P. v Tignor
Filed 8/25/08 P. v Tignor 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Tehama)
----
THE PEOPLE, Plaintiff and Respondent, v. JAMES WILLIAM TIGNOR, Defendant and Appellant. | C056858 (Super. Ct. No. NCR71728) |
This case concerns defendant James William Tignors apparent dissatisfaction with his appointed trial counsel. Defendant complained for the first time about his attorneys handling of his trial at his sentencing hearing, weeks after trial had finished. He now claims his long, untimely comments constituted a Marsden motion.[1] He also here asserts his trial counsel was ineffective for failing expressly to request a Marsden hearing. We disagree.
FACTS
A jury convicted defendant of numerous sex crimes; assaults with a shotgun, a knife, and his fists; false imprisonment; and other offenses, all arising from his attacks on a former girlfriend over a one-night period.
At sentencing, defendant alleged numerous complaints against his appointed counsel. Counsel refused to move for a change of venue, as defendant had requested. Counsel laughed when defendant asked him to move for a mistrial after potential jurors saw him in shackles, and he did not make the motion. Counsel forced defendant to admit a prior conviction without informing him it would be used against him. Counsel visited defendant in jail on only three consecutive nights before trial. Counsel informed him he would be required to undergo a DNA test. Counsel did not introduce evidence at trial of another DNA donor from the sample taken from the victim. Counsel prevented defendant from hiring his own investigator. Counsel should have suppressed evidence of a blood-stained blanket where tests had shown the blood had belonged to defendants deceased dog. Counsel also told defendant he would get more prison time than what was offered as a settlement because he would be found guilty.
On four different occasions during defendants statement, defense counsel interrupted, objected to and disagreed with his clients recitation, and explained his version of the facts. Counsel stated it was not true that he had laughed at defendant; defendant knew that admitting a prior prison term would result in a one-year enhancement if convicted; counsel did not tell defendant a DNA test would be required in this case; and counsel did not prohibit defendants investigator from working on the case.
The court also interrupted defendant, informing him his complaints had nothing to do with sentencing and he could raise these issues on appeal. This is the time for sentencing, the court stated. If you have a statement to be made in regards to the sentencing, I will certainly hear it.
Defendant said he was trying to make a statement to get this on the record. Because if I dont, the appeal doesnt work in this matter. During his statement, defendant did not indicate he wanted a new attorney.
The court asked defendant if he had brought any of these alleged problems to the courts attention before the trial. Defendant stated he had raised them with his attorney. The court asked counsel if defendant at any time had asked him to bring a Marsden motion. Counsel stated defendant had not. Defendant said he did not know the technical terminology, but he felt counsel had not worked to ensure he was provided due process and had not raised issues that were important to the case.
Ultimately, the prosecutor objected and asked the court to move on to sentencing. The court did, and it sentenced defendant to a state prison term of 72 years 4 months.
On appeal, defendant claims the trial court erred by not interpreting his statement at sentencing as a request for a Marsden hearing or for independent counsel to explore a new trial motion based on ineffective assistance of counsel. Defendant also claims he was denied effective assistance of counsel when his attorney failed to request a Marsden hearing at sentencing. He does not raise on appeal any of the specific asserted problems he raised in his statement to the trial court.
DISCUSSION
I
Request for Marsden Hearing
Defendant asserts his complaints about his attorney effectively amounted to a request for a Marsden hearing and a substitute attorney. He also argues the courts action in not convening a Marsden hearing foreclosed his right to seek the appointment of independent counsel to investigate filing a motion for new trial. We disagree.
The court was not obligated to convene a Marsden hearing because defendant did not give a clear indication he wanted a substitute attorney. Although no formal motion is necessary, there must be at least some clear indication by defendant that he wants a substitute attorney. (People v. Mendoza (2000) 24 Cal.4th 130, 157, quoting People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8.) The mere fact that there appears to be a difference of opinion between a defendant and his attorney over trial tactics does not place a court under a duty to hold a Marsden hearing. (Lucky, at p. 281.)
Because we conclude that defendants comments were insufficient to indicate that he was requesting a Marsden hearing, the trial court was under no obligation to conduct an inquiry into any dissatisfaction defendant might have with his appointed counsel so as to necessitate substitution of counsel. (People v. Mendoza, supra, 24 Cal.4th at p. 157.) (People v. Valdez (2004) 32 Cal.4th 73, 97.)
The courts action also did not foreclose defendant from seeking independent counsel. All defendant had to do was indicate his intent to seek a new attorney, and the trial court would have been required to rule on the request. Nothing the trial court did prevented defendant from making this request.
II
Ineffective Assistance of Counsel
Defendant faults his attorney for not asking for a Marsden hearing when the trial court asked if one had ever been requested. He claims this omission resulted in defendant airing his grievances before the prosecution instead of in a closed hearing where a complete record could have been made. Although defendant did voice his complaints with the prosecution present, that was his choosing. His attorneys action did not constitute ineffective assistance.
A defendant claiming ineffective representation bears
the burden of proving by a preponderance of the evidence both (1) that counsels performance was deficient, i.e., that the representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsels unprofessional errors, the result would have been more favorable to defendant, i.e., a probability sufficient to undermine confidence in the outcome. [Citations.] (In re Ross (1995) 10 Cal.4th 184, 201; see Strickland v. Washington (1984) 466 U.S. 668, 688, 694 [80 L.Ed.2d 674, 693-694, 699-698].)
Defendant has not shown any prejudice from counsels action. He has not directed us to any evidence suggesting he would have received a more favorable verdict had counsel asked for a Marsden hearing and the motion had been granted. The most he argues is that he was denied an opportunity to make a full record on his complaints of ineffective assistance. This does not establish a likelihood of a more favorable verdict.
DISPOSITION
The judgment is affirmed.
NICHOLSON , J.
We concur:
DAVIS , Acting P. J.
CANTIL-SAKAUYE , J.
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[1]People v. Marsden (1970) 2 Cal.3d 118.)
