Opinion
2d Crim. No. B189398
5-3-2007
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY G. ROMERO, Defendant and Appellant.
Richard E. Holly, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Jaime L. Fuster, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Anthony G. Romero appeals a judgment following conviction of assault with a deadly weapon, with a finding that he committed the offense for the benefit of a criminal street gang. (Pen. Code, §§ 245, subd. (a)(1) & 186.22, subd. (b)(1)(A).) We affirm.
FACTS AND PROCEDURAL HISTORY
2003 Gang-Related Offense
On September 8, 2003, Romero pleaded guilty to criminal street gang recruiting and he admitted that the person whom he recruited was a minor. (§§ 186.26, subds. (a) & (d).) Evidence admitted at the preliminary examination established that Romero, the leader of the criminal street gang "West Side Locos," presided over a "jump-in" or initiation beating of a minor. Police officers witnessed and videotaped the commencement of the beating before stopping the initiation and detaining its participants. The trial court accepted Romeros guilty plea, suspended imposition of sentence, and granted him 36 months formal probation. (Case no. 2003016171.)
Present Gang-Related Offense
On July 1, 2005, Marcus C., Adam R., Yaser M., and David Miranda were passengers in Romeros white Saturn automobile. They drove to a Simi Valley convenience store. There they saw Zach Adelman, a member of a rival criminal street gang, walk toward a telephone. They parked behind the convenience store and the group walked toward Adelman. Romero took a knife from the trunk of his vehicle and handed it to Adam R. Romero, Miranda, and Adam R., all West Side Locos members, struck Adelman; Adam R. also stabbed him many times. During the assault, Romero declared: "Im from West Side. They call me Night Owl."
Residents of a nearby apartment building witnessed the assault. They administered aid to Adelman and summoned police officers.
Adelman did not testify at trial. The trial court properly sustained an objection to questioning whether Adelman identified Romero or the others in a photographic lineup.
At the insistence of his mother, Marcus C. informed police officers of the details of the assault and the identities of the participants. He also identified photographs of Romero and Adam R. from a photographic lineup.
A Simi Valley police officer, knowledgeable regarding the West Side Locos and its members, opined at trial that Romero was a leader or "shot caller" within the street gang. The officer opined that the assault was committed to benefit the street gang. The officer also testified that the primary activities of the West Side Locos concern "street intimidation and controlling a territory with occasional robberies and assault with deadly weapons . . . ."
Several months prior to the assault, Simi Valley police officers stopped Romero and searched his automobile. They found a steak knife in the trunk of the automobile.
After his arrest, Romero telephoned an acquaintance and asked whether police officers had arrested Adam R. He also questioned the identity of the "rat" who had informed on him.
At trial, Romero testified and denied participating in the assault upon Adelman. He stated that he had been in Arleta visiting a friend that evening. Romero also denied being with Marcus C. that day.
Simi Valley police officers had stopped and detained Romero several hours before the Adelman assault. Two minors, but not Marcus C., were then passengers in Romeros automobile.
Sentencing
The jury convicted Romero of assault with a deadly weapon and found that he committed the offense for the benefit of a criminal street gang. (§§ 245, subd. (a)(1) & 186.22, subd. (b)(1)(A).) The trial court sentenced Romero to a total mid-term prison sentence of six years for the offense and the enhancement.
In the 2003 gang-related offense, Romero admitted violating his probation. The trial court sentenced him to one year and eight months, to be served consecutively to the imprisonment imposed for the Adelman assault.
During the argument at the sentencing hearing, Romero requested a different attorney pursuant to People v. Marsden (1970) 2 Cal.3d 118. He described his attorneys shortcomings as: 1) failure to elicit evidence that the victim did not identify his assailants; 2) failure to introduce evidence that he worked at his construction employment until 2 p.m. the day of the attack; 3) failure to exploit evidence that Marcus C. was not in his automobile when police officers stopped it several hours prior to the assault on Adelman; 4) failure to argue jury instructions regarding witness credibility; and 5) failure to explain a possible prison sentence if convicted. Romero described his trial as a "total wreck" and requested to "do it all over again."
The trial court denied the motion. It stated that Romeros dissatisfaction with his attorney "may be issues for appeal and/or habeas relief," but that no "breakdown in the relationship between attorney-client that would justify the court appointing a new attorney at this point" existed.
Romero appeals and contends that the trial court abused its discretion by denying his Marsden motion.
DISCUSSION
Romero argues that the trial court impaired his constitutional rights to due process of law and to the assistance of counsel by denying his Marsden motion without a sufficient hearing. He asserts that the court mistakenly believed that he could not raise a Marsden issue post-verdict. Romero adds that his complaints regarding his attorney concern investigation and preparation of an alibi defense and a defense of mistaken identity. He points out that the trial court did not request defense counsel to respond to the complaints. Romero requests a limited reversal and remand to permit the trial court to hold an adequate Marsden hearing.
Pursuant to People v. Marsden, supra, 2 Cal.3d 118, a defendant may be entitled to a different attorney if he establishes that his constitutional right to the assistance of counsel would be substantially impaired or denied with present counsel. (People v. Memro (1995) 11 Cal.4th 786, 857.) When a defendant seeks to discharge his appointed attorney and substitute another, the trial court must permit him to explain the basis for his motion and to relate specific examples of his claims of inadequate representation. (Ibid.) A defendant is entitled to relief if the record discloses that the present appointed attorney is not providing adequate assistance of counsel or that he and defendant have become embroiled in an irreconcilable conflict that will likely result in ineffective representation. (Ibid.) This standard applies regardless of the stage of the proceedings. (People v. Smith (1993) 6 Cal.4th 684, 694 [Marsden motion made after defendant entered guilty plea but prior to sentencing]; People v. Winbush (1988) 205 Cal.App.3d 987, 991 ["[T]here is no reason why defendant may not make a Marsden-type motion posttrial, either for the purpose of sentencing or of making a new trial motion."].)
The decision whether to discharge appointed counsel and substitute another rests within the trial courts discretion. (People v. Smith, supra, 6 Cal.4th 684, 690.)
Under the circumstances, the trial court held a legally sufficient Marsden hearing. Following Romeros motion, the court held a hearing outside the presence of the prosecutor. It then questioned whether Romero sought to have his attorney removed and another attorney appointed. When Romero responded affirmatively, the court asked that he explain his reasons. Romero then described five complaints concerning his attorneys representation (ante., p.3).
Here the trial court listened to Romeros reasons for dissatisfaction with his attorney, discussed the nature of his complaints, and concluded that there was no breakdown in the attorney-client relationship. (People v. Vera (2004) 122 Cal.App.4th 970, 980 [disagreements regarding trial strategy do not require substitution of counsel].) Moreover, the court did not err by not requesting defense counsel to respond to Romeros complaints because the complaints concerned matters occurring at trial. (People v. Turner (1992) 7 Cal.App.4th 1214, 1219 ["Depending on the nature of the grievances related by defendant, it may be necessary for the court also to question his attorney."].) Thus the court knew that Romero testified that he worked until 2 p.m., that he stated that he did not see Marcus C. that day and was not involved in the Adelman assault, and that Simi Valley police officers stopped him earlier that day and Marcus C. was not in the automobile. The court also knew that the jury had been instructed with instructions regarding witness credibility. Moreover, Romeros complaints did not bear upon whether his attorney could provide the effective assistance of counsel at sentencing.
In his reply brief, Romero appears to argue that his request to "do it all over again" was the equivalent of a motion for a new trial based upon the ineffective assistance of counsel. Romeros complaints concern a failure to introduce or exploit minimally probative evidence or to request jury instructions (which were given in any event). In these circumstances, it was not necessary to appoint new counsel to assist in a new trial motion. (People v. Stewart (1985) 171 Cal.App.3d 388, 396, disapproved on other grounds by People v. Smith, supra, 6 Cal.4th 684, 696.)
The judgment is affirmed.
We concur:
YEGAN, J.
COFFEE, J. --------------- Notes: All further statutory references are to the Penal Code.