Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. SCTM-CRCR-06-73302
McGuiness, P.J.
In this appeal, the court-appointed counsel for appellant Noelle Mary Donahue has briefed no issues and asks this court to review the record as required by People v. Wende (1979) 25 Cal.3d 436. Appellant, who was convicted of embezzlement and grand theft by larceny following a jury trial, appealed her conviction to this court. We reversed the judgment and remanded the matter with directions to hold a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). We directed the trial court to reinstate the judgment of conviction if “(1) the Marsden motion is denied, (2) the Marsden motion is granted but substitute defense counsel declines to file a new trial motion or other appropriate motion, or (3) the Marsden motion is granted but the trial court denies a new trial motion or other appropriate motions filed by substitute counsel.”
On the court’s own motion, we take judicial notice of our previous opinion. (People v. Donahue (Apr. 9, 2008, A117998 [nonpub. opn.]).
Upon remand, the trial court held a Marsden hearing on June 18, 2008. During the hearing, appellant made several ineffective assistance of counsel claims. She stated that despite her clear and frequent assertions of her intention to testify at trial, her trial counsel disobeyed her wishes and failed to call her to testify. She also testified that, despite her request, her trial counsel had failed to obtain transcripts from “civil suits” in which the complaining witness had purportedly made statements inconsistent with her trial testimony. Appellant’s trial counsel responded that it was his understanding appellant had agreed to wait until after the prosecution’s case-in-chief to decide whether to testify. He further claimed he had advised appellant not to testify and that he believed she had agreed not to testify, but that she understood she had a right to do so if she wished.
At the conclusion of the Marsden hearing, the trial court determined that appellant and her trial counsel had become embroiled in an irreconcilable conflict. The court relieved appellant’s trial counsel and appointed substitute counsel to investigate and prepare a motion for new trial.
Appellant’s new counsel thereafter filed a motion for new trial alleging that appellant was denied her constitutional right to testify at trial and had received ineffective assistance of counsel at trial because her counsel had failed to allow her to testify despite her desire to do so. The opposition filed by the prosecution included a declaration by appellant’s former defense counsel stating that, upon his advice, appellant had agreed not to testify at trial. He further stated in his declaration that putting appellant on the stand at trial would have allowed the prosecution to impeach her testimony with inconsistent statements she had made in a taped conversation with a deputy sheriff.
At the hearing on the new trial motion, the court stated there was a factual dispute over whether appellant had waived her right to testify at trial. The court described it as a credibility issue and explained that it believed the version of events offered by appellant’s former trial counsel. Thus, the court concluded appellant had waived her right to testify at trial. In addition, the court stated there was no reasonable probability the result would have been any different even if appellant had been allowed to testify. Accordingly, the court denied the motion for new trial and reinstated the judgment of conviction.
On appeal from the order denying the motion for new trial, appellant’s counsel filed a brief identifying no potentially arguable issues and asking this court to independently review the record under People v. Wende, supra, 25 Cal.3d 436. In addition, appellant has had an opportunity to file a supplemental brief with this court but has not done so. We have reviewed the entire record and conclude no issue warrants further briefing.
Disposition
The judgment is affirmed.
We concur: Siggins, J., Jenkins, J.