P. v. Scott

P. v. Scott

Filed 9/16/08 P. v. Scott CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

THE PEOPLE, Plaintiff and Respondent, v. RICHARD EDWARD SCOTT, Defendant and Appellant.

C056345 (Super. Ct. No. 06F00390)

About 9:30 p.m. on January 14, 2006, defendant Richard Edward Scott approached the victim in the victims garage, pointed a cocked pistol in the victims face and demanded the victims car keys and money. Defendant was wearing gloves.

The victim handed defendant the keys to the car and his wallet which contained a few hundred dollars. While defendant was trying to remove the money from the wallet, defendants gun clicked but did not fire. The victim ran inside his home, locked and barricaded the door and yelled for his wife to call 911. Defendant got into the victims car and fled. The victim heard and then saw his car being driven away followed closely by an older, white car.

At 10:30 p.m., an officer saw defendant with the victims car at a gas station. No one else was near defendant or in the stolen car. Defendant got in the stolen car and led officers driving marked patrol cars with lights and sirens activated, on a high-speed chase for more than 15 miles. Defendant ran a red light and reached a speed of more than 110 miles per hour. Eventually the officers were able to stop the car with the use of a tack strip. The victim identified defendant in a field show-up. At the time of his arrest, defendant had $356 in his pocket, which was not in a wallet. Officers found gloves in the victims car.

Defendant testified at trial. He admitted committing

the crimes but claimed that Donald Turner-someone defendant

had known all his life and was known to defendant to be

violent-wanted the victims car, pointed a gun at defendants chest, and then gave the gun to defendant, telling him to steal the victims car, money and jewelry.

A jury convicted defendant of carjacking (Pen. Code, 215, subd. (a); undesignated section references are to this code), first degree burglary ( 459), first degree robbery ( 211), assault with a firearm ( 245, subd. (a)(2)), and felony evading arrest (Veh. Code, 2800.2, subd. (a)). The jury also found that defendant personally used a firearm ( 12022.5, subd. (a), 12022.53, subd. (b)). The trial court sentenced defendant to state prison for an aggregate term of 15 years and eight months, that is, the midterm of five years for carjacking, a consecutive 10-year enhancement for personal use of a firearm ( 12022.53, subd. (b)), a consecutive one-third the midterm or eight months for felony evading, and a stay pursuant to section 654 on the remaining counts and allegations.

Defendant appeals.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.

Defendant filed a supplemental brief. He claims the trial court erroneously denied his motion to substitute counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) and that counsel rendered ineffective assistance. We reject both claims.

After jury selection and prior to opening statements, defendant sought substitute counsel. He complained that counsel had asked prospective jurors questions which were not very important. He also complained that he could not trust her with his case because counsel advised him not to greet the judge or the prosecutor and that being black meant he was guilty. Defendant claimed counsel was not working as hard as she could be on [his] case because she never gives [him] any good information.

The court did not ask counsel, Jo Ann Harris, to respond to defendants first two complaints that he articulated. Harris, a Black woman, explained that she had been practicing as a public defender since 1991, had had 40 to 50 jury trial cases, had represented defendant since the beginning, had reviewed the discovery and met and conferred with defendant. Harris noted that defendant only read at the fourth or fifth grade level so she had read the police reports to him and had not provided the reports to him. She had met with defendant many times, had the case investigated, and researched the law. She agreed to provide a redacted copy of the police reports to defendant.

She denied telling defendant that she believed that because he was black, he was guilty, but agreed that she had closely questioned the prospective jurors about that and that she had responded to defendants question about why there were no black people on his jury by saying that she couldnt turn them into black people. She noted that two people who appeared to be black had been excused for hardship or cause. She had advised defendant that appearing in his jail jumpsuit potentially put an image in the jurors mind suggesting his guilt.

The trial court denied defendants request for substitute counsel, finding that he had failed to establish a specific legal reason or cause. The trial court found that Harris had provided an adequate and competent job of representing defendant and would continue to do so.

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. [Citations.] (People v. Jones (2003) 29 Cal.4th 1229, 1244-1245 (Jones).) We review the trial courts decision denying defendants motion to substitute counsel under the deferential abuse of discretion standard. (Id. at p. 1245.)

The trial court inquired as to defendants complaints and heard defense counsels response. Although defendant complained about Harriss questions to the jurors as not very important and her advice that he not greet the judge or prosecutor, the court did not seek Harriss specific response to those complaints. But defendant did not specify any particular question that Harris asked a prospective juror that he thought was not very important. The court heard Harriss questions to the prospective jurors. We have reviewed Harriss questioning of the prospective jurors and the record discloses sound tactical reasons for her questions. (See In re Kerry O. (1989) 210 Cal.App.3d 326, 333; People v. Lindsey (1978) 84 Cal.App.3d 851, 859-860.) With respect to greeting the judge and prosecutor, Harris properly advised defendant against such since it may have appeared to a juror that defendant was attempting to curry favor. Harris responded to defendants complaint that she never gave him any good information, noting that she had met and conferred with defendant, read the police reports to him since he read only at the fourth or fifth grade level, but agreed to provide a redacted copy of the reports to defendant. With respect to defendants complaint that Harris told him that being black meant he was guilty, Harris denied that she told him that she believed it. She stated she had questioned prospective jurors closely about the issue. She had also responded to defendants query why there were no black people on his jury, commenting that she could not turn them into black people. She had also advised defendant against wearing his jail jumpsuit, telling him that a jurors image of him in such may suggest guilt.

The trial court properly denied defendants substitution request. To the extent there was a credibility question, the trial court was entitled to accept counsels explanation. [Citation.] [Citation.] (Jones, supra, 29 Cal.4th at p. 1245.) Defendant failed to show that Harris was not providing adequate representation or she and defendant had become embroiled in an irreconcilable conflict that ineffective representation was likely to result.

To establish ineffective assistance of counsel, defendant must demonstrate that counsels performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 696]; People v. Ledesma (1987) 43 Cal.3d 171,

216-218.)

Defendant has failed to establish ineffective assistance of counsel. In his supplemental brief, he does not discuss anything in particular that counsel did or did not do other than a general statement that Harris failed to conduct sufficient investigation to uncover the following claims that should have been raised in his case. He does not list any following claims. Defendant has failed to demonstrate that counsels performance was deficient.

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

Disposition

The judgment is affirmed.

HULL, J.

We concur:

DAVIS, Acting P.J.

NICHOLSON , J.

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