P. v. Westin

P. v. Westin

Filed 8/18/08 P. v. Westin CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, v. BRUCE RANDOLPH WESTIN, Defendant and Appellant.

B202964 (Los Angeles County Super. Ct. No. SA061160)

APPEAL from a judgment of the Superior Court of Los Angeles County, James R. Dabney, Judge. Affirmed.

Murray A. Rosenberg, 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, Senior Assistant Attorney General, Keith H. Borjon and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.

Bruce Randolph Westin appeals from the judgment entered following a jury trial in which he was convicted of committing vandalism causing damage over $400 (Pen. Code, 594, subd. (a).) Imposition of sentence was suspended and he was placed on formal probation for five years under certain terms and conditions. He contends the trial court committed reversible error when it failed to hold a Marsden[1]hearing after he requested the same and informed the court the representation he was receiving was inadequate. For reasons stated in the opinion we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

The evidence at trial established that appellant was involved in an ownership dispute relative to a duplex in which he was living. In February 2006, Frederick Nitowski, the determined owner, began proceedings to evict appellant. During these proceedings, appellant threatened that the apartment was not going to be worth anything when he was done. In June 2006, after obtaining an eviction order from the court, Nitowski discovered that appellant had severely damaged the unit. The damage was estimated to be $71,329.

DISCUSSION

Appellant contends the trial court committed reversible error when it failed to hold a Marsden hearing after he requested the same and informed the court that the representation he was receiving was inadequate. The contention is without merit.

During jury voir dire, appointed counsel stated to the court that appellant had a Faretta[2]or Marsden issue that he wanted to talk about. After speaking to his client, appointed counsel stated, I think that my client has a request to represent himself, and I think the issue is over well well, I think in regards to that, if theres any conversation about strategies that were used in this trial in regards to jury selection or any other issue, I think that should be outside the presence of the prosecutor in this case.

The court advised it did not need to get into particular strategies on a Faretta issue. I just want to make sure that lets just make sure [appellant] understands things such as the exercise of peremptory challenges, trial strategies, theories to approach, things of that nature, are left in the hands of your attorney if youre represented. [] And so if the problem is with the fact that hes exercised a peremptory challenge that you disagreed with, ultimately, legally hes entitled thats his job, to exercise his professional judgment in these kind of regards. You do have control over certain aspects of the case, whether you testify or not, things of that nature. [] So I assume this is the nature of the problem were talking about? Appointed counsel advised that if appellant was talking about jury selection, talking about an issue in regards to the defense [getting into specifics] then it should be outside the presence of counsel. Appointed counsel continued, If youre making a request that you want to represent yourself, then that can be done in open court, and thats your call. If you have specific issues in regards to my representation of you, that should be done outside of the presence of the lawyer for the People. And this is in your best interest because Ive got a professional duty to look after you. Appellant responded, Okay. Then I guess it should be outside the prosecution.

After the prosecutor exited the courtroom, appellant stated, Pretty much what it comes down to is, theres just been a long series of things going on with where I just dont feel like and this is one just one more thing that happened where I feel he should have consulted me about what he was gonna do. [] And also, I asked him last week if I could preview his opening statement before trial, one day before trial, and that has not happened. Yet here we are, getting into trial, and I still dont know what hes going to say. [] And we have serious disagreements about the overall strategy of this case, and I dont feel that hes hes suitable to be my counselor. And Id much rather just self-represent myself.

The court explained, if appellant represented himself, Were in jury selection youre just going to sit in that chair and youre going to have to do it now. Im not going to give you any time. Im not going to give you another minute. Appellant acknowledged, Thats fine. Thats fine. After issuing Faretta warnings and advisements, which appellant acknowledged and accepted, appellant stated, I feel that Id be better off to self-represent. Appellant completed, signed and initialed a formal waiver of counsel form and appellant was permitted to represent himself.

The court continued that it was the courts opinion that appellant was making a huge mistake and appellant countered he [did not] feel that way.

People v. Marsden, supra, 2 Cal.3d 118, 124 stands for the principle that it is an abuse of discretion to deny a defendant who seeks substitution of attorneys an opportunity to explain the reasons for his request. However, the decision to allow a substitution of attorney is within the discretion of the trial judge unless there is a sufficient showing that the defendants right to the assistance of counsel would be substantially impaired if his present request was denied. [Citations.] (People v. Burton (1989) 48 Cal.3d 843, 855.)

In the instant case, while appellant expressed dissatisfaction with his attorney, he repeatedly and explicitly requested to represent himself, stating he felt he would be better off. A request for self-representation does not trigger a duty to conduct a Marsden [citation] inquiry or to suggest substitution of counsel as an alternative. [Citation.] (People v. Clark (1992) 3 Cal.4th 41, 105.) Since appellants attorney initially characterized the motion as possibly falling under Marsden and since appellant was complaining about his attorneys handling of the case, the better practice may have been for the court to expressly rule that even viewing appellants request as one for other counsel, the motion was denied, and then proceed to the Faretta issue. It is plain from the record that appellant had not made a showing that would have justified relief under Marsden. The result would have left appellant where he was: either continue with the appointed counsel he had or proceed pro se. On that choice, his position was clear: he wanted to proceed pro se. On this record, we conclude there was no error.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P. J.

SUZUKAWA, J.

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[1]People v. Marsden (1970) 2 Cal.3d 118.

[2]Faretta v. California (1975) 422 U. S. 806.