P. v. Yocom

Filed 1/27/10 P. v. Yocom CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge.

Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Michael Alan Yocom pled no contest to various crimes after he took tools and other items from yards, sheds and a truck bed. A jury found defendant sane at the time of the crimes. On appeal, defendant contends (1) the trial court erred in denying his second Marsden^[1]motion and failing to hold a hearing on his third; (2) the trial court erred in failing to hold a competence hearing; (3) defendant was improperly shackled during the sanity trial; (4) insufficient evidence supported the jurys sanity determination; (5) the trial court erred in failing to grant defendants motion to withdraw his plea; (6) defendant was improperly convicted of both stealing and receiving the same property; (7) the security fee should be reduced; (8) the trial court erred in calculating defendants custody credits; and (9) the trial court improperly stayed the prior prison term enhancements. We will strike the conviction for receiving stolen property and order various other modifications. In all other respects, we will affirm.

PROCEDURAL SUMMARY

On June 5, 2008, the Tulare County District Attorney charged defendant with assault with a deadly weapon (Pen. Code,  245, subd. (a)(1);^[2]count 1), grand theft ( 487, subd. (a); count 2), receiving stolen property ( 496, subd. (a); count 3), evading an officer (Veh. Code,  2800.2, subd. (a); count 4), and resisting a peace officer ( 148, subd. (a)(1); count 5, a misdemeanor).

As to counts 1 through 4, the information further alleged that defendant had suffered a prior conviction within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), that he had served four prior prison terms ( 667.5, subd. (b)), and that he was ineligible for probation ( 1203, subd. (e)(4)). As to count 1, the information also alleged that defendant had suffered a prior serious conviction pursuant to section 667, subdivision (a)(1).

On June 19, 2008, the trial court denied defendants first Marsden motion. The same day, defendant pled not guilty by reason of insanity and denied the special allegations.

On July 18, 2008, the court granted defendants motion to dismiss count 1 pursuant to section 995.

On July 29, 2008, the court denied defendants second Marsden motion. Later the same day, defendant withdrew his not guilty plea, entered a no contest plea to counts 2 through 5, and admitted the special allegations. Defendant agreed to an indicated sentence of five years four months. Jury trial on defendants sanity commenced.

On July 30, 2008, as the sanity trial proceeded, defendant submitted a letter to the court, raising a third Marsden motion. The court denied the motion without a hearing.

On July 31, 2008, the jury determined defendant was legally sane when he committed the crimes. Defendant informed the court he wished to make a motion to withdraw his plea, and the court appointed new counsel.

On October 10, 2008, defendant filed a handwritten motion for a new sanity trial and a motion to withdraw the plea.

On November 12, 2008, defendants new counsel filed a motion to withdraw the plea.

On November 13, 2008, the trial court heard and denied the two motions. The court also denied probation and sentenced defendant to state prison for five years four months, as follows: the middle term (four years) on count 2 (grand theft) and one-third of the middle term (one year four months) on count 3 (receiving stolen property). The court imposed a four-year concurrent term on count 4 (evading an officer) and a three-year concurrent term on a probation violation (petty theft with a prior; a 2007 conviction).

On November 21, 2008, defendant filed a motion to recall the commitment pursuant to section 1170, subdivision (d), stating that he should not have been convicted of both stealing and receiving the same property and that the accusatory pleading did not allege that the stolen property exceeded $400 in value. The trial court denied the motion without comment.

On December 19, 2008, defendant filed a notice of appeal. The trial court granted his request for a certificate of probable cause.

On May 4, 2009, the Department of Corrections and Rehabilitation wrote a letter to the trial court, noting that a person may not be convicted of stealing and receiving the same property and that the sentencing range on the probation violation count was 16 months, two years and three years (the court imposed the lower term of three years). On May 19, 2009, pursuant to the authority granted by section 1170, subdivision (d), the trial court filed an amended abstract of judgment, staying the sentence on count 3 (receiving stolen property) and changing the sentence on count 4 (evading an officer) to one year four months (the sentence originally imposed on count 3). In addition, the court corrected the three-year lower concurrent term on the probation violation (petty theft with a prior) to the two-year middle term.

FACTS

I. Prosecutions Case

Between about 11:00 and 11:30 p.m. on March 6, 2008, various people in Tulare saw and heard defendant outside their houses.

A. Tamra

Tamra heard noises in her yard. When she turned on her lights, she heard someone running. She found her gate lock broken, a picket of her fence broken off, and a water hose cart unhooked and moved.

B. Nick

Tamras next-door neighbor, Nick, heard a noise outside. He saw a small pickup parked with its lights off in the middle of the street, right next to his truck, and he called the police. He saw a man walk from the truck to the side of the house. Nick heard a loud noise then saw the man run back to his truck and drive away with the lights off.

C. Chelsea and Ron

Chelsea was at Rons house. She heard the dogs barking while Ron was sleeping, so she went outside. She saw defendant standing near a small pickup, which was near to Rons truck. She asked defendant what he was doing. He looked directly at her with surprise and tossed something into his truck. He walked around the truck, got in and left. Chelsea ran into the house. Ron came outside and saw that his hydraulic puller (worth about $200) had been taken out of his truck bed. The entire encased set was gone, although some of the pieces had fallen on the ground.

D. Brian

Brian was not awakened that night, but the next morning he discovered his gate was open and a weed eater (worth $150 to $200), a leaf blower (worth about $110), a set of barbeque utensils (worth about $25), and a rack for a Jeep (worth about $50) were missing.

E. Corey, Curtis and Mark

Corey noticed a small pickup in front of his house and told his older brother, Curtis. Curtis told him to go outside and investigate. When Corey noticed a cut chain and lock and saw chain cutters on the ground, he ran back inside to get Curtis. Curtis noticed that their neighbor, Jim, had turned on his outside light. As the brothers stood in the front yard, they saw defendant crossing Jims lawn, carrying a gas can toward the truck. Curtis cursed at defendant and scared him. As the brothers moved toward him, he put the gas can down and started to run away. After several steps, he stopped and pulled out a sharp object, and charged toward the brothers. At this point, the brothers backed away. Defendant mumbled at them and used foul language. He got in the truck, made a U-turn, and drove away with the lights off.

Curtis went inside and woke up their father, Mark. Curtis told him someone had tried to rob them. When they heard Corey yelling that defendant was back, they went outside. Defendants truck, still with the lights off, had stalled in front of the house and he was struggling to start it. Curtis told Mark, Thats the guy, dad. Mark went to the truck, opened the door, and tried to pull defendant out. Defendant resisted him, so Mark punched him two or three times. Defendant turned, looked at Mark, and said, Ill cut you mother fucker. His eyes were big and focused and he spoke rapidly and directly. Mark tried to reach past defendant to get his keys, but he could not find them. Defendant got the truck in reverse and stepped on the gas, forcing Mark to run as fast as he could while trapped between the open door and the cab. Mark ran for 20 or 30 feet until he could move away from the truck. Defendant continued driving away in reverse.

F. Jim

Meanwhile, Jim heard a noise in his backyard, where he had two unlocked sheds, and his dog was acting strangely. Jim turned on the light and looked outside. He saw someone standing near his sheds. By the time Jim could open the sliding glass door, the person had left down the side of the yard. The sheds were open, some things had been pulled out, and a high pressure washer, worth $199, was missing. Jim later found the pressure washer on the side of his house, next to the unlocked gate. Jim went to his front yard and saw his neighbor, Corey, walking toward him with his gas can.

G. Law Enforcement

Officer Lopez received a dispatch regarding several burglaries in the neighborhood. Witnesses had described the truck and provided a partial license plate number. Lopez spotted a matching truck pull into the Fosters Freeze parking lot and turn its lights off. Lopez entered the lot from the opposite direction and the two vehicles met facing each other. Lopez activated the overhead lights of his marked patrol vehicle. Defendant stopped the truck five to ten feet from the patrol vehicle.^[3] As Lopez started to get out of the patrol vehicle, defendant put his truck in reverse and quickly backed away. As he did, he ran solidly into a tree, causing things to fly out of his truck bed. He put the truck into gear, his wheels screeching as he accelerated, and drove straight toward Lopez. As Lopez sat back down in the patrol vehicle, he thought defendant was going to hit him. At the last moment, defendant veered around the patrol vehicle, missing it by about one foot, and left the lot.

Lopez made a U-turn, turned on his siren, and initiated his pursuit of defendant. Detective Jones and Officer Medina approached in another marked patrol vehicle as the two vehicles sped out of the parking lot. Medina activated the lights and siren and joined the pursuit through a residential neighborhood. Defendant drove onto a yard, spun out, and stalled. As the officers got out of their patrol vehicles and started to approach, defendant got the truck started and took off. The officers followed. After a wheel came off the truck, defendant drove into a field. He jumped out and ran toward State Route 99 (the freeway). The officers followed defendant over a fence and toward the freeway. Defendant ran down the freeway embankment and across the northbound lanes of the freeway, almost getting hit by a car in the fast lane. He stopped in the median in the oleander bushes. Medina reached him first and took him to the ground. Defendant resisted and they struggled. Jones arrived and told defendant he would use his taser if he did not comply. Defendant cursed at the officers and started to get up, so Jones used the taser. As he was being shocked, defendant yelled that the devil had a hold of him, or something to that effect. He was yelling all sorts of foul language and other strange things. Jones used his taser two more times and Medina struck him with his baton. Defendant never complied and the officers were required to use physical force to get him handcuffed.

Defendants blood was drawn between 12:00 and 12:30 a.m., and was found to contain cocaine and its metabolites, morphine, and hydrocodone. Cocaine is a stimulant and both morphine and hydrocodone are narcotic opiate pain relievers. These drugs are often taken together. The levels found in defendants blood would cause a person to be under the influence with symptoms such as a higher pain threshold and poor judgment.

Lopez returned to the Fosters Freeze parking lot and located a hydraulic puller and its case, a leaf blower, five shovels, a rake, a flashlight, and a box containing defendants papers. Lopez photographed acceleration skid marks from defendants tires.

A weed eater and a barbeque utensil set were found in defendants truck.

II. Defense Case

A. Officer Hastings

While Officer Hastings monitored defendant at the hospital, defendant made some strange statements about being chased by the devil before and during his apprehension by the police. Defendant was not hostile; he lay quietly.

B. Defendant

Defendant testified on his own behalf. He explained he had been under the care of a psychiatrist and a psychologist since 2003. He had been diagnosed as a bipolar schizophrenic. He took prescription Seroquel, lithium and Welbutrin to calm him, stabilize his moods, and relieve his depression. He had been convicted of a felony and had been to prison.

On March 6, 2008, defendant had not taken his medications for about one month. He had decided to quit taking them because he needed to get work. When he failed to take his medications, he would have racing thoughts that probably were not normal. On the night of the crimes, defendant was confused. He was receiving messages of guidance. He had used cocaine about 24 hours before he was arrested, but he did not remember taking anything else.

Defendants memories of that night were real sketchy and fleeting, but he had pieced it together by reading police reports. He did remember he was told to go to an exact location to get gas. Steve Smith, who owed him money, told him earlier that evening to go to a particular address to get gas in a gas can. But when defendant came out with the gas can, two kids were yelling all kinds of shit, so [he] put the can down of the gas and [he] walked to [his] truck and got in [his] truck and [he] took off. He didnt know what to think . He hesitated for a minute and decided something was wrong and he had to leave. But after he left, he decided to go back to try to explain to the people and take them to Steve. Defendant thought he had done something wrong and he did not know it. He thought it had been a trap. He wanted to explain that he was not stealing. He did not want the police involved. Before he had the chance, however, Mark ran up to the truck and hit him several times. Defendants foot was on the clutch and the truck started moving backward until defendant hit the brakes. He did not want to believe what was happening, so he left.

He was confused and was getting messages in his mind that someone was trying to do him wrong. Osiris, the devils brother, was out to get everyone. The Centurions were the good people in that solar system. When defendant took his medication, he did not have as much contact with these people. Although at the very moment he was testifying, he was receiving messages. He had recently received a message that defense counsel and the prosecutor were brothers.

On the night of the crimes, defendant was driving his truck when he ran over a box in the middle of the road, causing his truck to skid. He got out and put the box in his truck. He was having problems that night. He was very confusedit never had been this serious. He ma[d]e it to Fosters Freeze and wanted to get out of the truck. He did not recognize the officer as a policeman; instead, he thought he was an evil demon. The more defendant looked at him, the more he saw that his eyes glowed. Defendant put his truck in reverse and just hit it. He ran into something, but he did not realize it was a tree.

At that point, defendant had to get away so he took off. He did not remember the chase, but he remembered being on a curb, then getting back on the road and having a blowout. He remembered that when the officer used the taser, it felt like his teeth were melting together. He went to the hospital because Lopez broke his wrist. The next thing defendant remembered was being stripped and put in the rubber room at the jail.

Defendant was now back on his medications, but the jail personnel refused to give him an adequate dose.

On cross-examination, defendant testified he knew it was wrong to take someones property. He also knew that a person is supposed to stop when the police approach with lights on. He had been arrested many times, so he knew that a person is not supposed to fight with the police when taken into custody.

On the night of the crimes, defendant went to one house onlythe house Steve Smith told him about. Defendant never went into any back yard and he never stole anything. He did not open a shed and take out a pressure washer. He knew if he had done that, it would have been wrong. He would not steal because he did not want prison time. He did not touch a water hose; he was not there. He did not know how the items got into his truck bed because he put a black case in his truck. He would not take something out of someones truck because that would be wrong and he knew it that night. But it was not wrong for him to have the items that belonged to him.

At the time defendant decided to go off his medications, he knew he was hearing voices. The voices intensified when he quit taking his medications. He knew there was some risk in his decision. Defendant communicated only with the Centurions. They would never tell him to take someones property, [b]ut then you never know. Defendant was unemployed when he decided to quit taking his medications, but he was trying to do whatever he could, such as recycling, mowing lawns, and trimming trees. That was why he had a blower, a weed eater, and other yard tools. People sold or gave them to him. Defendant needed money for a motel room, truck insurance, and gas. He was supporting his girlfriend too.

Defendant had trouble remembering most of the events of March 6, 2008, but he did clearly remember he did not go to anyones house and try to take any of their property. Even while hearing voices, he would know not to do that because it would put him back in prison.

Defendant explained that he returned after the gas can incident not because he felt bad, but because he knew one little misunderstood incident could put him back in prison, and he did not want to go back to prison.

Defendant thought his truck lights were on that night; he was not aware that they were off. He stopped at Fosters Freeze because he was confused and wanted to get out of his truck because he had never experienced the feelings and voices. Everything was just such a confused mess and he had been socked in the face for no reason for three or four times.

The prosecutor asked defendant whether he saw the officer pull up in a marked patrol car. The following colloquy occurred:

[DEFENDANT:] You know what, its weird because you know it was, I believe, I believe, I believeI thought it was a police car, but there was no lights on. There was no lights. And he was just sitting there looking at me. And hesand I started looking at him and thats when I thought he was a demon and I put it in reverse.

[THE PROSECUTOR:] So you did recognize at some point it was a police car.

[DEFENDANT:] I, I, you know, its, its veryI mean I dont remember exactly. Im just thinking, you know what I mean, because see, its hard. Its hard when you read the police reports and stuff when you aint got a memory and youre reading police reports and youre trying to match it with the police report to make sure thats what happened, you know what I mean to be theits hard.

[THE PROSECUTOR:] So as you sit here right now, you think you saw a police car that night.

[DEFENDANT:] I thought it was a police car.

[THE PROSECUTOR:] And it made you scared?

[DEFENDANT:] Not really. A police car wouldnt make me scared. What made me scared and what made me put it in reverse and take off is becausewas the fact that I thought he was a demon. I seen his eyes. I seen his eyes actually turn colors. I could actually see his eyes as hes sitting there looking at me. And if hes a policeman, why aint he got his lights on or why aint he pulling up next to me asking me whats going on, you know what I mean? Hes just sitting there.

[THE PROSECUTOR:] Okay.

[DEFENDANT:] And I could see his eyes and he looked like a devil.

When the prosecutor pointed out that defendant had a clear memory of an officer swinging a baton and breaking his wrist, the following colloquy occurred:

[DEFENDANT:] I feel it was Officer Lopez. I seen him there. I seen him there . Im, ImI mean I cant say one hundred percent it was Officer Lopez but I know Officer Lopez has already threatened my life. Hes already made false accusations against me before and hes pulled me over several times for no reason, you know, without a citation. Its pretty bad when you get pulled over seven times without a citation, you know what I mean? Get your truck stripped all the way through with a fine tooth comb and nothing happened. They dont find nothing. Go on your way and then an hour later get pulled over again by them you know.

[THE PROSECUTOR:] So you

[DEFENDANT:] Thats bad.

[THE PROSECUTOR:] you saw Officer Lopez before. You know what he looks like. You remember him?

[DEFENDANT:] Yes. Ive seen several of the officers from the Tulare Police Department.

[THE PROSECUTOR:] It sounds like you dont like Officer Lopez too much.

[DEFENDANT:] No, I dont.

[THE PROSECUTOR:] Hes been harassing you?

[DEFENDANT:] It aint just harassment. Hes evil. Hes been assimilated.

C. Dr. Middleton

Dr. Middleton, a licensed psychologist, examined defendant at the jail on April 14, 2008, and determined he was insane at the time of the crimes. Dr. Middleton also reviewed defendants history and the relevant police reports. Defendant explained to him his drug use, his criminal history, and his psychiatric problems. Defendant reported a history of bipolar disorder and schizophrenia. He complained that he was unable to stay on his medication. He said he heard voices, saw demons, and was unable to distinguish reality from his psychotic symptoms. Defendant believed he was doing the right thing on the night of the crimes. He believed the police had demonic eyes and were devils out to get him. He believed he had to evade them. Defendant recounted what the doctor described as a believable history. Dr. Middleton did not believe defendant was faking his condition because he seemed truly distressed.

On cross-examination, Dr. Middleton stated he had learned all of defendants mental history from defendant himself during the interview, which lasted between 60 and 90 minutes. Dr. Middleton requested defendants mental health records from defense counsel, but he never received them. Similarly, Dr. Middleton received all of defendants criminal history from defendant himself. Defendant told Dr. Middleton he had not used drugs that day.

D. Dr. Velosa

Dr. Velosa, a board certified psychiatrist, conducted an examination of defendant at the jail on April 1, 2008, that lasted between 60 and 90 minutes. Dr. Velosa reviewed five police reports. Dr. Velosa determined that defendant suffered from both schizophrenia and bipolar disorder, and that he was insane at the time of the crimes. He was out of touch with reality. He thought the police were demons and he was in danger, and these thoughts caused him to act irrationally.

On cross-examination, Dr. Velosa agreed that a person with schizophrenia is not necessarily legally insane, and that a person with a mental disorder could know it was wrong to steal if he was stealing to get more drugs. Dr. Velosa agreed it would have been helpful if he had known that defendant brought bolt cutters with him and had stolen property in his possession. Dr. Velosa also said defendant did not reveal he used cocaine the day of the crimes. In fact, defendant told him he had been drug-free for two and one-half years. Dr. Velosa agreed that defendants delusions on the night of the crimes might have been caused by cocaine rather than a mental disorder, although Dr. Velosa did believe defendant suffered from a mental disorder. Dr. Velosa had not examined defendants records; his evaluation of defendant was based on what defendant told him and what was included in the police reports.

DISCUSSION

I. Marsden Issues

Defendant contends the trial court abused its discretion when it denied his second Marsden motion on July 29, 2008. He explains that defense counsel provided ineffective assistance, and that defendant and counsel had become embroiled in an irreconcilable conflict.

A. Law

A defendant is entitled to the substitution of counsel if the record clearly shows the defendant is being denied adequate assistance of counsel or the defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. (People v. Barnett (1998) 17 Cal.4th 1044, 1085.) A trial court must afford a defendant an opportunity to explain and provide specific instances of inadequate performance when the defendant seeks substitution of appointed counsel. (Ibid.) Thereafter, substitution 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.] (People v. Webster (1991) 54 Cal.3d 411, 435.) The court should grant a motion for new counsel only when the defendant demonstrates that counsel is truly providing inadequate representation or that a total breakdown in the relationship has occurred that the defendant did not cause. (People v. Smith (2003) 30 Cal.4th 581, 607.)

The trials courts denial of a Marsden motion will not be disturbed on appeal unless the court abused its discretion. (People v. Barnett, supra, 17 Cal.4th at p. 1085.) The trial court does not abuse its discretion in denying such a motion unless the defendant shows that failure to substitute counsel would substantially impair the defendants right to assistance of counsel. (Ibid.)

B. Facts

At the first Marsden hearing on June 19, 2008, defendant informed the trial court that he believed his relationship with defense counsel had broken down; that counsel failed to retrieve documents from defendants truck as requested; that counsel did not question a witness vigorously enough at the preliminary hearing; that counsel made no argument at the preliminary hearing; that counsel should have challenged the assault and theft charges; and that defendant was being undermedicated by the jail personnel.

Defense counsel responded that he believed the items in defendants truck were personal items unconnected to the case (the court had the same impression), but counsel had prepared an order for retrieval of the items; that it was counsels practice to ask few questions during a preliminary hearing so as to not expose his client to additional charges; that counsel had in fact argued at the preliminary hearing that there was insufficient evidence on the assault charge; and that counsel had twice requested that the court order medical reevaluations for defendant and defendant had received those services. The court determined counsel had properly represented defendant and it denied the Marsden motion.

At the second Marsden hearing on July 29, 2008, the court again asked defendant why he felt defense counsel was not representing him properly. Defendant responded, Theres many reasons. It even goes back to, to our last Marsden [hearing]. Its all on the record as far as that goes. Defendant complained that counsel had never made an effort to retrieve the items from his truck; that counsel did not get psychiatric experts to explain his insanity defense; that counsel did not hire an investigator to visit the neighborhood and note the stop signs as part of the defense; that counsel told him there was nothing wrong with him even though he was taking antipsychotic medication and two doctors found him legally insane; that counsel did not recognize that defendant could not be convicted of both stealing and receiving the same property (the trial court erroneously corrected defendants view of the law); that counsel should have filed a section 995 motion because the value of the stolen property had not been established; that counsel told him he was going to be found guilty; that counsel had not tried to help defendant get his medication; and that counsel had gotten angry with him and wanted to be relieved from the case.

Defense counsel responded that he personally had been to the crime scene many times and believed any evidence gathered by an investigator would be harmful to defendants case; that he told defendant he was competent to stand trial, not that there was nothing wrong with him; that counsel had conceded his mistake in failing to file a section 995 motion on the grand theft charge (although he filed a successful motion on the assault charge) and defendant had refused the option of a continuance to file the motion because he preferred going to trial; that counsel told defendant the evidence against him made it likely he would be convicted; that counsel had indeed gotten angry with defendant because he argued about every statement counsel made and refused to let counsel explain his reasons. As an example of the last point, counsel recounted that defendant asked counsel why the court had indicated such a lengthy sentence, but he became argumentative when counsel attempted to answer his question by referring to his lengthy criminal record.

Defense counsel also stated that despite what he believed had been adequate representation, he did feel his communication with defendant had deteriorated to the point at which representing him had become extremely difficult. He and defendant were not communicating anymore. Defendant was angry with counsel, and counsel was not pleased with the posture defendant was taking in the case. In counsels opinion, defendant had been treated wellthe prosecutor had made allowances for his mental illness and the court had indicated the lowest possible sentence, given defendants extensive criminal recordand defendant acted like he was the victim of some grave injustice.

The court explained to defendant that emotions can run higher as trial approaches, but defense counsel was a good attorney with a lot of experience. The court pointed out that counsel had two doctors prepared to testify at the sanity trial. The court found no inadequacy in counsels representation.

Defendant repeated that he did not feel he and defense counsel had a relationship. He did not expect to get a fair trial if there was a personal vendetta or problem between them. The court reassured defendant he would get a fair trial, but explained that defendants feeling that counsel would not competently represent him was not a sufficient reason to relieve counsel. Similarly, defendants belief that the relationship had broken down was not enough.

When the court asked defense counsel whether he believed there had been such a breakdown that he could no longer represent defendant, counsel stated that he believed he could set aside their past disagreements and vigorously represent defendants interests at trial. Counsel, however, requested a moment with defendant. Following a break, counsel informed the court that he told defendant he would set aside their previous exchange, and it would not influence his ability to represent defendant at all. But defendant responded that he was not comfortable with this and was not satisfied with counsels representation.

The court told defendant that the same thing was likely to occur with another attorney because defendant did not like what he was being told and he would disagree with any attorney. Defendant said, Im not gonna be able, Im not gonna be able to agree with everything hes gonna do anyway or even the next lawyer but like you said, its got to go on you know so. The court said to defendant, What Im trying to focus on right now is whether or not theres been such a breakdown in the relationship with you and [defense counsel] that you two cannot go forward as a team and do this trial. Can youif [defense counsel] stays as your lawyer, can you, can you get through this trial? Defendant answered, Ill do my best. I, Ill do my best. Thats all I can say. You know what I mean? I canits justit builds. I mean, I think I can stick with him. Defense counsel responded, Like I said, Your Honor, Im able. I have no problems representing [defendant], but Im just concerned were going to have to retry the case. The court again refused to relieve defense counsel.

C. Ineffective Assistance of Counsel

Defendant first argues he was prejudiced by counsels misadvisement regarding the law, which resulted in his pleading no contest to both stealing and receiving the same property. Assuming counsels misadvisement constituted ineffective representation, we conclude this error did not prejudice defendant, as we explain further in part V. Defendant got the benefit of his bargained-for sentence and we will strike the improper conviction.

Second, defendant asserts that defense counsel should have made a section 995 motion on the grand theft charge because the value of the stolen property had not been established as exceeding $400 to support the offense as a felony. Defendant, however, affirmatively waived this complaint when he declined counsels offer to request a continuance in order to file the motion. Counsel recognized his error and offered to correct it, but defendant chose to proceed to trial rather than file the motion.

D. Irreconcilable Conflict

As for the existence of an irreconcilable conflict making ineffective representation likely to result, that was a question for the trial court. Defense counsels opinion did not in itself answer the question. In People v. Smith, supra, 30 Cal.4th 581, the defendant attempted to remove defense counsel by raising various disputes, and stating that the relationship ha[d] broken down and [h]e had no trust or confidence in counsel. (Id. at p. 605.) Defense counsel agreed that, based on the defendants statements, the relationship had broken down. (Ibid.) The trial court found that the defendants specific complaints were insufficient because they involved tactical decisions, and the apparent breakdown of the relationship was not controlling, because defendant could not have reasonably expected, based upon the law and the facts of this matter, defense counsel to have done anything other than what was done to this stage of the proceedings. (Ibid.)

On appeal, the Smith court stated: Defendant cites his claim that his relationship with counsel had broken down and counsels statement that he could not disagree that the relationship [had] broken down to the extent that [he could] no longer competently represent [defendant]. However, counsels statement was based on what defendant had told the court and does not itself compel the court to grant new counsel. A defendant may not effectively veto an appointment of counsel by claiming a lack of trust in, or inability to get along with, the appointed attorney. [Citation.] Moreover, the trial court need not conclude that an irreconcilable conflict exists if the defendant has not tried to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness. [Citation.] Defendant did not show that defense counsel did anything to cause any breakdown in their relationship. [A] defendant may not force the substitution of counsel by his own conduct that manufactures a conflict. [Citation.] (People v. Smith, supra, 30 Cal.4th at p. 606.) The court concluded that the defendant did not make such a compelling showing of a conflict between himself and counsel that the court had to grant the motion. (Id. at p. 607.)

We come to the same conclusion here. Defendant was clearly unhappy with defense counsels grim assessment of his prospects. As the trial court put it, defendant did not like what he was being told and he would have disagreed with any attorney. Indeed, the record suggests that the major factor underlying defendants discontent was his disagreement with counsels appraisals and opinions regarding the case. These problems are not uncommon when an attorney is required to communicate with a client untrained in the complexities and technicalities of the law, particularly when the clients likelihood of success is poor. Defendants frustration with the progress of his case did not compel a finding that he could not cooperate with counsel in the future, or that any conflict was irreconcilable. Likewise, defense counsels view that the attorney-client relationship had broken down was not compelling. A trial court is not bound to accept the appraisal of a defense attorney who may be only too happy to get out from under a difficult representation.

The trial court investigated defendants complaints and received adequate explanations from defense counsel.^[4] The court believed many of the same issues would arise between defendant and any other attorney. Counsel thought he could vigorously defend defendant, despite their problems. The court reasonably concluded that defendant was the cause of at least part of the breakdown in his relationship with counsel, and that any conflict could be worked out. The record does not support a conclusion as a matter of law that the trial courts failure to replace defense counsel would substantially impair defendants right to the effective assistance of counsel. (People v. Webster, supra, 54 Cal.3d at p. 435.) The trial court did not abuse its discretion in denying the second Marsden motion.

E. Failure to Hold a Third Hearing

Defendant also contends the trial court erred in failing to hold a third Marsden hearing in response to his letter requesting new counsel on July 30, 2008, the day after the court denied his second Marsden motion. The letter read:

I, the defendant in this case, move to withdraw the current plea agreement of five years four months. This motion is based upon IAC counsel, mental competency too much such agreement. I am respectfully requesting new counsel be appointed to review my claims and mental status.^[5]

The court responded that defendant certainly understood what was going on with the court proceedings and that the court had observed no ineffective assistance of counsel. The court said it had held a Marsden hearing the day before and it was going to proceed with the sanity trial.

1. Law

The trial court abuses its discretion when it denies a motion for substitution of counsel without hearing the reasons for the motion. (Marsden, supra, 2 Cal.3d at pp. 123-124.) The court must permit the defendant to explain the basis of his claim that defense counsel is providing inadequate representation and to relate specific instances of counsels inadequate performance. (People v. Memro (1995) 11 Cal.4th 786, 857.) The trial court is unable to intelligently deal with a defendants request for substitution of attorneys unless [it] is cognizant of the grounds which prompted the request. (Marsden, supra, at p. 123.) If a trial court fails to conduct an adequate inquiry, an appellate court may remand the matter for a reopened Marsden hearing. (People v. Minor (1980) 104 Cal.App.3d 194, 199-200; see People v. Olivencia (1988) 204 Cal.App.3d 1391, 1400-1401.) However, there is no need to utilize this procedure if the record shows the Marsden error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Chavez (1980) 26 Cal.3d 334, 348-349 [Marsden does not establish a rule of per se reversible error].)

2. Analysis

Defendants letter complained of ineffective assistance of counsel with regard to his plea and his mental status. It is likely that defendant would have raised many of the same issues he raised in the previous two hearings, but he might also have raised new issues regarding the intervening plea. Assuming the trial courts failure to hold a Marsden hearing was error, we nevertheless conclude the appointment of new counsel and the subsequent hearing on the motion to withdraw the plea and the motion for a new sanity trial rendered the courts error harmless. This hearing gave defendant the opportunity to be heard on any issue not raised in the previous Marsden hearing. Defendant was not prejudiced.

II. Competence Hearing

Defendant asserts that the trial court was required to hold a competence hearing when defense counsel stated he had a doubt regarding defendants competence. Defendant maintains there was substantial evidence that he was incompetent. We disagree.

A. Law

Trial of an incompetent defendant violates the due process clause of the Fourteenth Amendment to the United States Constitution [citation] and article I, section 15 of the California Constitution. Those protections are implemented by statute in California. A criminal defendant is incompetent and may not be tried or adjudged to punishment if as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. [Citation.] (People v. Hayes (1999) 21 Cal.4th 1211, 1281.) Thus, the defendant must have a sufficient present ability to consult with his lawyer with a reasonable degree of rational understandingand a rational as well as [a] factual understanding of the proceedings against him. [Citations.] The focus of the inquiry is the defendants mental capacity to understand the nature and purpose of the proceedings against him or her. [Citations.] The defendants technical legal knowledge is irrelevant. [Citation.] (People v. Blair (2005) 36 Cal.4th 686, 711, italics added.)

Section 1368 mandates a competency hearing if a doubt as to a criminal defendants competence arises during trial. That may occur if counsel informs the court that he or she believes the defendant is incompetent [citation], or [i]f during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant. [Citation.] (People v. Hayes, supra, 21 Cal.4th at p. 1281.) The evidence must indicate that defendant is incapable of comprehending the charges against him and of cooperating with counsel in his defense. [] A defendant is not entitled to a trial on the issue merely upon the statement of defense counsel that he believes the defendant is mentally incompetent. [Citation.] (People v. Dudley (1978) 81 Cal.App.3d 866, 872.) As interpreted by the Supreme Court, once the accused has come forward with substantial evidence of incompetence to stand trial, due process requires that a full competence hearing be held as a matter of right. [Citation.] In that event, the trial judge has no discretion to exercise. [Citation.] (People v. Welch (1999) 20 Cal.4th 701, 738.) Thus, where the substantial evidence test is satisfied and a full competence hearing is required but the trial court fails to hold one, the judgment must be reversed. [Citation.] (Ibid.) On the other hand, when the evidence before the trial court does not amount to substantial evidence, the trial court has no duty to declare a doubt as to a defendants present competence and its decision not to do so is not an abuse of discretion. (Id. at p. 740.)

Substantial evidence is evidence that raises a reasonable doubt about the defendants competence to stand trial. [Citation.] Evidence regarding past events that does no more than form the basis for speculation regarding possible current incompetence is not sufficient. [Citation.] (People v. Hayes, supra, 21 Cal.4th at p. 1281.) More is required than just bizarre actions or statements by the defendant to raise a doubt of competency. [Citation.] In addition, a reviewing court generally gives great deference to a trial courts decision whether to hold a competency hearing. An appellate court is in no position to appraise a defendants conduct in the trial court as indicating insanity, a calculated attempt to feign insanity and delay the proceedings, or sheer temper. [Citation.] (People v. Marshall (1997) 15 Cal.4th 1, 33.)

B. Facts

On July 30, 2008, when defense counsel stated he was beginning to wonder if some section 1368 issues were arising, the court responded, Well [defendant] appears to know whats going on, and counsel agreed, He does. He does.

The same day, when counsel submitted defendants letters to the court, he said he thought defendant was starting to decompensate mentally. The court stated:

I appreciate your concerns, but the mere fact of the letter would indicate to me that he knows whats going on. He now wants to withdraw his plea, and opt out of the plea arrangement. Thats someone who certainly understands whats going on with the court proceedings. [] He knows who his lawyer is. He wants a new lawyer.

Later the same day, the court made this statement on the record:

I want to put an observation on the record only because of [defendants] conduct and, and whats been happening here. [] Im not convinced that [defendants] actions are anything more than an attempt to manipulate the court and the system. I think he is playing up his mental illness capacity or aspect because now were in trial and I see it as my impression is a malingering type situation here to make his appearance or to make his mental illness appear to be much more serious than it really is for purposes of disrupting this proceeding. Thats justIm not a [m]ental [h]ealth expert. Thats just an impression I have at this point. I just want to put that on the record.

C. Analysis

Defendant points to the following as substantial evidence that he was incompetent: his comment that the prosecutor and defense counsel were brothers; defendants decision to appear in jail clothing; defense counsels comment that defendant refused to speak to him and he was starting to wonder if there were some section 1368 issues; defendants comment that Osiris tricks us and the world is doomed; counsels comment that defendant was beginning to decompensate mentally; defendants refusal to speak to counsel; defendants hearing voices; and defendants repeated requests for increased medication. Defendant acknowledges that the trial court believed he was feigning or exaggerating his mental illness, but he contends the court was obligated to suspend proceedings in light of the evidence of incompetence.

We agree that the record contains evidence defendant was making bizarre statements and had sometimes refused to speak to counsel, but this was not enough to constitute substantial evidence of incompetence. It is clear from the record the trial court believed defendant understood what was going on and comprehended the nature and purpose of the proceedings. The record amply supports the trial courts findings. Defendants statements and letters clearly demonstrated he was capable of comprehending the charges against him, understood the proceedings, and was able (when he chose) to cooperate with counsel. Furthermore, the trial court was in the position to observe defendants behavior and determine that he was manipulating the system. The court did not abuse its discretion in refusing to suspend the proceedings under section 1368.

III. Shackling

Defendant argues that the trial court abused its discretion by shackling him during the sanity trial. We see no reversible error.

A. Law

When a defendant is charged with any crime, and particularly if he is accused of a violent crime, his appearance before the jury in shackles is likely to lead the jurors to infer that he is a violent person disposed to commit crimes of the type alleged. (People v.. Duran (1976) 16 Cal.3d 282, 290.) Further, the use of shackles may deter a defendant from taking the stand to testify on his own behalf and may interfere with the clear exercise of his mental faculties. (Id. at pp. 288, 290; People v. Hill (1998) 17 Cal.4th 800, 846.) Accordingly, to avoid these potential impediments to a fair trial, a defendant may not be required to wear physical restraints (even if not visible to the jury) during trial, unless there is a manifest need for such restraints. (People v. Mar (2002) 28 Cal.4th 1201, 1216, 1219.) Such a showing, which must appear as a matter of record [citation], may be satisfied by evidence, for example, that the defendant plans to engage in violent or disruptive behavior in court, or that he plans to escape from the courtroom [citation]. A shackling decision must be based on facts, not mere rumor or innuendo. (People v. Anderson (2001) 25 Cal.4th 543, 595.)

Manifest need may arise from a showing that the defendant might engage in violent, disruptive, or other nonconforming conduct. (People v. Anderson, supra, 25 Cal.4th at p. 595; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1031-1032.) The fact that a defendant is charged with a violent crime does not, without more, justify the use of physical restraints. (People v. Mar, supra, 28 Cal.4th at p. 1218.) Rather, the court must make the decision whether to use physical restraints on a case-by-case basis. (Ibid.) When physical restraints are used, they should be as unobtrusive as possible, although as effective as necessary under the circumstances. (Id. at p. 1217.) The imposition of restraints in the absence of a showing of a threat of violence or other nonconforming conduct constitutes an abuse of discretion. (Id. at p. 1221.)

Error in the use of restraints, however, is harmless if there is no evidence the jury was aware that a defendant was shackled during trial, and no evidence the shackles impaired or prejudiced the defendants right to testify or participate in his or her defense. (People v. Anderson, supra, 25 Cal.4th at p. 596; People v. Tuilaepa (1992) 4 Cal.4th 569, 583-584 [Supreme Court has consistently found any unjustified or unadmonished shackling harmless where there was no evidence it was seen by the jury].) Similarly, a jurys brief observation of physical restraints is generally viewed as nonprejudicial. (People v. Cleveland (2004) 32 Cal.4th 704, 740.) The key concerns are that the defendant not be placed in unjustified restraints visible to the jury for a protracted period during trial, that the defendant not be deterred from taking the stand on his own behalf because of restraints, and that the defendants mental faculties or ability to communicate not be impaired by embarrassing or uncomfortable restraints. (See People v. Cunningham (2001) 25 Cal.4th 926, 988-989; People v. Anderson, supra, at p. 596.)

After the defendants guilt has been determined, shackling is generally considered nonprejudicial. For example, in People v. Medina (1990) 51 Cal.3d 870, 898, the Supreme Court held that the trial courts failure to instruct the jury to disregard the defendants shackles when he testified during the sanity phase of the trial was harmless. [The court] observed that the risk of substantial prejudice to a shackled defendant is diminished once his guilt has been determined. [Citation.] (People v. Slaughter (2002) 27 Cal.4th 1187, 1214.) In Slaughter, the second penalty phase jury knew that defendant already had been found guilty of murdering two individuals during the commission of a robbery. Under any standard, it does not appear that the jurys penalty phase verdict would have been affected even if the jurors had glimpsed a portion of the device or, having heard a sound as defendant walked, concluded that he was wearing a restraint. (Ibid.)

B. Facts

On July 30, 2008, defendant chose to appear at the sanity trial in his jail garb. The court asked the bailiffs, Is there any indication [defendant] might be violent? One answered, I would have to double-check his history, but there is a potential there. The other said, Hes had problems at the jail before, I know that. The court said it intended to place defendant next to defense counsel, who would act as the go-between. The court said it wanted to insure everyones safety in the courtroom. One bailiff said, Im going to have a bailiff directly behind him. The other bailiff added, If anything goes down, everybody needs to move out of the way. The court concluded, Lets bring him out and get him set up and I appreciate, [bailiff], I appreciate your efforts.

The court then addressed defendant:

All right. [Defendant], I intend to tell the jury that you elected to not change into your civilian clothes if thats okay. I mean theyre going to wonder whats going on, so Im going to tell them whats going on. [] [Defendant], my concern is that youre shackled. Id like to be able to take your shackles off of your arms and your hands and thats what Im going to proceed on. However, if I form the opinion that youre not going to behave yourself, that you might become combative, Im going to have you shackled in front of the jury and youre going to sit here in shackles during the trial. I intend to remove the shackles on your arms on the promise that youll behave yourself. Can you do that [defendant]?

Defendant said, Yes, Your Honor. But he added that he thought he should see a doctor because his medications were not working. The court promised to try to get medical personnel to see him again that evening. Defendant nodded in agreement and the court ordered the shackles removed from his arms.

Later, when t