P. v. Thornton
Filed 5/30/13
P. v. Thornton CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
OLICE DAVID THORNTON,
JR.,
Defendant and Appellant.
F064859
(Super. Ct. No. F09904930)
O P I N I O N
THE COURT
APPEAL from
a judgment of the Superior Court of
County. Mark Wood Snauffer, Judge.
Michael B.
McPartland, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda
Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
On July 19, 2010, a jury convicted
appellant, Olice David Thornton, Jr., of two counts of
allegations that in committing one of those offenses, he personally inflicted
great bodily injury (§ 12022.7, subd. (a)), and that he personally used a
dangerous and deadly weapon in committing each of them. In a court trial the next day, the court
found true allegations that appellant had suffered two “strikesâ€
within the meaning of section 667, subdivision (a)(1), and that he had served
three separate prison terms for prior felony convictions (§ 667.5, subd.
(b)). On September 8, 2010, the court
struck one of appellant’s strikes and imposed a prison term of 22 years.
Appellant
appealed, and on appeal his sole contention was that the court erred in failing
to conduct a Marsden hearing.
erred in failing to conduct a Marsden
hearing, and remanded the matter to the trial court, ordering, inter alia, that
the court conduct such a hearing.
On remand, on April 27, 2012, the
trial court conducted a Marsden
hearing, at which it denied appellant’s Marsden
motion and reinstated the judgment. The
instant appeal followed.
On appeal, appellant’s sole
contention is that the court erred in denying his Marsden motion. We affirm.
FACTUAL AND
PROCEDURAL BACKGROUND
Facts
Keith Thompson testified to the
following: He was living at the Fresno
Inn (the motel) when, one day in July 2009, at approximately 10:30 or 11:00
a.m., Zachariah Boyd came to Thompson’s room, at which time Thompson gave Boyd
some marijuana. Boyd then left and
Thompson, who was “working in the office,†went to the motel office. When he returned to his room approximately
ten minutes later, he found that the door to his room had been kicked in and
that his marijuana was missing. Boyd was
the only other person who knew where in the room Thompson kept his
marijuana. Later, while Thompson was
fixing his door, appellant came by. He
wanted to buy some marijuana. Thompson
explained that Boyd had kicked his door in and stole his (Thompson’s)
marijuana.
Zachariah Boyd testified to the
following: He was living at the motel
when, on July 17, 2009, at approximately 4:45 p.m., appellant knocked on his
door. Boyd came to the door and
appellant asked him to “step outside ....â€
Boyd did so, and appellant immediately began yelling, accusing him of
stealing marijuana “from somebody’s motel room,†and demanding that Boyd turn
the marijuana over to him or “pay him ... an amount of money.†Appellant was “obviously pretty upset,†so
Boyd, who had not stolen the marijuana, “tried to agree with him, and ... not
do anything to upset him more.†As the
two talked, Boyd noticed that appellant was holding in his right hand an axe
handle, approximately three feet in length.
Subsequently, appellant told Boyd, “‘You owe me like a hundred
dollars,’†and “at that point†appellant swung the axe handle at Boyd and
struck him in the left shoulder, “and [the axe handle] bounced off and hit
[Boyd] in the cheek.†After appellant
hit him, Boyd “raised [his] hands up†and said he would do whatever appellant
wanted and “try to make it right.â€
Appellant walked away and Boyd went to his room and put an ice pack on
his shoulder. Boyd suffered a “[b]it of
bruising, bit of swollen ness [sic],
but other than that, no [other injuries].â€
James Salyer testified to the
following: On July 17, 2009, at
approximately 5:00 p.m., he was in his room at the motel when somebody came to
his door and told him appellant, who was a friend of Salyer’s, was “hitting
people with an ax[e] handle.†Salyer
went outside “to try to calm [appellant] down.â€
Salyer approached appellant, who was “by the stairs on the west side of
the motel premises.†Appellant was
“headed towards the stairs to chase down†Boyd and another motel resident, who
were trying to get away from him.
Appellant was “pretty enraged,†and he was holding in his right hand an
approximately three-foot-long axe handle.
Salyer further testified to the
following: As he approached appellant,
appellant told him, “‘Mind your own fucking business.’†Salyer admonished him to “just calm down†and
“think about what [he was] doing,†at which point appellant first punched
Salyer in the face and then swung the axe handle and “hit [Salyer] across [his]
back, [his] shoulder blade and back area.â€
Next, appellant again swung the axe handle, this time at Salyer’s
head. Salyer blocked it with his left
hand, “and it crushed two bones in [his] hand ....†Salyer “then ... got up off the ground, and
[appellant] swung [the axe handle] a third time, and it split open the back of
[Salyer’s] head.â€
City of Fresno Police Officer Carlos
Frausto testified to the following: At
approximately 5:00 p.m. on July 17, 2009, responding to a report of a
“disturbance ... involving three subjects†at the motel, he drove into the
motel parking lot and saw appellant holding an axe handle in his right hand,
raised above his head. Frausto got out
of his car and told appellant to “get on the ground,†but appellant instead
went inside a room. He came out
approximately 30 seconds later, without the axe handle. Frausto again ordered appellant to get on the
ground, and this time appellant complied.
The officer then went into the room from which appellant had just
exited, and found the axe handle in a corner of the room.
Ozell Littleton testified that he
was employed as the manager of the motel when, at approximately 5:00 p.m. on
July 17, 2009, he observed the following on a video monitor in his office at
the motel: A group of approximately 10
to 15 people approached another group of approximately the same size “over by
the stairs.†Persons in both groups were
“gesturing back and forth at each other,†“obviously talking to each
other.†At one point, appellant, who
“had a stick in his hand,†“hit†Salyer.
Robert Hawkins testified to the
following: He is a paramedic. He treated James Salyer on July 17,
2009. Salyer reported he was struck twice
with a wooden axe handle, once to the back of the head and once to his left
shoulder. Salyer also reported he
injured his hand when he fell to the ground.
Procedural
Background
Appellant was represented at his jury trial and court trial
by appointed counsel, attorney Mark Asami.
Following these trials, appellant, in a letter to the trial court dated
August 2, 2010, stated he was “seeking a granting on a new trial based on
ineffective counseling by attorney†(sic),
and asserted the following: (1) during
jury selection, some prospective jurors “made comments on the defendants
failure to testify,†and as a result “there was a discriminating seed pla[]nted
in ... the mind[s]†of jurors, thereby violating appellant’s Fifth Amendment
right against self-incrimination; (2) there were many “inconsistencies†in the
testimony of prosecution witnesses; (3) some of that testimony “should have
been excludedâ€; and (5) “nothing was proven beyond a reasonable doubt.†(Unnecessary capitalization omitted.)
At the outset of the
the court noted that it had received appellant’s letter, and thereafter stated
it needed additional time to consider issues related to sentencing, and
continued sentencing to September 8, 2010.
The court sentenced appellant on that date. At that hearing, no mention was made of
appellant’s letter or any of the matters raised by appellant in that letter.
Appellant appealed. On appeal, this court held the trial court
erred in failing to conduct a Marsden
hearing, and remanded the matter, directing the court to conduct such a
hearing.
On remand, a hearing was conducted
on April 27, 2012, at which appellant and Asami appeared. The prosecutor was excluded. At the outset of the hearing, the court noted
it had been directed to conduct a Marsden
hearing, and stated “that’s what we’re going to do now,†and invited appellant
to speak. Appellant responded that in
the letter he had written he was “asking for a new counsel†because he “wasn’t
getting a full ... representation,†he “figured [Asami] didn’t know
[appellant’s] case,†“there was a lot of inconsistencies and stuff that
shouldn’t have been allowed into testimony,†and “[m]y witnesses weren’t put on
the stand on my behalf, ... so that’s why I wrote you ....†The court asked for names of the witnesses
who were not called, and “What were theses witnesses going to show?†To this question and subsequent questions by
the court, appellant gave a series of rambling responses that were, for the most
part, directed at what he characterized as “a lot of things that [were] said
[at trial] [were] inconsistent,†but he did not tell the court what witnesses
were not called and what their testimony would have been if called.
Subsequently, Asami, in response to questioning by the
court, named seven persons from whom his investigator obtained statements prior
to trial, and stated that he (Asami) “[a]t points ... was with the
investigator†when these persons were interviewed. The named persons included Keith Thompson,
who was called as a defense witness, and the following persons who Asami did
not call as witnesses: Jennifer Ortiz,
Cecilia Milton and Howard Stockard II.
Asami explained: “ ... whatever
witnesses presented at trial were witnesses that we thought could help, but
obviously there [were] many witnesses I think here that were interviewed that
we did not think were going to be very helpful to [appellant’s] case. [¶] ... [M]any of [the persons interviewed], I did
not feel were particularly helpful.â€
Appellant stated that the names Asami listed were the names
of all the potential witnesses he (appellant) had given Asami. At that point, the court asked Asami to
“summarize what these witnesses had to say in terms of [appellant].â€
Asami responded first that Ortiz
“was at the Fresno Inn,†she saw appellant “speaking with [Boyd] at [Boyd’s]
room,†she saw “the officers arrive,†and “when the officer arrived,†appellant
“did not have anything in his hands.â€
Asami also stated that Cecilia
Milton is appellant’s wife and that she “recall[ed] [appellant] going over to
[Boyd’s] room to confront him about breaking into [Thompson’s] roomâ€; “[s]he
does not think [appellant] had the stick when he went over to [Boyd’s room]â€;
she saw “[Salyer] walk up to [appellant] and hit him,†at which point
“[appellant] hit [Salyer] with a stick he walks the dog withâ€; and “when the
officers arrived, [appellant] did not have the stick and ... it was already in
the room.â€
Asami also stated that Stockard
stated the following: Stockard, after
“he found out [appellant] was speaking with [Boyd] by [Boyd’s] room,†went to
Boyd’s room “to see what the problem was,†knocked on the door and, when Boyd
answered, asked Boyd “if everything was okay.â€
Boyd “stated everything was fine ....â€
He “didn’t look injured or upset at all.â€
Stockard further stated, according
to Asami, the following: Stockard “began
talking with Cindy,†who he “characterized as [Salyer’s] wife.†He had “his back to [Salyer] and [appellant],â€
who “were talking and not angry.â€
Appellant “was leaning on his stick he walks his dog with.†Stockard “heard Cindy gasp and turned around
towards [appellant] and [Salyer]†at which point Stockard “saw [Salyer]
bleeding and [appellant] was holding onto the stick.â€
After Asami had summarized the
statements obtained from all the persons he had previously listed,
that the defense counsel in this case, through either himself or his
investigator, talked to these witnesses, and I can’t see any of that testimony
that’s helpful to you. Now do you see it
otherwise and are there any.â€
At that point, appellant interrupted
with another rambling response in which, as best we can determine, he
questioned the evidence against him.
However, he did not explain what testimony could have been offered that
was not offered that would have been favorable to him.
DISCUSSION
Appellant contends it was
established at the Marsden hearing
that three persons interviewed by the defense team—Jennifer Ortiz, Cecilia
Milton and Howard Stockard II—could have provided testimony favorable to the
defense; appellant’s appointed counsel “provided ineffective assistance†by not
calling these persons as witnesses at trial; this showing of ineffective
assistance of counsel “was sufficient to support a motion for new trial,†and
therefore the court abused its discretion in denying appellant’s
Legal Background
Under Marsden, a
defendant’s Sixth Amendment right to the
assistance of counsel entitles him to substitute appointed counsel “‘“‘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.’â€â€™â€ (
728 (Welch).)
This standard applies regardless of
whether the Marsden motion is made
before or after trial. (
695 (Smith).) Thus, if the motion is made after trial, and
if the “defendant satisfies the trial court that adequate grounds exist,
substitute counsel should be appointed.â€
(Ibid.) “Substitute counsel could then investigate a
possible ... motion for new trial based upon alleged ineffective assistance of
counsel. Whether, after such
appointment, any particular motion should actually be made will, of course, be
determined by the new attorney.†(
“The court should deny a request
for new counsel at any stage unless it is satisfied that the defendant has made
the required showing. This lies within
the exercise of the trial court’s discretion, which will not be overturned on
appeal absent a clear abuse of that discretion.†(Smith,
supra, 6 Cal.4th at p. 696.)
“Once an attorney is appointed to
represent a client, he assumes the authority and duty to control the
proceedings. The scope of this authority
extends to matters such as deciding what witnesses to call ....†(People
v. McKenzie (1983) 34 Cal.3d 616, 631, disapproved on other grounds in
364-365.) “Whether to call certain
witnesses is ... a matter of trial tactics, unless the decision results from
unreasonable failure to investigate.†(
334.) “‘“Reviewing courts defer to counsel’s reasonable tactical
decisions in examining a claim of ineffective assistance of counsel [citation],
and there is a ‘strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.’â€
[Citations.] “[W]e accord great
deference to counsel’s tactical decisions†[citation], and we have explained
that “courts should not second-guess reasonable, if difficult, tactical
decisions in the harsh light of hindsight†[citation].’†(People
v. Jones (2003) 29 Cal.4th 1229, 1254.)
Analysis
We address, in turn, appellant’s arguments as to each of
the three persons he claims Asami was remiss in not calling as a witness.
Appellant contends Jennifer Ortiz could have offered
testimony favorable to appellant, specifically, “that she saw appellant talking
to [Boyd] at his room, but she never saw a stick in his hands.†However, the record does not support the
claim that Ortiz “never†saw appellant holding a stick or axe handle.
The following colloquy ensued at the Marsden hearing after the court asked Asami to state what the
persons interviewed had said to Asami and/or the defense investigator:
“MR. ASAMI: Jennifer
Ortiz, she was at the Fresno Inn. She
saw [appellant] speaking with [Boyd] at [Boyd’s] room. She saw the officers arrive. [Appellant] did not have anything in his
hands.
“THE COURT: Did not
what?
“MR. ASAMI: Anything
in his hands when the officer arrived.†(Italics added.)
A fair reading of the foregoing is not that Ortiz
only that, by Ortiz’s account, appellant was not holding the axe handle when
the police arrived. Although this is at
odds with Officer Frausto’s testimony that appellant was holding an axe handle
when he (the officer) drove into the motel parking lot, such testimony related
to what occurred after the assaults.
Thus, Asami reasonably could have concluded that Ortiz’s testimony was
far from crucial and would not have been particularly helpful to
appellant.
Appellant also contends Cecilia Milton could have provided
testimony favorable to the defense, citing Asami’s statements that Milton
stated, “She does not think
[appellant] had the stick when he went over to [Boyd’s room]†and that Salyer
hit appellant before appellant hit Salyer with a “stick.†(Italics added.) We note first that evidence of what Milton
thought, as opposed to what she saw, would be, if admissible at all, not
particularly compelling. Moreover,
although competent testimony that appellant acted in self-defense would have
been favorable to appellant, Asami also indicated that Milton stated that
appellant went to Boyd’s room to “confront†him about breaking into Thompson’s
room. Such testimony would have provided
some corroboration for Boyd’s testimony as to the assault, and suggested that
appellant harbored ill will toward Boyd when he went to Boyd’s room. Given that Milton’s testimony could well have
included this unfavorable evidence, and the danger that the jury would have
discounted Milton’s defense-favorable testimony as biased, as coming from
appellant’s wife, Asami’s decision to not present Milton as a defense witness
was a rational tactical choice.
Finally, appellant faults Asami for not calling Howard
Stockard II because, appellant asserts, Stockard could have testified that he
(Stockard) “went to [Boyd’s] room after appellant had been there, and [Boyd]
told him everything was fine and he did not look hurt.†This evidence would not have been
particularly helpful to appellant. It
was essentially consistent with Boyd’s testimony that, after he was assaulted,
he walked back to his room where his only response to his injuries was to apply
ice to his shoulder. Moreover, Asami
indicated Stockard also said that appellant was leaning on a stick as appellant
and Salyer exchanged angry words, and that he turned and saw Salyer bleeding
and appellant holding the stick. Such
testimony would have been unfavorable to appellant, and Asami reasonably could
have concluded that the risk of such evidence coming before the jury outweighed
any possible benefit from other testimony Stockard might offer.
The record thus contains ample support for Asami’s
conclusion that calling Ortiz, Milton or Stockard would not have been helpful
to the defense, and therefore it cannot be said that “‘“‘the record
clearly shows’â€â€™â€ that Asami was “‘“‘not providing adequate
representation.’â€â€™â€ (
The court did not err in denying appellant’s Marsden motion.
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">* Before
Wiseman, Acting P.J., Cornell, J., and Franson, J.
name="_ftn2" title="">[1] All
statutory references are to the Penal Code.
