel] did a very good job presenting the strongest case that he could for you when you consider all these variables. . . . [W]e know that certain crimes were committed against the victims here. The real question was identity, who did it. And I think [defense counsel] did a good job raising a question in the minds of the jurors as to whether it was you or not. That was the strongest case that he could have made for you."
Defendant insists that the trial court committed constitutional error by not appointing independent counsel to handle his Marsden claim and investigate his ineffective assistance of counsel claim. For support, he relies in large part upon three cases: People v. Mejia (2008) 159 Cal.App.4th 1081 (Mejia); People v. Stewart (1985) 171 Cal.App.3d. 388 (Stewart), disapproved on a different point in People v. Smith (1993) 6 Cal.4th 684 (Smith); and Smith, at page 694. None of the three is apt.
Mejia is not analogous because in that case the trial court failed to hold any Marsden hearing, even after it was put on notice that the defendant was requesting one. (Mejia, supra, 159 Cal.App.4th at p. 1086.) Here, as we have noted, the trial court held a detailed Marsden hearing, carefully examining each of defendant's complaints.
In Stewart, the defendant complained after trial that defense counsel had not called three witnesses whose testimony he thought would have helped his case. (Stewart, supra, 171 Cal.App.3d. at pp. 396-398.) The first, the defendant's doctor, was not a percipient witness and the appellate court found that failure to call him did not raise a "colorable" (id. at p. 397) claim of incompetence on the part of defense counsel and "it was therefore unnecessary for the trial court to appoint new counsel to present the argument." (Id. at pp. 397-398.) The appellate court found the matter of the other two witnesses a closer call because the trial court had not elicited any information about what the testimony of the two would have been. (Id. at p. 398.) Here, like the doctor in Stewart, one of defendant's proposed witnesses had not witnessed anything. And, unlike the trial court in Stewart, the trial court here inquired in detail as to the substance of the testimony to be expected from the other three. Only then did it exercise its discretion to determine that the proposed testimony was either irrelevant or potentially very harmful, and that trial counsel had not demonstrated any incompetence by failing to call any of the witnesses.
Finally, in Smith, supra, 6 Cal.4th 684, the California Supreme Court held that a defendant's rights to a Marsden hearing to substitute counsel were not different depending upon the stage at which a request was made. (Smith, at p. 694.) The court acknowledged that "[i]t is true that when a defendant claims after trial or guilty plea that defense counsel was ineffective, and seeks substitute counsel to pursue the claim, the original attorney is placed in an awkward position." (Ibid. ) But it did not conclude that new counsel must always be appointed in such circumstances, only that the trial court "must allow the defendant to express any specific complaints about the attorney and the attorney to respond accordingly." (Ibid. ) The trial court here did exactly that, according defendant full opportunity to express all his complaints and determining, in its sound discretion, that counsel had been effective and had represented defendant by making the strongest possible case that could be made, however "frustrated" defendant might be with the result.
In Memro, the California Supreme Court addressed the question of whether separate counsel must be appointed to aid a defendant in a Marsden hearing. (Memro, supra, 11 Cal.4th at p. 858.) Acknowledging that some courts have done so, our high court stated clearly that there is "no authority requiring such an appointment and indeed the rule is to the contrary." (Id. at p. 859.) "What our decisions have consistently required is that the court listen to and evaluate a defendant's claim that counsel are failing to perform adequately. The court did so, and defendant was entitled to no more." (Ibid.)
As in Memro, 11 Cal.4th 786, the trial court in this case did so too, and we cannot find that defendant was entitled more.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
RICHLI
J.
KING
J.