P. v. >Henderson>















Filed 1/2/13 P.
v. Henderson CA2/2

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>NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS

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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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 TWO




>

THE PEOPLE, Plaintiff and Respondent, v. ARZZIE HENDERSON, Defendant and Appellant.

B237632 (Los Angeles County Super. Ct. No. NA089501)

APPEAL
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County. Arthur Jean, Jr., Judge. Affirmed.



James
C. Huber, under appointment by the Court of Appeal, for Defendant and
Appellant.



Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.



_________________________

Arzzie
Henderson, also known as Ozzie Henderson, appeals from the judgment entered
upon his conviction by jury of sale of cocaine base (Health & Saf. Code,
§ 11352).href="#_ftn1"
name="_ftnref1" title="">[1] The trial court found the
allegation that appellant had suffered a prior felony strike within the meaning
of Penal Code sections 1170.2, subdivisions (a) through (d) and 667,
subdivisions (b) through (i) to be true, but dismissed the strike because it
was remote. It sentenced appellant to
state prison for the upper term of five years.
Appellant contends that the trial court erred in denying his >Marsdenhref="#_ftn2" name="_ftnref2" title="">[2] motion, thereby depriving him
of his right to counsel.

We
affirm.

FACTUAL BACKGROUNDhref="#_ftn3" name="_ftnref3" title="">[3]

On June 29, 2011, Long Beach Detective Jason Kirk investigated a possible narcotics
operation in an apartment building on Alamitos Avenue
in Long Beach (the building). He sent Earl
Carter (Carter), a police assistant, to apartment C of the building with $40
and a video recorder. In the building,
Carter encountered James Mitchell (Mitchell) and appellant. He asked Mitchell, with whom he had dealt
before, if he could buy marijuana and rock cocaine. Mitchell pointed to appellant, whom he said
had rock cocaine. Appellant sold Carter
a .28 gram piece of rock cocaine for $20.
The video recording of the transaction was played for the jury.

MARSDEN MOTION

Before
trial, appellant requested a Marsden hearing,
seeking to replace his appointed counsel.
The trial court conducted an in camera
proceeding, with the prosecutor excused.
It asked appellant, “What’s happening?”
Appellant responded: “The problem
I am having, from day one of this case, I feel that there has been a conflict
of interest between me and my attorney.
My attorney has done nothing for me.”
When the court asked appellant what he wanted his attorney to do,
appellant asked the court to “hear me out,” to which the court said,
“okay.” Appellant then continued: “Since I have been coming to court, he has
been my attorney. He has said
nothing. He hasn’t spoken to
me. . . . [H]e filed one motion. The only reason he filed that one motion is
because I asked him.” The trial court
then asked what motion he wanted his attorney to file. Appellant responded: “I am not sure because I didn’t bring the
paperwork with me.”

The trial court
then told appellant that he had a good lawyer who knew what he was doing. It stated:
“This man here is a lawyer. He is
not a magician. But he happens to be a
very fine trial lawyer. I have presided
over two or three trials that he has tried here in the last six or seven
months. He walked one of his clients out
of here not too long ago. He shouldn’t
have, but he did because he is a good lawyer.
He is not a magician. He is going
to do the best he can to defend you.
[¶] In chambers the other day I
said is there any way of disposing of the case with [appellant]. He said absolutely not. He said [appellant] says he is not guilty and
we are ready for trial. So there we have
it. You haven’t told me one thing that
he has failed to do that he should have done.”

Appellant
responded: “The thing that I don’t
understand is like every time I bring something to his attention he shoots me
down. . . . I just feel that he is not working on my
behalf. . . . I feel like he is working with the
prosecutor. He is not working with
me.” For example, appellant explained
that he had informed counsel that people in the building could verify that he
did not sell drugs. The trial court explained
that their testimonies would be inadmissible because they were not present at
the time of the drug sale. The trial
court explained that the prosecutors and defense counsel maintain good
relationships, but that defense counsel would do his best to win the case. Appellant said that he understood.

Appellant
claimed that defense counsel had
refused to show him the video recording of appellant selling narcotics, which
the prosecution intended to use at trial.
Defense counsel explained: “I
called [appellant] yesterday at the number he left because I told him I was
going to be receiving a tape of the transaction. I called that number, left a message. I called it back several times because I
thought it was important for him to see the video before coming to court
today. This morning he just wanted to
tell me about how I wasn’t on his side.
And he proceeded to simply argue with me. We had this discussion about these witnesses
who would come in and say he is not a drug dealer. I have explained to him it was not going to
be admissible unless they were present during this alleged transaction and can
say no, he is not the person who did it.”
Appellant then told his attorney that he was “going to take this up with
the judge because you are not representing my best interest. There was no point then to let him see any
tape because he himself said I don’t care what it shows. I want a trial.”

The
trial court then denied the Marsden motion,
stating: “So your request under >Marsden for another lawyer is
denied. And I suggest that you [report]
to his office as quickly as you can and you take a look at what’s on that
video. It may help you make a decision
about your future. But don’t go into
this blind. Do not go into this blind.”

After
the ruling, defense counsel explained to the trial court that what precipitated
appellant’s belief that defense counsel was not advocating on his behalf was
that the prosecutor had made a generous offer to settle the case, instead of 10
years in state prison appellant would get half that time in county jail, and
defense counsel encouraged him to take it.
The trial court suggested that appellant talk to defense counsel and
make a decision on whether to enter a plea and that he needed to look at the
video recording in order to make an appropriate decision.

DISCUSSION

I. Contention

Appellant’s
sole contention is that the trial court erred in denying his >Marsden motion, thereby depriving him of
his right to counsel. He argues that he made a timely motion, the court’s
inquiry into appellant’s complaint was inadequate “because the court discounted
appellant’s statements regarding his attorney based on [the court’s] experience
with defense counsel on other cases and not the case at hand,” and the conflict between appellant and his
counsel resulted in a complete breakdown in communication. This contention is without merit.

II. Standard of review

We review a
trial court’s denial of a Marsden motion
for an abuse of discretion. (>People v. Cole (2004) 33 Cal.4th 1158,
1190.) A denial of a motion to
substitute appointed counsel is not an abuse of discretion unless “‘the
defendant has shown that a failure to replace the appointed attorney would
“substantially impair” the defendant’s right to assistance of counsel.’” (People
v. Hart (1999) 20 Cal.4th 546, 603; People
v. Valdez (2004) 32 Cal.4th 73, 95 (Valdez).)


III. Marsden
requirements

“A criminal
defendant’s appointed attorney should be the embodiment of the defendant’s
Sixth Amendment right to the effective assistance of counsel.” (People
v. Vera (2004) 122 Cal.App.4th 970, 978–979.) Consequently, “‘“‘[a] defendant is entitled
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 [citations].’”’” (People
v. Barnett (1998) 17 Cal.4th 1044, 1085; People v. Welch (1999) 20 Cal.4th 701, 728.) “In seeking discharge of a court appointed
attorney the defendant must show more than the fact the attorney made a
mistake, he must show lack of competence.”
(People v. Lee (2002) 95
Cal.App.4th 772, 779.)

There
are various procedural requirements to ensure that a defendant’s concern
regarding the quality of his appointed counsel’s representation is
addressed. The trial court is required
to hold a hearing on a defendant’s request to discharge appointed counsel. (See People
v. Hill (1983) 148 Cal.App.3d 744, 753.)
“‘“When a defendant seeks to discharge his appointed counsel and
substitute another attorney, and asserts inadequate representation, the trial
court must permit the defendant to explain the basis of his contention and to
relate specific instances of the attorney’s inadequate performance. [Citation.]”’” (People
v. Roldan (2005) 35 Cal.4th 646, 681, disapproved on other grounds in >People v. Doolin (2009) 45 Cal.4th 390,
421, fn. 22; Valdez, supra, 32
Cal.4th at p. 95.) This is because “[a]
trial judge is unable to intelligently deal with a defendant’s request for
substitution of attorneys unless he is cognizant of the grounds which prompted
the request. The defendant may have
knowledge of conduct and events relevant to the diligence and competence of his
attorney which are not apparent to the trial judge from observations within the
four corners of the courtroom. . . . A judicial decision made without giving a
party an opportunity to present argument or evidence in support of his contention
‘is lacking in all the attributes of a judicial determination.”’ (Marsden,
supra, 2 Cal.3d at pp. 123–124.)
After the hearing, “the decision whether to permit a defendant to
discharge his appointed counsel and substitute another attorney during the trial
is within the discretion of the trial court, and a defendant has no absolute
right to more than one appointed attorney.”
(Marsden, supra, 2 Cal.3d at
p. 123.)

In determining
whether a trial court properly exercised its discretion in denying a >Marsden motion, the reviewing court
should consider the circumstances of the particular case (People v. Panah (2005) 35 Cal.4th 395, 426), including (1) the
timeliness of the motion, (2) the adequacy of the court’s inquiry into the
defendant’s complaint, and (3) whether the conflict between the defendant
and counsel was so great that it resulted in a total lack of communication
preventing an adequate defense. (>People v. Smith (2003) 30 Cal.4th 581,
606–607.) The “defendant bears a very
heavy burden to prevail on [a Marsden]
motion.” (People v. Bills (1995) 38 Cal.App.4th 953, 961.)

IV. Adequacy of the hearing>

Here,
the trial court accorded appellant an adequate Marsden hearing. In order
for a defendant to be frank as to his complaints against his counsel, without
risking revelation of information that may benefit the prosecution, an in
camera hearing is required. (See >People v. Dennis (1986) 177 Cal.App.3d
863, 871 [‘“the better practice [in a Marsden
hearing] is to exclude the district attorney”’].) Appellant received the required in camera
hearing.

The
hearing began by the trial court asking appellant an open-ended question as to
what his reasons were for asking for a new attorney. At no time during the hearing did the trial
court limit appellant’s responses or prevent him from fully explaining his
concerns. Appellant disclosed nothing at
the hearing reflecting that his counsel was incompetent. The trial court obtained an explanation from
defense counsel to the two specific claims made by appellant (failure to
contact residents of the building who would say that appellant did not sell
drugs and the purported refusal to allow appellant to view the video recording
of the drug transaction). A careful
review of the transcript from the in camera hearing convinces us that appellant
was given a full and fair opportunity to express his concerns about his
attorney.

V. Appellant fails to meet his burden of showing
incompetence or conflict

In the course of
the in camera hearing, appellant articulated several concerns he had with the
representation he was receiving by his appointed counsel, including that his
attorney (1) had not spoken to him, (2) had failed to file any motions, (3) had
not followed up with people in appellant’s building who appellant said could
verify that he did not sell drugs, (4) “is not working on my behalf,” (5)
shoots appellant down every time appellant brings something to his attention,
(6) is working with the prosecutor, and (7) would not let appellant see the
video recording of the rock cocaine purchase.

None of these
reasons satisfied appellant’s heavy burden (People
v. Bills, supra, 38 Cal.App.4th at p. 961) and justified replacing
appointed counsel. They do not reflect
incompetence by counsel nor did they “‘substantially impair[]’” appellant’s
right to counsel. (Valdez, supra, 32 Cal.4th at p. 95.) Consequently, the trial court did not abuse
its discretion in denying defendant’s Marsden
motion.

Some
of appellant’s reasons for seeking new counsel simply reflect general unhappiness
with his counsel that do not bear on the adequacy of the representation. For example, appellant, only in general
terms, claimed that counsel did not speak with him, was not working on his
behalf, and “shot down” appellant each time appellant brought something to his
attention. Appellant failed to provide
concrete examples of these claims. To the extent
these claims reflect that appellant felt that he and his case were not getting
sufficient attention by his attorney, they are unsupported by any specification
of how much time counsel had spent on the case or what more he could have done
on it. “‘[T]he number of times one sees
his attorney, and the way in which one relates with his attorney, does not
sufficiently establish incompetence’” (People
v. Cole, supra, 33 Cal.4th at p. 1192) or a conflict of interest.

With regard
to appellant’s claim that his attorney failed to make all but one motion, the
trial court asked what motion did counsel not make. Appellant was unable to indicate any.

Appellant
claimed that his attorney was not working on his behalf but was working with
the prosecutor. The trial court
correctly pointed out that cooperation between counsel did not mean that
appellant’s counsel was not protecting his interests. Defense counsel also indicated that the
genesis of these complaints was that he encouraged appellant to accept a
generous offer made by the prosecutor.
This of course is within his obligation to his client if counsel
believed that the offer was beneficial.

With regard
to appellant’s claim that his counsel did not follow up with witnesses in his
building who knew that he did not sell drugs, both the trial court and defense
counsel indicated their belief that such evidence would have been inadmissible
because those witnesses did not witness the charged transaction.

Finally,
defense counsel explained that the reason that appellant did not have an
opportunity to see the video recording was because he had just received it and
calls to appellant to let him know about it were not returned.

Neither
defendant’s growing dissatisfaction with his attorney over matters that do not
establish a lack of competence or conflict of interest nor his expression in
court of that dissatisfaction can justify replacing appointed counsel. Were that the case, a defendant could ensure
the granting of a Marsden motion for
virtually any reason, simply by claiming hostility between the defendant and
his counsel created by the defendant’s expression of dissatisfaction. We conclude that none of the claims raised by
appellant rise to the dignity of requiring new appointed counsel. The trial court therefore did not abuse its
discretion in denying appellant’s Marsden
motion.

DISPOSITION

The
judgment is affirmed.

NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.









______________________________,
J.

ASHMANN-GERST





We concur:







_______________________________,
Acting P. J.

DOI
TODD







_______________________________,
J.

CHAVEZ