P. v. Rubbock























Filed 2/25/13 P. v. Rubbock CA2/5

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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




>

THE PEOPLE, Plaintiff and Respondent, v. ROBERT RUBBOCK, Defendant and Appellant.

B236478 (Los Angeles County Super. Ct. No. BA379265)

APPEAL from
a judgment of the Superior Court of the County
of Los
Angeles, George G. Lomeli, Judge. Affirmed.


Russell S.
Babcock, 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, Senior Assistant Attorney General, Taylor Nguyen and Esther
P. Kim, Deputy Attorneys General, for Plaintiff and Respondent.





>INTRODUCTION

Defendant
and appellant Robert Rubbock (defendant) was convicted of href="http://www.fearnotlaw.com/">counterfeit seal (Pen. Code, § 472href="#_ftn1" name="_ftnref1" title="">[1]). On appeal, defendant contends, without
argument, that the trial court erred in denying his motion made pursuant to >Pitchess v. Superior Court (1974) 11
Cal.3d 531 (Pitchess), but because
the reporter’s transcript of the hearing on the motion is “unavailable,” we
should reverse his judgment of conviction.
Defendant also contends that the trial court erred in revoking his pro.
per. status, denying four of his motions made pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), and denying his numerous other requests for >Marsden hearings. We affirm the judgment.



BACKGROUND



A.
Factual
Backgroundhref="#_ftn2" name="_ftnref2" title="">[2]

Los Angeles Police Department officer
Dennis Diviak testified that on December
16, 2010, while on patrol, he and his partner responded to a
dispatch radio call that a male wearing a baseball cap was driving a red Dodge
Charger while intoxicated. The officers
saw a red Dodge Charger in a motel parking lot with the engine and brake lights
on, and when they approached the vehicle they saw defendant in the driver’s
seat. Officer Diviak believed defendant
to be intoxicated. Defendant was
agitated.

Officer
Diviak testified that he noticed that defendant’s left hand was down by his legs,
clutching an object. Defendant refused
several orders by Officer Diviak to place both hands on the steering wheel. and
defendant reached deeper between his legs with his left hand. Fearing that defendant was reaching for a
weapon, Officer Diviak stepped back, withdrew his service revolver, and ordered
defendant to show his hands. Defendant
eventually brought out his hands, and in his left hand he was holding a pipe
that Officer Diviak testified he believed was used to ingest rock cocaine. Officer Diviak ordered defendant out of the
vehicle and handcuffed him.

Officer
Diviak testified that defendant told him and his partner that defendant’s
friend, John Flood, rented the vehicle and loaned him the vehicle to
drive. The officers conducted a search
of the vehicle and found several open bottles of beer, an empty vodka bottle,
and a coffee cup that appeared to contain beer.

Officer
Diviak testified that when defendant was being transported to the police
station, he continued to be agitated—he was screaming, cursing, and spitting
during the ride. A booking search of
defendant revealed a Bank of America debit card in the name of John Flood, a
master card in the name of John Flood, and two driver’s licenses issued by the
State of North Carolina to
Lawrence Davis and John Flood. Both
licenses had defendant’s photographs on them.
Officer Diviak found this to be unusual because defendant previously
told him that Flood was his friend, and that Flood had rented the vehicle and
defendant was borrowing it.

Ladylyn
Cordero testified that she worked at Dollar Rent-A-Car, and on December 14, 2010, she executed a
vehicle rental agreement for the
rental of a Dodge Charger. When
processing the transaction, she noticed that the renter’s driver’s license did
not have a visible seal, so she took the license to her manager. She obtained approval from her manager before
completing the rental agreement.

Samuel
Joseph Brandon testified that he worked at the North Carolina Department of
Motor Vehicles as supervisor for the Certification Driver’s License Help
Desk. He examined the two driver’s
licenses obtained from the search of defendant’s person, and determined that
they were not issued by the North Carolina Department of Motor Vehicles and the
seals on the licenses were counterfeit.



B.
Procedural
Background

The District Attorney of Los
Angeles County filed an information charging defendant with two counts of
counterfeit seal in violation of section 472.
The District Attorney alleged as to both counts that defendant had
served seven prior prison terms for convictions as defined by section 667.5,
subdivision (b).

Following a trial, the jury found
defendant not guilty as to count 1 but found him guilty as charged in count
2. The trial court found the special
allegations were true, and sentenced defendant to href="http://www.fearnotlaw.com/">state prison for a term of five
years.



DISCUSSION



A. Pitchess Motion

On June 3, 2011, the trial court
denied defendant’s motion made pursuant to Pitchess
v. Superior Court, supra, 11
Cal.3d 531. Defendant contends that the
trial court erred in denying the motion, but he does not provide any argument
or citation to the record in support of that contention. Instead, defendant contends that, despite his
numerous unsuccessful requests of the trial court to provide in the record the
reporter’s transcript of the June 3, 2011, hearing at which the trial court
denied defendant’s motion, the record that the trial court provided is inadequate
for us to determine whether the trial court erred in denying the motion. According to defendant, because the
reporter’s transcript of the hearing on the motion is “unavailable,” we should
reverse, “per se,” his judgment of conviction.


On April 12, 2012, we ordered that the record be augmented with the June
3, 2011, reporter’s transcript. On April
24, 2012, after defendant filed his opening brief and, before he filed his
reply brief, the record was so augmented.
Although defendant concedes in the reply brief that the record was
augmented to include the June 3, 2011, reporter’s transcript, he again did not
provide any argument or citation to the record in support of his contention
that the trial court erred in denying the motion. And, as the Attorney General
contends, although the record was augmented to include the reporter’s
transcript, it was part of the original record.

We therefore reject defendant’s
contention that we should reverse his judgment of conviction because the record
is inadequate. We also do not address
defendant’s contention that the court erred in denying his Pitchess motion because defendant did not provide any argument or
citation to the record in support of that contention. (Duarte
v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)



B. Revocation of Pro. Per.
Status

Defendant contends that the record
it provided is inadequate for us to determine whether the trial court erred in
revoking his pro. per. status, and that in any event, the trial court erred in
doing so. We disagree.



1. Standard
of Review

We review
the revocation of a defendant’s pro. per. status for abuse of discretion. (>People v. Welch (1999) 20 Cal.4th 701,
735 [“The trial court possesses much discretion when it comes to terminating a
defendant’s right to self-representation
and the exercise of that discretion ‘will not be disturbed in the absence of a
strong showing of clear abuse’”].)



>2. Applicable
Law

A criminal
defendant has a right to represent himself or herself at trial under the Sixth
and Fourteenth Amendments to the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">United
States Constitution. (>Faretta v. California (1975) 422 U.S.
806, 835-836; People v. Marshall
(1997) 15 Cal.4th 1, 20.) A trial court
must allow a defendant to represent himself if he knowingly and intelligently
makes an unequivocal and timely request.
(Faretta v. California, >supra, 422 U.S. at pp. 835-836; >People v. Valdez (2004) 32 Cal.4th 73,
97-98.) Once granted, however, “‘[t]he
right of self-representation is not a license to abuse the dignity of the
courtroom. Neither is it a license not
to comply with relevant rules of procedural and substantive law.’”
(People v. Carson (2005) 35
Cal.4th 1, 8, quoting Faretta v.
California, supra, 422 U.S. at p.
834, fn. 46.) As recognized by the court
in People v. Butler (2009) 47 Cal.4th
814, 825, “[t]here are limits on the right to act as one's own attorney.” A defendant who represents himself must be
“‘able and willing to abide by rules of procedure and courtroom protocol.’ [Citation.]
This rule is obviously critical to the viable functioning of the
courtroom. A constantly disruptive
defendant who represents himself, and who therefore cannot be removed from the
trial proceedings as a sanction against disruption, would have the capacity to
bring his trial to a standstill.” (>People v. Welch, supra, 20 Cal.4th at p. 734.)

When
determining whether termination is appropriate, the trial court should consider
factors such as the nature of the misconduct, its impact on the trial
proceedings, the availability and suitability of other sanctions, whether the
defendant was warned that particular misconduct would result in termination,
and whether the defendant intentionally sought to disrupt and delay the
trial. (People v. Carson, supra,
35 Cal.4th at p. 10.) The defendant’s
intent to disrupt is not a “necessary condition,” but is relevant to the effect
of the misconduct on the trial proceedings.
(Ibid.) “Each case must be evaluated in its own
context, on its own facts . . . .” (>Ibid.)



3. Background Facts

At a hearing held on June 3, 2011,href="#_ftn3" name="_ftnref3" title="">[3] to address a >Pitchess motion filed by defendant, the
trial court struck defendant’s challenge seeking that the trial judge, Judge
Judith L. Champagne, recuse herself, as being without basis. The trial court described defendant’s
challenge as having been filed “under something called Rule 7.5(b) in which
[defendant is] complaining that the case was assigned here after [defendant]
filed an affidavit elsewhere without [his] having an opportunity to object.”

At the
hearing, defendant again stated that he objected to his being “in this
courtroom” because he was not permitted to object before his case was
reassigned to Judge Champagne. The trial
court again stated that it was striking defendant’s challenge because the
reason for his objection to being “in this courtroom” was not a valid basis to
grant the requested relief, and it reminded defendant that “[w]e have moved on
to the next issue, which is our Pitchess
motion, which I would like to address if we may.”

Defendant
objected to his being handcuffed because it caused him to have “difficulties
going through [his] paperwork” in arguing why the trial court should grant his >Pitchess motion. The trial court responded that defendant can
take as much time as he needed to prepare to argue the motion.

Defendant
continued to object to his being handcuffed, and the following exchange then
occurred: “[Trial court:] [Defendant], I want you to just get yourself
ready [to argue the Pitchess
motion]. No talking. Just get yourself ready and then let me know
when you are.” [¶] [Defendant:]
Okay, Your Honor, but— [¶] [Trial court:] [Defendant], what part of this do you not
understand? You told me that you need
the court to be patient while you get yourself organized. I am happy to do that. At the same time, you want to address other
matters and you are not getting ready.
[¶] Either I am going to take the
matter off calendar and I am going to excuse the attorney for the City
Attorney’s Office, or you are going to get yourself ready so we can
proceed. [¶] [Defendant:]
Your Honor, may I ask to have the bailiff—these are legal
documents. The court’s bailiff is
standing right over me perusing my legal documents, Your Honor. [¶]
[Trial court:] The bailiff is
standing several feet behind you because that is his job, to maintain security
in the courtroom. [¶] [Defendant:]
Your Honor, the bailiff— [¶] [Trial court:] I am not going to debate— [¶]
[Defendant:] The bailiff is about
one feet— [¶] [Trial court:] Are you ready for the motion? [¶]
[Defendant:] Your Honor. I am going to request the court docket for
the order. It is definitely going to be
necessary for me to get an investigator to get some of these people I need in
the courtroom today, Your Honor— [¶] . . . [¶] There is a matter I need to bring to the
court’s attention. [Mr. Freedman
(defendant’s investigator)] informed me he tried to see me this past week and
the Sheriff’s denied him the opportunity to see me and provide him with
information pertaining to the status of an investigation I requested him to
conduct. [¶] I am in here, Your Honor, the bailiff
standing over me is about a foot away from you—
[¶] [Trial court:] Actually, he is several feet behind you and he is doing his job. He is not looking at your
papers. . . . [¶] . . .
[¶] [Defendant:] I need to get my copy of the seven— [¶]
[Trial court:] If you are not
ready to go forward today then mention it.
[¶] [Defendant:] Your Honor, I am ready to go forward. When I first came in here, Your Honor, I
informed you, you told me to let you know the things that I need. I came here the other day, Your Honor, and
filed the document which you just addressed and said you would deny it on the
face of it, but I don’t have my copy. [¶] There are
several copies in limbo that I don’t have, Your Honor. [¶]
[Trial court:] What if we do the >Pitchess motion and then we will give
you a date to come back and resolve the other matters you are not ready to have
the court hear today. [¶] [Defendant:]
Your Honor, I am ready to have the court hear all these matters. The Pitchess
and every other matter—”

In response
to the trial court’s inquiry, defendant confirmed that he said that Mr.
Freedman, defendant’s court-appointed
investigator, was not able to see him and give him the information he
needed. Defendant then stated, “That is
cruel and unusual punishment. For me to
be in the Sheriff’s custody is denying me legal visits and access to
information. [¶] . . . [¶] [Defendant’s contention that he should not be
precluded from being provided the addresses of the witnesses he intends to call
to testify at trial] is one of the reasons I am objecting to be[ing] in this
courtroom. I need to reinsert my
objection. I understand you don’t care
about pro. pers. You violate their
rights. There are a lot of things I
never knew about before I was brought to this courtroom. [¶]
Once I realized and did my research and it is obvious everything I heard
is true. You have me handcuffed
here. You are trying to get me to move
forward. I filed a document with Your
Honor. I need my conform[ed] copy. [¶] . . . [¶] Mr. Freedman is here to attest he tried to
bring me the documents. I don’t know why
they didn’t allow him to pursue the documents.”

The trial
court inquired of Mr. Freedman, defendant’s investigator: “Was there some
problem after the court appointed you?”
Mr. Freedman responded, “No. What
I told the defendant is per the Sheriff’s policy I cannot pass [on to him] any
reports with witnesses’ addresses.” Mr.
Freedman provided the trial court with his report with the witnesses address
information redacted. Defendant objected
to his receiving a redacted copy of the investigator’s report, and the
following exchange occurred: “[Trial
court:] “That will have to be the
subject of another— [¶]
[Defendant:] Then that motion is
going to come. Let my objection be
reflected on the record. [¶] [Trial court:] [Defendant, defendant,] we are going to do
the Pitchess. You said you were ready. The attorney for the other side is here. After we have handle[d] that then we can
decide when we will do the rest.
[¶] Right now we are doing the >Pitchess motion. I have given you a chance to be heard beyond
what you have already stated in your moving papers.”

The trial
court stated that it was going to excuse Mr. Freedman, defendant’s
investigator, and the following exchange occurred: “[Defendant:]
Your Honor, Your Honor, before we excuse Mr. Freedman, I also need to
reassert my objection to the fact that Mr. Freedman actually discussed my
witness information with the Sheriff. . . . [¶]
[Trial court:] [Defendant], that
will have to be the subject of a different matter.”

In response
to Mr. Freedman’s inquiry, the trial court stated that it believed that if
defendant’s Pitchess motion was
granted and information was ordered to be produced, that information would be
produced to him because he is the one who is going to have to serve subpoenas
on the witnesses to testify. The
following exchange then occurred:
“[Defendant:] Your Honor, Your
Honor— [¶] [Trial court:] That remains for another— [¶]
[Defendant:] Your Honor,
objection. Let me object on the
record. [¶] [Trial court:] [Defendant]—
[¶] [Defendant:] Your Honor—
[¶] [Trial court:] I think you are having some difficulty
representing yourself. If you can’t
follow the court’s instructions and directions, then you can’t represent
yourself. It is not an absolute
right. You are only allowed to represent
yourself when you can do so following the court’s instructions, not
interrupting, not making it impossible for the case to be
heard. . . . [¶] [Defendant:]
Is the court saying that I can’t make timely objections to the court’s
decision pertaining to representing myself?
[¶] [Trial court:] What I am saying right now we are talking
about a Pitchess motion. [¶]
[Defendant:] So I cannot— [¶]
[Trial court:] Right now we are
talking about a Pitchess motion. [¶]
[Defendant:] Okay. [¶]
[Trial court:] This is your
opportunity to be heard on the Pitchess
motion. [¶] . . .
[¶] [Defendant:] I forwarded [the information received in
response to a prior Pitchess motion]
to Mr. Freedman. Apparently Mr. Freedman
is on a misguided assumption or presumption that he is suppose to take over my
defense witness information. I am
suppose to assign him to whoever I choose . . . among [the witnesses on] the
defense witness list . . . .
It is not the other way around. . . . . [¶] . . . [¶] [Trial court:] [Defendant], I am concerned because before
you filed your challenge in the other court, you had two investigators at your
own request. Mr. Stewart, was appointed
in January. By February you asked the
court to relieve him and appoint Mr. Beronni.
Mr. Berroni was appointed in February.
By March you no longer wanted him.
[¶] At your request the court
relieved him. You asked this court to
appoint Mr. Freedman. The court appointed
Mr. Freedman. You are now on your third
investigator since January. You are
again expressing dissatisfaction with his work.
[¶] This is becoming a pattern.”
Defendant responded by stating that “[i]t is a pattern with the investigators
doing things that are contrary to law.”

The trial
court advised defendant to think about whether he wants Mr. Freedman or no
investigator at all. The trial court
then stated, “I am not going to rule on that today. We are going to do the Pitchess motion. If you are
ready we are going to proceed. If not we
are going to take it off calendar today.
[¶] [Defendant:] Your Honor, I am ready, Your Honor. Just to state this. The court needs to admonish the
investigators, You Honor. The court has
the authority to do so. The court has
the disciplinary responsibility—
[¶] [Trial court:] I am only going to tell you one more
time. We are going to do the >Pitchess motion. I don’t want to talk about the shortcomings
of the court investigators or any other subject. We are going to do the Pitchess motion.”

The trial court heard argument by defendant
and the prosecutor regarding defendant’s Pitchess
motion. Defendant argued, inter alia,
that “they want to keep me in jail subjected to this type of prosecution that I
am undergoing, having to defend myself in handcuffs with a bailiff standing
behind me overlooking my paperwork . . . .” The trial court advised defendant, “You are
getting out of the range of the Pitchess. If you could try to stay focused on the >Pitchess motion, I will give you another
couple of minutes to conclude.”
Defendant continued his argument stating, inter alia, that, “I see [that
the Sheriff’s Department destroys video tapes showing their excessive use of
force] because the court supports them.”
Ultimately, the trial court denied the Pitchess motion.

The trial
court informed defendant that a hearing on his motion to suppress was scheduled
for June 17, 2011. Defendant stated that
he anticipated that he would not be ready to have his motion heard by that
date, and admitted that he did not have a written motion to continue the
hearing. The trial court stated that the
hearing will be on June 17, 2011, as originally calendared, and that the matter
will be taken off calendar if the parties were not ready to proceed. The following exchange occurred: “[Defendant:]
Your Honor, for the record— [¶] [Trial court:] For the moment we are finished. [¶]
[Defendant:] Your Honor, I don’t
have a copy of the motion. You told me
to bring a list. Everytime I come in
here—now I have two deputies advancing on me, Your Honor— [¶]
[Trial court:] Actually, they are
standing completely still. They are
present because it is time for you to go with the deputies. [¶]
[Defendant:] Your Honor, I am not
going to get a copy of my motion that I filed in the past? I don’t have anything on the record for
everything that I have done in my case.
This has been going on for the past two months. [¶]
[Trial court:] I have only known
you for a couple of weeks, sir. I can’t
speak to matters that occurred months ago.
We have the allotted time allowed, utilized the allotted time for
today. We have gone on at length. Go with my deputies. [¶]
[Defendant:] Your Honor, I am
going to leave, but I am going to—
[¶] [Trial court:] “At this point the court finds you are not
capable of following the court’s orders and instructions, and I am going to
revoke your pro per status and ask that your stand by counsel take over.” The trial court appointed counsel to
represent defendant.



>4. Analysis

Defendant
contends that the trial court erred in revoking his pro. per. status. As he did with regard to his contention that
the trial court erred in denying his Pitchess
motion, defendant contends in his opening brief that we should reverse his
judgment of conviction, “per se,” because despite his repeated requests, the
record that the trial court provided did not contain the reporter’s transcript
of the June 3, 2011, hearing at which the trial court revoked his pro. per.
status. But, as noted above, the June 3,
2011, transcript was part of the original record.

In addition, the trial court did
not abuse its discretion in revoking defendant’s pro. per. status. The trial court could reasonably conclude
that defendant failed to follow its repeated instructions to focus on and
present oral argument in support of the Pitchess
motion. Despite the trial court having
denied defendant’s challenge to the matter being assigned to Judge Champagne,
defendant thereafter continued to object to that assignment. Although the trial court ruled that defendant
was to remain handcuffed during the hearing, defendant thereafter repeatedly
objected to his being handcuffed. Instead
of arguing the merits of his Pitchess
motion, defendant repeatedly objected to the proximity of the bailiff to him,
accused the trial court that it did not “care about pro. pers.” and that it
“violate[s] their rights,” contended that the Sheriff’s Department denied him
access to information for which he was entitled (contradicted by Mr. Freedman,
defendant’s own investigator), and accused his third court-appointed
investigator of improper conduct.
Defendant also failed to follow the trial court’s instructions at the
conclusion of the hearing to leave with the deputies.

Under these
circumstances, the trial court could reasonably conclude that defendant
“‘deliberately engage[d] in serious and obstructionist misconduct.’ ([People
v.] Faretta, supra, 422 U.S.
at pp. 834-835, fn. 46 [95 S.Ct. at p. 2541.)”
(People v. Welch, >supra, 20 Cal.4th at p. 734.) The trial court is in the best position to
determine whether a defendant should be granted in propria persona status or
allowed to continue acting in propria persona (People v. Welch, supra,
at p. 735), and we recognize that “the extent of a defendant’s disruptive
behavior may not be fully evident from the cold record.” (Ibid.)

The trial
court reasonably could conclude that defendant frustrated the trial court’s
efficiency and abused the dignity of the courtroom. The trial court had sufficient justification
for determining that just as certain conduct would not be tolerated from a
member of the bar, it need not be tolerated from a lay person acting in propria
persona. (People v. Carson, supra,
35 Cal.4th at p. 9 [“‘A defendant acting as his own attorney has no greater
privileges than any member of the bar’”].)
In view of defendant’s conduct, it cannot be said that the trial court
abused its discretion in terminating defendant’s in propria persona
status. (Faretta v. California, supra,
422 U.S. at pp. 834-835, fn. 46; People
v. Welch, supra, 20 Cal.4th at p.
735; see People v. Clark (1992) 3
Cal.4th 41, 116.)



C. Denial of >Marsden Motions

Defendant contends that the trial
court abused its discretion in denying his four motions made pursuant to >People v. Marsden, supra, 2 Cal.3d 118. We
disagree, but even if the trial court erred, the error was harmless.



1. Standard
of Review

“We review
the denial of a Marsden motion for
abuse of discretion. (>People v. Barnett (1998) 17 Cal.4th
1044, 1085 [74 Cal.Rptr.2d 121, 954 P.2d 384].)
Denial is not an abuse of discretion ‘unless the defendant has shown
that a failure to replace counsel would substantially impair the defendant’s
right to assistance of counsel.’ (>People v. Smith [(2003)] 30 Cal.4th
[581,] 604.)” (People v. Taylor (2010) 48 Cal.4th 574, 599.) We review the trial court’s erroneous denial
for prejudice under the Chapman
standard. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman); People v. Marsden,
supra, 2 Cal.3d at p. 126.)



>2. Applicable
Law

A defendant
who believes that his appointed counsel is providing ineffective assistance may
seek to have that counsel relieved and substitute counsel appointed through
“what is commonly called a Marsden
motion.” (People v. Smith, supra,
30 Cal.4th at p. 604.) “A defendant must
make a sufficient showing that denial of substitution would substantially
impair his constitutional right to the assistance of counsel (>People v. Smith (1985) 38 Cal.3d 945,
956 [216 Cal.Rptr. 98, 702 P.2d 180]), whether because of his attorney’s
incompetence or lack of diligence (In re
Banks (1971) 4 Cal.3d 337, 342 [93 Cal.Rptr. 591, 482 P.2d 215]; >People v. Crandell (1988) 46 Cal.3d 833,
854 [251 Cal.Rptr. 227, 760 P.2d 423]), or because of an irreconcilable
conflict (People v. Stankewitz (1982)
32 Cal.3d 80, 93-94 [184 Cal.Rptr. 611, 648 P.2d 578, 23 A.L.R.4th 476]; >Brown v. Craven (9th Cir. 1970) 424 F.2d
1166, 1170). We require such proof
because a defendant’s right to appointed counsel does not include the right to
demand appointment of more than one counsel, and because the matter is
generally within the discretion of the trial court. (People
v. Marsden, supra, 2 Cal.3d at p.
123.)” (People v. Ortiz (1990) 51 Cal.3d 975, 980, fn.1.) “We do not find Marsden error where complaints of counsel’s inadequacy involve
tactical disagreements.
[Citations.]” (>People v. Dickey (2005) 35 Cal.4th 884,
922.)



3. Background Facts

On June 3,
2011, the trial court revoked defendant’s pro. per. status and appointed
Elliott Tiomkin as defendant’s counsel.



a. First Marsden Hearing

On August
11, 2011, defendant requested a Marsden
hearing. The trial court addressed
defendant’s motion outside the presence of the prosecutor (first >Marsden hearing). Defendant contended that Mr. Tiomkin was not
properly representing him. Defendant
stated, inter alia, that Mr. Tiomkin had not visited or contacted him, had not
discussed the case with him, failed to communicate with the trial court and the
Commission on Judicial Performance about defendant’s complaint against Judge
Champagne, provide defendant with the minute orders of the proceedings,
acknowledge defendant’s concerns about being handcuffed in the courtroom and
the hostile treatment he received in the courtroom, acknowledge the verbal and
physical abuse that defendant encountered in court “lockup,” provide documents
requested by defendant, and discuss with defendant how he intended to represent
him and whether he investigated potential witnesses.

In
response, Mr. Tiomkin stated, “I was appointed on June 3rd. At that point, I received discovery from the
People. Defendant wouldn’t provide me
with any discovery that he had up to that point. I went ahead and spoke with the investigator
in this case, Robert Freedman. Mr.
Freedman advised me that he had located one Pitchess
witness. She was in North Carolina
and was not willing to come to this court.
And to date, I have—Mr. Freedman has not located any other >Pitchess witness. [¶]
With respect to—I reviewed the discovery. I spoke with the D.A. in this matter,
requested additional documents that were contained in her file, namely dispatch
in CLETS, CLETS, logs, and tapes, as well as some surveillance videos
pertaining to the defendant’s arrest recordings. And the D.A. indicated that she would provide
that information to me. I have not yet
received—I reviewed the paper material.
I have not yet received the electronic versions. And this morning I was prepared to run a
1538.5 motion on defendant’s behalf. I
didn’t file the motion, he filed the motion; however, in reviewing the
discovery, it’s evident to me there is a 1538.5 issue. I learned this morning that the witness that
the defendant was referring to was brought in from state prison, and I have not
yet had the opportunity to speak to that witness because the witness was in
state prison until today. But it’s my
intention to speak to the witness and give the D.A., at her request, indicated
testimony that would be able to be rebuttal testimony after the officer
testified. [¶] As far as speaking with the defendant, I’ve
spoken to the defendant numerous times when he was pro per. On June 3rd after the defendant’s pro per
status was revoked by Judge Champagne, I attempted to speak to the defendant
concerning my representation, and the defendant indicated he did not accept me
as his attorney. He believed he was
still pro per. And he was rightfully
entitled to be pro per. He refused to
cooperate in my representation of the defendant, refused to give me any sort of
facts, discuss strategy, discuss the case at all. The only thing that the defendant told me was
that he requested a list of documents from the court. Those documents pertained to two issues: Issue number one, he wanted to writ the issue
of being denied pro per. status. Issue
two, he filed a complaint against Judge Champagne with the Committee on
Judicial Performance. He had a letter
from the Committee on Judicial Performance with respect to documents that they
were requesting from the court. I provided
Judge Champagne on June 3rd with the information from the Committee on Judicial
Performance. I also provided her with
the request for documents, and there were transcripts he was requesting. I actually have the handwritten letter from
the defendant if the court wants to see that.
But there is about 10 transcripts, 10 minute orders, and a variety of
motions that he filed, those are documents that he was requesting. Again, for the Committee on Judicial
Performance and his writ. [¶] The defendant also requested additional time
to run the writ. And I asked him how
much time he needed, he said, ‘as much time as possible.’ He agreed to put the matter over to July 25th
so he could run the writ. At that point
the defendant refused to talk to me about the case, refused to communicate any
further with me about the case. We
continued the case to July 25th.
[¶] As I indicated on July 25th,
I was ill and I did request to have another ICDA attorney stand in for me and
trail the case without a time waiver because I didn’t know what the defendant
wanted to do, if he wanted to give a time waiver or not, but trail it to this
date. And I spoke with the D.A. last
night, indicated that we would proceed on the 1538.5 this morning, and they
indicated that the officer should be present, I indicated yes, the officer
should be present, we would be prepared to proceed. I prepared for that motion, and I’m ready to
proceed on that this morning. [¶] I believe the problem in this case is not so
much—or not at all my representation of the defendant but rather the
defendant’s desire to represent himself and he’s using the Marsden issue as a means by which he can speak to the court because
he wants to represent himself. But he
certainly is not cooperating with my representation of him. So the issue is not my unwillingness to speak
to him, the issue is his unwillingness to speak to me.”

After
hearing further from defendant and Mr. Tiomkin, the trial court denied
defendant’s motion, stating, “[t]o the extent there are conflicts in the
statements of the defendant and his attorney made during this hearing, I find
counsel to be credible, and I do believe counsel regarding the defendant’s
refusal to speak with him other than that to make a few demand which the
attorney attempted to follow, that being requests for documents from the court
and other issues described by the defendant including finding >Pitchess witnesses, attempting to get a
stay, continuing the matter. [¶] And I disbelief [sic] the defendant for the following reasons: I do believe that the defendant has not fully
and completely integrated and spoken or fully and completely consulted with his
attorney in this matter because he refused to do so. At one point the defendant stated that he had
not totally and completely shut down on his attorney. That’s not really the standard as to whether
or not he’s willing to speak or continue to cooperate with him. The court finds that—the court believes the
attorney and disbelieves the defendant in that matter. It appears to the court that what the
defendant is doing and clearly what was essentially a very quick >Marsden request once he lost his pro
per. status is to reassert himself in pro per.
[¶] I do find that not only is
counsel credible but he does appear on top of all the issues, to the
court. He has done substantial work on
the case including some work that the defendant had requested he do as well as
proceed with this motion which the defendant would be prepared to proceed with
this motion including having a witness available to testify based upon a motion
that the defendant filed while he was pro per.
[¶] I also find it difficult—part
of my evaluation of credibility has to do with the defendant saying that the
attorney refused to speak with him, but then later say that he had spoken to
him and that he had gotten at least some status regarding the request for
documents. I do find that any
deterioration—although I’m not sure that that’s the word I think we probably
started out with here—in the relationship has been caused by the defendant’s
attitude, and there is no reason to believe the defendant cannot be represented
effectively by this attorney. [¶] Moreover, there is no reason to believe,
based upon my observation and the statements of the defendant that the defendant
would get along any better with any other attorney that I might appoint.”



b. Second Marsden Hearing

On August
15, 2011, two court days after defendant’s first Marsden hearing, defendant requested another Marsden hearing seeking to discharge his counsel, which the trial
court granted (second Marsden
hearing). At the Marsden hearing, defendant stated that Mr. Tiomkin failed to call a
witness that was necessary for defendant’s suppression hearing. According to defendant, the witness would
testify as to whether defendant consented to the search of his vehicle. Mr. Tiomkin stated that, “I indicated to
[defendant] that the issues were going to be dealt with here are issues
concerning whether this was a detention or a consensual encounter. Maybe that’s—he’s misunderstood the word
consensual encounter, [and] believe[s] it to mean consent [to search defendant’
vehicle]. There was no issue as to
consent. The D.A. never indicated to me that this—she was going to argue
anything about consent. I believe
[defendant] misunderstood that issue. [¶] I spoke with the witness at length. I spoke with the defendant last time we were
here concerning this witness. And
defendant actually agreed with me that he didn’t want to call that witness
because it wasn’t necessary. . . . [¶] And I’m
making a strategic decision not to call that witness.” The trial court denied defendant’s >Marsden motion, stating, “I don’t find
there’s been a breakdown in the relationship between the attorney and the
defendant at this time that would make it impossible for the attorney to
properly represent the defendant. I’m
finding, as I did before, any deterioration in the relationship at this stage
is that the defendant wish[es] to be pro per, and there is no reason why in the
future the defendant would not be adequately represented by this attorney.”



c. Third Marsden Hearing

On August 22, 2011, immediately
prior to the commencement of trial, defendant requested another >Marsden hearing, which the trial court
granted (third Marsden hearing). At the Marsden
hearing, defendant stated that Mr. Tiomkin failed to seek sanctions for the
destruction of a video tape from the police station, introduce at the
suppression hearing certain evidence, question the arresting officer at the suppression
hearing what he wore on the day of defendant’s arrest, and view the video
evidence concerning this case. Mr.
Tiomkin stated that defendant had refused to talk to him about the case and had
not cooperated with him in formulating a defense. Mr. Tiomkin also stated that he never had any
communication with defendant about seeking sanctions for destruction of
evidence, and that he had reviewed the file and discovery, spoken to
defendant’s investigator, and was ready to proceed with trial.

The trial court denied the motion,
stating that the introduction of evidence and calling witnesses to testify were
tactical matters. Defendant disagreed,
stating, “I believe the better tactic would have been to impeach this officer
with the video that pertains to what he was doing.”



d. Fourth Marsden Hearing

On September 26, 2011, following
defendant’s conviction, defendant requested another Marsden hearing, which the trial court granted (fourth >Marsden hearing). At the Marsden
hearing, defendant stated that a “couple of times [Mr. Tiomkin] promised or
assured me that he was going to provide to me a copy of CALCRIM 1926” and he
never provided it to me. The trial court
denied the Marsden motion stating,
“[T]hat . . . is not a basis for a Marsden. That . . . is
a courtesy by your attorney to furnish you that.”



>4. Analysis

Defendant’s
failed to establish that the trial court abused its discretion in denying his
motions made pursuant to People v.
Marsden, supra, 2 Cal.3d 118.
Defendant’s complaints in support of removing Mr. Tiomkin as his counsel
under Marsden included concerns
regarding matters of courtesy and tactical disagreements he had with Mr.
Tiomkin. Such matters do not indicate a
conflict that required Mr. Tiomkin be removed as defendant’s counsel. “‘Tactical disagreements between the
defendant and his attorney do not by themselves constitute an “href="http://www.fearnotlaw.com/">irreconcilable conflict.” “. . . [C]ounsel is ‘captain of the
ship’ and can make all but a few fundamental decisions for the defendant.” [Citation.]’
(People v. Welch, >supra, 20 Cal.4th at pp. 728-729 [85
Cal.Rptr.2d 203, 976 P.2d 754]; see People
v. Nakahara (2003) 30 Cal.4th 705, 719 [134 Cal.Rptr.2d 223, 68 P.3d
1190].)” (People v. Jackson (2009) 45 Cal.4th 662, 688; see >People v. Valdez, supra, 32 Cal.4th at p. 95; People
v. Lucky (1988) 45 Cal.3d 259, 281-282.)


In
addition, many of defendant’s complaints in support of his request under >People v. Marsden, supra, 2 Cal.3d 118,
to have Mr. Tiomkin removed as his counsel were contradicted by Mr.
Tiomkin. “‘To the extent there was a
credibility question between defendant and counsel at the hearing, the court
was “entitled to accept counsel’s explanation.”
[Citation.]’ [Citation.]” (People
v. Jones (2003) 29 Cal.4th 1229, 1245.)
The trial court could have reasonably concluded that it believed Mr.
Tiomkin and disbelieved defendant.
Indeed, the trial court expressly stated during the first >Marsden hearing that, “[t]o the extent
there are conflicts in the statements of the defendant and his attorney made
during the [sic] this hearing, I find
counsel to be credible” and “I disbelief [sic]
the defendant.” The trial court also
stated during the first Marsden
hearing, “what the defendant [was] doing [was] clearly [making] what was
essentially a very quick Marsden request
once he lost his pro per. status . . . to reassert himself in
[as] pro per.”

The trial
court, in its discretion, could discount the extent to which defendant
established during the Marsden hearings
that there allegedly was a breakdown in communication between him and Mr.
Tiomkin. For example, during the second >Marsden hearing, to the extent defendant
misunderstood Mr. Tiomkin’s use of the phrase “consensual encounter” in the
context of whether there was a detention to mean “consent to search defendant’s
vehicle,” there is no evidence that Mr. Tiomkin knew at the time he spoke to
defendant that defendant did not understand the distinction. In any event, this does not justify Mr.
Tiomkin’s removal as counsel for defendant.


Defendant
also contends that the fourth Marsden
hearing established that there was “a serious breakdown in communication
between himself and defense counsel [because] defense counsel did not give
[him] a copy of [a] proposed jury instruction[—CALCRIM 1926].” This is not “a serious breakdown in
communication,” nor does it justify Mr. Tiomkin being removed as counsel for
defendant.

The trial
court provided defendant with four opportunities to explain his dissatisfaction
with his counsel. Defendant did not,
however, establish that the trial court abused its discretion in not removing
Mr. Tiomkin as counsel under People v.
Marsden, supra, 2 Cal.3d 118.

Even if the
trial court erred in denying one or more of defendant’s Marsden motions, defendant failed to establish that he was
prejudiced under the Chapman
standard. (Chapman v. California, supra,
386 U.S. at p. 24; People v. Marsden,
supra, 2 Cal.3d at p. 126.) As the trial court noted during the first >Marsden hearing, counsel was “on top of
all the issues,” and “ha[d] done substantial work on the case including some
work that [defendant] requested he do.”
Indeed, defendant’s counsel was successful in obtaining an acquittal on
count one. Any error by the trial court
in denying defendant’s Marsden
motions was harmless beyond a reasonable doubt.



D. Marsden Hearings on Each of Defendant’s Multiple Requests

Defendant contends that the trial
court erred in denying his numerous requests for a Marsden hearing and violated his href="http://www.mcmillanlaw.com/">right to counsel. We disagree, but even if the trial court
erred, the error was harmless.



1. Background Facts

In addition to defendant’s four
requests for Marsden hearings that
were granted by the trial court, discussed above, defendant made several
requests for Marsden hearings for
which the trial court did not grant a hearing.


On August 12, 2011, defendant
requested Marsden hearing. The following exchange occurred: “[Defendant:]
Your Honor, I request a Marsden
hearing. [¶] [Trial court:]
You had a Marsden hearing
yesterday, sir. [¶] [Defendant:] Yes, I had a discussion with [Mr. Tiomkin]
yesterday and we discussed several things.
I have right now a declaration written by the witness in the case, Your
Honor, that [Tiomkin] told him yesterday about when he first found out that the
witness was here. [¶] [Trial court:] Sir, we went through this
yesterday. [¶] [Defendant:] No, Your Honor— [¶] [Trial
court:] The request for further >Marsden is denied at this point.”

On August 23, 2011, during
defendant’s cross-examination at trial of Officer Diviak, defendant objected in
open court to Mr. Tiomkin’s use of defendant’s photographs because Mr. Tiomkin
had not made copies of them and returned the originals to defendant. The trial court dismissed the jury, and the
following exchange occurred:
“[Defendant:] Your Honor, I asked
for a Marsden hearing.
[¶] [Trial court:] You
had a Marsden hearing
[yesterday]. [¶]
[Defendant:] Well, Your Honor,
when [Mr. Tiomkin] takes photographs from me and I have an agreement with him,
Your Honor, I’m not going to let this man strip me of my—this court has already
stripped me of my right to represent myself unjudiciously [sic], okay, and they’ve given it to an attorney and—Your Honor, let
me make my record. [¶]
They’ve given me an attorney. I’m
not irrational. Your Honor, this
officer, they make—I wanted the whole thing played. They selectively played that stuff.” The trial court told defendant that Mr. Tiomkin
may have chosen not to play the video in its entirety for tactical reasons, and
that the photographs will be returned to defendant after Mr. Tiomkin has made
copies of them.

On August 24, 2011, the trial court
asked Mr. Tiomkin whether defendant was going to testify, and Mr. Tiomkin
responded that “we have an issue.” At
that point, defendant requested another Marsden
hearing, and Mr. Tiomkin stated that defendant advised him that he wants to
call an officer back to testify that defendant was on parole, and that Mr.
Tiomkin explained to defendant that the officer could not testify to that
because he was not a parole officer. The
following exchange occurred, “[Defendant:]
Your Honor, I request a Marsden. This is an issue whereby the officer was
going to— [¶] [Trial
court:] Again, sir, you are bringing up
something where you are disagreeing with the tactics and strategy your attorney
has taken. [¶] [Defendant:]
I am an intense client, Your Honor.
And when you are on parole you give a fake I.D. to avoid being known or
being on parole. [¶] [Trial court:] You had a choice. He can’t get up there and testify.
[Defendant:] Your Honor, that’s not the
only— [¶] [Trial court:] The officer did not testify to
that. . . . It would be hearsay that you were on parole.” Defendant stated that the officer could be
cross-examined by Mr. Tiomkin because the arrest report contained defendant’s
fingerprints and the fingerprints would show that defendant was on parole at
the time of his arrest. The trial court
responded that, “The only one that would know [that] would be your parole
officer . . . .”

Defendant also stated that Mr. Tiomkin failed to watch a
video that was partially presented as evidence at trial. Mr. Tiomkin responded that he heard the audio
portion of the video but was unable to open the visual portion of it. The following exchange occurred between
defendant and the trial court: “[Defendant:]
Your Honor, before [the jury] come[s] in, I had said several times, Your
Honor, that [Mr. Tiomkin] did not want to introduce— [¶] [Trial court:] Again, sir—hold on. I’ve been very patient with you these past
days during this trial. Every time we
recess, every time before I bring the jury in you have something to say. [¶]
I’ve advised you. You are not pro
per in this case. You may disagree with
your attorney in terms of tactics and strategy.
You can appeal the ineffective[ness] of counsel [if you are
convicted]. [¶] I’m not going to entertain everything you
have to say each and every time. Understand,
every judge you’ve been in front of, you’ve done that. And I’m not going to tolerate it. I’ve been very patient with you.”

On August 25, 2011, defendant
requested another Marsden
hearing. The following exchange
occurred: “[Defendant:] Excuse me, Your Honor.
I’ve already indicated to the court I need a Marsden. [¶] [Trial court:] Okay.
You’ll have one after the trial is terminated . . .
[defendant]. . . . [¶] . . . [¶] You
appear to be bringing up [that] you disagree with the tactics that your
attorney has undertaken, you disagree that he should have done something or
didn’t do something, he’s failing to ask certain questions, fail to call
certain witnesses, failing to follow your advice and instructions about how
this case should be conducted. That’s
not the basis for a Marsden, so your >Marsden is
denied. . . . [¶] . . . [¶] [Defendant:] Ineffective representation is a conflict.
[¶] . . . [¶] [T]his is an ongoing
thing. [¶] . . . [¶] I need to be specific
about it. [¶] . . . [¶] I am charged
with a 472. He’s not made any moves to
communicate that I’m being prosecuted as if this is a
470(b). [¶] [Trial court:] All right sir. Noted for the record. [¶] [Defendant:]
I’m not charged with a driver’s license, I’m charged with possession of
a— [¶] [Trial court:]
Very good. You can bring that up
on appeal. We’re bringing the jury in.”

On August 26, 2011, before the trial
court read the jury instructions to the jury, defendant requested another >Marsden hearing. The following exchange occurred, “Your Honor,
I want to use the opportunity to request a Marsden,
that I know is going to be
denied . . . [¶] . . . [¶] May I get the Marsden hearing, Your Honor? [ ¶] [Trial
court:] Your Marsden hearing is based on the fact, and it has been for the past
four times that you’ve brought it lately, that you disagree with the tactics of
your attorney and the strategy that he’s
undertaken. [¶] . . . [¶] [Y]ou’re basically disagreeing with what he’s
doing. That is a disagreement of
strategy and tactics and does not lend itself to Marsden.”



>2. Analysis

We review
the denial of a request for a Marsden
hearing for abuse of discretion. (>People v. Chavez (1980) 26 Cal.3d 334,
347-348.) Although defendant contends
that the trial court’s failure to hold a
Marsden hearing is reversible per se, he is incorrect. In support of defendant’s contention, he
cites People v. Rivers (1993) 20
Cal.App.4th 1040, at page 1050, as stating, “It is true that it is routinely
held that any substantial impairment of the right to counsel is reversible per
se.” The court in Rivers, however, specifically stated, “We . . . do
not decide whether an erroneous refusal to consider a Marsden motion in the circumstances presented by this case would be
reviewable under the ‘harmless error’ standard.” (People
v. Rivers, supra, 20 Cal.App.4th
at p. 1051.) Plaintiff also cites >People v. Sanchez (2011) 53 Cal.4th 80,
89-90, and People v. Hill (1983) 148
Cal.App.3d 744, but they do not hold that a trial court’s failure to hold a >Marsden hearing is reversible per
se.

Our Supreme
Court stated in People v. Chavez, >supra, 26 Cal.3d 334, “[W]e conclude
that the trial court abused its discretion in denying the request for the
continued appointment of counsel without affording defendant an opportunity to
explain what circumstances, if any, might warrant such continued
appointment. [¶] Having decided that the court abused its
discretion in this regard, we must determine whether that error warrants
reversal of defendant’s conviction. For
a number of reasons we have concluded that, on the present record, the error
was not prejudicial. . . . [¶] . . .
[¶] Defendant maintains, however, that a ‘per se’ rule of reversible
error should be applied in this case, arguing that such a rule was adopted by
this court in Marsden and its
progeny. [Citations.] Defendant is in error in suggesting that >Marsden enunciated a per se reversible
error test; the decision makes clear that the court reversed the conviction in
that case because [although the trial court erred because defendant was denied
the opportunity to explain the basis for his request for the appointment of new
counsel] the court concluded that it could not find beyond a reasonable doubt
that the error did not contribute to the defendant’s conviction. [Citation.]”
(People v. Chavez, >supra, 26 Cal.3d at pp. 347-349.)

The trial
court did not abuse its discretion in denying defendant’s numerous requests for
Marsden hearings that were in
addition to defendant’s four requests for which Marsden hearings were held.
Based on the totality of the circumstances, the trial court could
reasonably conclude that defendant in making multiple requests for Marsden
hearings was engaged in gamesmanship for the purpose of delay or attempting to
otherwise disrupt and control the proceedings.
“‘[A]ny dispassionate reading of this record reflects that this
defendant was playing games with the court on this issue.’ [Citation.]”
(People v. Clark, >supra, 3 Cal.4th at p. 96.) “‘Trial courts are not required to engage in
game playing with cunning defendants who would present Hobson’s choices.’” (People
v. Clark, supra, 3 Cal.4th at p.
115, citing People v. Davis (1987)
189 Cal.App.3d 1177, 1187, overruled on other grounds as stated in >People v. Snow (1987) 44 Cal.3d 216,
225-226.)

On the occasions that defendant was
denied his requests for Marsden hearings,
he arguably was deprived of the ability to fully state the reasons that he
believed entitled him to new counsel. In
view of the trial court’s determinations of defendant’s failure to state
adequately his reasons for the appointment of new counsel during the four
occasions he was afforded a Marsden
hearing and of his failure to articulate the basis specified by >People v. Marsden, supra, 2 Cal.3d 118
and the related cases for the appointment of new counsel, the reasons defendant
provided the trial court for his other requests for Marsden hearings did not obligate the trial court to halt the
proceedings to hold the hearings.

Defendant’s
August 12, 2011, request for a Marsden
hearing was based on his contention that he had new evidence in the form of a
witness declaration providing “that [Mr. Tiomkin] told him yesterday about when
he first found out that the witness was here.”
Defendant contends that this “shows that defense counsel had not
investigated the case, and had not properly communicated with
[defendant].” These were matters,
however, that were the subject of the Marsden
hearing conducted the day before, on August 11, 2011. “[A] defendant is not entitled to keep repeating and renewing
complaints that the court has already heard.
[Citation.]” (>People v. Vera (2004) 122 Cal.App.4th
970, 980.)

Defendant’s August 23, 2011,
request for a Marsden hearing was
based on his complaint that Mr. Tiomkin used defendant’s original photographs
at trial and did not first make copies of them and return the originals to
defendant, and a video was not played in its entirety at the trial. Plaintiff’s complaints do not establish that
his constitutional right to the assistance of counsel was impaired
substantially. The trial court told
defendant that that the photographs will be returned to him after Mr. Tiomkin
has made copies of them. Mr. Tiomkin’s
choice not to play the video in its entirety was a tactical decision.

Defendant
contends that the trial court abused its discretion in denying defendant’s August 24, 2011, request for a >Marsden hearing because Mr. Tiomkin
failed to explain properly to defendant the limitations on Officer Diviak’s
ability to testify about matters relating to defendant’s parole status at the
time of his arrest. Mr. Tiomkin,
however, explained that defendant advised him that defendant wanted to call an
officer back to testify that defendant was on parole, and Mr. Tiomkin explained
to defendant that the officer could not testify as to that issue because he was
not a parole officer. The trial court
could reasonably conclude that Mr. Tiomkin, and not defendant, was credible.

Defendant’s August 25, 2011,
request for a Marsden hearing was
based on his complaint that he was charged with a violating section 472, but
Mr. Tiomkin had “not made any moves to communicate that I’m being prosecuted as
if [defendant violated section] 470(b).^{[href="#_ftn4" name="_ftnref4" title="">[4]]}” As the proceedings occurred before the trial
court, it undoubtedly knew whether there was merit to defendant’s claim that he
was being prosecuted as if he was charged with violating section 470,
subdivision (b) instead of section 472.
Defendant’s conviction for violating section 472 contradicts his claim,
and he does not challenge his conviction for not being supported by substantial
evidence.

On August 26, 2011, defendant
requested another Marsden hearing,
but did not state any basis for seeking to remove Mr. Tiomkin as his
counsel. The trial court denied
defendant’s request stating that his request in based on a disagreement he had
with Mr. Tiomkin’s strategy and tactics and that “does not lend itself to [the
granting of a] Marsden [motion].” Defendant did not state that he disagreed
with this characterization.

Moreover,
for the reasons stated above regarding the trial court’s denial of defendant’s >Marsden motions, even if the trial court
erred in denying defendant’s multiple requests for Marsden hearings, defendant has failed to establish that he was
prejudiced by that error. In addition,
defendant has made no showing here that any of his Marsden motions would have been granted had it been heard, or that
a more favorable result would have been achieved had any of the motions in fact
been granted. (People v. Washington (1994) 27 Cal.App.4th 940, 944.)

Based on
the applicable