P. v. Ryals

Filed 7/2/08 P. v. Ryals CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, William R. Chidsey, Jr., Judge. Affirmed.

Janice Wellborn, 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, Paul M. Roadarmel, Jr. and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Cladis Ryals appeals from the judgment entered following a jury trial that resulted in his convictions for attempted murder and shooting at an occupied motor vehicle. Ryals was sentenced to a prison term of 40 years to life.

Ryals contends the evidence was insufficient to support a criminal street gang enhancement, and he was denied his right to counsel at the sentencing hearing. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence relevant to the issues presented on appeal established the following. In July 2004, Oscar Carter was carrying his groceries into the Douglas Apartments located at Rosecrans and Culver in the City of Compton. Ryals, a member of the Fruit Town Piru gang known as Lucky, approached and asked, Blood, whats up? Carter replied, Whats up? Ryals persisted, Whats happening, Blood? Carter asked to whom Ryals was speaking. Ryals got in [Carters] face and said he was talking to him. Carter took his groceries to his apartment and returned downstairs, where he saw Ryals and other men near a corner. However, the confrontation ended without further incident.

Approximately one year later, Carter encountered Ryals again, on the early evening of July 12, 2005. As Carter was retrieving an item from his parked car, Ryals approached and asked, in an aggressive manner, Whats up, Blood? Carter shook his head and went upstairs to his apartment.

The next day, July 13, 2005, at approximately 10:30 p.m., Carter was parking his vehicle near the Douglas Apartments when he saw Ryals and another man in his rearview mirror. The unnamed man was pointing at him and Ryals was reaching for his waistband. Carter started his car and attempted to flee as Ryals began shooting at him. As Carter drove off, he heard a total of 8 to 12 gunshots. Five shots hit his vehicle, leaving bullet holes. One of the shots hit Carter in the back.

Carter later identified Ryals as the shooter in a pretrial six-pack photographic lineup and at trial.

When arrested, Ryals told police he had not been in the apartment complex since 2004. Apartment surveillance tapes contradicted this account and showed Ryals had been at the apartments on July 14, 2005.

The People presented evidence in support of the allegation that the crimes were committed for the benefit of a criminal street gang.[1]

2. Procedure.

Trial was by jury. Ryals was convicted of the attempted willful, deliberate, and premeditated murder of Carter (Pen. Code, 664, 187, subd. (a)),[2]and shooting at an occupied motor vehicle ( 246). The jury also found true allegations that Ryals personally and intentionally discharged a firearm, causing great bodily injury to Carter (12022.53, subds. (b), (c), (d)), and that the offenses were committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)(C)). Ryals admitted serving a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced Ryals to a term of 40 years to life in prison. It imposed a restitution fine, a suspended parole restitution fine, and a court security assessment. Ryals appeals.

DISCUSSION

1. The evidence was sufficient to establish that the crimes were committed for the benefit of a criminal street gang.

a. Additional facts.

Los Angeles Sheriffs Department Sergeant April Tardy testified as a gang expert. Tardy had worked as a gang unit detective for four and one-half years, and held that position at the time of the Carter shooting. Tardy testified to her extensive training and experience in the area of criminal street gangs. She had completed a 40-hour gang training course, as well as two seminars on gangs. During her tenure with the Sheriffs department, she had interviewed thousands of gang members during booking. She had also arrested over 100 gang members for various crimes. As a gang detective, she had investigated over 1,000 gang-related crimes ranging from petty theft to murder.

The Fruit Town Piru gang was one of the primary gangs to which Tardy was assigned. She had contacted Fruit Town Piru gang members over 100 times. Her main job duties included gathering intelligence on the Fruit Town Piru gang, as well as arresting and obtaining convictions on Fruit Town Piru members.

Ryals had admitted his gang membership to Tardy. Additionally, he had numerous tattoos indicating Fruit Town Piru membership.

The Fruit Town Piru gang was affiliated with the Bloods, and used the color red to signify its affiliation. Members used a particular hand sign and had distinctive graffiti. The gang had 289 documented members. The area claimed by the gang included the area of Rosecrans and Culver where the Douglas apartments were located. The Douglas apartments were considered a Fruit Town Piru stronghold.

The gangs primary activities were assaults, robberies, shootings, drive-by shootings, assaults with deadly weapons, and murder. Fruit Town Piru members Enrique Nava and Steven Cheatham had been convicted of attempted murders committed on December 30, 2002 and July 3, 2004, respectively. Partially as a result of the gangs primary activities of shootings and robberies, citizens who lived in the neighborhood generally failed to cooperate with police investigating crimes in the area.

When presented with a hypothetical fact pattern modeled on the facts of the case, Tardy opined that such a shooting would benefit the Fruit Town Piru gang by raising respect for the shooter and for the gang, and by instilling fear within the community. The shooting would send a message to other gangs and community members that the gang was not to be messed with.

b. Discussion.

Ryals contends that the evidence was insufficient to support the jurys finding that the section 186.22, subdivision (b) gang allegations were true beyond a reasonable doubt. We are not persuaded.

When determining whether the evidence was sufficient to sustain a conviction, our role on appeal is a limited one. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) [T]he test of whether evidence is sufficient to support a conviction is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.] (People v. Holt (1997) 15 Cal.4th 619, 667.) We draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.] (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Section 186.22, subdivision (b)(1) provides for a sentence enhancement when the defendant is convicted of enumerated felonies committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . . A criminal street gang is statutorily defined as any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated . . . , having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity. ( 186.22, subd. (f).) Therefore, to prove a section 186.22 enhancement, the People must establish three elements: (1) that there is an ongoing association involving three or more participants, having a common name, identifying sign, or symbol; (2) that one of the groups primary activities is the commission of one or more specified crimes; and (3) the groups members, either separately or as a group, have engaged in a pattern of criminal gang activity. (People v. Gardeley (1996) 14 Cal.4th 605, 617; In re Alexander L. (2007) 149 Cal.App.4th 605, 610-611; People v. Vy (2004) 122 Cal.App.4th 1209, 1222.)

Here, Ryals does not challenge the sufficiency of the evidence to prove the first and third elements. Indeed, as our recitation of the facts ante suggests, there was ample evidence to support these elements. Ryals does, however, assert that insufficient evidence supported the primary activities element.

The phrase primary activities, as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes is one of the groups chief or principal occupations. [Citation.] (People v. Sengpadychith (2001) 26 Cal.4th 316, 323; People v. Duran (2002) 97 Cal.App.4th 1448, 1464.) Proof that a gangs members consistently and repeatedly have committed criminal activity listed in section 186.22, subdivision (e) is sufficient to establish the gangs primary activities. On the other hand, proof of only the occasional commission of crimes by the gangs members is insufficient. (People v. Duran, supra, at pp. 1464-1465; People v. Sengpadychith, supra, at pp. 323-324.) [E]vidence sufficient to show only one offense [enumerated under section 186.22, subdivision (e)] is not enough. [Citations.] (People v. Vy, supra, 122 Cal.App.4that p. 1223; see also In re Alexander L., supra, 149 Cal.App.4th at p. 611 [Isolated criminal conduct . . . is not enough].)

Past offenses, as well as the circumstances of the charged crime, have some tendency in reason to prove the groups primary activities, and thus both may be considered by the jury on the issue of the groups primary activities. [Citation.] (People v. Duran, supra, 97 Cal.App.4th at p. 1465; People v. Sengpadychith, supra, 26 Cal.4th at p. 323; People v. Galvan (1998) 68 Cal.App.4th 1135, 1140.) It is settled that the primary activities element may be established through expert testimony. (People v. Vy, supra, 122 Cal.App.4th at p. 1226; People v. Duran, supra, at p. 1465; People v. Augborne (2002) 104 Cal.App.4th 362, 372.) The testimony of a gang expert, founded on his or her conversations with gang members, personal investigation of crimes committed by gang members, and information obtained from colleagues in his or her own and other law enforcement agencies, may be sufficient to prove a gangs primary activities. (People v. Duran, supra, at p. 1465; People v. Sengpadychith, supra, at p. 324; In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1005.)

We conclude the evidence was sufficient in the instant matter. Several authorities inform our analysis. In People v. Gardeley, supra, 14 Cal.4th 605, a police gang expert was asked for his opinion as to the primary purpose or activity of the Family Crip gang. [The expert] responded that based on investigations of hundreds of gang-related offenses, conversations with defendants and other Family Crip members, as well as information from fellow officers and various law enforcement agencies, it was his opinion that the Family Crip gangs primary purpose was to sell narcotics, but that the gang also engaged in witness intimidation and other acts of violence to further its drug-dealing activities. (Id. at p. 612.) Gardeley concluded that this testimony by [the police expert] provided a basis from which the jury could reasonably find that the primary activities element was met. (Id. at p. 620; People v. Sengpadychith, supra, 26 Cal.4th at pp. 322, 324.)

In People v. Duran, supra, 97 Cal.App.4th 1448, a gang expert testified that the gangs primary activity was putting fear into the community by committing the statutorily enumerated crimes of robbery, assault with a deadly weapon, and narcotics sales. (Id. at p. 1465.) We concluded sufficient evidence supported the jurys true finding on the gang enhancement. The experts testimony was based in part upon his personal experience in the field gathering gang intelligence, contacting gang members, and investigating gang-related crimes. (Ibid.) His testimony that gang members engaged in these activities often, indeed often enough to obtain control of the narcotics trade in a certain area of Los Angeles, supported a jury finding that the gang members were engaged in more than the occasional commission of the specified crimes. (Ibid.) Further, evidence of the charged robbery and one of the predicate convictions committed by another gang member provided specific examples of the gang members commission of robbery and narcotics offenses. (Id. at pp. 1465-1466; see also People v. Vy, supra, 122 Cal.App.4th at pp. 1225-1226 [evidence of three serious, violent crimes committed by gang members during the three months preceding the charged crime was sufficient to support the primary activities element].)

In People v. Martinez (2008) 158 Cal.App.4th 1324, the evidence was sufficient to establish a criminal street gang enhancement where the expert testified that the gangs primary activities included robbery, assault, theft, and vandalism. The expert had spent the majority of his 14 years in law enforcement dealing with gangs, and had worked for the preceding eight years in the territory of the defendants gang, the King Kobras. Further, the expert testified about two predicate robberies committed in 2002 and 2003. (Id. at p. 1330.) On appeal, the court concluded the evidence was sufficient. The gang expert had both training and experience as a gang expert. He specifically testified as to King Kobrass primary activity. His eight years dealing with the gang, including investigations and personal conversations with members, and reviews of reports suffices to establish the foundation for his testimony. (Ibid.)

As in these cases, the evidence here was sufficient to establish the primary activities element of the charged gang enhancement. Sergeant Tardy had worked as a gang unit detective for over four years and had undergone considerable academic training regarding gangs. She had extensive law enforcement experience with gangs, including investigating over 1,000 gang-related crimes, interviewing thousands of gang members during booking, and arresting over 100 gang members for various crimes. Tardy was particularly familiar with the Fruit Town Piru gang, because it was one of the primary gangs to which she was assigned. Her job duties included gathering intelligence on the gang, as well as arresting and obtaining convictions of Fruit Town Piru members.

Further, Tardy was directly asked, What are the primary activities of Fruit Town Piru? and expressly answered, Primarily assaults on persons, robberies, shootings, drive-bys, assaults with deadly weapons and murder. Murder, robbery, assault with a deadly weapon, and shooting at an inhabited dwelling or occupied motor vehicle, or attempted commission of those crimes, are all activities enumerated in the gang statute. (See 186.22, subd. (e)(1), (2), (3), & (5).) Tardys experience established the foundation for her direct testimony regarding the gangs primary activities. (People v. Martinez, supra, 158 Cal.App.4th at p. 1330; People v. Sengpadychith, supra, 26 Cal.4th at pp. 322, 324; People v. Gardeley, supra, 14 Cal.4th at p. 620.) Further, Tardy testified that partly as a result of the gangs primary activities, community members were unwilling to come forward and cooperate with police, suggesting the crimes were consistent and repeated, rather than an occasional aberration. (See People v. Duran, supra, 97 Cal.App.4th at p. 1465 [expert testified that gang members engaged in primary activities often enough to obtain control of narcotics trade].) This evidence was bolstered by a showing that, in addition to the charged July 2005 attempted murder, two other Fruit Town Piru members had committed attempted murders in December 2002 and July 2004.

In re Alexander L., supra, 149 Cal.App.4th 605, cited by Ryals, does not assist him. In Alexander, the defendant was alleged to have committed vandalism based on his tagging activities. In support of the charged gang enhancement, an expert testified that graffiti generally benefited a gang and that the defendants gang was an active street gang as of the date of the defendants arrest. When asked about the gangs primary activities, the expert testified, I know theyve committed quite a few assaults with a deadly weapon, several assaults. I know theyve been involved in murders. [] I know theyve been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations. (Id. at p. 611.) No further questions were asked about the gangs primary activities on direct or redirect examination [] . . . . No specifics were elicited as to the circumstances of these crimes, or where, when, or how [the expert] had obtained the information. [The expert] did not directly testify that criminal activities constituted [the gangs] primary activities. (Id. at pp. 611-612.) Moreover, Alexander concluded the experts testimony lacked sufficient foundation. (Id. at p. 612.) The basis for his knowledge of the gangs primary activities was never elicited. (Ibid.)

Here, in contrast to Alexander, the foundation for Tardys opinion was clearly established. Furthermore, unlike in Alexander, Tardy expressly testified that the Fruit Town Piru gangs primary activities included murder, robbery, assault with deadly weapons, and shootings. (See People v. Martinez, supra, 158 Cal.App.4th at p. 1330; People v. Margarejo (2008) 162 Cal.App.4th 102, 106-108.) The evidence was sufficient.

2. Ryals was not denied his right to counsel at sentencing.

a. Additional facts.

On April 4, 2007, Ryals appeared for sentencing. The trial court observed that Ryals had filed a multitude of motions, perhaps a motion to have [defense counsel Frederick] Lacey relieved and have Mr. Ryals represent himself. Ryals had also filed a motion for new trial on the grounds his trial counsel was ineffective, had a conflict of interest, and had breached his trust. The trial court informed Ryals that he had the right to represent himself, but stated, Im not so sure thats a good idea at this point, because the only issues before the court are, one, sentencing, and, two, this recently-filed motion. I say recently; this morning. Those are the only two issues. The court asked Ryals whether he wished to represent himself. Ryals replied that he had hired a private investigator who had discovered new evidence, and he would like to have a new lawyer represent him for purposes of presenting the new trial motion.

The trial court construed the request as a Marsden motion and held a hearing. At that hearing, Ryals asserted that defense counsel had acted in bad faith. After the guilty verdict, Ryals had obtained exculpatory information from a private investigator whom he had hired, i.e., documents possessed by a security company describing three to four shootings that purportedly would have proved [him] innocent, as well as a tape showing the charged shooting. Furthermore, according to Ryals, defense counsel failed to obtain photographs of the crime scene showing bullet holes that contradicted the Peoples evidence; failed to call defense witnesses; and did not visit him in jail. Ryals believed videotapes of the apartment complex had been altered. According to Ryals, defense counsel had promised to bring a new trial motion based on the information the private investigator had uncovered.

Defense counsel responded that there was a thorough investigation done. We received videotapes. We received witness names. We interviewed witnesses. There were strategic decisions involved in this case. Counsel had opted to present a straight I.D. defense because we felt that the I.D. was weak, and it was susceptible to attack through the I.D. witness expert we had and through cross-examination, and thats the tactic we took in this case. Defense counsel did visit Ryals in jail, and participated in numerous video conferences with him. Defense counsel had the tape recordings of the interviews in his office. Defense counsel spoke with Ryals many times during trial and at each court appearance. In regard to the purported promise to bring a new trial motion, defense counsel explained, The investigator was hired by the family. The investigator sent me one or two reports. There was nothing new in those reports that I hadnt already discovered through my investigation . . . . The most pertinent information provided by the defense investigator was the name of a 13-year-old boy. Defense counsel had already attempted to interview the youth, but the childs mother would not permit it. The defense therefore had no idea what [the child] was going to say. The investigator hired by Ryals had likewise not been permitted to speak to the boy. In regard to the video issue, defense counsel had subpoenaed and viewed the existing videos multiple times and did not believe they would have assisted in the defense. None of the videotapes Attorney Lacey viewed depicted the charged shooting. Had the investigator provided new, exculpatory information, defense counsel would have filed a motion for a new trial.

Counsel expressed concern that because Ryals was raising an ineffective assistance claim, a potential conflict existed. Counsel did not wish to reveal any confidences, and could not file a new trial motion for Ryals given that one of the claims urged was ineffective assistance.

The trial court denied Ryals Marsden motion. It concluded, Theres nothing that Ive heard, either from [defense counsel or Ryals], that would lead me to believe [defense counsel] ought to be relieved at this [juncture]. The court informed Ryals that he could in effect fire [defense counsel] and elect to represent yourself. If you elect to do that, then Ill hear what you have to say with respect to [defense counsels] inadequacy as you perceive it with respect to trial tactics and how the case was presented. The court asked Ryals, Do you want to represent yourself?

Ryals replied, Honestly, Your Honor, I dont know Im just now studying the law, so I really dont know nothing about the law too much, Your Honor . . . . However, Ryals wanted the court to review the new trial motion. The trial court indicated it had read the motion. The court observed that the motion contained a lot of accusations, little of which is supported by facts. Ryals had not presented affidavits or other materials from his privately retained investigator supporting his allegations or demonstrating that the outcome would have been different had any of the referenced witnesses or evidence been presented. Ryals responded that he had given the reports from the investigator to defense counsel, who had not returned them.

The trial court inquired again whether Ryals wished to represent himself. Defense counsel again advised Ryals that he would not be able to file or argue a new trial motion based on his own alleged ineffective assistance. Ryals then stated, I would like to file that motion, so I guess Ill have to represent myself to do that. The trial court responded, Well, I think thats the logical extension of what weve been saying for a period of time, and the question is in order to entertain the motion today, you would have to represent yourself, because theres some internal conflicts that relate to your attorney, so do you wish to represent yourself? Ryals responded affirmatively.

The trial court then stated, You have the right to have Mr. Lacey represent you in this particular case, represent you by way of sentencing as well, because . . . I know I dont have a whole lot of discretion, if any discretion in this particular case as to the sentencing, but nonetheless there may be some things that Mr. Lacey might want to put on the record that might be beneficial to you, so if you represent yourself, not only do you have the opportunity to address your motion . . . you will also have the opportunity to argue any sentencing issues that you deem appropriate. Ryals indicated he understood and wished to represent himself. The court then advised Ryals that he had the right to have defense counsel Lacey represent him without cost. Ryals indicated he understood and waived that right. The court inquired whether Ryals prepared the new trial motion by himself, and whether he was able to conduct legal research when preparing the motion. Ryals responded affirmatively to both queries. The court again asked whether Ryals wished to represent himself, and Ryals replied, Yes, sir. The court found the waiver of counsel was expressly, knowingly, understandingly and intelligently made, and accepted the waiver. The trial court asked Attorney Lacey to remain in the courtroom in case we have a change of plans.

The trial court then addressed Ryalss new trial motion. Ryals again argued that Attorney Lacey had withheld vital evidence that would prove him innocent; he believed Lacey was working with the district attorney; videotape evidence would have proved him innocent; when he subpoenaed the videotape in question, he did not receive the full tape; and Lacey never told him that a videotape showing him jumping the fence at the apartment complex existed. Further, defense counsel did not call any of [his] witnesses and did no investigation whatsoever. Ryals also indicated his belief that he had been framed.

The prosecutor responded that the accusation that defense counsel had been working with him was preposterous. He stated that no videotape of the actual shooting existed. The prosecutor explained that the People had presented the videotape showing Ryals jumping the apartment complex wall in order to contradict Ryalss story that he had not been at the apartment complex for over a year prior to the shooting. Additionally, there was a separate shooting at the Douglas Apartments approximately three days before the charged shooting. Part of that unrelated incident was captured on videotape, and demonstrated that Ryals was not the shooter in that unrelated case.

The trial court denied the motion for a new trial on the grounds it was factually inadequate and unsupported by affidavits. The trial court then sentenced Ryals as described ante.

b. Discussion.

Ryals asserts that the matter must be remanded for resentencing because he was denied his right to counsel at the April 4, 2007 sentencing hearing. He complains that the trial court erroneously denied his Marsden motion, and that his purported waiver of the right to counsel under these circumstances was the fruit of the trial judges erroneous denial of [his] Sixth Amendment right to unconflicted counsel for purposes of a motion for new trial. We disagree.

When a defendant seeks discharge of his appointed counsel on the basis of inadequate representation by making what is commonly referred to as a Marsden motion, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of counsels inadequacy. [Citations.] 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. Cole (2004) 33 Cal.4th 1158, 1190; People v. Abilez (2007) 41 Cal.4th 472, 487-488; People v. Barnett (1998) 17 Cal.4th 1044, 1085.) We review the trial courts decision declining to discharge appointed counsel under the deferential abuse of discretion standard. (People v. Cole, supra, at p. 1190; People v. Barnett, supra, at p. 1085.) Denial is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would substantially impair his or her right to assistance of counsel. (People v. Roldan (2005) 35 Cal.4th 646, 681; People v. Barnett, supra, at p. 1085.)

When, after trial, a defendant asks the trial court to appoint new counsel to prepare and present a motion for new trial on the ground of ineffective assistance of counsel, the court must conduct a hearing to explore the reasons underlying the request. [Citations.] If the claim of inadequacy relates to courtroom events that the trial court observed, the court will generally be able to resolve the new trial motion without appointing new counsel for the defendant. [Citation.] If, on the other hand, the defendants claim of inadequacy relates to matters that occurred outside the courtroom, and the defendant makes a colorable claim of inadequacy of counsel, then the trial court may, in its discretion, appoint new counsel to assist the defendant in moving for a new trial. [Citations.] (People v. Diaz (1992) 3 Cal.4th 495, 573-574; People v. Bolin, supra, 18 Cal.4th at p. 346; People v. Smith (1993) 6 Cal.4th 684, 690-696.) A defendant has no greater right to substitution of counsel under Marsden at a later stage of the

proceeding than pretrial; [t]he same standard applies equally preconviction and postconviction. [Citation.] (People v. Bolin, supra, at p. 346, fn. 16; People v. Smith, supra, at pp. 695-696.) New counsel should not be appointed at any stage of the proceeding unless the defendant makes a proper showing that failure to replace the appointed attorney would substantially impair his or her right to assistance of counsel. (People v. Barnett, supra, 17 Cal.4th at p. 1085; People v. Smith, supra, at p. 696.) The determination of whether the defendant has made such a showing and is entitled to substitution of counsel lies in the exercise of the trial courts discretion and will not be overturned on appeal absent a clear abuse of discretion. (People v. Barnett, supra, at p. 1085; People v. Smith, supra, at p. 696.)

The trial court did not abuse its discretion by denying Ryalss Marsden motion. The trial court conducted a hearing to consider Ryalss request for new counsel. At that hearing, the court gave Ryals ample opportunity to relate purported instances of defense counsels inadequacy, including reviewing the motion for new trial which was based on trial counsels purported ineffective assistance. Defense counsel responded to each point. The facts disclosed by Ryals did not demonstrate any inadequacy in counsels representation, nor does the record suggest that counsel and Ryals had become embroiled in an irreconcilable conflict. Upon considering Ryalss concerns, the trial court reasonably found them insufficient to warrant the appointment of new counsel. (See People v. Hart (1999) 20 Cal.4th 546, 604; People v. Smith, supra, 6 Cal.4th at p. 696.) To the extent there was a credibility question between defendant and counsel at the hearing, the court was entitled to accept counsels explanation. [Citation.] (People v. Smith, supra, at p. 696.) In any event the number of times a defendant sees his or her attorney, and the way in which one relates with his attorney . . . does not sufficiently establish incompetence. [Citation.] (People v. Hart, supra, at p. 604; People v. Williamson (1985) 172 Cal.App.3d 737, 745-746.) The question of whether to call certain witnesses is a matter of trial tactics, unless the decision results from an

unreasonable failure to investigate. (People v. Bolin, supra, 18 Cal.4th at p. 334.) Attorney Laceys explanation made it clear he had completed an adequate investigation. Disagreement with counsel over reasonable tactical choices does not show either incompetence or an irreconcilable conflict. (People v. Hart, supra, at p. 604; People v. Memro (1995) 11 Cal.4th 786, 858.) The trial court reasonably concluded that Ryals failed to demonstrate a colorable claim that his attorneys performance had been inadequate. (People v. Bolin, supra, 18 Cal.4th at p. 346 [defendant is not entitled to new counsel to argue a new trial motion on the grounds of ineffective assistance unless or he or she makes a colorable claim that counsels performance was inadequate].) Having found Ryalss contentions were unsupported, the court was not required to appoint substitute counsel for the purpose of bringing a non-meritorious new trial motion.

Contrary to Ryalss contention, the trial courts inquiry was sufficient. [A] Marsden hearing is not a full-blown adversarial proceeding, but an informal hearing in which the court ascertains the nature of the defendants allegations regarding the defects in counsels representation and decides whether the allegations have sufficient substance to warrant counsels replacement. [Citation.] (People v. Alfaro (2007) 41 Cal.4th 1277, 1320; People v. Hines (1997) 15 Cal.4th 997, 1025.) Where the trial court affords the defendant opportunity to set forth his or her complaints about counsels representation and allows counsel to respond, as was the situation here, nothing more is required. (People v. Alfaro, supra, at p. 1320.)

 Because there was no abuse of discretion in the trial courts denial of the Marsden motion, there is no merit to Ryalss contention that his Faretta waiver was involuntary. (People v. Smith (1985) 38 Cal.3d 945, 957; People v. Leonard (2000) 78 Cal.App.4th 776, 789.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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[1] This evidence is discussed in more detail post.

[2] All further undesignated statutory references are to the Penal Code.