P. v. Gilliam

Filed 8/21/08 P. v. Gilliam CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, John Joseph Cheroske and Gary R. Hahn, Judges. Affirmed.

Karyn Bucur, 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, Susan D. Martynec, Supervising Deputy Attorney General, and Robert M. Snider, Deputy Attorney General, for Plaintiff and Respondent.

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Michael Gilliam appeals from the judgment entered following a jury trial in which he was convicted of robbery and a bifurcated court trial in which he was found to have sustained prior felony convictions, including two under the Three Strikes law. He contends that the trial court erred in denying his Marsden^[1]motion. We affirm.

BACKGROUND

Los Angeles County Deputy Sheriff Matthew Henggeler testified that about 8:00 p.m. on April 8, 2007, he was on patrol driving a marked police car in Lynwood when he saw a man (later identified as Lee Rice) coming out of a convenience store in a wheelchair and another man (later identified as defendant) approaching Rice on the sidewalk. Defendant grabbed Rice by the neck, shook him several times, and punched Rice twice in the neck. Henggeler made a U-turn and approached the scene. As Henggeler did so, he saw defendant with his hand around Rices neck and with his other hand was sort of patting him down as if he was looking for an object that the person might be carrying. Defendant then removed some type of clear glass from [Rices] right front pants pocket that turned out to be a small bottle of vodka.

Rice testified that he was acquainted with defendant. The two had panhandled and consumed alcoholic beverages with each other on previous occasions. Before Rice entered the convenience store, defendant, who knew where Rice lived, said he would take whatever Rice bought. Rice bought a bottle of vodka. When Rice emerged from the store, defendant asked where Rice had the bottle and took it from him.

Defendant testified in his own behalf that he and Rice had fought over alcohol many times. He was together with Rice on the night in question. The two pooled their money to buy a bottle and Rice went into the store while defendant stayed outside to urinate. When Rice came out of the store, the two argued over the bottle. Defendant denied having grabbed Rice by the neck but admitted having pushed Rice down into the wheelchair, explaining it was because Rice got up. Defendant stated that he was not trying to rob Rice, but only to get his share of the bottle. When he took the bottle from Rice, the vodka was almost gone.

In rebuttal, Deputy Henggeler testified that he did not see Rice try to get up from the wheelchair and that the bottle of vodka was full.

At sentencing, one of defendants strike convictions was dismissed in furtherance of justice. The court imposed an upper term of five years for robbery, doubled under the Three Strikes law, and one five-year enhancement and three one-year enhancements based on prior convictions, for a total term of 18 years in state prison.

DISCUSSION

Before the start of trial, defendant told the court that he wanted to fire the deputy public defender who was representing him. The prosecutor stepped out of the courtroom, and the court asked defendant for an explanation.

Defendant said, [T]here is a conflict. He continued that counsel never even heard [defendants] side of the story. He never even asked me what happened until just now. And . . . when he asked me just now, he said well, I think youre guilty. Defendant further stated that if Rice were put on the stand he would say that defendant did not take anything from him. And if an investigator would obtain a surveillance videotape from the convenience store, it would show that defendant was inside the store with Rice, buying a six-pack of beer.

The court next asked defense counsel to explain his position. Counsel stated that his investigator had spoken to Rice, who said that defendant had punched him, and there [was] nothing helpful to [defendant] at all. Counsel noted that at the preliminary hearing, Deputy Henggeler testified he saw defendant hit Rice and take the vodka bottle. Counsel had told defendant what I thought because I have a duty to be candid with him if there is any way to save him from a dismal outcome. I think the jury is going to find him guilty and I think if he takes the stand, versus the cops, theyre going to go with the cops.

Defendant responded that his prior violent crimes were in 1986. He repeated that Rice would support him on the stand and that a videotape from the store would show that both were inside.

The court denied defendants motion to relieve counsel, noting that the public defender investigators interview with Rice did not disclose anything inconsistent with Rices statement to the deputy sheriff, that the deputy observed the incident as it occurred, and that it appeared defense counsel had adequately prepared for trial.

We reject defendants contention that the trial courts ruling violated Marsden.

Marsden established that the trial court must give the defendant the opportunity to explain the reasons for desiring a new attorney. [Citation.] (People v. Smith (1993) 6 Cal.4th 684, 690.) Under the Sixth Amendment right to assistance of counsel, [a] defendant is entitled to [substitute another appointed attorney] if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. [Citation.] Furthermore, When a defendant seeks to discharge appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorneys inadequate performance. [Citations.] [S]ubstitution is a matter of judicial discretion. Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would substantially impair the defendants right to assistance of counsel. [Citations.] [Citation.] (People v. Valdez (2004) 32 Cal.4th 73, 95.)

Here, the trial court provided defendant with adequate opportunity to explain the reasons for his dissatisfaction with counsel. Defendant did not set forth any conduct by counsel which would provide a basis for concluding that counsel was not competent or that his trial preparation was inadequate. Unlike People v. Groce (1971) 18 Cal.App.3d 292, 295297, on which defendant relies, the courts inquiry was adequate, and defense counsel made an informed decision to forgo seeking whatever videotape might have been available from the convenience stores surveillance camera. In addition, as in People v. Brown (1988) 46 Cal.3d 432 at page 461, [w]e note that defendant has not argued on appeal that trial counsel was incompetent. Thus, we can infer his Marsden motion lacked substance because ineffective assistance of counsel is the foundation which supports the Marsden rule. [Citation.]

Based on the foregoing, we conclude that the trial court did not abuse its discretion in denying defendants Marsden motion.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

MALLANO, P. J.

We concur:

ROTHSCHILD, J.

WEISBERG, J.^*

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

^*Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.