Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. BA322845 Jose I. Sandoval, Judge.
Pamela J. Voich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST J.
Bennie Smith (Smith) appeals his conviction for selling a controlled substance in violation of Health and Safety Code section 11352, subdivision (a). On two occasions, Smith asked to represent himself, one time specifically invoking his right under Faretta v. California (1975) 422 U.S. 806 (Faretta). His second Faretta motion was granted. On appeal, Smith contends that his two Faretta motions were actually motions for appointment of new counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) and that those motions should have been granted. After reviewing the record and Smith’s arguments, we find no error and affirm. When a defendant makes a Faretta motion, it does not obligate the trial court to conduct a Marsden hearing. And even if Smith’s second Faretta motion could be construed as a Marsden motion, the trial court would have been justified in denying it.
All further statutory references are to the Health and Safety Code unless otherwise indicated.
FACTS
Background
On May 15, 2007, at approximately 7:00 p.m., Officer Hector Diaz of the Los Angeles Police Department was undercover. He saw Smith on Main Street between Seventh Street and Eighth Street and asked “does anyone got any.” Smith asked Officer Diaz how much he needed, and Officer Diaz replied that he was “looking for a dime.” Officer Diaz handed Smith two previously photocopied $5 dollar bills and watched as Smith walked about 50 feet to the Huntington Hotel on 725 Main Street. Smith spoke to a White male standing outside the Huntington Hotel and then handed the White male an unknown amount of United States currency. The White male walked into the hotel and emerged two or three minutes later. Officer Diaz witnessed the White male place something in Smith’s right hand.
This is a way of asking in street vernacular if someone is selling narcotics.
A Black female walked over to Smith, removed an item from his hand, and walked back toward Officer Diaz. The Black female handed Officer Diaz two off-white solids resembling rock cocaine and stated, “here you go.” Smith and the other suspects were detained.
One of the previously photocopied $5 dollar bills was recovered from Smith. It was later determined that the off-white solids sold to Officer Diaz contained 0.11 grams of cocaine.
Complaint
On June 13, 2007, the Los Angeles District Attorney filed an information against Smith charging him with the selling or furnishing of cocaine base in violation of section 11352, subdivision (a). The information alleged sentence enhancements pursuant to section 11370.2, subdivision (a) and Penal Code section 667.5, subdivision (b).
The August 28, 2007, hearing
Smith was represented by Charles Clark (Clark).
Four days prior to trial, Smith indicated that he was having problems with Clark. The trial court asked Smith to elaborate.
Smith stated: “Ma’am, anything I ask my counselor to do he tells me I can’t get it done. I can’t subpoena my witnesses. I asked him to get a fingerprint off the $5 bill[ they] said they took off me. [Clark] said he can’t do it. The [trial court] is not going to spend money on that. [¶] I asked [Clark] to subpoena the cameras on Main Street. He told me he did. I don’t believe he did. I asked him to visit me numerous times. He hasn’t done that. [¶] I prefer to represent myself, ma’am.” He went on to add: “[Clark] doesn’t do anything in my defense. Everything I asked him he [has] an excuse for. He doesn’t do anything. Everything he say[s]—he don’t say anything. I might as well represent myself. He hasn’t asked about the test on the latest drugs they have. No fingerprints. He hasn’t done anything for me.”
Clark was given an opportunity to respond. He explained that he wanted to get a continuance of the trial but Smith vetoed the idea. According to Clark, Smith’s main complaint was that Clark could not get Smith into a drug program. Clark said he tried to get Smith into a drug program, and he explained to Smith that the District Attorney would have to agree to it. Next, Clark stated that two weeks prior to the hearing he spent half an hour talking to Smith about defenses and that Smith was not interested in what Clark had to say.
Clark explained that he spoke with the head of security at Deardon’s Furniture Store located on Seventh Street and Main Street about retrieving the footage from the store’s three surveillance cameras. However, his efforts were unavailing because the tapes had been reused.
Continuing on, Clark explained that Smith wanted to subpoena two codefendants. But Clark’s investigator had been unable to locate the two codefendants, probably because they were both transients and therefore difficult to track down. Clark stated that he sent his investigator to search for the codefendants in public places, such as morgues, hospitals, jails, and prisons. He further stated that he believed that the codefendants may not be helpful to Smith’s case based on his previous experiences with such witnesses.
After hearing argument from Smith and Clark, the trial court stated: “The [trial court] is denying the Marsden motion and the motion to go pro per. It is clear to me that [Smith] is not prepared to go forward at this time. The request is untimely. The trial should start within two days.”
The August 31, 2007, hearing
Upon appearing for trial, Smith stated he “would like to have a Marsden hearing.” At the hearing, he stated: “Ma’am, I requested my lawyer to do several things. He hasn’t done it. I asked him to come visit me numerous times. He never come visit me. He hasn’t filed any type of motions. [¶] I asked him to get my past records to shed some light on my drug addiction. ‘Cause you guys paint me a picture like I’m a drug dealer. I’m not a drug dealer. I was just a two-way fool and a go-between to get a crack hit. And, of course, it looks like I’m Scarface, some type of big drug cartel. [¶] I have a drug problem. I need to get it addressed. I just got out of prison May [fourth]. I did three years six months and I relapsed on crack. I need to get some help with my drug addiction not prison. [¶] And on this case I asked him to get the fingerprints off the five-dollar bill. He told me he can’t do that. He said I can’t subpoena my co-defendants. Everything I asked he said he can’t do, the [trial court] is not going to spend no money on me for that.”
The trial court stated that there were no codefendants on the case and Clark stated that there were originally two codefendants. Clark stated that he hired an investigator to locate the two former codefendants, but that the investigator was unsuccessful. Clark once again explained that he spoke with Deardon’s Furniture Store and was unable to retrieve tapes of the area where Smith was arrested because the store recycled them.
In response, Smith stated: “Your honor, Dearden’s is not the only place on Main Street that has a camera. They have . . . all type[s] of apartment buildings and they got motels that I know has [sic] cameras on the street. He only went to one place. And I don’t believe he did that. He hasn’t shown nothing in writing. I don’t think he did these things what he said he did, your honor. [¶] Me and this man had numerous arguments. He will not represent me. I am going to have to use my Faretta right and represent myself before I want him to represent me.”
At the conclusion of the hearing, the trial court said, “Well, if you want to represent yourself, that’s up to you.” The trial court told Smith he would have to fill out some forms.
Subsequently, the trial court asked Smith if he was ready to go to trial. He said that he was. The trial court appointed Clark as standby counsel. Smith asked for somebody else. His request was denied. The trial court granted Smith’s motion to go pro per and sent the matter to a trial court.
The trial
When Smith appeared for trial, the trial court asked if he still wanted to appear pro per. He said that he did, unless he could get another lawyer. The trial court stated, “You are your lawyer.” When Smith appeared after lunch on the day of trial, he asked that Clark be reappointed.
Officer Diaz testified regarding what transpired while he was working undercover on Main Street on May 15, 2007. A criminalist testified with respect to the nature of the off-white solids sold to Officer Diaz.
Smith testified: A Black female approached him and began talking. Officer Diaz approached the Black female and she snatched something out of his hand. She asked Smith to give two $5 dollar bills to the White male. Smith took the two $5 dollar bills, kept one of them for bus fare, and handed the other to the White male. The White male never said anything to Smith and did not give him anything.
Smith admitted to having convictions in 2003 and 1996 for possession for sale of drugs and sale of drugs.
Conviction and sentencing
On September 7, 2007, the jury found Smith guilty of violating section 11352, subdivision (a). The jury found that the sentence enhancement allegations were true. On October 31, 2007, the trial court sentenced Smith to a total of eight years: four years for violation of section 11352, subdivision (a), an additional three years pursuant to section 11370.2, subdivision (a), and one year pursuant to Penal Code section 667.5, subdivision (b).
STANDARD OF REVIEW
We review the denial of a Marsden motion for appointment of new counsel under an abuse of discretion standard. (People v. Jones (2003) 29 Cal.4th 1229, 1245). We will not find an abuse of discretion unless the defendant shows that the denial of his motion substantially impaired his right to effective assistance of counsel. (People v. Smith (2003) 30 Cal.4th 581, 605.)
DISCUSSION
Smith argues that the trial court abused its discretion when it did not appoint new counsel to replace Clark. We disagree.
1. The law of Marsden proceedings.
When reviewing the refusal to substitute counsel, we examine the timeliness of the motion, the adequacy of the trial court’s inquiry into the defendant’s complaint, and whether the conflict between the defendant and his attorney was so great that it resulted in a total lack of communication preventing an adequate defense. (People v. Smith, supra, 30 Cal.4th at p. 606.)
The trial court must give the defendant an opportunity to air his grievances and the defendant’s counsel an opportunity to respond. (People v. Smith, supra, 30 Cal.4th at p. 606.) “Disagreement concerning tactics, by itself, is insufficient to compel discharge of counsel. [Citation.]” (Ibid.) Further, “[a] defendant may not effectively veto an appointment of counsel by claiming a lack of trust in, or inability to get along with, the appointed attorney. [Citation.] Moreover, the trial court need not conclude that an irreconcilable conflict exists if the defendant has not tried to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness. [Citation.] . . . . ‘[A] defendant may not force the substitution of counsel by his own conduct that manufactures a conflict.’ [Citation.]” (Ibid.)
2. The trial court did not abuse its discretion on August 28, 2007.
Smith contends that he brought his first Marsden motion on August 28, 2007, and it should have been granted. In rejecting this argument, our guidepost is People v. Crandell (1988) 46 Cal.3d 833 (Crandell).
During a hearing in Crandell, the defendant asserted inadequate representation by counsel as an explanation for his decision to act as his own attorney. He asked for appointment of advisory counsel. He never asked for appointment of substitute counsel to take over his defense. According to our Supreme Court, “[t]he only determination a trial court must make when presented with a timely Faretta motion is whether the defendant has the mental capacity to waive his constitutional right to representation by an attorney with a realization of the probable risks and consequences. [Citation.] A request for self-representation does not trigger a duty to conduct a Marsden inquiry [citation] or to suggest substitution of counsel as an alternative. [Citation.]” (Crandell, supra, 46 Cal.3d at pp. 854–855.)
Because all Smith asked for on August 28, 2007, was the right to represent himself, the trial court was not required to conduct a Marsden inquiry or consider appointing new counsel. Under these circumstances, it is impossible for us to find that the trial court abused its discretion. That the trial court erroneously called Smith’s motion a Marsden motion is irrelevant.
3. The trial court did not abuse its discretion on August 31, 2007.
The second time around, Smith asked for a Marsden hearing. But it appears he did not know what this meant. Midway through the hearing, he said he was insisting on his Faretta rights. Ultimately, the trial court granted Smith’s Faretta motion to represent himself. Smith has not directed us to anywhere in the record where he requested substitution of counsel. We once again conclude that Crandell applies and decline to find an abuse of discretion.
Even if we applied Marsden, we would still affirm.
Smith complained about Clark on the day of trial. The appointment of substitute counsel would have necessitated a continuance so that the new attorney could review discovery, interview Smith and prepare. The timeliness factor weighed in favor of denying any request for substitute counsel.
The trial court conducted an adequate inquiry under the circumstances. It allowed Smith to explain his complaints about Clark, which focused on his alleged failure to visit Smith in jail; Clark’s alleged failure to file any motions; his alleged failure to get Smith’s past records; Smith’s need to address his drug problem; Clark’s claim that he could not get fingerprints from the $5 dollar bill; his claim that could not subpoena codefendants; and his failure to get security tape.
Clark was permitted to explain that contrary to Smith’s accusations, he tried to obtain the security tape from Dearden’s Furniture Store but that the tapes had been reused. From the previous hearing, the trial court was well aware that Clark had addressed some of Smith’s complaints. Clark claimed that he had visited Smith and spoken to him about his defenses, and that he had tried to get Smith into a drug program. As well, Clark explained that his investigator could not find the codefendants. Clark had previously informed the trial court that even if he could find the codefendants, he doubted that could help Smith. As for the failure to file any motions, Clark explained that Smith vetoed a proposed motion to continue.
Clark did not address his supposed inability to get fingerprints from the $5 dollar bill, but the relevance is unclear. Smith admitted to taking two $5 dollar bills, keeping one and giving the other to the White male at the Huntington Hotel. These facts demonstrate that he was involved in the sale or furnishing of cocaine. As for Clark’s alleged failure to obtain Smith’s records, he did not specify what records these were and how they could possibly help his defense. Seemingly he wanted to prove that he is a drug addict, but that does not change his facilitation of a drug sale. A drug addict who acts as a go between violates section 11352, subdivision (a). Consequently, the trial court did not need to inquire as to these issues.
Finally, Smith failed to demonstrate a total lack of communication preventing an adequate defense. At most, he demonstrated that he could not grasp the law and he did not trust Clark. Indeed, Smith repeatedly told the trial court that he did not believe that Clark did the things that he said he did. That is not grounds for appointment of new counsel. From the record it is apparent that Smith did not understand section 11352; he believed that because he is a drug addict he should get treatment instead of prison. Not only does his drug addiction not vitiate his crime, but Clark had no control over what the District Attorney charged or offered, or how the trial court would sentence him. Consequently, this dispute and Smith’s failure to understand his crime does not show that Clark was unable to provide a defense. Rather, it shows that Smith harbored a variety of unreasonable expectations.
We note that Smith wanted to call his codefendants as witnesses. Not only did Clark explain that they could not be found, but he opined that it would be unwise to call the codefendants to the stand. That is a disagreement over tactics and not grounds for substitution of new counsel. Last, it must be mentioned that though Smith claims Clark did nothing on the defense, Smith prevented Clark from filing a motion for a continuance. If Smith wanted fingerprints from the $5 dollar bill, the production of his records, and the location of his codefendants, he needed time. His actions prevented Clark from doing further investigation.
The trial court did not have to legitimize Smith’s distrust of Clark. On issues of credibility, we defer to the trial court. (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 690 [“The principle that appellate courts defer to credibility determinations made by the trier of fact is employed by appellate courts in a wide variety of settings”].) Impliedly, it believed Clark when he stated that he visited Smith but that Smith was not interested in talking. Further, Smith demonstrated his lack of cooperation by vetoing the motion for a continuance. By distrusting and second guessing Clark, Smith manufactured a conflict. Such conduct is not rewarded under Marsden. Thus, even if Smith had made a motion under Marsden, it was properly denied.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., CHAVEZ, J.