Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. Nos. VCR178658, VCR178326
SIMONS, J.
A jury convicted Richard Leon Loughmiller (appellant) of attempted murder (Pen. Code, §§ 187, subd. (a), 664), first degree burglary (§ 459), and discharging a firearm with gross negligence (§ 246.3), and found true associated weapon use enhancements (§§ 1203.06, subd. (a)(1), 12022, subd. (a)(1), 12022.5, subd. (a)(1), 12022.53, subd. (c)). The court sentenced him to 27 years in prison. On appeal, appellant contends that the trial court erred in not conducting a hearing in response to his motion for substitution of counsel, and that he received ineffective assistance of counsel. We disagree and affirm.
All undesignated section references are to the Penal Code.
BACKGROUND
Patricia Oberman testified at trial that on the morning of April 15, 2005, appellant came to her home. Appellant and Oberman had dated in the past, but were not getting along well at that time. Appellant banged on the front door of Oberman’s house and yelled that she should open the door. Oberman told appellant to go away. Appellant refused and Oberman then heard a loud crash and saw the front door falling off its hinges into her entry hallway. Appellant entered the house and walked into the living room. He was carrying a backpack, which he set down in the living room.
Arthur Weber, who had gone on several dates with Oberman, testified that on that same morning he visited Oberman and had coffee with her. After the visit, Weber left Oberman’s home through the back door, and as he was leaving, he heard a loud crash. He went around to the front of the house and saw that the door had fallen in. He walked up the front steps and looked into the house, where he saw appellant standing in the living room. Weber entered the house with some difficulty because of the position of the door, and stood in the entryway, five or six feet from appellant.
Weber further testified that appellant then pulled a gun out of his backpack. Weber began backing up, out of the doorway and down the front steps. Appellant said to Weber something to the effect of “I knew you were here. I’m gonna get you. I’m gonna kill you.” He walked toward Weber, pointing the gun at him. When appellant was six or seven feet from Weber, he fired the gun. Weber testified that then “[e]verything turned white,” and he slipped on the front steps. When Weber got up, he did not see appellant or Oberman. He noticed blood on his right hand, which he later discovered was coming from what looked like a burn or small scratch on his ring finger. He did not know if the injury was caused by a bullet or by his fall on the front steps.
Police arrested appellant later that day, and found a loaded gun in appellant’s van and a knife in his pocket. Vallejo Police Officer Pedretti testified that after appellant’s arrest, he waived his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436) and agreed to speak with Pedretti. Appellant told Pedretti that Weber pushed him through the front door of Oberman’s house and tried to hit him with a potted plant, and appellant fired a “warning shot” to get Weber to leave him alone. Weber testified that he did not attack appellant or try to hit him with a potted plant. Oberman testified that she did not see Weber attack appellant, and although she kept a potted tree in her dining room, it was not disturbed during the incident.
Following imposition of judgment, appellant filed a timely notice of appeal.
DISCUSSION
I. Appellant’s Marsden Motion
Appellant contends the court erred in not conducting a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118) in response to his written motion for substitution of counsel and his letters to the court expressing dissatisfaction with his counsel’s performance.
The clerk’s transcript contains a “Notice of Motion and Motion for Substitution of Counsel” signed by appellant and dated July 19, 2005. The motion stated that “on the 21 day of July, 2005, at the hour of 08:30 in Department C of the above-entitled court, or as soon therefore as this motion can be heard, defendant and/or counsel will move the court for an order to dismiss and/or relieve counsel due to inadequate representation.” In the attached declaration, appellant declared that “[d]ue to the fundamental breakdown in the relationship between declarant and counsel which reaches well beyond disagreements in trial tactics, declarant cannot and will not receive adequate representation by counsel of record in this case,” and stated that appellant would provide evidence to support this claim at the hearing on the motion. The declaration listed a number of appellant’s concerns with his counsel, including that counsel had failed to confer or communicate with him, had failed to pursue evidence favorable to the defense, and had failed to perform investigations necessary to the defense. The attached proof of service, also dated July 19, 2005, stated that “on this date,” appellant caused a true and correct copy of his “Marsden Motion to be served on the parties to this action by [¶] delivering same in person to the address as follows and placing into the control of the below listed party or their representative: [¶] My Judge of the Court [¶] Judge Scott Daniels [¶] 321 Toulume St [¶] Vallejo CA 94590.” The motion for substitution of counsel is not file stamped.
The record contains no indication of who placed the document in the file or when this occurred.
The clerk’s transcript also contains numerous, multi-page, handwritten letters signed by appellant and addressed to Judge Daniels, the judge who presided over most, but not all, of appellant’s court proceedings. As relevant here, in a four-page letter to Judge Daniels dated July 21, 2005, appellant expressed dissatisfaction with his counsel’s performance, and stated, on page three, “I have filed [a] complaint to the Bar Assn. and am sending you [a] Marsden Motion also.” In a two-page letter dated August 11, appellant stated that he had filed a complaint with the State Bar Association against his attorney, “based partly on his disregard of my explicit instructions for my trial to commence within the 60 day period.” Appellant’s July 21 and August 11 letters to the court do not bear file stamps.
As the People concede, the clerk’s and reporter’s transcripts contain no record of a hearing on appellant’s motion for substitution of counsel, either on July 21, 2005, or at later proceedings. On July 21, the court held a proceeding for trial setting, and Judge James F. Moelk presided. The court did not refer to appellant’s motion for substitution of counsel, and did not offer appellant an opportunity to explain his concerns with his counsel’s performance. Although appellant’s written motion for substitution had requested a hearing on this date, appellant did not orally raise his complaints about counsel or talk about his motion for substitution. Further, appellant did not mention his motion for substitution or express dissatisfaction with his counsel’s performance at any later proceeding.
“ ‘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. Fierro (1991) 1 Cal.4th 173, 204; see Marsden, supra, 2 Cal.3d at pp. 123-124.) However, the trial court has “no obligation to initiate the Marsden inquiry sua sponte. A trial court’s duty to conduct the 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.’ [Citation.]” (People v. Leonard (2000) 78 Cal.App.4th 776, 787.) “Although the defendant need not file ‘a proper and formal legal motion’ he must express ‘at least some clear indication . . . that he wants a substitution of attorney.’ ” (People v. Lee (2002) 95 Cal.App.4th 772, 780, fn. omitted.)
A defendant who makes a timely Marsden motion may, by his postmotion conduct, abandon his request for a Marsden hearing. (People v. Vera (2004) 122 Cal.App.4th 970, 981-982.) In Vera, the defendant orally made a Marsden motion and began listing some of the reasons he believed his counsel was ineffective. The trial court heard several of the defendant’s concerns, but then interrupted the defendant to accommodate its busy calendar. The defendant stated that he was not finished, and the trial court explained that the Marsden motion was denied without prejudice, and could be renewed at a later time. (Vera, at pp. 975-976.) However, the defendant failed to renew his Marsden motion at a later hearing. (Vera, at pp. 981-982.) On appeal, the court held that the defendant had abandoned his Marsden motion by failing to further present his complaints at the later hearing. (Vera, at p. 982.) The court reasoned, “In this case, the trial court offered [the] defendant the opportunity for a further hearing. [The d]efendant’s failure to take advantage of this offer can only be interpreted as an abandonment of his unstated complaints. [Citation.] While we are aware of no precedent finding abandonment of a Marsden motion, it is established that a defendant’s conduct may amount to abandonment of a request to represent himself under Faretta v. California (1975) 422 U.S. 806. [Citations.] If a defendant can abandon his request to substitute himself for counsel, a defendant can abandon his request to substitute another counsel. We conclude that [the] defendant abandoned his unstated complaints about counsel by not accepting the court’s invitation to present them at a later hearing.” (Vera, at pp. 981-982.)
The Vera court relied on People v. Kenner (1990) 223 Cal.App.3d 56 and People v. Skaggs (1996) 44 Cal.App.4th 1, which held that a defendant’s postmotion conduct may establish abandonment of his Faretta motion for self-representation. In Kenner, the defendant made a Faretta motion, and the court set the matter for hearing. Because the defendant was in custody on an unrelated matter, he repeatedly missed the hearing, which was continued three times. The defendant then appeared with retained counsel, who asked that the motion be reserved until the next pretrial hearing. Thereafter, the court failed to hold a hearing on the Faretta motion, and the defendant did not mention his motion again until he challenged his conviction on appeal. (Kenner, at pp. 58-60.) The court concluded that the defendant had abandoned the motion, noting that he never asked for a ruling despite ample opportunity to do so, and his conduct indicated that he acquiesced in being represented by counsel. (Id. at p. 62.) The court explained, “One interpretation of this record is that [the defendant] realized that the trial court forgot the Faretta motion in the confusion resulting from his custody situation, and slyly saved his Faretta ace to play triumphantly on appeal. The record does not clearly establish any such cunning strategy; however, if it did, the gamesmanship should not be rewarded. The record also strongly suggests that [the defendant] made the Faretta motion to buy time, got that time, and abandoned the motion. But our view of these facts is simply that [the defendant] had second thoughts about the wisdom of representing himself and abandoned the idea. [¶] Defendants who sincerely seek to represent themselves have a responsibility to speak up. The world of the trial court is busy and hectic, and it is to be expected that occasionally a court may omit to rule on a motion. When that happens, as here, we believe it is reasonable to require the defendant who wants to take on the task of self-representation to remind the court of the pending motion. Therefore, we hold that on this record, where [the defendant] had both time and opportunity to follow up on his request for a hearing on his Faretta motion, and failed to do so, he must be deemed to have abandoned or withdrawn that motion.” (Kenner, at p. 62, fn. omitted.)
In Skaggs, the defendant asserted, “ ‘I’d like to go pro per if I could,’ ” during a Marsden hearing. (People v. Skaggs, supra, 44 Cal.App.4th at p. 5.) The trial court denied the Marsden motion, but did not address the issue of self-representation. (Skaggs, at p. 5.) The court held that the defendant’s comment was not an unequivocal request for self-representation. (Id. at pp. 5-7.) It further concluded that even if the comment constituted a Faretta motion, the defendant abandoned the motion: “[The defendant’s] failure to request such a ruling or to raise the issue again and his silent acceptance of defense counsel’s assistance for the remainder of the proceedings in the trial court constitute a waiver or abandonment of any right to self-representation [the defendant] arguably asserted.” (Skaggs, at p. 8.)
Appellant’s July 19, 2005 motion expressly stated appellant’s dissatisfaction with his counsel’s performance and his desire for substitution of counsel. However, the court failed to rule on his Marsden motion, and appellant never raised the issue again until he filed his opening brief on appeal. At the hearing on July 21, the court did not mention appellant’s motion, and appellant did not remind the court of the pending motion or express any dissatisfaction with defense counsel’s performance. Appellant also failed to mention his motion at the pretrial hearings on August 25 and September 6, 2005; at his three-day trial on September 13, 14 and 15, 2005; and at the posttrial hearings on June 22 and August 17, 2006. Instead, appellant silently accepted defense counsel’s assistance throughout the remainder of the proceedings. Because appellant had ample time and opportunity to follow up on his request for a hearing on his Marsden motion but failed to do so, he is deemed to have abandoned the motion.
Appellant’s handwritten letters to the court do not change our conclusion. Appellant’s letter to the court dated July 21, 2005, expressed appellant’s dissatisfaction with counsel’s performance and stated that appellant was “sending [the court a] Marsden motion also.” Thus, it does not appear that appellant intended this letter to constitute a separate Marsden motion. Appellant’s letter dated August 11 does not request substitution of counsel, but merely states that appellant filed a complaint with the State Bar Association regarding his attorney’s performance. This letter does not constitute a Marsden motion, as it does not contain a clear indication that appellant wanted a substitution of attorney. (People v. Lee, supra, 95 Cal.App.4th at p. 780.) Furthermore, even if appellant’s letters did constitute separate Marsden motions, he did not follow up on them when the court failed to rule upon them at subsequent court proceedings, and therefore they are likewise deemed abandoned.
People v. Lloyd (1992) 4 Cal.App.4th 724, relied on by appellant, does not require a different result. In Lloyd, the defendant wrote a letter to the court requesting substitution of counsel, and the court failed to conduct a pretrial hearing in response to this letter. (Id. at pp. 729-730.) About a month later, however, on the second day of trial, the court provided the defendant with an opportunity to voice any complaints about his counsel, and the defendant responded only with complaints about how evidence was being presented. (Id. at pp. 731-732.) The appellate court held that the trial court’s initial failure to conduct a Marsden hearing in response to the defendant’s written motion was error. (Lloyd, at pp. 731.) The court rejected the Attorney General’s argument that the defendant was not entitled to a hearing because the judge “may have been ‘personally’ unaware of the letter,” noting that the letter had a superior court file stamp and “the fact that a particular judge may not have been aware of the letter does not excuse the court from providing Lloyd with his constitutionally mandated hearings.” (Ibid.) However, the court concluded that “the effect of the administrative error was resolved when Lloyd failed to renew his earlier motion at the hearing conducted on the second day of trial” (Lloyd, at p. 731); that is, “the court’s error in failing to consider Lloyd’s first Marsden motion became harmless when Lloyd failed to reassert the reasons underlying the motion at the later hearing” (Lloyd, at p. 732). Though Lloyd utilized a harmless error analysis, the result is perfectly consistent with Vera’s conclusion that a defendant’s postmotion conduct may constitute an abandonment of his request for Marsden relief. Appellant abandoned his Marsden motion by failing to follow up on the motion and instead silently accepting counsel’s assistance throughout the remainder of the proceedings.
II. Ineffective Assistance of Counsel
Appellant next contends that his trial counsel failed to provide effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution. Appellant argues that trial counsel’s performance was deficient in two respects: (1) defense counsel objected to a jury instruction on the lesser included offense of attempted voluntary manslaughter, and (2) defense counsel failed to investigate and present evidence to the jury that appellant suffered from carcinoid cancer.
To demonstrate ineffective assistance of counsel, “a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Second, he must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 214-215.)
A. Attempted Voluntary Manslaughter Instruction
Appellant contends that his counsel rendered ineffective assistance by arguing against a jury instruction on the lesser included offense of attempted voluntary manslaughter. We disagree.
At trial, outside of the presence of the jury, the court stated that “my research indicates that voluntary manslaughter is a lesser charge to attempted murder,” and suggested instructing the jury on attempted voluntary manslaughter. Defense counsel objected and argued that attempted voluntary manslaughter is not a lesser included offense of attempted murder: “all crimes that are attempts are specific intent and you have to have the specific intent to do the act, and I don’t think it makes sense to have the specific intent to have a heat of passion.” The court asked the district attorney for argument, and she stated she would submit to the court’s ruling. The court then stated that it would remove the instruction on the request of defense counsel.
Defense counsel was incorrect in his legal argument that attempted voluntary manslaughter is not a lesser included offense of attempted murder. (See People v. Montes (2003) 112 Cal.App.4th 1543, 1545-1546 [attempted voluntary manslaughter is a lesser included offense of attempted murder and requires a specific intent to kill].) But this “error” is irrelevant to our analysis. Counsel utilized this argument in support of his strategy to avoid the trial court’s proposed instruction. Only if we find that this strategic decision was not reasonable may we conclude that counsel’s performance was inadequate.
It is well settled that “ ‘[r]eviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” ’ [Citations.]” (People v. Weaver (2001) 26 Cal.4th 876, 925.) If “counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel unless there could be no conceivable reason for counsel’s acts or omissions. [Citations.]” (Id. at p. 926.)
There is at least one conceivable reason for defense counsel’s apparent tactical decision to object to the attempted voluntary manslaughter instruction. Counsel might have believed that if the jury were provided with both attempted murder and attempted voluntary manslaughter instructions, they would be more likely to compromise and find appellant guilty of attempted voluntary manslaughter. However, if the jury were provided with only an attempted murder instruction, they would find appellant not guilty. Thus, defense counsel could have reasonably concluded that his client would benefit if the trial court were persuaded not to give the attempted voluntary manslaughter instruction. We reject the claim of inadequate representation because we are not persuaded that the decision to argue against the proposed instruction had no conceivable rational basis.
B. Evidence of Carcinoid Cancer
Appellant further contends that his counsel was ineffective in failing to investigate his medical history and present evidence to the jury at trial that appellant suffered from carcinoid cancer. Again, we disagree.
At appellant’s sentencing hearing, on August 17, 2006, defense counsel presented testimony from a physician who had treated appellant during his incarceration. The doctor testified that he met appellant “less than a year ago one morning when he complained of abdominal pain,” and that “[l]ater on, a pathology report came back and it was leadened with carcinoid tumor.” The doctor testified that carcinoid cancer can cause behavioral changes, including violent behavior.
There is no evidence in the record indicating that appellant had been diagnosed with carcinoid cancer at or before the time of his trial. Appellant’s trial took place on September 13, 14, and 15, 2005. In the only testimony related to appellant’s carcinoid cancer, appellant’s physician stated that he met appellant “less than a year” before the sentencing hearing on August 17, 2006, and that a pathology report revealed appellant’s carcinoid cancer sometime “[l]ater on.” From this evidence, there is no basis to conclude that defense counsel should have discovered appellant’s carcinoid cancer condition before September 13, 2005, when appellant’s jury trial began. Appellant has not demonstrated that counsel’s performance was deficient.
DISPOSITION
The judgment is affirmed.
We concur. JONES, P.J., NEEDHAM, J.