Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County, Super. Ct. No. BA320074 Janice Claire Croft, Judge.
Robert Bryzman, under appointment by the Court of Appeal, for Defendant and Appellant Mkritch Melkonian.
Carlo A. Spiga for Defendant and Appellant Hrant Barsegyan.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, Judge
INTRODUCTION
Defendants Mkritch Melkonian and Hrant Barsegyan appeal from judgments entered after a jury trial. Melkonian was convicted of four counts of attempted murder (Pen. Code, §§ 187, subd. (a), 664), and the jury found true the allegations he personally used and discharged a firearm in the commission of the crimes (§ 12022.53, subds. (b) & (c)), and a principal was armed with a firearm (§ 12022, subd. (a)(1)) in the commission of the crimes. The jury also convicted him of shooting at an occupied motor vehicle (§ 246) and found true the allegations he personally used a firearm (§ 12022.5, subd. (a)) and a principal was armed with a firearm (§ 12022, subd. (a)(1)) in the commission of the crime. The trial court imposed an aggregate term of 54 years in state prison for the crimes.
Unless otherwise specified, all further section references are to the Penal Code.
The trial court imposed an additional three-year consecutive prison term for an incomplete sentence in another case (L.A. Super. Ct. No. GA062115).
Barsegyan was convicted of four counts of attempted murder (§§ 187, subd. (a), 664) and shooting at an occupied motor vehicle (§ 246), and the jury found true the allegations a principal was armed with a firearm (§ 12022, subd. (a)(1)) in the commission of the crimes. The trial court imposed an aggregate term of 16 years in state prison for the crimes.
On appeal, defendants contend the trial court erred in failing to instruct the jury on assault with a firearm as a lesser included offense of attempted murder. Melkonian also contends the trial court erred in failing to give a unanimity instruction; he was deprived of the effective assistance of counsel; the firearm use enhancements must be stricken because they were not alleged in the amended indictment; and cumulative error requires reversal of the judgment. Barsegyan contends the trial court erred in denying his Marsden motion.
People v. Marsden (1970) 2 Cal.3d 118.
FACTS
On the night of October 31, 2005, Halloween, Melkonian, Barsegyan and Barsegyan’s younger brother, Garen, were at a 7-Eleven at Glenoaks Boulevard and Alameda Avenue in Glendale. Artak Nadarian (Nadarian) drove up in his black Cadillac Escalade. He gave Melkonian and the Barsegyan brothers a ride.
That same night, Hakop Hambartsumyan (Hambartsumyan) decided to drive around in his white Kia minivan with his friends, Samvel Piloyan (Piloyan), Vahram Simonyan (Vahram), Davit Simonyan (Davit), Sarkis Gukasyan (Gukasyan), Narek Tovmasyan (Tovmasyan), and Sarkis Sargsyan (Sargsyan).
At some point, there was a confrontation between the occupants of the two vehicles on Glenoaks Boulevard. The minivan pulled alongside the Escalade and its occupants began “mad dogging” Melkonian and Barsegyan, i.e., staring them down and challenging them to a fight. Melkonian leaned out the window of the Escalade and shook his fist and yelled at the occupants of the minivan to pull over. Hambartsumyan drove away. Nadarian drove back to the 7-Eleven and dropped Melkonian and Barsegyan off, telling them he did not want to get involved. He drove Garen home, while Melkonian and Barsegyan got into Melkonian’s white Honda and drove away.
Mark Emerson witnessed the confrontation. He saw a white minivan driving erratically, followed by a black SUV. The occupants of the SUV were leaning out of the windows, making hand gestures. The minivan’s door slid open, and the people inside were gesturing and yelling at the occupants of the SUV. The confrontation lasted two to three minutes.
Hambartsumyan had parked on Alameda Avenue near Sixth Street. Some of the occupants, including Hambartsumyan, Gukasyan and Tovmasyan, got out of the minivan to smoke. The Escalade drove by them, followed by the white Honda. Melkonian stopped the Honda across from the minivan. He got out and said, “What’s up, where you from?” He then started shooting.
Gukasyan (count 6) ran down the street; he looked back at Melkonian, who fired in his direction. Tovmasyan (count 1) ran into the minivan, where he was shot in the back. Piloyan (count 2), Vahram (count 3) and Davit, who were inside the minivan, stayed inside. Melkonian approached the minivan and shot at it. He then walked away. Tovmasyan said he had been hit, so everyone got back into the minivan, and they drove toward the hospital.
Defendants were acquitted of the attempted murder of Hambartsumyan (count 7), Sargsyan (count 4) and Davit (count 5).
At the same time, Margaret O’Neal (O’Neal) and her son Christopher were driving on Alameda Avenue. She saw a white sedan stopped on the street; its occupants appeared to be speaking to the occupants of a minivan parked on the other side of the street. The sedan then pulled off to the right, the driver got out, drew a gun and began shooting toward the minivan. The minivan’s passengers scattered, the gunman approached the minivan and continued shooting. The sedan’s passenger got out, yelled something, got into the driver’s seat of the sedan, made a U-turn and stopped next to the minivan. The gunman got into the sedan, which then drove away. O’Neal called 911 while Christopher wrote down the license number of the white sedan.
Gukasyan was driving the minivan to the hospital. As he slowed to get onto the 5 Freeway heading south, the white Honda pulled alongside the minivan. From the front passenger seat, Melkonian fired at least two more shots toward the minivan. One bullet hit the driver’s side window, shattering it, and another bullet struck the rear driver’s side door by Piloyan. The minivan continued onto the freeway, and the Honda drove south on Western Avenue.
Burbank Police Sergeant Eduardo Ruiz and his partner received a broadcast about the shooting, including a description of the white Honda and its license number. He saw it traveling at a high rate of speed on Alameda Avenue and began pursuing it. He was able to stop it on the onramp to the 134 Freeway, near Alameda Avenue and Hollywood Way. Barsegyan was in the driver’s seat, and Melkonian was in the passenger’s seat.
The two were placed in the back of a patrol car, with a tape recorder running. Glendale Police Department Detective Petros Kmbikyan translated the conversation, which was in Armenian. In the conversation, Barsegyan suggested that he and Melkonian make up a story about where they had been, that they had been on San Fernando Road to meet some girls. A cell phone rang; Barsegyan answered and told “Ema” to tell the police they were supposed to meet her at a Starbucks on San Fernando Road. He also mentioned that they had discarded the gun, and as long as the police could not find it they would be okay. He and Melkonian then discussed having discarded the gun as they entered the freeway and that they would have to look for it at a later time. They also discussed the possibility of witnesses testifying against them and that, as long as no one “snitched” on them, they would be okay.
The police brought O’Neal and Christopher to the area for a field show-up. Both identified Melkonian as the shooter and Barsegyan as the passenger who later drove the white sedan away from the scene of the shooting. Christopher also identified the Honda.
At trial, O’Neal tentatively identified Barsegyan. Christopher was unable to make an identification.
Cynthia Edison (Edison), a forensic specialist with the Glendale Police Department, performed gunshot residue tests on defendants. Melkonian had gunshot residue on his right hand, consistent with his having fired a handgun.
Edison then went to the intersection of Alameda Avenue and Glenwood Road, where she found three.25 caliber cartridge casings. She also went to the onramp of the 5 Freeway at Western Avenue. She found another.25 caliber cartridge casing and two projectiles.
Two days later, Edison examined the white Kia minivan. One window was shattered, with a hole in it. The front passenger door had a bullet hole in it, and Edison found a projectile inside the door. There also were strike marks on the hood, the driver’s door and the left side sliding door.
The following day, Glendale Police Detective Rafael Quintero and his partner found a.25 caliber Beretta semiautomatic handgun in the ivy near the Hollywood Way onramp to the 134 Freeway. Ballistics testing showed it had fired the cartridge casings and bullets found at the crime scenes.
The Beretta was traced to Akon Khoyan. His niece, Mariam Khoyan, had allowed Melkonian to borrow the Beretta two months before the shootings.
DISCUSSION
A. Failure to Instruct on Assault with a Firearm as a Lesser Included Offense of Attempted Murder
It is well established that the trial court has a duty to “instruct on lesser offenses necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser. [Citation.] On the other hand, if there is no proof, other than an unexplainable rejection of the prosecution’s evidence, that the offense was less than that charged, such instructions shall not be given. [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1063-1064.)
There are two tests by which it may be determined whether an offense is a lesser necessarily included offense. Under the elements test, an offense is a lesser necessarily included offense if the statutory elements of the greater offense include all of the elements of the lesser offense, so that the greater offense cannot be committed without also committing the lesser offense. (People v. Parson (2008) 44 Cal.4th 332, 349; People v. Birks (1998) 19 Cal.4th 108, 117.) Under the accusatory pleading test, an offense is a lesser necessarily included offense if the facts alleged include all of the elements of the uncharged lesser offense. (Parson, supra, at p. 349.)
Our Supreme Court held in People v. Wolcott (1983) 34 Cal.3d 92 that enhancement allegations are not to be considered in determining whether an offense is a lesser necessarily included offense under the accusatory pleading test. (Id. at pp. 96, 100-101; accord, People v. Sloan (2007) 42 Cal.4th 110, 114.) Applying this rule, assault with a firearm is not a lesser necessarily included offense of attempted murder under the accusatory pleading test. (People v. Bragg (2008) 161 Cal.App.4th 1385, 1398; People v. Parks (2004) 118 Cal.App.4th 1, 6.) Neither is it a lesser necessarily included offense under the statutory elements test. (Parks, supra, at p. 6.)
Defendants contend that Wolcott has been effectively overruled by the United States Supreme Court in Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435], which, they claim, “in essence rejected the distinction without a difference between substantive offenses and their associated specially charged allegations and enhancements.” This overly broad view of the holding of Apprendi has been rejected by the California Supreme Court in People v. Izaguirre (2007) 42 Cal.4th 126.
In Izaguirre, the court addressed the question whether imposition of firearm enhancements violated the constitutional proscription against double jeopardy, because they were necessarily included within the defendant’s convictions of first degree, drive-by shooting murder and attempted murder. The court observed that “[i]n Apprendi, supra, 530 U.S. 466, the high court held that ‘Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ (Id. at p. 490.) The rule of Apprendi is grounded on the reasoning that ‘The federal Constitution requires the elements of a crime to be proved beyond a reasonable doubt because they expose the defendant to punishment; likewise, the elements of a sentence enhancement must be proved beyond a reasonable doubt if there is exposure to increased punishment. [Citations.]’ [Citation.] The rule is compelled by the federal Constitution’s Fifth Amendment right to due process and Sixth Amendment right to jury trial, made applicable to the states through the Fourteenth Amendment. [Citation.] It is not grounded on principles of federal double jeopardy protection.” (People v. Izaguirre, supra, 42 Cal.4th at p. 131.)
The court concluded the enhancements did not violate double jeopardy principles, because they did not place the defendant in jeopardy for an offense greater than those with which he was charged. (People v. Izaguirre, supra, 42 Cal.4th at p. 134.) The court also rejected the defendant’s “claim that these conduct enhancements are the functional equivalent of completed offenses or convictions for purposes of the multiple conviction rule.... Conduct enhancements cannot be imposed standing alone as additional punishment. By definition, an enhancement is ‘an additional term of imprisonment added to the base term.’ [Citations.] For that reason alone, an enhancement cannot be equated with an offense. [Citation.]” (Ibid.)
The court therefore held, “To the extent defendant claims enhancements should be considered when applying the multiple conviction rule to charged offenses, ... [t]hey may not. Beyond that, Apprendi, supra, 530 U.S. 466, requires only that the firearm-related enhancements below had to be found true by a jury beyond a reasonable doubt, which they were.” (People v. Izaguirre, supra, 42 Cal.4th at p. 134.)
The clear import of Izaguirre is that Apprendi has no application to a determination whether an offense is necessarily included within the charged offense. We see no reason why this conclusion should be any different when applying the accusatory pleading test for purposes of instruction on lesser necessarily included offenses or the multiple conviction rule in determining whether double jeopardy protection bars a conviction. Accordingly, we reject defendants’ contention that Apprendi has overturned Wolcott and the trial court was required to instruct the jury on assault with a firearm as a lesser necessarily included offense.
B. Failure to Give a Unanimity Instruction
A defendant has the right to a unanimous jury verdict. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) The standard unanimity instruction, CALJIC No. 17.01, generally should be given when a defendant committed multiple acts, which could have been charged as separate offenses but were not, and the jurors could disagree as to which act defendant committed but still convict him of the crime charged. (People v. Beardslee (1991) 53 Cal.3d 68, 92, 93; People v.Jones (1990) 51 Cal.3d 294, 321.) The instruction need not be given “‘[w]here the acts were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place.’” (Beardslee, supra, at p. 93; People v. Wolfe (2003) 114 Cal.App.4th 177, 184.) It also need not be given where “the acts alleged are so closely connected as to form part of one transaction, ” “the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them.” (People v.Stankewitz (1990) 51 Cal.3d 72, 100; People v. Dieguez (2001) 89 Cal.App.4th 266, 275.)
In this case, the jury was instructed with CALJIC.
While there were two confrontations between defendants and the victims, they were so closely connected in time and location as to form a single transaction and, more importantly, Melkonian offered the same defense as to all acts. As we discuss more fully below in part C, Melkonian’s counsel acknowledged that Melkonian shot at the victims with the intent to kill. The defense was that Melkonian was acting under the heat of passion, making the crimes attempted voluntary manslaughter, not attempted murder. Under these circumstances, a unanimity instruction was unnecessary. (People v.Stankewitz, supra, 51 Cal.3d at p. 100; People v. Dieguez, supra, 89 Cal.App.4th at p. 275.)
C. Ineffective Assistance of Counsel
Melkonian contends he was denied the effective assistance of counsel by his attorney’s concession that he intended to kill Tovmasyan and failure to object to CALJIC No. 9.11.
CALJIC No. 9.11 provides: “No oral or written words of abuse, insult or reproach addressed to or said about a person, however insulting or objectionable the words may be, if unaccompanied by any threat or apparent threat of great bodily injury, or any assault upon the person, or any trespass against lands or goods, will justify an assault with a deadly weapon or by any means of force likely to produce great bodily injury. The provocation of words alone does not constitute a defense to a charge of having committed such an assault.”
In a discussion on jury instructions, Melkonian’s counsel, Mr. Nardoni, sought an instruction on assault with a firearm as a lesser included offense. In doing so, he acknowledged, “My defense has been from day one to the present that my client did in fact fire the gun but he had no intent to kill and you see we have 7 counts of attempted murder.... I think my argument that [Melkonian] had no intent to kill would then thereby support my request in seeking the lesser crime of shooting a firearm that is not a specific intent crime.” The trial court, as discussed above, declined to instruct on assault with a deadly weapon.
As the discussion continued, the prosecutor said that he was requesting CALJIC No. 9.11 that “offensive words don’t justify an assault. [The instruction] wasn’t one [that Mr.] Nardoni originally included but I think it’s an accurate statement of the law.” Mr. Nardoni did not object but responded, “Right.”
In his argument to the jury, Mr. Nardoni argued “that the situation we have here is one of road rage.... And during the course of interaction with the van and the black SUV, we have this taunting. We have the erratic driving. We have the angered exchange of words. [¶] And you see it’s during this continual course of conduct, during this heat of passion... that... Melkonian suddenly and unexpectedly jumps out of the small two-door sedan.”
Mr. Nardoni reviewed O’Neal’s testimony as to what she saw, and then continued that the prosecutor “is right. That conduct is certainly displayed on the part of one person, one person only in this trial, the intent to kill. But we need as jurors to ask ourselves, being that this is not a willful, deliberate and premeditated act or intent to kill, is it one that would constitute attempted murder, or is it one that would constitute attempted voluntary manslaughter.”
In order “[t]o secure reversal of a conviction for ineffective assistance of counsel, a defendant must establish that counsel’s performance fell below an objective standard of reasonableness and that, to a reasonable probability, defendant would have obtained a more favorable result absent counsel’s shortcomings.” (People v. Kraft, supra, 23 Cal.4th at p. 1068.) In reviewing counsel’s performance, we are required to “give great deference to counsel’s tactical decisions.” (People v. Holt (1997) 15 Cal.4th 619, 703.) If the record on appeal fails to reveal why counsel acted or failed to act with regard to the matter at issue, “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.” (Kraft, supra, at p. 1069.)
Melkonian first claims there could have been no tactical reason for conceding his intent to kill Tovmasyan. We disagree. The evidence clearly showed that Melkonian approached the minivan and shot Tovmasyan in the back. The trial court had already refused to instruct on assault with a deadly weapon. Rather than make an argument unlikely to be believed by the jury, that Melkonian did not intend to kill Tomvasyan (see, e.g., People v. Caro (1988) 46 Cal.3d 1035, 1050; People v. Morris (1988) 46 Cal.3d 1, 22-23, disapproved on another ground in In re Sassounian (1995) 9 Cal.4th 535, 543-544, fn. 5), Mr. Nardoni instead attempted to minimize the impact of the evidence by conceding intent to kill and arguing that the killing was the result of heat of passion, making the crime attempted voluntary manslaughter. We cannot say that no reasonable attorney would have made the same tactical decision. Accordingly, Mr. Nardoni’s concession did not constitute ineffective assistance of counsel. (People v. Kraft, supra, 23 Cal.4th at pp. 1068-1069.)
In claiming that Mr. Nardoni’s failure to object to CALJIC No. 9.11 constituted ineffective assistance of counsel, Melkonian relies on People v. Le (2007) 158 Cal.App.4th 516. In Le, the defendant claimed that instruction with CALCRIM No. 917 “‘that mere “words” cannot establish a defense to battery, and in permitting the prosecutor to argue to the jury, over objection, that “words” cannot legally constitute “provocation” to reduce a homicide to manslaughter’” was error. (Id. at p. 525.) The court agreed, pointing out that under established law, the provocation necessary to reduce murder to voluntary manslaughter may be either physical or verbal. (Id. at pp. 527-529.)
Subsequent to the decision in Le, however, the Supreme Court in People v. Gutierrez (2009) 45 Cal.4th 789 confirmed that “a voluntary manslaughter instruction is not warranted where the act that allegedly provoked the killing was no more than taunting words, a technical battery, or slight touching. [Citation.]” (Id. at p. 826.) Stated otherwise, mere “words of abuse, insult or reproach” (CALJIC No. 9.11) are insufficient to support a finding of heat of passion voluntary manslaughter. CALJIC No. 9.11 was not an incorrect statement of the law, and Melkonian was not deprived of the effective assistance of counsel by Mr. Nardoni’s failure to object to it. (People v. Kraft, supra, 23 Cal.4th at p. 1068.)
D. Failure to Allege Firearm Use or Discharge in the Amended Indictment
In the second amended indictment, it was alleged that in the commission of the crimes, “a principal personally and intentionally discharged a firearm, a HANDGUN, within the meaning of Penal Code sections 12022.53(c) and (e)(1)” and “sections 12022.53(b) and (e)(1).” (Italics added.) Nevertheless, the jury was asked to, and did, find “MELKONIAN personally and intentionally discharged a firearm, a handgun, within the meaning of” section 12022.53, subdivisions (b) and (c). Melkonian contends the failure of the indictment to allege that he personally used or discharged a firearm precludes the imposition of enhancements for personal firearm use.
Due process requires that a defendant be given notice of the charges against him and the opportunity to defend against them. (People v. Silva (2001) 25 Cal.4th 345, 368; People v. Jones (1990) 51 Cal.3d 294, 317.) He must have a reasonable opportunity to prepare and present his defense and cannot be taken by surprise by evidence offered at trial. (Jones, supra, at p. 317.) This requirement applies to enhancements, as well as substantive charges. (People v. Hernandez (1988) 46 Cal.3d 194, 208.)
The Penal Code does not require any specific language to be used in the indictment. Neither does it require enumeration of the specific code section under which the defendant is charged. (§§ 952, 958; People v. Thomas (1987) 43 Cal.3d 818, 826.) For the most part, it is the transcript of the grand jury hearing, rather than the indictment, which provides defendant with notice of the criminal acts against which he must defend. (Cf. People v. Jones, supra, 51 Cal.3d at p. 317; see, e.g., People v. Holt (1997) 15 Cal.4th 619, 672-673.)
Only where a statute requires that an enhancement be pled and proved must it be specifically pled in the indictment for the enhancement to be imposed. (People v. Mancebo (2002) 27 Cal.4th 735, 743.) Section 12022.53 contains a pleading and proof requirement in subdivision (e) only; subdivisions (b) and (c) do not include pleading and proof requirements. Here, the allegations under subdivision (e), i.e., the gang allegations, were dismissed prior to trial. Hence, we may look to the transcript of the grand jury hearing to determine whether Melkonian was given notice of the need to defend against charges he personally used or discharged a firearm in the commission of the crimes.
Melkonian does not deny that there was evidence at the grand jury hearing that he was the shooter. Rather, he claims that the evidence that he was the shooter was not conclusive. Therefore, he argues, “[i]f the indictment had alleged personal firearm use and discharge, defense counsel would have been on notice that establishing reasonable doubt as to the identity of the shooter was a complete defense to those enhancement allegations.” However, “[i]n the absence of personal firearm use allegations, defense counsel could well have concluded that a defense that attempted to suggest that Barsegyan was the shooter would have been counterproductive, because it would have undermined any efforts to present a united defense with Barsegyan.”
The reality is that all the evidence presented at the grand jury hearing pointed to Melkonian as the shooter. All he could do would be to challenge the credibility or memory of the witnesses or attempt to show that Barsegyan was not conclusively eliminated as the shooter. He does not suggest what sort of united defense he could have launched with Barsegyan that was dependent upon the lack of allegations that he personally used a firearm, particularly since there was no evidence that Barsegyan was the shooter.
Moreover, as the People point out, the prosecutor announced in his opening statement that he intended to prove that “Mr. Melkonian got out of the driver’s seat, went across the street with his handgun.... The defendant went all the way up to the van, opened the door and shot ‘em in the back. [¶] He got back to the car. Meanwhile while Mr. Melkonian was doing this Mr. Barsegyan got out of the passenger side. He came out when Mr. Melkonian did but he ended up getting back into the driver’s seat. He went up, did a u-turn, picked up Mr. Melkonian. When they came upon the victims again trying to get on the freeway driving to the hospital... with Mr. Barsegyan driving, pulling alongside, Mr. Melkonian fired shots into the van.”
In sum, Melkonian was provided with notice that the prosecution was going to attempt to prove that he personally used and discharged a firearm in the commission of the crimes. There was no due process violation. (Peoplev.Jones, supra, 51 Cal.3d at p. 317.)
Inasmuch as we have found no error with respect to Melkonian, we reject his contention that cumulative error had the effect of denying him a fair trial, mandating reversal of his convictions. (People v. Brady (2010) 50 Cal.4th 547, 589.)
E. Denial of Barsegyan’s Marsden Motion
Defendants were arraigned on June 2, 2006. At that time, Barsegyan was represented by private counsel, Mark J. Geragos’ office. At the May 2, 2007 pretrial/trial setting conference, Barsegyan was represented by Eli Kitt, also private counsel. On October 15, 2008, day 1 of 10 for trial, Mr. Kitt informed the trial court that Barsegyan had fired him. The court ordered Mr. Kitt to turn over his case file. The court noted that Melkonian had also fired his counsel, who had turned over his case file. The court added that “[t]his is all over the objection of” the prosecutor.
The public defender’s office was appointed to represent Melkonian, and the alternate public defender was appointed to represent Barsegyan. On October 16, 2008, the court obtained waivers of defendants’ speedy trial rights and continued the case to December 12 as day 0 of 60. The prosecutor objected to the substitutions of counsel, noting that “[w]hat the court is permitting is going to create a 6-month further delay in a crime that occurred three years ago.” The court acknowledged the delay but stated that defendants had the right to fire their attorneys.
On November 22, 2008, the public defender’s office declared a conflict as to representing Melkonian. The court appointed a bar panel attorney to represent him.
The case was finally called for trial on June 16, 2009, and jury selection began. At that time, Barsegyan was represented by deputy alternate public defender Julie Taschetta. The following day, Barsegyan requested a Marsden hearing. At the hearing, defendant stated, “I feel as though I would like to change my counsel.” The court responded, “It’s a little bit late. We are in the middle of jury selection. So what is the problem?” Barsegyan stated, “I feel as though she is not representing me the way I asked her to. Up until yesterday I have been incarcerated four years already. We have been going back and forth ever since she has been coming to see me. All we discussed is taking a deal. [¶] Now I am just in jury selection, so we have not-I have not discussed my case with her. I haven’t told her anything about my case, my side of the story. I haven’t been able to present my case to her so I feel like I am not gonna get a fair trial because she has no idea.”
The court asked Ms. Taschetta if she was ready for trial, and she responded that she was. The court then asked Barsegyan if he had anything else to say. He reiterated that he “would just like to change my attorney.” The court ruled, “Can’t do it. Your motion is denied. There is no reason to change M[s.] Taschetta. Really I am finding this to be just another delay. The last time we were zero of ten for trial we had Mr. Kessel and Mr. Kitt. You fired the attorney. Then you brought Mr. Brooklier here and now you brought in another attorney.”
A defendant’s Sixth Amendment right to the assistance of counsel entitles him to substitute appointed counsel “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.” (People v. Welch (1999) 20 Cal.4th 701, 728, internal quotation marks omitted; People v. Memro (1995) 11 Cal.4th 786, 857.) People v. Marsden, supra , 2 Cal.3d 118 gives a defendant who seeks to substitute counsel the right to a hearing to explain the reasons for the request. (Id. at p. 124.) Once the hearing is held, the decision whether or not to allow the defendant to substitute counsel rests within the sound discretion of the trial court “‘“unless there is a sufficient showing that the defendant’s right to the assistance of counsel would be substantially impaired if his present request was denied.”’” (People v. Burton (1989) 48 Cal.3d 843, 855; accord, Memro, supra, at p. 857.)
In claiming the trial court abused its discretion in denying his Marsden motion, Barsegyan relies on People v. Munoz (1974) 41 Cal.App.3d 62, in which the court held that the trial “court’s ruling denying appellant’s request for a substitution of attorneys, without an inquiry into the state of mind of the court-appointed attorney and without attempting to ascertain in what particulars the attorney was not providing appellant with a competent defense was tantamount to a refusal on the part of the court to adjudicate a fundamental issue....” (Id. at p. 66.)
This case differs from Munoz in key respects. First, the trial court gave Barsegyan the opportunity to state the reason for his request to substitute counsel. He had no specific complaints regarding the adequacy of Ms. Taschetta’s representation. Rather, he expressed dissatisfaction as to the way in which she was handling his defense. He acknowledged that she had been in communication with him but complained that all they had discussed was “taking a deal.” Neither tactical disagreements nor dissatisfaction with “‘the way in which one relates with his attorney’” is a basis for discharging appointed counsel. (People v. Cole (2004) 33 Cal.4th 1158, 1192.)
Second, in ruling on Barsegyan’s Marsden motion, the trial court was entitled to consider the length and stage of the proceedings and the number of times defendant had changed counsel, as well as the further delay the substitution of counsel would entail. (Cf. People v. Lawley (2002) 27 Cal.4th 102, 149; People v. Gallego (1990) 52 Cal.3d 115, 164.) Considering these factors, this case is much closer to People v. Keshishian (2008) 162 Cal.App.4th 425, in which the court observed: “The court here applied the correct standard in rejecting appellant’s last-minute attempt to discharge counsel and delay the start of trial. Appellant asked for and was given an opportunity to address the court concerning his desire to discharge counsel and his reasons for doing so. He stated only that he had ‘lost confidence’ in his attorneys. This request was made on the day set for trial after the case had been pending for two and a half years. An indefinite continuance would have been necessary, as appellant had neither identified nor retained new counsel. Witnesses whose appearances had already been scheduled would have been further inconvenienced by an indefinite delay. ‘“The right to counsel cannot mean that a defendant may continually delay his day of judgment by discharging prior counsel, ”’ and the court is within its discretion to deny a last-minute motion for continuance to secure new counsel. [Citations.] That appellant had inexplicably ‘lost confidence’ in his experienced and fully prepared counsel did not... justify the disruption to the judicial process that would have ensued. The trial court did not err in denying the request.” (Id. at p. 429.)
Although Keshishian involved retained counsel, the observation is still apropos.
Here, after numerous delays caused by defendants changing counsel, eight months after Ms. Taschetta was appointed to represent Barsegyan, during jury selection, Barsegyan was disenchanted with her representation and stated he “would just like to change [his] attorney.” The trial court did not abuse its discretion in denying his request. (People v. Keshishian, supra, 162 Cal.App.4th at p. 429.)
DISPOSITION
The judgments are affirmed.
We concur: PERLUSS, P. J., ZELON, J.