Opinion
F063422
11-02-2012
THE PEOPLE, Plaintiff and Respondent, v. JAMES ANDREW NEWMAN, Defendant and Appellant.
Stephen Merritt Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, 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.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. CRM0007954A)
OPINION
THE COURT
Before Wiseman, Acting P.J., Detjen, J. and Franson, J.
APPEAL from a judgment of the Superior Court of Merced County. Brian L. McCabe, Judge.
Stephen Merritt Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, 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.
A jury convicted appellant, James Andrew Newman, of four counts of first degree robbery in concert (counts 1-4/Pen. Code, § 211), false imprisonment (count 5/§ 236), and receiving stolen property (count 6/§ 496, subd. (a)), and found true a personal use of a firearm enhancement (§ 12022.53, subd. (b)) in counts 1 to 4. In a separate proceeding the court found true two prior prison term enhancements (§ 667.5, subd. (b)) and allegations that Newman had eight convictions within the meaning of the three strikes law (§ 667, subd. (b)-(i)).
All further statutory references are to the Penal Code.
On September 9, 2011, the court reversed Newman's conviction on count 6 and sentenced him to an aggregate, indeterminate term of 37 years to life as follows: 25 years to life on count 1, a consecutive 10-year gun use enhancement in that count, and two one-year prior prison term enhancements. The court stayed terms on counts 2 through 5, and on their corresponding arming enhancements.
On appeal, Newman contends the court committed Marsden error. We affirm.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
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FACTS
On February 2, 2010, Newman and several other suspects forced their way into a residence in Merced County and tied up several residents with zip ties and duct tape. One victim was struck in the head with a gun. Newman and his confederates also ransacked the house and took $1,300 in cash, other items valued at almost $4,000, and a truck. Newman was arrested later that day while driving the stolen truck and in possession of numerous items that were taken from the residence.
The Alleged Marsden Error
On May 31, 2011, the following colloquy occurred out of the presence of the jury:
"THE COURT: Anything else we need to speak about at this time, [defense counsel]?
"[DEFENSE COUNSEL]: No, Your Honor.
"THE COURT: [Prosecutor]?
"THE DEFENDANT: I would like to say something.
"THE COURT: Mr. Newman?
"THE DEFENDANT: Yes, sir. ¶ I -- me and my lawyer disagree on a few things that I would like on the record now. You know, their photo lineup -- I don't know --
"THE COURT: What is this in the form of, [defense counsel]? He just wants these placed on the record?
"[DEFENSE COUNSEL]: I think so, Your Honor.
"THE COURT: Okay. ¶ Go ahead.
"THE DEFENDANT: The photo line up, I've done my own research, and I found four suggestive factors which should make it inadmissible. But I am just more upset with the fact that it wasn't brought up for you to make a decision. It should have been challenged. I feel you should have made a decision what would be admissible.
"THE COURT: [Prosecutor], before we go too far -- ¶ Is this going to be in the form of a Marsden? If it is, I'm going to need to clear the room.
"[PROSECUTOR]: It doesn't appear so. But I'm happy to leave if the Court needs me to.
"THE COURT: Why don't I do that. Even though it's not couched in that way, I'll have him place it on the record. ¶ So I'm going to have the deputies clear the room, and we'll treat it as a [Marsden]."
After the court cleared the courtroom, Newman explained that he believed a photo lineup that was used to identify him as one of the robbers should be challenged because two of the photos used in the lineup were of the same person, three of the individuals in the lineup were Hispanic, and he is white, and he was the only one in the lineup who had a mustache or a tattoo on his neck, which were characteristics that witnesses attributed to one of the robbers.
Newman never explicitly asked for substitute counsel. Instead he explained:
"We disagreed at the beginning, and I'm -- I have to be honest, I'm a little intimidated. He's a lawyer. I like the man. I believe he's -- I am not trying to say he's being incompetent. I just -- I don't agree with some of the things. And, you know, if this does get down to where we lose, if I don't -- from my understanding of what I read, if I have not complained about it prior to, I don't have that luxury in appeal. So I want this, is what I'm trying to --." (Italics added.)
After the court asked if there were other issues, Newman responded that one of the witnesses had committed perjury, that he would like the opportunity to prove it, and that he felt he and defense counsel "should have spent more time together pretrial."
The court then stated that Newman's complaints would be "treated as a Marsden" and that his comments would be sealed and unavailable to the prosecutor without a court order. The court also noted that Newman's complaints dealt with strategy and that the attorney has the final say on trial strategy. Defense counsel then interjected and clarified that Newman was: 1) objecting that the lineup shown to Melissa Bravo was unduly suggestive and that any subsequent identification was irreparably tainted by the suggestive lineup; 2) referring to Bravo having lied about a certain box belonging to her; and 3) asking that the real owner of the box be allowed to testify that it belonged to her.
The court suggested that the last issue could be brought up during the defense case and it declined to take it up at that time without the prosecutor being present. The court then stated,
"With that, we're going to call -- open the doors and let everybody come back in. We'll treat this -- even though it was not a Marsden there's not an indication it was a Marsden, the court has treated it that way...." (Italics added.)
The matter then resumed in open court.
DISCUSSION
Newman contends the court violated his right to counsel by not ruling on his Marsden motion or sufficiently investigating its merit. We disagree.
"When a defendant seeks substitution of appointed counsel pursuant to [Marsden], 'the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.' [Citations.] [¶] We review the denial of a Marsden motion for abuse of discretion. [Citation.] Denial is not an abuse of discretion 'unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel.' [Citation.]" (People v. Taylor (2010) 48 Cal.4th 574, 599.)
"A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result." (People v. Jones (2003) 29 Cal.4th 1229, 1244-1245.)
"'Although no formal motion is necessary, there must be "at least some clear indication by defendant that he wants a substitute attorney.."' [Citations.]" (People v. Valdez (2004) 32 Cal.4th 73, 97, italics added.)
Here, although Newman raised three issues with the court, he never clearly indicated that he wanted the court to appoint substitute counsel. To the contrary, he stated that he liked defense counsel and was "not trying to say [defense counsel] was incompetent." Further, although the court employed some Marsden safeguards such as clearing the courtroom so that Newman would "have a little more leeway in discussing whatever strategy [might] be involved without having to talk about it in front of the prosecutor[,]" it clearly found that Newman was not requesting substitute counsel. Therefore, since the record unequivocally indicates that Newman did not request substitute counsel, we reject Newman's claims of Marsden error.
DISPOSITION
The judgment is affirmed.