P. v. Lockett
Filed 6/21/13 P. v. Lockett CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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IN THE COURT OF APPEAL OF THE STATE OF
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
LAMONT DEON LOCKETT,
Defendant and
Appellant.
F063515
(Super.
Ct. Nos. F10904121 &
F09906230)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court
of
County. Mark W.
Snauffer, Judge.
Jill M.
Klein, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Julie Hokans and Clara M.
Levers, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Before his trial for stealing a pickup truck and other
charges, Lamont Deon Lockett gave his attorney a handwritten declaration discussing
several topics. One topic was that
Lockett claimed he borrowed the truck from a man named James Fuller and had no
knowledge that it was stolen. Another
was that the attorney had failed to undertake any investigation of Fuller. Although the declaration did not state that
Lockett wanted a new lawyer, the attorney interpreted it as a request for
substitution of counsel. He therefore
informed the court that he was making a Marsden
motion on Lockett’s behalf. (
questioned Lockett and his attorney outside the prosecutor’s presence. Lockett did not tell the court he wanted a
new lawyer. The court said, “I don’t see
this as a Marsden,†and explained that the gist of both the declaration and
Lockett’s oral remarks was that he wanted to plead guilty to reduced charges,
an option not then available. The court
did not question Lockett or his attorney about the attorney’s investigation, or
lack of investigation, of a James Fuller, and no such witness was ever
produced. The trial proceeded and
Lockett was found guilty.
Lockett now
argues that the court failed in its duty under Marsden when it made no inquiry about the attorney’s investigation
of Fuller. We disagree. To trigger the trial court’s duty of inquiry
under Marsden, a defendant must make
some clear indication that he wants a new lawyer. Lockett never did this. It is true that Lockett’s counsel stated that
he was making a Marsden motion, which
by definition is a request for substitution of counsel. This case is unusual, however, in that the
trial court had before it a document written by the defendant that was the
basis of defense counsel’s belief that a Marsden
hearing was warranted. The court read
that document and saw that it did not ask for substitution of counsel; then it
asked Lockett for an oral account of what he wanted, and Lockett did not ask
for new counsel. Under these
circumstances, the court properly concluded that, in spite of defense counsel’s
interpretation of the declaration, no request for substitution of counsel was
genuinely before it and its duty of inquiry under Marsden was not triggered.
There was no error.
This appeal
includes a separate case in which Lockett pleaded guilty to resisting arrest
and possessing drugs. In that case, the
trial court imposed, but stayed execution of, three 1-year sentence
enhancements based on prior prison terms.
The parties agree that the proper procedure was to strike the
enhancements, not stay them. We will
order them stricken.
FACTUAL AND
PROCEDURAL HISTORIES
Case
No. F09906230 was the case involving resisting arrest and possessing
drugs.
2009, officers recognized Lockett, who was then on parole and
wanted for exhibiting a firearm and being a felon in possession of a
firearm. Lockett fled when the officers
told him to stop, continued running after being tased, struggled after being
tased again and pepper sprayed, and finally was handcuffed. On his person the officers found
methamphetamine, cocaine base, marijuana, and a glass pipe. The district attorney filed an information,
and on March 25, 2010,
Lockett pleaded guilty to four counts:
(1) possession of cocaine base, a felony (Health & Saf. Code,
§ 11350, subd. (a)); (2) possession of methamphetamine, a felony
(Health & Saf. Code, § 11377, subd. (a)); (3) possession of
marijuana, a misdemeanor (Health & Saf. Code, § 11357, subd. (b);
and (4) resisting arrest, a misdemeanor (Pen. Code, § 148, subd. (a)(1)). The plea included Lockett’s admission that he
had three prior prison terms within the meaning of Penal Code
section 667.5, subdivision (b).
Case
No. F10904121 involved the stolen truck.
At 11:45 a.m. on August 10, 2010, an undercover police officer in
an unmarked car spotted Joseph Mendoza’s blue Chevrolet pickup truck, which
Mendoza had reported stolen on August 5.
The officer followed the truck for several minutes, during which the
driver made abrupt turns and lane changes, and looked frequently in the
rear-view mirror, suggesting to the officer that the driver was trying to evade
surveillance. The officer put a flashing
light in his windshield to stop the truck and donned a police vest; as he
approached, Lockett got out and ran. The
officer apprehended him. In Lockett’s
pants pocket the officer found a bank debit card that had been lost by a
Jessica Almanza on July 4, 2010.
The steering column of the truck had been cracked open and the truck
could be started without an ignition key.
Lockett did not have an ignition key in his possession. He told the officer he had borrowed the truck
from a friend named Jeremy and suspected it might be stolen. He did not know Jeremy’s last name or
address. Lockett told the officer his
own address was apartment 6, 1484 North Cedar Avenue, which is located at the
intersection of Cedar Avenue and Home Avenue.
The officer had seen the truck parked at an apartment building at that
intersection the day before. Lockett told
the officer he found the debit card on the ground and had no intention of using
it fraudulently.
The
district attorney filed an information charging Lockett with four counts: (1) unlawfully taking or driving a
vehicle (Veh. Code, § 10851, subd. (a)); (2) receiving a stolen
vehicle (Pen. Code, § 496d, subd. (a)); (3) receiving a stolen
debit card (Pen. Code, § 496, subd. (a)); and (4) driving
without a license (Veh. Code, § 12500, subd. (a)). The information also alleged that Lockett had
served three prior prison terms within the meaning of Penal Code
section 667.5, subdivision (b).
Lockett
testified at trial. He said he borrowed
the truck from a person named James who lived on South Kirk, near his cousin’s
house. He borrowed the truck from James
at 10:00 a.m. on August 10, in exchange for $25 and a full tank of
gas. He borrowed it to help Celelia
Young, the mother of one of his children, move a couch from Madera to
Fresno. He thought James owned the
truck, even though it had a damaged steering column, it could be started
without a key, and James said he lost the key.
Lockett told the police officer that he borrowed the truck from James,
not Jeremy, and he never told the officer he suspected the truck was
stolen. He never said his home address
was 1484 North Cedar. He only told the
officer he “stay[ed]†at that address.
He was not there on August 9, when the officer saw the truck parked
there. He found the debit card in the
truck and planned to give it to James.
Later,
during his surrebuttal, Lockett admitted he had given 1484 North Cedar,
apartment 6, as his home address to his parole officer as well as to the
officer who arrested him on August 10 and to another officer on another
occasion, and that he was in fact at that location on August 9, 2010. He explained that he had been confused and
scared when he testified otherwise the day before.
Celelia
Young testified for the defense and said that around 8:00 a.m. on
August 10, Lockett was at her house and she asked him to borrow a truck so
he could help her move her couch.
Lockett left, and later, at about 10:00 a.m., he told her by phone that
he had paid a man $25 for the loan of a truck.
Lockett had just pulled up outside her house around 11:30 a.m. when he
was arrested.
The
prosecutor moved to dismiss count four, driving without a license, because she
was unable to bring an expert from the Department of Motor Vehicles to
testify. The court granted the
motion.
The jury
found Lockett guilty of count one, unlawfully taking or driving the truck, and
count two, receiving the stolen truck, but not guilty of count three, receiving
the stolen debit card. Lockett admitted
two prior prison term allegations and denied the third. The court found the third true after a bench
trial.
A single
sentencing hearing was held for both cases on January 6, 2011. In case No. F10904121, the court imposed
the three-year upper term for unlawfully taking or driving a vehicle and the
three-year upper term for receiving a stolen vehicle. Pursuant to Penal Code section 654, it
stayed the sentence for receiving a stolen vehicle. It then imposed three 1-year enhancements for
the three prior prison terms, for a total of six years. In case No. F09906230, the court imposed
the upper term of three years for possession of cocaine base and the upper term
of three years for possession of methamphetamine, both to run concurrently with
the sentence in case No. F10904121.
The court imposed the three 1-year enhancements for prior prison terms
and stayed them pursuant to Penal Code section 654. It gave Lockett credit for time served for
the two misdemeanors, marijuana possession, and resisting arrest.
DISCUSSION
I. Marsden
The
declaration that Lockett wrote and that his counsel submitted to the court is
reproduced below. It was captioned
“Declaration of Lamont Deon Lockett in Support of: (Oral Testimony).†It was written in all capital letters, which
have been omitted for the sake of readability.
“I,
Lamont Deon Lockett, [do] hereby declare:
“1). All of
the facts stated herein are within my personal knowledge, except those matters
based on information and belief, and as to those matters, I believe them to be
true. If called to testify as to the
truth of the matters stated herein [I could do so].
“2). Defendant
asserts and has asserted he did not steal a 1991 Chevy Silverado.
“3). Defendant
points to the HEAT [Help Eliminate Auto Theft team surveillance testimony of
Mr. Officer Wood. This undercover HEAT
team was unable to determine [who] actually stole said 1991 Silverado truck.
“4). Intermittent
surveillance over the course of two days produced ‘zero’ identification.
“5). Defendant
did provide information regarding where or whom he borrowed said 1991 Silverado
truck from. Defendant provided the
person[’]s identity and address to detectives.
‘James Fuller’ 2518 S. Kirk.
“6). This
provided information was never investigated by defendant[’]s counsel or,
investigators from Fresno Police Dept., ‘effectiv[e]ly’ denying defendant his
‘opportunity’ to show he in fact, ‘borrowed’ said 1991 Silverado truck from a
‘third party.’
“7). This
provided information was corroborated by witness (Lisa Green) during an
interview conducted on November 23, 2010.
Still nobody attempted to contact ‘James Fuller.’
“8). This
provided information was also corroborated by witness (Celelia Young) and she
also ‘specific[al]ly’ mentioned the first name of James. To date ‘zero’ investigation has been
conducted by the defense or prosecution regarding this testimony of facts.
“9). Defendant
also asserts he was not involved in the ‘purse snatch’ allegations concerning a
stolen credit card belonging to Jessica Almanza.
“10). Defendant
asserts he was incarcerated on July 4, 2010 [when Almanza’s debit card was
taken] and this alleged offense was in fact committed by an unknown person and
documentary evidence obtained from Fresno County Jail records [is] factual
material evidence showing defendant was in fact detained from, ‘7-1-10
[until] 7-6-10.’
“11). Defendant
does admit[] that he found said ‘credit card’ of Jessica Almanza.
“12). Defendant
humbly asks this court to consider offering a ‘plea’ to a lesser charge
concerning the stolen vehicle. Defendant
did in fact drive this vehicle[;] however, he was not aware it was stolen. Defendant contends it’s not his int[e]rest to
go to trial and, in the int[e]rest of the People and judicial economy it would
serve all parties best if a trial can be avoided and a plea to a lesser charge
be reached.
“13). Defendant
is willing to accept responsibility [if] a lesser charge can be obtained.
“I
declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct.â€
On the
morning when the trial was to begin, before the jury was brought in, defense
counsel gave this declaration to the court and said, “I interpret that
[document] to mean a request for a Marsden hearing, and I thereby request that
on his behalf at this point in time.â€
The court took the declaration, asked the prosecutor to leave the
courtroom, and read the declaration. The
court then proceeded to inquire about Lockett’s request to plead guilty to
lesser charges. The court and defense
counsel discussed the fact that Lockett had earlier rejected an indicated
sentence of 28 months, consisting of the lower term of 16 months for one of the
counts plus one year for one of the prior prison term enhancements. The court concluded that there was nothing
further to be said on this topic, since Lockett had already declined the
earlier proposal and a better one was not forthcoming: “So he can’t really, you can’t really go
lower than that.… My understanding is,
he rejected that, so we’re here now.â€
The court
then questioned Lockett: “Now, Mr.
Lockett, let me just ask you, what’s your issue here?†Lockett replied:
“My issue is, sir, I was, basically I was trying to,
basically if, with this case, run it concurrent with my other case, basically
to meet in between as far as with the time frame, because the case basically, I
don’t really want to basically take it to trial, but we’re looking for
basically the plea. Because of the
nature of the case, it was, it’s a lot of he said/she said, and I know I
actually got caught inside the truck, you know, but for me not knowing that the
truck was stolen, and I have to pay the consequences by my record, and by my
past, and I don’t want to lose going all the way to trial because I have
kids. I have a newborn daughter that I
want to get home to fast as possible. So
I want to resolve it and mediate a term so that we, I can make it.â€
With
further discussion, the court confirmed that another judge had given an
indicated sentence of 28 months, that this was less time than the prosecution
had been willing to offer, and that Lockett had rejected it. The court said, “I don’t see this as a
Marsden, I see this as a, it’s an effort to try to resolve it,†an effort that
was fruitless under the circumstances.
Despite the
court’s view that the proceedings were not really a Marsden hearing, Lockett’s counsel volunteered some comments in
defense of his investigation. He
interviewed Celelia Young and she would be testifying. He interviewed Lisa Green and concluded that
she gained all her knowledge of the facts from Lockett himself, and any
testimony by her would be inadmissible hearsay.
He also spoke to Lockett’s parole officer in the hope that the parole
officer would be able to show by GPS records that Lockett could not have stolen
the truck on the night of August 4 or the morning of August 5. Counsel learned, however, that Lockett’s GPS
monitoring had not begun until the afternoon of August 5. Lockett thought the parole officer was lying
and had asked his counsel to obtain the GPS records and review them himself,
and counsel had decided not to do that.
Defense counsel did not mention any effort to find a James Fuller, the
person from whom Lockett claimed he borrowed the truck.
The court
next asked Lockett if he had anything to add.
Lockett said no.
After
saying “I don’t know if this is a Marsden hearing officially or not,†the court
said it believed, from what it had heard, that counsel’s investigation was
adequate. It also said, “we have gone
over the offers that were previously made in the courts below, I have indicated
that I am not inclined to make any further offers on my own motion at this
juncture, seeing how this is the time and place set for trial.†“Obviously, I would accept a plea to the
sheet,†the court continued—that is, a plea of guilty as charged—and then
Lockett could “take his chances on sentencing.â€
Defense counsel said this “would be a good idea†in “this particular
court,†but Lockett did not choose to do it.
Lockett’s
argument now is that his counsel’s request for a Marsden hearing required the court to hold one. The requirement to hold a hearing included an
obligation to make inquiry about the reasons for the request for new counsel,
which in this case included the alleged failure to investigate James Fuller—a
particularly important failure, Lockett says, because his sole defense was that
he borrowed the truck from Fuller without knowledge that it was stolen. He says the judgment should be reversed
because the court did not make that inquiry.
A trial
court is required to hold a Marsden
hearing only when there is “‘at least some clear indication by defendant that
he wants a substitute attorney.’
[Citations.] ‘The mere fact that
there appears to be a difference of opinion between a defendant and his
attorney over trial tactics does not place a court under a duty to hold a
(People v. Valdez (2004) 32
Cal.4th 73, 97.) Once the requirement to
hold a hearing is triggered, then if the “defendant complains about the
adequacy of appointed counsel,†the trial court has a duty to “permit [him] to
articulate his causes of dissatisfaction and, if any of them suggest
ineffective assistance, to conduct an inquiry sufficient to ascertain whether
counsel is in fact rendering effective assistance.†(People
v. Eastman (2007) 146 Cal.App.4th 688, 695.) The defendant is entitled to substitution of
counsel if he shows inadequate representation or an irreparable breakdown in
the attorney-client relationship. (
696.) We review the court’s decision not
to relieve appointed counsel for abuse of discretion. (Ibid.)
Lockett did
not make any clear indication to the trial court that he wanted a substitute
attorney. His declaration included
complaints about his counsel’s investigation, but it did not say that Lockett
wanted a new attorney because of an inadequate investigation. Instead, it said Lockett wanted to reach a
plea agreement and avoid trial. When the
court questioned Lockett, Lockett did not say he wanted a new lawyer because of
inadequacies in his counsel’s investigation or for any other reason. He said he wanted to negotiate a plea
deal. In our view, the court did not
abuse its discretion when it concluded that Lockett was asking to reopen plea
negotiations, not to replace his lawyer.
As a result, the court’s duty to hold a Marsden hearing and make an inquiry about Lockett’s dissatisfaction
with his counsel was not triggered.
Because this requirement was not triggered, we need not decide whether,
if it had been triggered, the court would have been obligated to inquire
about—and determine the adequacy of—counsel’s investigation of Fuller.
Our Supreme
Court recently has made it clear that this court has, on some occasions, erred
by demanding too little of defendants who claim on appeal that they were
entitled to a Marsden hearing. It stated that, in several cases, we
“incorrectly implied†that a Marsden
hearing can be triggered by “something less than a clear indication†that a
defendant wants new counsel. (
90, fn. 3.) We believe we would be
making that error again if we held that a Marsden
hearing was triggered in this case.
Lockett
argues that it is enough that his counsel expressly made a Marsden motion, since making a Marsden
motion is the same as asking for substitution of counsel and a defendant can
act through counsel. Ordinarily, this
would be correct. (People v. Sanchez, supra, 53 Cal.4th at p. 84 [
clear indication by defendant “either personally or through counsel†that
defendant wants new lawyer].) We are not
aware of any previous case in which defense counsel’s express request for a
trigger the hearing. If, at the time the
court concluded it did not “see this as a Marsden,†it was aware only of
counsel’s request for a hearing, we likely would have to remand for that
hearing.
As it is,
however, the trial court had before it everything necessary to enable it to
determine for itself whether Lockett was really asking for a new attorney. Lockett’s counsel said his request for a
hearing was based on his interpretation of Lockett’s declaration. The court reviewed that declaration and asked
Lockett to explain himself orally.
Neither the declaration nor Lockett’s statements in court included a
direct or indirect request for a new lawyer.
Under these particular circumstances, the court could properly determine
that counsel’s interpretation was mistaken and that Lockett was not requesting
substitution of counsel.
II. Striking prior prison
term enhancements
The parties
agree that the trial court could not properly apply Penal Code section 654
to stay the prior prison term enhancements in case No. F09906230, and that
it was required to strike them instead if its intention was that Lockett not
serve the extra time. “Once the prior
prison term is found true within the meaning of section 667.5(b), the
trial court may not stay the one-year enhancement, which is mandatory unless
stricken.†(People v. Langston (2004) 33 Cal.4th 1237, 1241.) The parties also agree that, by attempting to
stay those enhancements—which were based on the same prison terms as the three
1-year enhancements the court imposed without a stay in the other case—and by
stating that Lockett would be serving a “six-year term encompassing both
cases,†the trial court manifested its intention that Lockett not serve the
three additional years, which would have made a total of nine. We agree.
We have authority to correct the unauthorized sentence by striking the
enhancements in accordance with the trial court’s manifest intention (
1550, 1562) and will do so.
DISPOSITION
The
judgment is modified to strike the prior prison term enhancements in case
No. F09906230. The trial court is
directed to correct the abstract of judgment to reflect this modification and
to forward the corrected abstract to the appropriate correctional
authorities. The judgment is affirmed as
modified.
name="_ftn1" title=""> *Before
Wiseman, Acting P.J., Levy, J., and Kane, J.
name="_ftn2" title=""> [1]The facts of this case are taken from the
transcript of the preliminary hearing.
