Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County. No. 06CM1547, Peter M. Schultz, Judge.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Judge of the Tulare Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Jason Monroe Kelly (appellant) was charged on August 8, 2008, in a second amended information with one count of murder (Pen. Code, § 187). It was further alleged that appellant had suffered a prior strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), that he personally and intentionally discharged a firearm (§ 12022.53, subd. (d)), and that he committed the murder while engaged in a kidnapping (§ 190.2, subd. (a)(17). On August 19, 2008, the trial court conducted a Marsden (People v. Marsden (1970) 2 Cal.3d 118) hearing and denied appellant’s request for new counsel.
An original complaint was filed on April 10, 2006.
All further statutory references are to the Penal Code unless otherwise stated.
A year later, on August 20, 2009, the People amended the information to change the firearm enhancement to allege a violation of section 12022.53, subdivision (c). Then, pursuant to a plea agreement, appellant pled no contest to the murder charge and admitted the strike allegation, the firearm enhancement, and the allegation that the murder was willful, deliberate, and premeditated. The kidnapping allegation was dismissed.
On October 8, 2009, pursuant to the terms of the plea agreement, the trial court sentenced appellant to state prison for an aggregate indeterminate term of 70 years to life. Appellant sought and obtained a certificate of probable cause on December 9, 2009.
On appeal, appellant contends only that the trial court erred when it denied his Marsden motion. We disagree and affirm.
The statement of facts is summarized from the preliminary hearing as the facts are not at issue on appeal.
On March 30, 2006, Shawntray Kelly phoned Denise Tavarez and asked her if she wanted to go for a ride with him. She accepted and was picked up by appellant, Shawntray, and Ashley Rider. While in the car, Shawntray made romantic overtures toward Tavarez, but she rebuffed him and the two argued. Appellant then became angry with Shawntray and said he was going to kill him. Tavarez saw appellant point a gun at Shawntray.
The evidence suggests that Shawntray Kelly is appellant’s brother. Because he shares a last name with appellant, Shawntray will be referred to by his first name.
Rider was charged as a codefendant in the murder, but is not a party to this appeal.
The group stopped at a fast-food restaurant, and when Shawntray tried to get out of the car, appellant told him he would shoot him if he did. The group then drove to an Indian reservation while appellant and Rider discussed finding a good spot to kill Shawntray. During the discussion, appellant kept a gun displayed and pointed at Shawntray. At some point, appellant told Rider to pull the car over. Appellant tried to pull Shawntray out of the car, but needed Rider’s help to do so. Once Shawntray was out of the car, appellant fired several shots at him, killing him. Appellant spent some time gathering the spent shells and then appellant and Rider returned to the car and left the scene.
The group drove to a house, collected a flashlight, some garbage bags, a blanket, and gloves. They returned to the scene of the murder, looked for additional gun shells, and put Shawntray’s body in the trunk of the car. Back at the house, appellant and Rider put Shawntray’s body in a large metal barrel, poured gasoline into the barrel, and burned the body for seven or eight hours. Appellant then took the remains, put them into a box, drove the box to the beach, and dumped the box off a cliff into the ocean. Officers later found charred bones and remains in the area.
DISCUSSION
Appellant contends that the trial court erred when it denied his Marsden motion that took place a year before he entered his plea agreement. Specifically, appellant argues that the trial court failed to consider defense counsel’s comments during the hearing that he feared for his own safety, which appellant claims were indicative of the breakdown in their attorney/client communication. Respondent contends that appellant is barred from raising this issue on appeal because he waived his right to appeal any conviction in this matter. As to the merits of appellant’s claim, respondent contends no error occurred. We decline to resolve the waiver issue because, even if we consider the issue on the merits, we find no error.
Procedural Background
On August 19, 2008, an in-chambers hearing was held to determine if a plea agreement had been reached. Defense counsel stated that, prior to the hearing, the prosecutor had allowed appellant 10 days to consider an offer of a stipulated term of life without the possibility of parole. But appellant had requested more time to consider the offer, and the prosecutor declined to extend time. Defense counsel explained that he, counsel for codefendant Rider, and the prosecutor “were very much convinced that this was going to resolve, ” and that defense counsel would not be ready for trial in a few weeks if the plea agreement was not reached. The prosecutor explained that, after waiting for 10 days for appellant to decide on the offer, the offer would expire because appellant was “playing games.” Defense counsel reiterated that he believed appellant was going to accept the plea because he was “getting what he had requested, ” and he was surprised that appellant was expressing hesitancy at entering a plea. Defense counsel for codefendant Rider also stated that appellant had expressed a willingness to enter a plea, and she assumed that that was what was going to occur.
It is apparent from the record that, if appellant did not accept the offer, the prosecutor intended to try this as a death penalty case. It is also apparent from the record that, if appellant accepted the offer, Rider (who was appellant’s girlfriend) would be offered a beneficial plea.
Once on the record, the trial court explained to appellant that the prosecutor had offered a plea agreement to a term of life without the possibility of parole, but that the offer would be withdrawn if appellant did not accept it that day. Appellant stated he understood. Appellant then requested a Marsden hearing, which was held.
During the Marsden hearing, appellant complained that the prosecutor was withdrawing the plea agreement, that he believed defense counsel was “attached” to the plea agreement, and that appellant lacked confidence in defense counsel’s handling of the case. Appellant also complained that defense counsel had not put “his all” into the investigation and had not contacted witnesses, specifically Denise and Erika, and he had not followed through on a change of venue motion, a severance motion, and a section 995 motion to dismiss the special circumstance allegation. Appellant described the “main” reason that he did not feel comfortable with defense counsel was because defense counsel wanted appellant to take “this deal.” At one point, appellant stated that he would not go to trial with defense counsel and that he would “rather go by [him]self.”
It appears that Denise is Denise Tavarez.
The trial court asked that defense counsel respond. Defense counsel explained in detail his reasons for not filing various motions. He also explained that he was not able to locate either Denise or Erika. He described Denise as the “most significant prosecution witness” whose testimony incriminated appellant. He described Erika as a person who took part in events to cover up the offense, but not the actual offense. As for appellant’s suggestion that defense counsel was somehow “emotionally attached” to appellant accepting the plea bargain, counsel explained that it was appellant who requested the plea. Defense counsel admitted that he was frustrated because he had been working on a plea bargain at appellant’s request, but stated that he would not “hold it” against appellant.
The trial court asked defense counsel if he would be able to defend appellant “as vigorously as possible if the matter” went to trial. Defense counsel stated:
“Well, here’s my primary concern, your Honor. I don’t know that I’m underestimating this. I don’t think so, but the point is this. I have no problem representing people, all right, as I’ve taken very bad cases to trial before. [¶] I saw, it’s very clear that [appellant] does not want me on this case. It’s very clear. And to what extent [appellant] would resort to get me off this case has me somewhat concerned. [¶] I have represented individuals who have taken things into their own hands to try to get rid of their attorneys, and so I don’t know if—well, I have a concern about certain, to what extent someone may go to, to get me off the case.”
The trial court asked whether defense counsel’s concern would prevent him from giving appellant his best efforts on the case. Defense counsel responded:
“… I will defend him to the best that he allows me because I know how individuals who no longer have faith in their attorneys, how they no longer cooperate, how they shut down, how they just withdraw. [¶] I know how that is, and I’m sure this Court probably knows how that is. With another attorney probably would be more forthright and present a better defense because of his more cooperative—”
The trial court interrupted and following further discussion, defense counsel stated, “In any event, I can defend [appellant]. I have no problem defending [appellant].”
Following further discussion about when the prosecutor offered appellant the plea agreement, the court allowed appellant to voice his additional concern. Appellant complained that defense counsel had not located an additional witness, Lewis Harris. Appellant also stated, “[Defense counsel is] right. I’m not going to go to extreme measures, but instead of going to trial with the lawyer that I feel isn’t going to give me his all, I don’t think there will be any difference in me representing myself. That’s not extreme. What choice do I have?” The trial court attempted to explain to appellant that it was not defense counsel’s decision, but rather the prosecutor’s, whether to extend the plea bargain offer for another couple of days as appellant had hoped.
The trial court then asked defense counsel about appellant’s additional complaint about counsel not finding another witness. Defense counsel explained that he had trouble locating Harris, who was the boyfriend of Denise. Denise had called Harris to pick her up after the killing occurred and alleged statements were made, but Harris was not a percipient witness to any of the events. Defense counsel stated that this was not his first murder trial, that he had done everything he could, and that he found the “best people on this case to accomplish” appellant’s defense.
Thereafter, the trial court again summarized the concerns raised by appellant during the Marsden hearing and found that appellant had failed to present any argument that defense counsel would not give appellant his best efforts at a defense. The trial court explained to appellant that it was defense counsel’s duty to explain a defendant’s chances of prevailing at trial and, in this case, the court “[did not] see anything in this hearing that persuades me that [defense counsel] is not going to give his best efforts to defend [appellant].” When the court denied appellant’s motion, it asked if appellant had anything further. Appellant stated he did not, but that he still did not have confidence in his attorney.
Appellant also asked the trial court what his options were and indicated that he wanted to represent himself. The court advised appellant of the perils of acting as his own counsel, and appellant stated he understood. The court provided appellant with a form to complete if he acted as his own counsel, and indicated that, if that was appellant’s intent, he could so request at the next hearing.
At a subsequent hearing several days later scheduled for appellant’s Faretta (Faretta v. California (1975) 422 U.S. 806) motion, defense counsel stated that appellant just wished to speak with codefendant Rider one last time. Defense counsel then indicated that appellant wished to postpone his motion for self-representation.
A year and five court appearances later, appellant and codefendant Rider entered into a plea agreement. During these four intervening court appearances, appellant never mentioned a Faretta motion and mentioned no dissatisfaction with defense counsel.
At the plea hearing on August 20, 2009, appellant stated that he intended to enter into the negotiated plea agreement with a stipulated term of 70 years to life. Appellant acknowledged that as part of his plea agreement, he was waiving his right to appeal his conviction in this matter. Appellant agreed that he understood his possible defenses at trial and that he had adequate time to discuss his case with his attorney. After the trial court found a factual basis for appellant’s plea, defense counsel concurred in appellant’s waiver of constitutional right. When the court asked appellant if he had any questions, appellant responded, “No, sir.” When asked if he understood everything the court had reviewed with him, appellant responded, “Yes, your Honor.” The court found that appellant voluntarily, intelligently, and expressly waived his rights, and appellant then pled no contest as contemplated by the plea agreement.
This is in contrast to the original deal that offered life without the possibility of parole.
Applicable Law and 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.)
“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 counsel would “substantially impair” the defendant’s right to assistance of counsel. [Citations.]’ [Citation.]” (People v. 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.) 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. (People v. Cole, supra, at p. 1192; People v. Welch (1999) 20 Cal.4th 701, 728-729.)
In this case, appellant contends the trial court failed to fully inquire into defense counsel’s concern that he feared for his safety, which appellant contends would then impede defense counsel’s ability to represent appellant. But the record, as we read it, does not state that defense counsel was concerned for his own safety, but rather his “primary concern” was that appellant would want to try to represent himself. Defense counsel stated that it was clear appellant did not want him on the case, and counsel was not sure “to what extent” appellant would go to get defense counsel off the case, which had defense counsel “somewhat concerned.” He then stated that he had represented other individuals who “have taken things into their own hands to try to get rid of their attorneys.” Defense counsel’s concern was that the individual who no longer had faith in an attorney no longer cooperated, “shut down” and “just withdr[e]w.” Defense counsel concluded by stating, “In any event, I can defend [appellant]. I have no problem defending [appellant].”
Here, the record shows that the trial court allowed appellant to state, in great detail, his concerns regarding his attorney, and defense counsel addressed each of appellant’s concerns. The record adequately supports the trial court’s assessment that appellant failed to demonstrate that defense counsel would provide appellant anything but his best efforts. In sum, we conclude that the trial court conducted an adequate Marsden hearing and did not err by denying Marsden relief.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HILL, P.J., DETJEN, J.