Opinion
D073639
10-17-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH COLIN CROWDER, Defendant and Appellant.
Lindsay M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN365515) APPEAL from a judgment of the Superior Court of San Diego County, K. Michael Kirkman, Judge. Affirmed. Lindsay M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Joseph Colin Crowder engaged in a crime spree over several days in October 2016 that resulted in the filing of an information charging him with 15 crimes. Crowder pleaded guilty to five crimes: first degree robbery of an inhabited dwelling with a deadly weapon (Pen. Code, §§ 211, 212.5, subd. (a), 12022, subd. (b)(1); count 2); two counts of unlawfully taking a vehicle while being previously convicted of vehicle theft (Veh. Code, §§ 10851, subd. (a), § 666.5, subd. (a); counts 5 & 13); carjacking (§ 215, subd. (a); count 10), and evading an officer with reckless driving (Veh. Code, § 2800.2, subd. (a); count 15). He admitted certain enhancement allegations as to counts 2, 5, and 13. He also admitted to a prior strike allegation and one prison prior allegation. In exchange for his plea, the prosecution agreed to dismiss the remaining charges and allegations in the information and that Crowder would serve 20 years in prison.
Undesignated date references are to 2016.
Undesignated statutory references are to the Penal Code.
In accordance with the stipulated plea agreement, the court sentenced Crowder to a total prison term of 20 years, as follows: count 10 (the designated principal term) - 10 years, consisting of the middle term doubled for the strike prior allegation; count 2 - two years eight months consecutive; count 5 - two years consecutive; count 13 - two years consecutive; and count 15 one year four months consecutive. Consecutive to these counts, the trial court also imposed one year for the prison prior allegation and one year for the conduct enhancement under section 12022, subdivision (b)(1). Crowder timely appealed and obtained a certificate of probable cause based on a conflict of interest with defense counsel.
FACTUAL BACKGROUND
The factual basis of the plea is stated in the plea agreement, augmented by evidence presented at the preliminary hearing.
Count 5
On October 12 a City of Escondido worker reported that his pickup truck had been stolen. Police later recovered items that had been inside the truck from Crowder's home.
Count 2
On October 13 a woman was home with her two children when Crowder broke into their home and stole a purse. The woman chased Crowder and was able to get the license plate number of his vehicle, the pickup truck that had been stolen the night before. Police later recovered the stolen truck, and the woman and one child identified Crowder from a photographic lineup.
Count 10
On October 16 an individual reported a residential burglary during which Crowder entered the residence and took items belonging to the occupants while the occupants were home. Crowder escaped by stealing the occupants' car. When one of the occupants tried to stop Crowder from stealing the car, he said " 'Shut up. I kill you [sic].' "
Count 13
On October 16 Crowder stole a car. Police recovered the car the following day.
Count 15
On October 17 Crowder stole a Crown Victoria security patrol vehicle. Police pursued the car at speeds up to 100 miles per hour until they called off the pursuit.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. She presented no argument for reversal but asked this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel has identified the following issue that "might arguably support the appeal" (Anders v. California (1967) 386 U.S. 738, 744 (Anders)—whether Crowder freely and voluntarily entered into the stipulated plea.
The record does not support an assertion that there was no factual basis for the plea or that Crowder's plea was not voluntary. Before accepting the plea, the court reviewed the terms of the plea agreement with Crowder and asked if any other promises were made to Crowder. He said, "No, sir." The court also asked Crowder if he had enough time to discuss the case with his attorney and if he understood the nature of the charges, the possible defenses, and the consequences of his guilty plea. Crowder responded, "Yes, I do." Crowder confirmed that he signed and initialed the change of plea form after reading and understanding everything in the form. Before accepting the plea, the trial court made a finding that Crowder "made a voluntary, knowing, intelligent waiver of his constitutional rights" and that "a factual basis [existed] for the plea."
We offered Crowder the opportunity to file a brief on his own behalf. In response, Crowder filed a supplemental brief, parts of which are unintelligible, setting forth the errors which he contends warrant reversal. To the extent we can decipher his claims, Crowder generally argues that the trial court erred in denying his Marsden motions and by not allowing him to represent himself under Faretta v. California (1975) 422 U.S. 806 (Faretta). He also contends that he received ineffective assistance of counsel. We examine each argument in turn.
People v. Marsden (1970) 2 Cal.3d 118.
The denial of a Marsden motion is reviewed for abuse of discretion. (People v. Carter (2010) 182 Cal.App.4th 522, 527.) " 'The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel.' " (Ibid.)
Crowder made two Marsden motions. The first occurred on February 15, 2017, at the trial readiness conference. Crowder complained that associates of his defense counsel who appeared in place of defense counsel failed to introduce themselves to him, a defense investigator acted unprofessionally, and defense counsel failed to contact him regarding his case. After hearing from defense counsel and Crowder one more time, the court denied the request. Our review of the record shows no arguable issue regarding the denial of Crowder's request for substitution of counsel at this hearing.
The second Marsden hearing occurred during the May 23, 2017 preliminary hearing. Crowder complained that a conflict of interest existed between himself and the entire public defender's office. At one point, the court interrupted Crowder to ask what witnesses defense counsel failed to contact. After hearing from Crowder on this issue, the court asked defense counsel to respond. After denying the motion, the court went back on the record. At that time Crowder interrupted the proceeding to state he was not feeling well. After a 10-minute break, the court granted Crowder's request to continue the matter and paramedics took Crowder to the hospital. Our review of the record shows no arguable issue regarding the denial of Crowder's request for substitution of counsel at this hearing.
The reporter's transcript of this Marsden hearing was not included in the record on appeal. On our own motion, we ordered the record augmented to include this transcript. --------
When the preliminary hearing finally occurred in August 2017, Crowder immediately interrupted the proceeding to state that his attorney was "no longer acting as an assistant but as a master in [his] case." The judge ordered him to stop talking. During the testimony of the first witness, Crowder again interrupted stating, "We have had no communication in four months." After discussing the issue with defense counsel and learning that Crowder refused to meet with defense counsel, the court told Crowder that he would be removed if he continued to interrupt the proceedings. Crowder responded by stating, "Are you forcing me to go Faretta right now, sir?" When Crowder complained about counsel not checking on him, the court informed Crowder that it was not counsel's job to check on his medical well being and to "stop it." The court then ordered Crowder removed from the courtroom. Crowder responded by asking to "go[] pro per." After Crowder stated that he was not ready to proceed, the court denied his request. Crowder was then removed from the courtroom.
A criminal defendant has the right under the Sixth Amendment of the federal Constitution to conduct his or her own defense. (Faretta, supra, 422 U.S. at p. 819; People v. Jenkins (2000) 22 Cal.4th 900, 959.) Accordingly, when a defendant voluntarily and intelligently makes a timely, unequivocal assertion of the right to proceed pro se, the court must honor that request regardless of how unwise the decision may seem. (People v. Windham (1977) 19 Cal.3d 121, 127-128.) The decision on a Faretta request is "addressed to the sound discretion of the trial court" and "a defendant should not be allowed to misuse the Faretta mandate as a means to unjustifiably delay a scheduled trial or to obstruct the orderly administration of justice." (People v. Windlam, at p. 128, fn. 5.) Here, Crowder's request was not unequivocal, but based on his apparent frustration with the proceedings and defense counsel. Our review of the record shows no arguable issue regarding the denial of Crowder's request to represent himself.
Finally, Crowder complains about "conflicts of interest," including the alleged unprofessional conduct of the defense investigator, that the defense investigator failed to investigate and did not bring in favorable witnesses for the preliminary hearing, and that defense counsel deceived and misled him regarding which investigator would be on his case. While not entirely clear, it appears that Crowder claims he received ineffective assistance of counsel. The record, however, fails to support an argument that Crowder's counsel failed to act in a manner expected of other reasonably competent attorneys. (Strickland v. Washington (1984) 466 U.S. 668, 688.)
Appellate counsel has fully complied with her responsibilities, and there are no arguable issues. (See People v. Kelly (2006) 40 Cal.4th 106, 118-119; Wende, supra, 25 Cal.3d at pp. 441-442.) Competent counsel has represented Crowder on this appeal.
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J. WE CONCUR: O'ROURKE, J. GUERRERO, J.