Opinion
F073940
05-07-2018
THE PEOPLE, Plaintiff and Respondent, v. ROCK ANTHONY ROWLAND, Defendant and Appellant.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Kari Ricci Mueller, and Jamie Scheiddegger, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Tulare Super. Ct. No. VCF329730)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Lloyd L. Hicks, Judge. Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Kari Ricci Mueller, and Jamie Scheiddegger, Deputy Attorneys General, for Plaintiff and Respondent.
Retired judge of the Tulare Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
-ooOoo-
INTRODUCTION
Appellant/defendant Rock Anthony Rowland was charged and convicted of animal cruelty (Pen. Code, § 597, subd. (a)), for putting his mother's cat in a clothes dryer, resulting in the animal's death. The jury also found that he personally used a dangerous and deadly weapon, i.e., the dryer, in the commission of the offense (§ 12022, subd. (b)(1)). He was sentenced to the upper term of three years, plus one year for the enhancement, for an aggregate term of four years.
All further statutory citations are to the Penal Code unless otherwise indicated.
On appeal, defendant argues the deadly weapon enhancement only applies to a crime committed against a human being, and that the jury was improperly instructed on adoptive admissions. He also argues the court should have conducted a hearing regarding complaints he made about his attorney after the jury's verdict.
We affirm.
FACTS
Cathy Farris owned and lived in a house in Visalia. She rented two of the bedrooms to two people. She also rented her garage as a living space to Janine Salisbury and her adult son, defendant.
All of the tenants had full access to the house, and they could use the kitchen, bathroom, and watch television. They also had access to the garage, where the clothes washer and dryer were located near the living area of Salisbury and defendant. The garage was never locked. Farris had a dog that stayed in the house.
Salisbury kept a nine-year-old cat named Emmy. Salisbury had Emmy since it was a kitten and was very close to the cat, but Emmy was not very friendly to other people. The cat primarily stayed in the garage. It was not spayed and went into heat every few months.
Salisbury starts the clothes dryer
On the afternoon of December 21, 2015, Salisbury and defendant worked in the backyard. After they finished, defendant left to buy food at a store and then returned to the house. In the meantime, Salisbury did the laundry for defendant and herself in the garage.
Sometime between 4:00 p.m. and 5:00 p.m., Salisbury transferred all the clothes from the washing machine to the clothes dryer. She closed the dryer's door and turned it on. Salisbury testified the dryer was always set on "high" since it was "the only setting that seemed to work ...."
Defendant puts hot sauce in the cat's bowl
After she turned on the dryer, Salisbury took the cat's water bowl from the garage and went into the kitchen to clean it. The cat was in heat, and it had been crying, meowing, and driving everyone crazy. Salisbury washed out the cat's bowl, filled it with water, and put it on the kitchen counter.
Defendant was also in the kitchen and making something for dinner. After Salisbury refilled the cat's bowl, defendant put hot sauce into the cat's water.
Salisbury testified defendant had been "pretty agitated" that day. Defendant knew it was the cat's water bowl and he was being "ornery." Salisbury again washed out the bowl and put fresh water in it.
Salisbury testified defendant got "real mad" at her and told her to leave. Defendant did not say why he was angry. Salisbury decided to leave the property and "separate" herself from the situation, because defendant was angry and she did not want to argue. She left the cat's water bowl in the kitchen and did not return it to the garage.
Salisbury testified she "took off" and left the property. Defendant was inside the house and watching television when she left. Salisbury walked to a friend's house and spent the evening there.
Salisbury testified that her laundry was still going through the dryer when she left. Salisbury thought it took about an hour for the dryer to run through the cycle. Farris testified the clothes dryer's cycle usually lasted 30 to 45 minutes, and then it would automatically shut off.
Farris returns home from work
Around 6:30 p.m., Farris arrived home from work with her boyfriend. Farris's boyfriend went in the living room.
Defendant was in the garage and the only other person present. He went into the house to greet Farris.
Farris asked where Salisbury was. Defendant said she was either in the garage or in the backyard. Defendant made these statements even though Salisbury was still gone and had not returned.
Farris went into her bedroom to change clothes. Defendant followed Farris into her bedroom and stood in the doorway. Farris testified that defendant acted a little weird and started "coming onto" her "fairly strongly," which had never happened before. Farris felt uncomfortable. Farris's dog was lying on the floor, and defendant did not like the dog. Defendant told the dog, " 'You don't bite your owner,' " even though the dog was not doing anything. Defendant seemed upset and used a loud tone of voice. He told the dog that he would "take him out." Farris was afraid defendant was going to harm her dog. Farris told defendant to leave her bedroom.
Farris discovers the cat in the dryer
Farris testified defendant left her bedroom doorway and went into the living room to watch television. Farris went into the kitchen. Farris testified that while standing in the kitchen, she could hear the clothes dryer operating in the adjacent garage.
Farris heard a thumping sound coming from the dryer. She testified the thumping sound was "like when you put in tennis shoes and you hear that hitting on the drum of it .... Sounded like something like tennis shoes were in there but ... I didn't know what it was for sure. It just didn't sound right."
Farris asked defendant who was doing the laundry. Defendant said Salisbury put some clothes in for him.
Farris went into the garage and the dryer was still running. She shut it off, opened the door, and started pulling out clothes because she wanted "to get the noise to stop. I didn't know what was in there." She found a full load of clothes that did not belong to her.
As Farris removed the clothes, she felt a cat's tail, discovered clumps of fur, and realized Emmy was in the dryer and was dead. Farris testified she started screaming and "freaked out."
Farris ran into the house and told defendant that Emmy was in the dryer. Farris testified that defendant went to the garage and looked inside the dryer. He started calling out, " '[M]om, mom' " to Salisbury, even though she was not present.
Farris testified defendant went back into the house and made himself something to eat. Defendant acted as if he had no idea how the cat ended up in the dryer.
Defendant went back into the garage and removed the cat from the dryer. Defendant told Farris that he placed the dead cat outside, by the side of the house, so his mother would not see it. Defendant did not express any concern about what happened to the cat, but seemed more upset about his mother.
Farris decided to call Salisbury and tell her what happened.
Farris calls Salisbury
Sometime between 10:30 p.m. and 11:00 p.m., Salisbury was still at her friend's house when she received a call from Farris. Farris said that she needed to come home. Salisbury asked what happened. Farris tried to avoid telling her, but eventually said that Emmy was " 'gone' " - meaning that the cat was dead.
Farris could not recall if she told Salisbury that she thought defendant did it.
Salisbury calls the police
Salisbury testified she arrived home around 11:30 p.m. or midnight. Defendant was asleep in the garage. Farris told Salisbury that she found the cat in the dryer. Salisbury fell apart and started crying. Farris said that defendant had put the dead cat outside somewhere. Salisbury tried to find the cat, but it was raining and she could not see in the dark.
Salisbury testified she called the police around midnight. She was very upset and wanted them to investigate what happened to her cat. She was also concerned that defendant would be mad because she wanted the police to talk to him. "I was very upset and I couldn't think of anything else that might have happened."
After Salisbury called the police, defendant went into the house. Defendant "said something to me about the crazy weather with the rain ...." Salisbury kept crying and told defendant that the cat was dead. Defendant acted "genuinely shocked to hear that she was dead."
Salisbury testified she told defendant that the police were on their way, and he would have to talk to them. Salisbury also told defendant, " 'If you want to run, you better go now.' " Defendant replied: " 'No, mom. I'm not going to run,' " and that " 'I didn't do anything. I'll talk to them.' "
Defendant was adamant that he would not do something like that to Emmy. Defendant said something about Salisbury putting the clothes in the dryer before she left the house, and suggested to Salisbury that "maybe [the cat] got in there when I changed the clothes over." Salisbury testified the cat had never tried to jump into the dryer, and she had never found the cat inside it.
The officer's investigation
At 12:13 a.m., the police department received a call about this incident. At 1:50 a.m., Visalia Police Officer Isaac Stephens arrived at the residence. Stephens encountered defendant on the front porch and immediately told him that he was being detained on suspicion of animal cruelty. Defendant did not respond.
Officer Stephens found cat hair, blood, and fluid stains inside the dryer's drum, and on the clothing that had been in the dryer. The dryer's lint trap was full of cat hair. Stephens looked around the garage and did not find any signs of forced entry. Stephens found the dead cat in the backyard, behind the garage, lying in the rain. The cat had visible burns around the eyes and ears. The cat was later turned over to the SPCA.
The SPCA reported the cat's lung tissue showed signs of severe burns. The cat had skin lesions consistent with thermal burns, indicating the animal had been in the dryer for "some time."
Prior incident of animal cruelty
Chelsea Tempest (formerly Rowland), defendant's sister, testified at trial about an incident that occurred two and a half years earlier, when she lived with defendant and Salisbury at another residence. Defendant put hot sauce on another cat that belonged to Salisbury. Defendant threw the cat outside with Rowland's two pit bulls, and said he was trying to feed the cat to the dogs. Defendant claimed he thought the cat was stealing his cigarettes.
DISCUSSION
I. The Deadly Weapon Enhancement
Defendant was charged and convicted of animal cruelty to a cat (§ 597, subd. (a)), and the jury found true the special allegation that he personally used a dangerous and deadly weapon, the clothes dryer, in the commission of the offense (§ 12022, subd. (b)(1)). Defendant argues the deadly weapon enhancement cannot apply in this case because he did not use a deadly weapon against a human.
A. Animal Cruelty
We begin with the provisions of the substantive charge. Section 597, subdivision (a), defines the offense of animal cruelty and states that, with exceptions not applicable to this case, "every person who maliciously and intentionally maims, mutilates, tortures, or wounds a living animal, or maliciously and intentionally kills an animal, is guilty of a crime" punishable as either a felony or a misdemeanor. (Italics added.)
The jury herein was instructed on the elements of the charged offense in CALCRIM No. 2953:
"The defendant is charged with cruelty to animals. To prove that the defendant is guilty of this crime, the People must prove that ...
"One, the defendant tortured a living animal.
"Two, the defendant intended to torture a living animal.
"And three, the defendant acted maliciously.
" 'Torture' means every act, failure to act or neglect that causes or permits unnecessary or unjustifiable physical pain or suffering.
"Someone acts 'maliciously' when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to disturb, annoy or injure an animal."
Section 597, subdivision (a) is a general intent crime. (People v. Alvarado (2005) 125 Cal.App.4th 1179, 1190.) In the context of animal cruelty, malice is defined in general as "a wish to vex, annoy, or injure" a living animal, or "an intent to do a wrongful act ...." (§ 7, par. 4; People v. Dunn (1974) 39 Cal.App.3d 418, 420.) "The expressions 'willfully,' 'knowingly,' 'intentionally,' and 'maliciously' are expressions of general, not specific, intent when used in a penal statute. [Citations.]" (People v. Alvarado, supra, 125 Cal.App.4th at p. 1188.) "General intent is present '[w]hen a person intentionally does that which the law declares to be a crime ... even though he may not know that his act or conduct is unlawful.' " (People v. Turner (1983) 145 Cal.App.3d 658, 682, disapproved on other grounds in People v. Newman (1999) 21 Cal.4th 413, 422, fn. 6 and People v. Majors (1998) 18 Cal.4th 385, 411.)
B. The Enhancement
The information further alleged that in the commission of the offense of animal cruelty, defendant personally used a deadly weapon within the meaning of section 12022, subdivision (b)(1), which states:
"A person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense."
The jury was instructed with CALCRIM No. 3145 on the elements of the enhancement:
"If you find the defendant guilty of the crime charged in Count 1, you must then decide whether the People have proved the additional allegation that the defendant personally used a deadly or dangerous weapon during the commission of the crime.
"A deadly or dangerous weapon is any object, instrument or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.
"In deciding whether an object is a deadly weapon, consider all the surrounding circumstances including when and where the object was possessed and any other evidence that indicates whether the object would be used for a dangerous rather than a harmless purpose.
"Someone personally uses a deadly or dangerous weapon if he or she intentionally uses the object in such a way that it is likely to cause death or great bodily injury.
"Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
"The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved."
As applied to section 12022, "[t]here are two classes of dangerous or deadly weapons: instrumentalities that are weapons in the strict sense, such as guns and blackjacks; and instrumentalities which may be used as weapons but which have nondangerous uses, such as hammers and pocket knives. [Citation.] Instrumentalities in the first category are ' "dangerous or deadly" ' per se. [Citation.] An instrumentality in the second category is only ' "dangerous or deadly" ' when it is capable of being used in a ' "dangerous or deadly" ' manner and the evidence shows its possessor intended to use it as such. [Citation.]" (People v. Burton (2006) 143 Cal.App.4th 447, 457.)
"In determining whether an object which is not inherently deadly or dangerous has been used as a dangerous or deadly weapon, 'the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue.' " (People v. Blake (2004) 117 Cal.App.4th 543, 555, fn. omitted.)
"[A]n item commonly used for a nonviolent purpose, such as a baseball bat or a table leg, could qualify as a [dangerous or deadly weapon] ... only 'when the attendant circumstances, including the time, place, destination of the possessor, the alteration of the object from standard form, and other relevant facts indicate[] that the possessor would use the object for a dangerous, not harmless, purpose.' [Citation.]" (People v. King (2006) 38 Cal.4th 617, 624.)
"Demonstrative of this precept are the following cases in which objects not inherently dangerous have been found to be a deadly weapon: a pillow [citation]; an automobile [citation]; a large rock [citation]; a razor blade [citation]; [and] a fingernail file [citation]." (In re Jose R. (1982) 137 Cal.App.3d 269, 276, fn. 3, quoted with approval in People v. Aguilar (1997) 16 Cal.4th 1023, 1029.)
"[A] bottle or a pencil, while not deadly per se, may be a deadly weapon ... when used in a manner capable of producing and likely to produce great bodily injury. [Citations.]" (People v. Brown (2012) 210 Cal.App.4th 1, 7.) "Even an apple may constitute a deadly weapon if it contains a foreign object which is likely to produce great bodily injury when the apple is eaten. [Citation.]" (People v. Montes (1999) 74 Cal.App.4th 1050, 1054, citing In re Jose R., supra, 137 Cal.App.3d at pp. 273-277 [defendant knowingly gave victim an apple with a purposefully-concealed straight pin]; see also People v. Zermeno (1999) 21 Cal.4th 927, 931 [beer bottle]; People v. Golde (2008) 163 Cal.App.4th 101, 116 [vehicle]; People v. Page (2004) 123 Cal.App.4th 1466, 1472-1473 [sharpened pencil]; People v. Montes, supra, 74 Cal.App.4th at p. 1054 [three-foot chain swung at victim was a deadly weapon]; People v. Nealis (1991) 232 Cal.App.3d Supp. 1, 5-6 [a dog trained and ordered to attack a human on command may be a deadly weapon]; People v. Helms (1966) 242 Cal.App.2d 476, 486-487 [pillow was a deadly weapon when used in an attempt to smother the victim]; People v. Russell (1943) 59 Cal.App.2d 660, 664-665 [fingernail file was a deadly weapon when used to strike the victim in the face].
C. Analysis
The jury convicted defendant of count I, animal cruelty, that he maliciously and intentionally put the cat into an operating and running clothes dryer to torture the animal.
The jury then turned to the enhancement, and found defendant personally used the operating and running clothes dryer as a deadly or dangerous weapon, presumably by placing the cat in the drum and turning on the machine, that triggered the heating function of the dryer. The SPCA's examination of the dead cat indicated that, based on the severe internal and external burns, it had been in the dryer for "some time."
Defendant asserts that the section 12022 deadly weapon enhancement may be imposed only when the substantive offense is committed against a human being and not an animal. He concedes the identical argument was rejected in People v. Smith (2007) 150 Cal.App.4th 89 (Smith), but argues that case was wrongly decided.
In Smith, the defendant was convicted of animal cruelty for killing his girlfriend's dog with a knife. The jury also found the section 12022, subdivision (b)(1) deadly weapon enhancement true. (Smith, supra, 150 Cal.App.4th at pp. 92-93.)
Smith rejected the defendant's argument that the deadly weapon enhancement only applied to a crime committed against a human being.
"The language of section 12022, subdivision (b)(1) prohibits the use of a deadly or dangerous weapon ' in the commission of a felony or attempted felony,' and states that an additional and consecutive one year term shall be imposed for its violation. (Italics added.) The statute is subject to a single exception: where use of the deadly or dangerous weapon is an element of the underlying offense. Cruelty to an animal, in violation of section 597, subdivision (a), is a felony. (§ 17.) [U]se of a deadly or dangerous weapon is not an element of that offense. Thus, the plain meaning of section 12022, subdivision (b)(1) supports imposition of a deadly weapon use enhancement based on a violation of section 597, subdivision (a). (See People v. Dyer (2002) 95 Cal.App.4th 448, 454-455 ... [a violation of § 597, subd. (a) is a crime of ' "force or violence" ' and may be the basis for finding a defendant a mentally disordered offender since the statutory language is clear and does not except crimes of force or violence against animals].) If we were to follow [defendant's] interpretation, we would be required to insert the words ' "against a person" ' into the statute. [Citation.] We have no authority to ' "rewrite the statute to conform to an assumed intention which does not appear from its language." ' [Citation.]" (Smith, supra, 150 Cal.App.4th at p. 94, italics in original.)
Defendant argues that Smith was wrongly decided because People v. Wims (1995) 10 Cal.4th 293 (Wims) held the section 12022 enhancement only applied if a deadly weapon was used against another person.
Smith also rejected this argument, and explained why Wims did not control the resolution of this issue:
"[Defendant] contends this enhancement can only be imposed when the deadly or dangerous weapon is used against a human being because in ... Wims[, supra,] 10 Cal.4th [at p.] 302 ..., the Supreme Court stated, '[i]n order to find "true" a section 12022(b) allegation, a fact finder must conclude that, during the crime or attempted crime, the defendant himself or herself intentionally displayed in a menacing manner or struck someone with an instrument capable of inflicting great bodily injury or death.' [Defendant] argues the term 'someone' can only refer to a human being.
"Wims observed that the jury instruction for section 12022, subdivision (b) is adapted from the language of section 1203.06, which prohibits probation where a firearm is used in the commission of certain crimes. (Wims, supra, 10 Cal.4th at p. 302.) Section 1203.06, subdivision (b)(2) states: 'As used in subdivision (a), "used a firearm" means to display
a firearm in a menacing manner, to intentionally fire it, [or] to intentionally strike or hit a human being with it ....' [Defendant] interprets this language to mean that a firearm is 'used' only when the victim is a human being. Because the jury instruction for section 12022, subdivision (b) was adapted from section 1203.06, [defendant] argues that section 12022, subdivision (b)(1) should be interpreted to apply only when a deadly or dangerous weapon is used against a human being. He points out that section 12022, subdivision (b) was added to the Penal Code the same year section 1203.06 was amended. Thus, he argues the Legislature viewed these sections as parallel provisions, and the definition of the word 'use' in section 12022, subdivision (b)(1) should be imported from section 1203.06, subdivision (b)(2).
"We are not persuaded. Although the Wims court did use the word 'someone' in discussing section 12022, subdivision (b), the crime in that case involved a human victim. (Wims, supra, 10 Cal.4th at p. 299.) Wims did not address the issue presented in this appeal. [Defendant's] argument for importing the definition of the word 'use' from section 1203.06, subdivision (b)(2) is contrary to the plain meaning of section 12022, subdivision (b)(1). 'In construing a statute, our role is to ascertain the Legislature's intent so as to effectuate the purpose of the law. [Citation.] In determining intent, we must look first to the words of the statute because they are the most reliable indicator of legislative intent. [Citation.] If the statutory language is clear and unambiguous, the plain meaning of the statute governs. [Citation.]' [Citation.]" (Smith, supra, 150 Cal.App.4th at pp. 93-94, fn. omitted.)
Pursuant to the statutory interpretation in Smith, we conclude that section 12022, subdivision (b) was applicable to this case, where defendant personally used a deadly weapon in the commission of the felony of animal cruelty.
While it is plausible that the Legislature did not contemplate the application of section 12022, subdivision (b)(1) to an offense committed against a nonhuman, Smith held conversely based upon common rules of statutory construction. It would be speculative for us to conclude otherwise. If the plain meaning of the statute does not reflect the Legislature's intent, it is the role of the Legislature, not this court, to provide appropriate clarification.
II. Adoptive Admissions
Defendant contends the court improperly overruled his objection to CALCRIM No. 357, and instructed the jury about adoptive admissions. The court gave the instruction based on the testimony from Officer Stephens, that he encountered defendant on the front porch, immediately told him that he was being detained on suspicion of animal cruelty, and defendant did not respond.
Defendant contends the adoptive admission doctrine is inapplicable in this case because his alleged failure to respond occurred as Officer Stephens took him into custody, and he was entitled to invoke his right to silence.
Defendant concedes that in People v. Tom (2014) 59 Cal.4th 1210 (Tom), the California Supreme Court resolved this issue against the defense argument. In Tom, the court held that "the Fifth Amendment privilege against self-incrimination does not categorically bar the prosecution from relying on a defendant's pretrial silence. The prosecution may use a defendant's pretrial silence as impeachment, provided the defendant has not yet been Mirandized. [Citations.]" (Id. at p. 1223.) Tom held the prosecution's use of a defendant's postarrest, pre-Miranda silence was not barred by the Fifth Amendment in the absence of custodial interrogation, or clear invocation of the privilege. (Id. at pp. 1215, 1236.)
In reaching this holding, Tom relied on Salinas v. Texas (2013) 570 U.S. 178 [133 S.Ct. 2174, 2182], a plurality opinion that held the prosecution's use of a defendant's prearrest, pre-Miranda silence did not violate the Fifth Amendment where the defendant did not expressly invoke the privilege against self-incrimination in responding to an officer's question. Tom similarly concluded that "the objective invocation rule applies to [the] defendant's postarrest, pre-Miranda silence" (Tom, supra, 59 Cal.4th at p. 1228), and that in the absence of custodial interrogation, the defendant "needed to make a timely and unambiguous assertion of the privilege in order to benefit from it" (id. at p. 1215).
Defendant acknowledges this court is bound by Tom. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.) We similarly acknowledge that he has raised the issue to preserve it for future challenge.
III. Defendant's Postverdict Statements
Defendant contends that he made statements after the jury's verdict indicating that he wanted to discharge his court-appointed attorney, and the court should have conducted a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
The public defender's office previously declared a conflict in this case, and the court appointed Philip Bianco as conflict counsel to represent defendant at trial. --------
A. Background
On May 17, 2016, the jury found defendant guilty. The court discharged the jury and then discussed the sentencing date with the attorneys. The court noted that the sentencing hearing was supposed to be held within 20 days, but the hearing could be held in about 30 days.
The following exchange occurred:
"THE DEFENDANT: Excuse me. What was the time waiver on the sentencing?
"THE COURT: You're entitled to be sentenced within 20 days but they generally require 30. You're getting full credit for all of the time that's being served.
"THE DEFENDANT: What do you mean I'm getting full credit?
"THE COURT: I mean every day that you're in there is credited against your sentence.
"THE DEFENDANT: I want to file an appeal for this.
"THE COURT: You can't do that until after the sentence. The sentence is the judgment and as soon as that's entered, then you're entitled to file an appeal.
"[DEFENSE COUNSEL]: You're going about ten days out but that gives them time to do a good report, a decent report. Okay? I would suggest you do that. You're not losing anything by doing that.
"THE DEFENDANT: Where did we lose this case at? I did not do this crime.
"[DEFENSE COUNSEL]: I'll talk to you about that. All we're doing right now is picking a date for sentencing.
"THE DEFENDANT: Everything you told me that went on did not happen. I'm thinking I need to fire you and get another lawyer and file an appeal.
"[DEFENSE COUNSEL]: Okay. We'll file the appeal when you're sentenced. Okay? And then they'll give you a lawyer for the appeal. Okay? So you're okay with the 23rd of June?
"THE DEFENDANT: Huh?
"[DEFENSE COUNSEL]: We're okay with the 23rd of June.
"THE DEFENDANT: The sooner the better.
"[DEFENSE COUNSEL]: Well I think it's better that we do that to give them time to do a good report on you." (Italics added.)
The attorneys advised the court that defendant had a trailing case for an unrelated misdemeanor offense of receiving stolen property. Defense counsel said defendant would plead not guilty to that charge and wanted a jury trial. The court scheduled a trial setting conference for the misdemeanor.
Defendant interrupted:
"THE DEFENDANT: Well wait, wait. Excuse me. Is he just allowed to talk and make these decisions for me or ask what I want to do?
"THE COURT: Sir, he will talk to you but the issue is you're no longer going to waive time on the misdemeanor.
"[DEFENSE COUNSEL]: Is that correct?
"THE COURT: Therefore we have to set it for trial.
"THE DEFENDANT: Everything that we had said up to this point was that you, you were assuring me that, that through the evidence and stuff we were gonna win this trial.
"[DEFENSE COUNSEL]: I told you that I felt confident.
"THE DEFENDANT: Okay. So my decisions that I made in replying back to you were in, in, in correlation to that information.
"THE COURT: Well sir, sir look, you can talk to him privately later. But I'm going to set this nevertheless...." (Italics added.)
The court set the date for the misdemeanor trial setting conference.
Defendant said: "Can I ask another question?" Defense counsel replied, "Well you have to ask it of me." Defendant started to say something, and defense counsel told him to wait. The court set the sentencing hearing and adjourned. Defense counsel asked for a few minutes with defendant in the jury room, and the court consented.
On June 23, 2016, the court conducted the sentencing hearing in this case. Defendant did not make any statements to his attorney or the court.
B. Marsden
"When a defendant seeks new counsel on the basis that his appointed counsel is providing inadequate representation - i.e., makes what is commonly called a Marsden motion [citation] - 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. Substitution of counsel lies within the court's discretion. The court does not abuse its discretion in denying the motion 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. Smith (2003) 30 Cal.4th 581, 604.)
"The defendant's right under Marsden to seek the discharge and replacement of court-appointed counsel applies at all stages of a criminal proceeding. The request thus may be made before or after a defendant is convicted. [Citation.]" (People v. Armijo (2017) 10 Cal.App.5th 1171, 1179.)
The trial court is not obliged to initiate a Marsden inquiry sua sponte. (People v. Leonard (2000) 78 Cal.App.4th 776, 787.) "[A] trial court must conduct such a Marsden hearing only when there is at least some clear indication by the defendant, either personally or through counsel, that the defendant wants a substitute attorney." (People v. Sanchez (2011) 53 Cal.4th 80, 84.) " '[A] proper and formal' Marsden motion is not required - the defendant need only clearly indicate to the trial court 'in some manner' that he or she is requesting the discharge and replacement of the appointed counsel. [Citations.]" (People v. Armijo, supra, 10 Cal.App.5th at p. 1178.)
Even if the defendant does not expressly seek to have his attorney replaced, his complaints about counsel may "plainly set forth an arguable case of the attorney's alleged incompetence, the requisite ground for replacement of counsel under Marsden. [Citations.]" (People v. Kelley (1997) 52 Cal.App.4th 568, 580, fn. omitted.) Thus, a defendant's complaints related to his attorney's alleged incompetence may be sufficient to trigger the need for a Marsden hearing. (Ibid.) However, "[t]he mere fact that there appears to be a difference of opinion between a defendant and his attorney over trial tactics does not place a court under a duty to hold a Marsden hearing." (People v. Lucky (1988) 45 Cal.3d 259, 281.)
Analysis
We find that defendant's postverdict statements did not directly or indirectly trigger the trial court's duty to conduct a Marsden hearing. Defendant was plainly unhappy with the jury's finding of guilt and his attorney's apparent pretrial evaluation of the evidence. Defendant appeared confused about proceeding with the sentencing hearing and misdemeanor case, and stated his intent to file an appeal as soon as possible.
While defendant said that he wanted to fire his attorney, his statements were made in the context of his unhappiness with the verdict and intent to hire another attorney to handle the appeal. Defendant did not "clearly indicate" in his statement that he wanted to discharge counsel prior to the sentencing hearing. (People v. Armijo, supra, 10 Cal.App.5th at p. 1179.) Defendant simply wanted another attorney to represent him on appeal, and that is what happened in this case.
DISPOSITION
The judgment is affirmed.
/s/_________
POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
FRANSON, J. /s/_________
SMITH, J.