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People v. Knoth

California Court of Appeals, Second District, Third Division
Mar 25, 2008
No. B196503 (Cal. Ct. App. Mar. 25, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. MARCO ANTONIO KNOTH, Defendant and Appellant. B196503 California Court of Appeal, Second District, Third Division March 25, 2008

NOT TO BE PUBLISHED

APPEALS from judgments of the Superior Court of Los Angeles County Nos. KA076208, KA076174, & BA274355, George Genesta, Judge.

Deborah Blanchard, 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, Susan D. Martynec and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.

KITCHING, J.

Marco Antonio Knoth appeals from the judgments entered following his convictions by jury (case No. KA076174) on three counts of second degree vehicular burglary (Pen. Code, § 459; counts 1, 3, & 5) and three counts of petty theft with a prior conviction (Pen. Code, § 666; counts 2, 4, & 6) and following his conviction by jury (case No. KA076208) for second degree robbery (Pen. Code, § 211) with use of a knife (Pen. Code, § 12022, subd. (b)(1)) with, as to each offense, a court finding that he suffered a prior felony conviction (Pen. Code, § 667, subd. (d)) and a prior serious felony conviction (Pen. Code, § 667, subd. (a)), and following revocation of probation previously granted upon his conviction (case No. BA274355) for possession of a controlled substance. The court sentenced appellant to prison for a total unstayed term of four years in case No. KA076174, with a consecutive term of twelve years in case No. KA076208, and a concurrent term of two years in case No. BA274355. Appellant claims the court committed trial error in the robbery case (case No. KA076208). We affirm the judgments.

Appellant admitted the prior theft-related conviction.

FACTUAL SUMMARY

1. Case No. KA076174 – The Burglary and Petty Theft with a Prior Cases.

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which as to case No. KA076174, is undisputed, established that on October 21, 2005, appellant committed in West Covina the offenses of which he was convicted in that case.

2. Case No. KA076208 – The Robbery Case.

a. People’s Evidence.

Viewed in accordance with the usual rules on appeal, the evidence, the sufficiency of which as to case No. KA076208, is undisputed, established that on August 5, 2006, appellant drove a vehicle towards Franco Castillo in La Puente. Appellant exited the vehicle and, using a knife, robbed Castillo. Castillo identified appellant at trial as the robber.

b. Defense Evidence.

In defense of the robbery charge, a sheriff’s deputy who interviewed Castillo shortly after the incident testified that Castillo gave the deputy a vague description of the robber which included his height and weight and the fact that he was Hispanic.

According to the deputy, Castillo did not indicate that Castillo saw a knife. The deputy testified that Castillo indicated that he “thought it was a knife” and Castillo told the deputy that the robber reached in his waistband as if he had a knife. Castillo was traumatized, it was extremely difficult getting information from him, and there was a slight language barrier between Castillo and the deputy.

CONTENTION

Appellant claims that on November 13, 2006, the trial court in the robbery case (case No. KA076208) erroneously (1) denied his continuance motion and (2) failed to conduct a Marsden hearing.

People v. Marsden (1970) 2 Cal.3d 118.

DISCUSSION

The Court Did Not Erroneously (1) Deny a Continuance Motion or (2) Fail to Conduct a Marsden Hearing.

1. Pertinent Facts.

Appellant was charged in separate cases with burglary (case No. KA076714) and robbery (case No. KA076208). At the September 20, 2006 arraignment on the information in the burglary case, the court appointed Chrashawn Jackson, a deputy public defender, as appellant’s counsel and the matter was continued to November 7, 2006, for jury trial.

At the October 5, 2006 arraignment on the information in the robbery case, Jackson represented appellant. Appellant made a Marsden motion. During the motion, Jackson represented that appellant had been uncooperative, and that appellant told Jackson that appellant was going to hire a private lawyer, appellant’s mother had money, and she was going to hire a private attorney. The court denied the motion and continued the matter to November 7, 2006, for a jury trial which would trail the burglary trial.

On November 7, 2006, Manuel Marin, a deputy public defender, appeared for Jackson in both cases and they were transferred to another department for trial. The record reflects that on November 7, 2006, after the cases were transferred, Marin began representing appellant in both cases. That is, in both cases, Marin first began representing appellant as counsel of record on November 7, 2006, after the court transferred the cases for trial. Accordingly, Marin represented appellant when trial began in the burglary case on November 7, 2006. A jury convicted appellant of that charge on November 9, 2006.

On November 9, 2006, in the robbery case, the trial court ordered a venire to appear for jury selection on November 13, 2006. On November 13, 2006, the court called the robbery case for jury trial and Marin represented appellant. On that date, prior to voir dire of the venire, the parties announced they were ready for trial. Marin indicated appellant was asking for a continuance of the trial. Marin said that on November 7, 2006, the court ordered that trial begin, and the trial was handed off to Marin. Appellant thereby suggested he was complaining that although Jackson had been representing appellant in both cases, Marin substituted in as counsel on November 7, 2006, right before the burglary trial.

Marin also represented the following. Appellant was indicating he was “not comfortable with [Marin’s] representation in light of the fact that [Marin] came in the end of the trial preparation.” Appellant was requesting additional time “to consult with outside counsel. Or, if not, to have Ms. Jackson on the case.” Marin represented that Jackson “had the case from the beginning” and appellant was “not prepared to proceed today.”

After discussing the People’s anticipated case against appellant, the court indicated it had read a motion to continue filed by appellant on November 3, 2006. The court noted the motion was ambiguous and vaguely referred to “potential alibi witnesses.” Marin represented he had met with appellant a few days before November 13, 2006, and appellant advised Marin that appellant had been at a motel at the time of the robbery. Appellant personally told the court that the motel conducted surveillance. Marin represented that, according to appellant, the motel had tapes depicting appellant at the motel. Marin agreed with the court that Marin could call the motel and ask if its surveillance camera was operating on the date of the robbery.

The written motion is not part of the record before this court.

Appellant personally indicated to the court that his brother had been driving the alleged getaway car. Marin represented that Marin did not know where appellant’s brother was. Appellant personally told the court that appellant did know, but had not told Marin because Marin had not come to talk with appellant. Appellant said all Marin had done was come and tell appellant “to take a deal.”

The court noted there was evidence that appellant’s car had left the scene of the robbery, and Marin was objectively looking at appellant’s case in light of the prison time he was facing. Appellant said, “I just wanted to get a paid lawyer.” The court responded that appellant had had plenty of time to hire a lawyer and had not done so. Appellant replied okay. The court indicated it would give Marin an opportunity to get information concerning the surveillance camera, but the court needed a good cause showing concerning appellant’s alibi before the court would continue the case. Marin indicated he understood.

The court stated, “Based on your performance the last trial, I don’t know what the evidence is in this trial, they have your car leaving the scene with the license number written on it. [¶] Your lawyers are looking at this case objectively, not for divine intervention, but the evidence you are facing, the amount of time you are facing.” (Sic.)

After a recess, Marin advised the court as follows. Marin contacted a manager at the motel. The manager could not verify whether they had the surveillance tapes anymore, since the incident had occurred in August 2006. A clerk believed that, due to the passage of time, the motel would not have any surveillance tapes. Marin could not verify this without speaking to the motel’s manager. The clerk indicated the surveillance tapes were rotated on a weekly basis.

The court commented as follows. The tapes were not stored but repeatedly reused. The robbery occurred on August 5, 2006, and the current date was November 13, 2006. Although appellant had indicated he was at the motel at the time of the robbery, “we don’t have that information.” The court asked Marin if he had anything else, and Marin replied no.

The court stated, “Based on the information the court received, and based on elaborating the generic statements and the [Penal Code section 1050 motion to continue], there is no good cause to continue the case at this time. [¶] The matter is here for trial. [¶] I don’t see any reason why this matter should be continued. The defendant’s position doesn’t seem to change or any realistic leads that have been are brought to this court’s attention that would justify continuing this matter.” (Sic.)

2. Analysis.

a. The Trial Court Did Not Erroneously Deny a Marsden Motion on November 13, 2006.

“In People v. Marsden (1970) 2 Cal.3d 118, we held that a defendant is deprived of his constitutional right to the effective assistance of counsel when a trial court denies his motion to substitute one appointed counsel for another without giving him an opportunity to state the reasons for his request.” (People v. Ortiz, (1990) 51 Cal.3d 975 at p. 980, fn. 1, italics added.) “A trial judge should not be obligated to take steps toward appointing new counsel where defendant does not even seek such relief.” (People v. Gay (1990) 221 Cal.App.3d 1065, 1070, italics added.)

“The court’s duty to conduct the [Marsden] inquiry arises ‘only when the defendant asserts directly or by implication that his counsel’s performance has been so inadequate as to deny him his constitutional right to effective counsel.’ [Citations.]” (People v. Lara (2001) 86 Cal.App.4th 139, 151, italics added.) “Requests under . . . Marsden . . . must be clear and unequivocal; . . . [Citations.]” (People v. Rivers (1993) 20 Cal.App.4th 1040, 1051, fn. 7.) In order to make a Marsden motion, there must be a “clear indication by defendant that he wants a substitute attorney.” (People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8, italics added.)

In the present case, on November 13, 2006, Marin represented “[appellant was] requesting additional time to consult with outside counsel. Or, if not, to have Ms. Jackson on the case.” (Italics added.) Appellant reasonably may be understood as having requested a continuance (1) to permit him to consult with private counsel or (2) so that Jackson could substitute as appointed counsel. The disjunctive request was ambiguous. The trial court did not violate Marsden because appellant failed to make a clear and unequivocal request under Marsden and failed to clearly indicate that he wanted a substitute attorney.

Moreover, appellant personally addressed the court and claimed that all Marin had done was come and tell appellant “to take a deal.” However, the court commented on some of the evidence against appellant and indicated that Marin was objectively looking at appellant’s case in light of the prison time he was facing. The trial court had no duty to conduct a Marsden inquiry because appellant failed to assert that Marin’s performance had been so inadequate that it denied appellant his constitutional right to effective counsel. (Cf. People v. Lara, supra, 86 Cal.App.4th at p. 151.)

b. The Trial Court Did Not Erroneously Deny Appellant’s Continuance Motion.

A trial court has broad discretion to grant or deny a continuance motion. (People v. Frye (1998) 18 Cal.4th 894, 1012-1013.) Appellant has the burden of demonstrating that a denial of such a motion was an abuse of discretion. (People v. Beeler (1995) 9 Cal.4th 953, 1003.)

As mentioned, appellant initially requested a continuance (1) to permit him to consult with private counsel or (2) so that Jackson could substitute as appointed counsel. To the extent appellant claims that the trial court’s denial of this request constituted an erroneous denial of a motion to continue the trial to permit him to retain private counsel, we reject the claim. The first prong of appellant’s request was a request to consult with private counsel, not a request to retain counsel to represent appellant at trial.

Even if appellant requested a continuance of the trial to permit him to retain private counsel, we reject appellant’s claim that the trial court erroneously denied the request. Jackson told the court on October 5, 2006, that appellant was going to retain private counsel, appellant’s mother had money, and she was going to retain private counsel. More than a month elapsed from that date to November 13, 2006. Nothing in the record suggests appellant made a good faith effort to consult with or retain counsel after October 5, 2006, but before November 13, 2006. Appellant did not dispute the court’s assertion that appellant had had plenty of time to hire a lawyer and had not done so.

Appellant made no showing he was financially unable to retain counsel earlier, but financially able on November 13, 2006. Appellant made no showing that Marin was unprepared or otherwise unable to adequately represent appellant. To the extent appellant claims that Marin’s performance during the burglary trial caused appellant concern about Marin’s impending representation of appellant during the robbery trial, we note appellant makes no ineffective assistance contention as to his burglary conviction. Participation of retained counsel in the robbery trial was speculative. Denial of any continuance motion by appellant to permit him to consult with or retain private counsel was well within the discretion of the court. (Cf. People v. Jeffers (1987) 188 Cal.App.3d 840, 850-851.)

To the extent appellant claims the trial court erroneously denied his continuance motion to permit Jackson to substitute as appointed counsel, we reject the claim based on our analysis of appellant’s Marsden claim. To the extent appellant claims the trial court erroneously denied his continuance motion to permit him to investigate an alibi defense, the trial court gave Marin an opportunity to determine whether the surveillance tapes existed. The trial court appears to have reasonably concluded, based on Marin’s representations, that any such tapes no longer existed. The trial court did not err by denying appellant’s continuance motion.

DISPOSITION

The judgments (in case Nos. KA076174, KA076208, and BA274355) are affirmed.

We concur: KLEIN, P. J. CROSKEY, J.


Summaries of

People v. Knoth

California Court of Appeals, Second District, Third Division
Mar 25, 2008
No. B196503 (Cal. Ct. App. Mar. 25, 2008)
Case details for

People v. Knoth

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MARCO ANTONIO KNOTH, Defendant…

Court:California Court of Appeals, Second District, Third Division

Date published: Mar 25, 2008

Citations

No. B196503 (Cal. Ct. App. Mar. 25, 2008)